Richharam and Others vs Pasupati Banerji and Others

Ross, J.—This is an appeal against an order by the learned District Judge of Cuttack affirming the order of the Munsif dismissing an application u/s 47, Civil P.C. It appears that there was a mortgage decree passed on 22nd August 1921 and that the first petition in execution was filed on 20th March 1925. The learned Munsif in directing the issue of notices under Order 21, Rule 22, required that special mention of the question of limitation should be made. The service was defective and substituted service was allowed and the decree-holders were ordered to take further steps but they did not do so, and the execution was dismissed. There was a later execution and the property was sold. After the sale the judgment-debtor made this application u/s 47, contending that the execution was barred by time. It was held by both the Courts below that as this objection was not taken in the first execution case, it was res judicata on the principle of Mungul Pershad Dikshit v. Girija Kant Lahiri [1884] 8 Cal. 51.

In my opinion the decision of the Courts below is wrong. The learned advocate for the appellant has referred to the decision in Khosal Chandra v. Ukiladdi [1910] 14 C.W.N. 114, where the facts were exactly similar to the facts of the present case and their Lordships observed that

nothing was done beyond the issue of notices u/s 248 (O. 21, Rule 22), 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 dacree-holders. There was no adjudication by the Court directly or indirectly that the decree-holders were entitled to proceed with execution.

On behalf of the respondents it is sought to distinguish this decision from the present case on the ground that, on 28th April 1925, the learned Munsif passed the order:

To 29-4-25 for staps by D.H. R

and the learned advocate contends that this amounts to an adjudication and that the execution was not barred by time. In my opinion, no such conclusion can be drawn and to draw such a conclusion would be to open the door to fraud, because in this case the decree-holders took no steps at all. It would be easy for the decree holders to obtain a fictitious service and drop the proceedings and then, in a later proceeding, to urge that the matter was res judicata. The case in this Court upon which reliance is placed on behalf of the respondents is a totally different case: Jago Mahton v. Khirodhar Ram AIR 1924 Pat. 122. There the judgment-debtor had appeared and had filed an objection contending that the execution was barred by limitation and, on the date fixed for the hearing of this objection, he failed to appear and so the matter went by default. That obviously was res judicata but here nothing was done at all except to order the issue of notice under Order 21, Rule 22, and the Calcutta decision to which I have referred is a clear authority that is not enough. In my opinion the judgment-debtor was entitled to raise the question of limitation and to have it decided.

I would, therefore, allow the appeal, set aside the judgments of the Courts below and remand the case to the Court of first instance to decide the objection according to law. Costs will abide the result.

Das, J.

I agree.