Srirama Raghvachariar vs Narasama Naidu and Others

The circumstances in which this Civil Miscellaneous Second Appeal arises are briefly as follows: The respondent sued the appellant upon a

simple mortgage and the parties compromised, embodying the terms in a decree dated the 3rd March, 1911. After this, a final decree was passed

on 25th September, 1914, and there were three successive execution petitions, in 16, 17 and 20 respectively. The fourth execution petition, that

with which we are concerned, was filed on 21st June, 1923, asking for the sale of the hypothecated property. An order for sale was accordingly

passed by the District Munsif on 15th December, 1928, fixing the sale on 5th February, 1924. Shortly before that day arrived, the appellant (1st

defendant) filed a petition u/s 47, CPC asking the Court to re-consider its order for sale. This petition was dismissed by the District Munsif and an

appeal to the Subordinate Judge was equally unsuccessful. Against the latter order this appeal has been filed.

The substantial question which the appellant now raises is one of limitation being shortly that the compromise decree was in effect a combined

preliminary and final decree and was executable, so that time should run from that decree and not from the so-called final decree; and if that be so,

this execution petition is beyond the 12 years. We have heard much argument upon this point, but we think that the appeal may be disposed of

upon the short ground that the petition to which it relates did not lie because it was barred by res judicata. We have said that there was an order

for sale on the 15th December, 1923, and it was an order after notice and was appealable. It was open on that occasion to the present appellant

to have raised his plea of limitation and he omitted to do so. It is impossible to assent to the argument that that was not an occasion where such a

plea could have been raised and it appears to us that the matter is concluded on the authority of the Privy Council judgment in Mungul Pershad

Dechit v. Grija Kant Lahiri 8 C. 51 : 8 I.A. 123 : 11 C.L.R. 113 : 4 Sar.P.C. 249 which has been followed already by this Court in similar

circumstances in Palancheri Govinda Menon Vs. Pookote Kunhi Krishna Mannadiar and Another, . In the latter case it was held that an order

directing the sale of some of the mortgaged items in execution of a decree for redemption involved a decision in favour of the executability of the

decree as it stood, and that the mortgagee who was served with notice of the mortgagors application for sale of those items and who omitted to

raise the objection that it was not executable because there was no final decree in the case, was barred by res judicata from raising it subsequently.

We are in agreement with this decision, based as it is upon the Privy Council ruling, and must accordingly hold that the petition in second appeal

was barred by res judicata.

Another aspect of the matter is that the application was in the nature of a petition to review the order of sale and that a refusal to grant the

review would not be appealable. In these circumstances there is no need to proceed with the other question;--as to the nature of the compromise

decree--we dismiss the appeal with costs.