- (1.) THIS is an application for leave to execute a decree dated the 2nd January, 1940 against the heirs and legal representatives of the deceased judgment-debtor by attachment of 1,000 ordinary shares in East India Electric Supply and Traction Company Limited together with all dividends due thereon. The decree was obviously barred by limitation on the 3rd January, 1952 unless there was a revival within the meaning of article 183 of the previous Limitation Act. Reliance has been placed before me on certain proceedings in execution taken in 1955 and in 1960 and it is urged that in these proceedings there were express or implied decisions that the decree was capable of execution. It is unnecessary for me to go into the proceedings of 1955 which culminated on the 8th January, 1957. For purposes of this application I would refer to some of the events in 1960. On February 19, 1960, the Official Receiver of this court as judgment creditor filed an application for execution of the decree in the Court of the 4th subordinate Judge at Alipore. This application was marked as Money Execution Case No. 6 of 1960. After various proceedings in this execution case had taken place, on December 5, 1961, the Court directed the issue of notice under Rule 54, of Order 21 for attachment of immovable properties belonging to the judgment-debtors. On the 6th March, 1962 a writ under Order 21, Rule 62 was executed without any objection. On the 20th March, 1962 the Court directed issue of notice under Order 21, Rule 66 of the Code. On the 20th August, 1962 three of the heirs and legal representatives of the original judgment-debtor made an application under section 47 of the Code contending that the decree was barred by limitation. These three petitioners were directed to serve on the judgment-creditor a copy of their petition by the 31st August, 1962. On August 29, 1962 the Court directed issue of notice under Order 21, Rule 66. Then on November 7, 1962 the miscellaneous case filed by the heirs and legal representatives of the deceased judgment-debtor was dismissed for default. On the 9th February, 1963 the notice under Order 21, Rule 66 was served upon the judgment-debtors. On February 2, 1963 the Court issued a sale proclamation fixing the 17th of April, 1963 to be the date of the sale at 11. 30 a. m. The sale has not yet taken place, and in Column 10 of the Tabular Statement herein there is a prayer for stay of the Execution Case No. 6 of I960 pending the disposal of the present execution proceedings. The application which I am dealing with was made on the 2nd January, 1964. Mr. R. Sinha, learned counsel for the judgment-debtors contends that both in the proceedings of 1954 and in those of 1960 objection petitions were filed on behalf of the judgment-debtors contending that the decree was barred by limitation. These objection petitions were dismissed for default. The plea of limitation is, therefore, still open to the judgment-debtors and can be taken in the present application as well Mr. Sinha has relied on several authorities in (1) Bholanath v. Prafulla, 28 Cal. 122, on an application for execution an order for attachment having been issued, the Judgment-debtor objected to the execution on the ground that it was barred by limitation. After several adjournments granted at the instance of the decree-holder, neither party having appeared at the date of the hearing, the court by its order refused the application for execution and disallowed the objection of the judgment-debtor. On a subsequent application by the decree-holder the judgment-debtor again objected to the execution on the ground that, inasmuch as the previous application was barred by limitation, the subsequent application was also barred. It was held, that the Judgment-debtor was not precluded from raising the objection that the previous application was barred by limitation. It should be pointed out that the previous application for execution was refused and in the subsequent application for execution the judgment-debtor was allowed to raise the plea of limitation. In the instant case Money Execution Case No. 6 of 1960 in the Court of the Fourth Sub-ordinate Judge of Alipore has not been dismissed. On the contrary, orders for execution were made and ultimately a date was fixed for sale of the properties attached in execution.
(2.) THE next case of Mr. Sinha is the case of (2) Khosal v. Ukiladdi, reported in 14 C. W. N. 114. In this case the head-note is that whore the question whether execution of a decree is barred by limitation was not decided because the parties did not appear, there was no bar to the adjudication of the objection when actually raised at a later" stage of the proceedings. From page 116 of the Report it appears that the first application for execution was not prosecuted and was subsequently dismissed. The second application for execution was dismissed on the ground that it was time-barred. There was; no appeal against the order. Then there was a third application for execution which was dismissed for default. The fourth application for execution was the subject-matter of this appeal. This court has made the above observations with reference to the order of dismissal for default in the third application for execution. And it has been held, inter alia, that the fourth application was barred by reason of the order in the second application. In other words, there was an order holding that the application for execution was barred and that order stood unreserved. There was, therefore, no scope for making a fresh application for execution.
(3.) LEARNED counsel for the judgment debtors then referred to the case of (3) Hiralal v. Dwijacharan, reported in 10 C. W. N. 209. Here, an application for execution was made. The judgment-debtor preferred an objection on the ground that the decree was barred. On the day fixed for the hearing of the objection both the decree-holder and the judgment-debtor were absent. The objection was dismissed. The execution proceedings were also struck off as the decree-holder had not paid the process fees. It was held that the judgment-debtor was entitled to raise the question of limitation when the decree was again put in execution. In this case also after the judgment-debtor's objection was dismissed for default, there was no order for execution of the decree. In fact, the execution proceedings were struck off. My attention was next drawn to a recent judgment of this Court in (4) Biswanath v. Sm. Subala Dassi, A. I. R. 1962 Cal. 272. In this case it has been stated that a dismissal for default of an objection under section 47, which involves no decision on the merits, either expressly or impliedly that is, by necessary implication cannot be held to bar a subsequent objection, either similar or different. From paragraph 5 of the judgment at page 274 it appears that the first objection of the judgment-debtor was dismissed for default. The second objection under section 47 of the Code was also dismissed and that gave rise to the appeal to this Court. This Court has decided that the first dismissal for default did not operate as a bar to the second objection. At no stage was there an order for execution or an adjudication that the decree was capable of execution. I was then invited 1o consider the decision in (5) Karali Prosad Roy v. Probodh Chandra Mitra, 54 C. W. N. 900. A Division Bench of this Court has held that whether or not a judgment-debtor has been served with notice under Order 21, Rule 22 he is not precluded from raising the point of limitation at the time of attachment or sale; under section 3 of the Limitation Act the Court is bound to notice the point of limitation disposing of the matter before it though the point may not be taken by the defendant or the. respondent in a suit or an application; the principle incorporated in this section applies to execution proceedings as well, the plea of resjudicata, is no bar to the judgment-debtor taking the point of limitation to an application for execution and where the application is not in time the Court is bound to dismiss it. In this case the question before the Court was whether the notice under Order 21, Rule 22 was served on the judgment-debtor. The Court carne to the conclusion that the judgment-debtor had not been served. He did not appear to the notice under Order 21, Rule 22. He did not raise nor had the opportunity to raise the issue of limitation. The court issued notice under Order 21, Rule 66 and directed sale of the properties as it was incumbent on it to do so.;