S N SUBRAMANIAN CHETTIAR Vs. RAMANATHAN CHETTIAR

JUDGEMENT

(1.) This appeal arises out of an application filed by the plaintiff decree-holder in O.S. No. 31 of 1919 on the file of the Court of the Subordinate Judge of Cuddalore for bringing on record one Ramaswamy Chetty as the legal representative of the deceased 4th. defendant and also for transmission of the decree to the Sub-Court, Devakottah, for execution under Section 39 of the Civil P. C.. As required under Rule 138, Clause (1) of the Civil Rules of Practice, the application stated the particulars set out in Clause (a) to (i) of Order XXI, Rule 11 of the Civil P. C. and the circumstances relied on by the petitioner justifying the transmission of the decree; and notice of this application was sent under Rule 138 Clause (3) to the defendants. The 1 defendant, the appellant before us, did not offer any objection to the legal representative being brought on the record. He did not object to the transfer of the decree also, but he contended that the decree was not executable for various reasons and that these objections should be decided before the transfer was ordered. The learned Judge brought the legal representatives on the record and ordered the transfer of the decree to the Devakottah Sub-Court as prayed for, holding that the objections which the 1 defendant has raised as to the executability may, if so advised, be advanced in the Executing Court.

(2.) In this appeal, the 1 defendant argues that the decree is inexecutable and is barred by limitation and that the Subordinate Judge was bound in law to dispose of these objections before ordering the transfer. The respondent contends that the proper Court to deal with these objections is the Executing Court and that the order of the Subordinate Judge is only a ministerial order against, which no appeal lies. He relies mainly on the decision in Chutterput Singh V/s. Sait Sumari Mal 36 Ind, Cas. 602 : 43 C. 903 : 23 C.L.J. 645 : 20 C.W.N. 889 which is referred to with approval in Banku Behary Chatterji V/s. Naraindas Dutt .

(3.) The question whether the objections as regards the executability of the decree should be decided by the Court which transfers the decree or the Court to which it is transferred for execution was considered and decided by this Court in Kallepalli Rajilagiripathy V/s. Kallapalli Bhavani Sankaran 80 Ind. Cas. 103 : 47 M. 641 : 19 L.W. 650 : 47 M.L.J. 4 : (1924) M.W.N. 527; A.I.R. 1924 Mad. 673 in favour of the view advanced on behalf of the appellant, In that case the learned Judges accepted the argument that if the debtor had an opportunity of appearing and pleading that the application was barred by limitation and failed to do so, Section 11 Explanation IV of the Civil P. C. will be applicable and that the question would be res judicata because it was one which might and ought to have been put forward to show that the decree was not one that was executable. After referring to the leading cases Mungal Pershad Dichit V/s. Grija Kant Lahiri 8 C.51 : 11 C L.R. 113 : 8 I.A, 123 : 4 Sar. P.C.J. 249 (P.C.) and Rajah of Ramnad V/s. Velusami Tevar 59 Ind. Cas. 880 : 40 M.L.J. 197 : 19 A.L.J. 168 : 18 L W. 290 : (1921) M.W.N. 51 : 33 C.L.J. 218 : 25 C.W.N. 581 : 23 Bom. L.R. 701; A.I.R, 1921 P.C. 23 : 48 I.A. 45 (P.C.) as regards the application of the principle of constructive res judicata in execution proceedings, the learned Judges stated their conclusion thus: "It would appear from this that, even in an application for transfer of a decree it is open to the judgment-debtor to plead limitation and in fact he ought to do so. If the decree is barred by limitation, the transfer of it to another Court is a mere infructuous proceeding which ought not to be taken and, therefore, if a valid plea of limitation is available it should be urged in order to prevent multiplicity of proceedings."