Agarwala, J. - (1.) This is a decree-holder's appeal against a decree of the learned Civil Judge of Fatehpur allowing the judgment-debtor's objection that the appellant's application for execution was barred by time. The matter came up before one of us, who, in view of some conflict of opinion upon the point to be decided in the case, referred it to a Bench, The facts briefly stated are as follows :
(2.) A decree for money was passed in favour of the appellant on 27-6-1930. The appellant filed an application for execution on 3-7 1933. This was within time as it was filed immediately on the re-opening of the Court after the summer vacation. This application was dismissed on 28 7-1933. The second execution application was filed on 25-7-1936. This was dismissed on 27-8-1936. Then the present application for execution was filed on 19-9 1942. It is conceded by both the parties that unless the question of limitation is barred by res judicata it must be held that this application was beyond time even after excluding time by virtue of the Temporary Postponement of Execution of Decrees Act, X [10] of 1937. The circumstances in which the doctrine of res judtcata is claimed to apply to the facts of the case arose in the following manner. Upon this application being presented a notice was issued to the judgment-debtor under Order 21, Rule 22, Civil P. C., to show cause why the execution should not proceed. The judgment-debtor did not appear and the Court ordered on 22-12 1942 that execution may proceed. Some property was attached during the course of the execution proceedings. The Amin's report dated 1-3.1943 shows that the property had been attached. A sale proclamation was issued by the civil Court and then the execution case was transferred to the collector. Daring the pendency of the proceedings in the Collector's Court, Ram Lal Singh judgment-debtor died. The Collector sent the papers of the case back to the civil Court in order that legal representatives of the judgment-debtor may be brought on the record. On 88-7-1945, Hanuman Singh respondent was brought on the record as the legal representative of the deceased judgment-debtor. On 9-10-1945, Hanuman Singh filed an objection to the execution proceedings in the civil Court stating that the execution was barred by time. This objection was dismissed by the Munsif Hanuman Singh then appealed to the lower appellate Court which held that the objection was well founded and dismissed the execution application. Against this decree, the decree-holder has come up in appeal to this Court and the point urged on his behalf is that the plea of the judgment debtor that the execution application was barred by time was itself barred by the doctrine of res judicata by virtue of the order dated 22-12-1942 and should not be allowed to be raised.
(3.) On behalf of the respondent reliance has been placed upon a Full Bench decision of this Court reported in Genda Lal v. Hazari Lal 1935 A. L. J. 1189 : (A. I. R. (23) 1986 ALL. 21 P. B.). In this case Sir Shah Sulaiman laid down five propositions. The fifth one is relevant and may be quoted. "Where no objection is taken but the application for execution does not fructify, the judgment-debtor is not debarred by the principle of "res judicata from raising the question of limitation later." The full facts of the Pull Bench case were almost similar to the facts of the case before us. There an application for execution was made more than three years after the date of the decree and it was stated in the application that a payment had been made by the judgment-debtor within three years before the date of the application. The prayer in the execution application was for the arrest of the judgment-debtor. The Court issued a notice to the judgment-debtor under Order 21, Rule 22, Civil P. C. calling upon him to show cause why he should not be arrested. The judgment-debtor did not appear and an order was passed to the effect that the judgment-debtor had been served with the notice and as he did not take any objection on the score of limitation, the application would be deemed to be within time and the application was, therefore, registered and execution proceeded. A warrant was issued and the judgment-debtor was brought before the Court under arrest and, when he pleaded that he had never made any payment and that the execution application was barred by time, it was held that the fact that in proceedings under Order 21, Rule 22 the Court had passed an order that the execution proceedings may proceed did not amount to a decision which would be binding upon the judgment-debtor. The reason given was that the application for execution had not till then fructified. Niamat Ullah J., who delivered a separate, but concurring judgment, observed that unless some portion of the decree had been satisfied, it could not be said that an interlocutory ex parte order amounted to res judicata. Sir Shah Sulaiman referred t o a Privy Council decision reported in Mungal Pershad Dichit v. Grija Kant Lahiri, 8 Cal. 51 : (8 I. A. 123), and distinguished it on the ground that the facts of the case were different. We have read the judgment of the Privy Council and we have a feeling that the Privy Council decided that case upon a wider ground, namely, that where an execution Court had jurisdiction to decide a matter and it did decide it, whether ex parte or on contest, that decision unless reversed on appeal or other proceedings was binding on the party during the subsequent stages of the execution proceedings The basis of the decision in the Privy Council case was not fructification of the decree, but the fact that a decision had been given at one stage of the proceedings which had not been set aside on appeal or otherwise. We have been referred to several cases in which a view similar to that expressed in the Privy Council case has been expressed, both in this Court before the Full Bench decision and in other Courts in India.;