KHOSAL CHANDRA ROY CHOWDHURY Vs. UKILADDI

JUDGEMENT

(1.) The substantial question of law which calls for decision in this appeal is whether an application made on the 20 December 1907 for execution of a decree obtained by the appellants on the 28 November 18899 is barred by limitation. The Court of first instance held that the application was not barred because successive applications for execution had been made within three years from the date when an application had been made to the proper Court to take a step-in-aid of execution of the decree. The District Judge on appeal has held that as a previous application for execution had been refused on the ground that it was barred by limitation, no sub-sequent application could be entertained. The first application for execution was made on the 6 July 1901 and process fees were paid on the 26 July following. The application, however, was not presented and was subsequently dismissed. On the 25 July 1904 a second application for execution was filed. On this the Court recorded the following order on the 1 August 1904 the pleader to show why tin's application should not be rejected as time-barred by limitation." On the 9 August following the Court rejected the application for execution by the following order, the pleader cannot state how it is not time- barred. On the face of it, it is time-barred and is rejected." No appeal was preferred against this order. But on the 28 January 1905 a, third application for execution was filed. Notices were served on the judgment-debtors; the application was, however, dismissed for default on the 28 March 1905. On the 20 December 1907, the decree-holder filed fourth application for execution and commenced the proceedings which have culminated in this appeal.

(2.) On behalf of the appellants, the order of the Court below has been assailed substantially on two grounds, namely, first, that as notices were issued on the application of the 28th January 1905 and no objection to execution was taken on . behalf of the judgment-debtors, it is not open to them in the present proceedings to plead that a previous application for execution was barred by limitation; and secondly, that the order of the 9 August 1904 was not an adjudication upon the question of limitation and it is still open to the decree-holders to show that execution has at no stage been barred by limitation. In our opinion each of these contentions is unsustainable and must be overruled.

(3.) As regards the first ground taken on behalf of the appellants reliance has been placed upon the decision of the Judicial Committee in Mungul Pershad Die-hit V/s. Grija Kant, Lahiri 8 I. A. 123 : 8 C. 51 : 11 C.L.R. 113. That case is an authority for the proposition that although a decree may really be barred at the date of some order made for its execution, such order though erroneously made is, unless set aside in duo course of law, final and binding upon, the parties in all subsequent stages of the proceedings. This principle has obviously no application to the circumstances under which the order of the 28 March 1905 was made. It is clear that no order for execution was made in the course of the proceedings taken on the basis of the second application for execution, Nothing was done beyond the issue of notices under Section 248 of the Civil P. C. requiring the judgment-debtors to show cause why the decree should not be executed against them. After service of notices the execution proceedings were dismissed for default of the decree-holders. There, was no adjudication by the Court directly or indirectly that the decree-holders were entitled to proceed with execution. The present case is in our opinion, governed by the principle laid down by this Court in Bholanath Dass V/s. Profulla Nath Kundu Chowdhry 28 C. 122 and Hira Lal Bose V/s. Dwija Charan Bose 3 C.L.J. 240 : 10 C.W.N. 209. These cases affirm the doctrine that where the question, whether execution of the decree is barred by limitation, is not decided because the parties do not appear, there is obviously no bar to the adjudication of the objection when, actually raised at a later stage of the proceedings. It is manifest that here the question of limitation cannot be said to have been decided even, by implication when the third application for execution was dismissed for default on the 28 March 1905. The mere issue of a notice under Section 248, C.P.C., not followed by any order for execution or by any act of the Court such as attachment of property in furtherance of execution, cannot be construed as an adjudication by the Court that the application is not barred by limitation and is maintainable under the law. Some reliance was placed by the learned vakil for the appellants upon the cases of Dkonkal Singh v. Phakkar Singh 15 A. 84 and Tileshar Rai V/s. Parbati 15 A. 198. But the principles deducible from these cases do not in any way support his contention. The first case merely shows that the issue of a notice under Section 248 gives a fresh starting point for limitation "whether such notice is issued on a valid or on an invalid application for execution. The second decision shows that when there has been no judicial determination of the question, whether an application for execution is barred by limitation, it is competent to the Court to entertain and allow the objection at a subsequent stage. We must consequently hold that the order of the 28 March 1905 does not in any way affect the decision of the question of limitation raised in the present proceedings. The first ground taken on. behalf of appellants cannot, therefore, be sustained.