Varughese vs Krishna Iyer

Joseph, J.—The question arising for decision in this second appeal is whether execution of the decree is barred by limitation. The execution court held that it was barred but the lower appellate court reversed the decision holding that the judgment-debtors had waived the plea of limitation. The first defendant has therefore preferred this second appeal. The decree which is an unregistered one was passed on 6-6-1954. The first execution petition filed on 25-7-1955 was dismissed by a judicial order on 14-2-1956. The next execution petition was filed on 31-1-1957 and this was similarly dismissed on 20-6-1957. The third execution petition was filed only on 27-3-1961 i.e., beyond three years from 20-6-1957. On 28-3-1961 the court ordered ''notice of limitation returnable on 8-8-61''. Pursuant to this order notice was issued to the judgment-debtors who did not file any objection. Thereupon the court ordered notice to the judgment-debtors under rule 22, Order XXI, Code of Civil Procedure. On receipt of the notice the first defendant filed objections on 16-8-1961, contending that execution was barred by limitation. The decree-holder filed a reply on 3-10-1961 stating that the execution petition was in time, as execution was stayed under Acts III of 1956 and XXXI of 1958 for periods of six months under each Act. The execution court held that the second execution petition having been filed after the commencement of Act III of 1956 the decree-holder was not entitled to exclude the period of six months under that Act and that, even if the period of six months under the latter Act was excluded, execution was barred.

The decree holder filed an appeal and he relied on a new ground, viz., that the judgment-debtors had failed to object to execution on receipt of the notice ordered on 28-3-61. This was upheld by the lower appellate court which held that the judgment-debtors had waived the plea of limitation.

On behalf of the appellant it is contended that the proper stage for raising the plea of limitation was when he received the notice under 0.21, R. 22, C. P. C., and that he had objected to execution at that stage. According to the decree-holder respondent, the appellant is precluded from raising the plea of limitation as he failed to raise the same on receipt of the notice ordered on 28-3-1961.

Normally on receipt of the execution petition the court should have ordered notice under rule 22, Order XXI, C.P.C. Instead of doing so, notice was ordered on the question of limitation. It is not clear from the order whether such notice was to be given to the decree-holder or to the judgment-debtors. It seems to me that the notice ordered was to the decree-holder to show how execution was not barred as the execution petition was filed more than three years after the dismissal of the prior petition. Such was the practice in the State of Travancore. However, notice was issued to the judgment-debtors and they failed to raise at that stage the plea of limitation. Thereafter notice under rule 22 was issued, when this objection was raised. The question is whether the failure to raise the plea of limitation on receipt of the earlier notice precludes the judgment debtors from contending that execution is barred by limitation.

The matter should be governed by rules 22 and 23 of Order XXI, C. P. C, Under rule 22, notice under this rule is necessary if an execution petition is filed more than two years of the date of the last order on a previous petition against the person against whom execution is applied for. Rule 23 reads:

(1) Where the person to whom notice is issued, under the last preceding rule does not appear or does not show cause to the satisfaction of the Court why the decree should not be executed, the Court shall order the decree to be executed.

(2) Where such person offers any objection to the execution of the decree, the Court shall consider such objection and make such order as it thinks fit.

This rule provides that if the person against whom execution is applied for does not show cause why the decree should not be executed, the Court shall order execution and that when objection to execution of the decree is filed, the court should consider such objections. The proper stage for raising the plea of limitation is thus on receipt of the notice under rule 22. Objection having been taken on receipt of the notice under rule 22, the failure to do so on receipt of the earlier notice which is not contemplated by law, cannot prejudice the judgment-debtors. The court his a duty to consider and decide any objection to execution raised by a judgment-debtor on whom notice under rule 22 is served and, in my opinion, the court is bound to consider the objection regarding limitation raised in this case. The decisions relied on by the lower appellate court have no application to this case. Karanakkodan Gowda Saraswatha Brahmana Samajam v. Manikka Pai (1958 K.L.J. 61 : 1958 KLT 1) was a case where the judgment-debtor failed to object when notice under rule 22 was received. Besides, he was arrested in execution when he paid a part of the decree amount. It was only when he was arrested a second time that he raised this plea. Counsel for the decree-holder relied also on the decision reported in 1962 KLT 683. That was a case in which the judgment-debtor did not appear and object when notice under rule 22 was received by him.

Reliance was also placed on the decision reported in 1962 KLT 675 in support of the argument that the court having ordered notice under rule 22 after issuing an earlier notice, the matter was governed by the principle of constructive res judicata, The rule of res judicata can apply only if the matter is decided. There was not such decision on the question of limitation in this case and the proper stage for that is when the court considers the objections filed on receipt of the notice under rule 22. Under rule 23(1) it is only when the person to whom such notice is issued fails to show cause that the court can order execution. The execution court was therefore right in considering and deciding the objections raised by the judgment-debtor. The order of the lower appellate court must therefore be set aside. In the result I set aside the order of the lower appellate court, restore that of the execution court and hold that execution is barred by limitation. The second appeal is allowed, but in the circumstances without costs.