Bisheswar Dayal vs Rup Kishore Lal

Jwala Prasad, J.—This appeal arises out of an order dated 25th August 1916, disposing of an objection by the judgment-debtors u/s 47 of the CPC to the execution of a decree. The decree is dated 30th June 1909 in respect of a sum of about Rs. 389-10-6 against three judgment-debtors, Munshi Bisheswar Dayal, Jai Prakash Lal and Harbans Lal. Harbans Lal is dead and his sons are now on the record as judgment-debtors.

Mohan Koer, the decree-holder, is also dead. The present execution is by Rup Keshwar Lal, the adopted son of the original decree-holder, Musammat Mohan Koer. The decree was first executed on 11th May 1910 against the three original judgment-debtors. Bisheshar Dayal, one of the judgment-debtors, contended in that execution that he was liable, only for one-third of the decretal amount.

The decree-holder appears to have verbally agreed to the terms set forth in the following order of the Court, dated August the 31st, 1910:--

The judgment-debtors are two brothers and their nephew and under the decree all the three are jointly liable. Now one brother contends that only one-third should be realised from him by the decree-holder? The decree holder''s Pleader states that if the objector pays one-third at once, the decree-holder will make an attempt to realise the balance from the other judgment-debtors before realising the balance from the objector. This will be a fair arrangement. Let the objector deposit the one-third by September the 7th.

Accordingly the judgment-debtor, Bisheswar Dayal, deposited one-third of the decretal amount in Court, which was withdrawn on 1st August 1910 by the decree-holder. The execution then proceeded against the other judgment-debtor, Munshi Jai Prakash Lal, for the balance. The last step in this execution was taken on March the 10th, 1911, on which date the decree-holder filed a deficit Court-fee of Rs. 4. The Court ordered the issue of warrant which came back unserved. This execution was ultimately dismissed for default of the decree-holder on 1st April 1911.

On 28th March 1914 the decree-holder took out another execution of the decree which was numbered No. 7 of 1914. This execution was barred by limitation as having been more than 3 years from the last step taken in the first execution.

This execution was, however, registered and notice under Order XXI, rule 22, was ordered to be issued fixing 18th April 1914. On 18th April 1914, the Court passed the following order:--

Notice under Order XXI, rule 22, duly filled in Bled, Issue fixing the 18th April 1914." On 18th April 1914 the order was -- "Notice served. Affidavit filed. Decree-holder to take further steps by 25th April 1914.

The judgment-debtors did not appear and no objection to the execution of the decree was made by them.

On 25th April 1914, the decree-holder took no step and the case was put up on 1st May 1914 when it was dismissed for default.

The present execution was filed on the 15th April 1916. This execution was within 3 years from the last execution. Notice was issued upon the judgment-debtor fixing 6th May 1916. On 6th May 1916 Bisheswar Dayal filed an objection u/s 47 of the Code of Civil Procedure. In the objection petition eight grounds were taken. The main contention of the judgment-debtor was that the decree-holder was not entitled to execute the decree against him, as he was exonerated by the decree-holder in the first execution on 31st August 1910 on his (judgment debtor Bisheswar Dayal) paying his one-third share of the judgment-debt. On 13th June 1916 the objection of the judgment-debtor was overruled. In ground No. 6 of the objection petition it was stated that the decree was barred by limitation. This ground apparently was not pressed by the judgment-debtor and there is no mention of it in the order of the 13th June 1916. The execution proceeded. The property of judgment-debtor was attached. On 22nd July 1916 an objection petition was filed by the judgment-debtor as to the valuation put in by the decree-holder. On 29th July this objection petition was heard and a commission was ordered to be issued to determine the value of the property on payment of oust of Rs. 16 by judgment debtor. The cost was, however, not paid and on the 4th August 1916 the Court ordered sale proclamation to issue fixing the 30th October 1916. On 14th August 1916 the judgment-debtor filed another objection to the execution of the decree. In this petition the main objection taken was that the execution of the decree was barred by limitation. It was also alleged in this petition that the farther executions of the decree were against the other judgment-debtors and that be (Bisheswar Dayal) had no knowledge of the facts relating to limitation at the time when his former objection petition was disposed of by the Court on 13th June 1916 and hence the plea of limitation was not pressed by him. The objection of the judgment-debtor was disposed of by the Court on 25th August 1916. The Court declined to entertain the objection as to the execution being barred, on the ground that the objection was taken in the petition of 6th May 1916 but was not pressed by the judgment-debtor when the order of the Court was passed on 13th June 1916 and that, therefore, it was not open to the judgment-debtor to raise the same objection again. Against this order the judgment-debtor has preferred the present appeal to this Court.

It is not disputed that the second execution of the decree, case No. 7 of 1914, was barred as the application for the execution was filed on the 28th March 1914, whereas the last step taken by the decree-holder in the first execution was on the 10th of March 1911. The judgment-debtor did not take any objection to the second execution. It is, however, stated by the judgment-debtor that in the execution case No. 7 of 1914 notice mentioned in the order of 1st April 1914 was not served upon him and that he had no knowledge or information of that execution.

In face of the order of the Court on the 18th April 1914 that the notice was served, we do not think we can go behind that cider of the Court, and hold that the notice was not served upon the judgment-debtor. In fact, no attempt appears to have been made by the judgment-debtor in the Court below to show that the notice was not served. The order of the Court on the 18th April is in the following words " Decree-holder to take further steps by 25th April 1914," amounts to an order directing the decree-holder to proceed with the execution and thus holding that the execution was not barred. The order of the Court of the 18th April 1914 for the decree-holder to take further steps is final between the parties. The order of the 13th June is an order u/s 47 of the CPC and amounts to a decree. It is an appealable order, but no appeal was preferred against this order and the judgment-debtor allowed it to become final. Three months later on the 14th August 1916, the judgment-debtor repeated the objection as to limitation taken in the earlier stage of the last execution.

According to the authority of the Privy Council the judgment-debtor cannot be allowed to re-open in a subsequent execution the question that the execution is barred, when the same objection was either disallowed or taken but not pressed in a previous execution.

Following the principle laid down by Sir Lawrence Jenkins in Maharajah Sir Rameshwar Singh Bahadur Vs. Rateshwar Singh alias Rahim Ramanji and Others, , it would appear that the District Judge Mr. Rowland had no jurisdiction to set aside the order of his predecessor passed on the 13th June allowing the decree to proceed.

The Punjab Court has distinguished the Privy Council ruling in (1881) L.R. 8 I.A. 123 (Privy Council) , on the ground that there would be no bar to the objection of the decree-holder being entertained at a later stage of the same execution proceeding though it may be so in another subsequent execution of the decree. It is, no doubt, true that in all the cases that have been brought to our notice the judgment-debtor was not allowed to take objection in a subsequent execution of the decree and that there is no case in which it has been held that he cannot be allowed to repeat the objection in the later stage of the same execution proceedings, when his objection Was dis-allowed or not pressed in the earlier stage of the execution. The ruling reported as (1881) L.R. 8 I.A. 123 (Privy Council) , no doubt, lends support to the contention of the appellant that an Appellate Court on an appeal from a final order in the same proceeding can set aside the intermediate orders disposing of the objection of the judgment-debtor as to the execution being time-barred, although interlocutory orders were not appealed from.

Be that as it may, there is, however, an unanimity of opinion that the order of a Court directing execution of a barred decree to proceed after due notice to the judgment-debtor precludes the judgment-debtor from repeating his objection in a subsequent execution of the decree. In this view the order of the Subordinate Judge in the 2nd execution, dated 18th April 1914, directing the execution to proceed precludes the judgment-debtor from objecting to the decree having been barred by the 3rd execution of the decree, even it was open for him to repeat, the objection at a later stage of the 3rd execution when he did not press the objection at an earlier stage.

The contention of the judgment debtor must fail. The appeal is dismissed with costs.

Atkinson, J.

I concur in the judgment of this Court delivered by my learned colleague.