- (1.) THIS is a second appeal In execution proceedings.
(2.) KISHAN Lal son of Sedh Mal and Shri Dhar son of Shiv Prasad obtained a decree against Bhim Singh on the 28th May, 1925, for recovery of Rs. 712/- besides costs and interest. The decree-holders put their decree in execution and the last application filed by them was so done on 25th January 1932, which was dismissed on 16th March, 1933, without recovery of any amount. KISHAN Lal died, and an application was filed on 24th March, 1933 by Gulzarilal as successor in interest of KISHAN Lal, one of the decree-holders. This application was also dismissed without recovery of any amount on the 14th of August, 1933. The next application was filed by Gulzarilal on behalf of Gindorilal and Madan Lal, minor sons of KISHAN Lal, as their guardian as also on his own behalf on the 4th of May, 1935. Similar applications for execution were presented on 7-2-36 and 8-3-39. The next application was filed on the 2nd of April, 1942, by Gulzarilal and in an accompanying application it was mentioned that the heirs of KISHAN Lal were his two minor sons Gindoori Lal and Madan Lal under the guardianship of Gulzarilal, and that the names of Gulzarilal and Badrilal as legal representatives of KISHAN Lal had wrongly been made out earlier. It was also stated that Shri Dhar had also died in the meanwhile, and his sons were Murari Lal major and Kishorilal minor under the guardianship of Murarilal, whose names had also been entered in the application. This application was also made by Gulzarilal. Further applications for execution were submitted on 1-2-44, 21-1-47, 17-3-47, and 21st February, 1950. The judgment-debtor appeared in response to the notice on the last application, and made an objection that the application was barred by time. It was urged that the application of 24th March, 1933, was presented by Gulzarilal, who was not competent to do so, and the next application of 4th May, 1935, became barred by time, if the application of 24th March, 1933, was taken out of consideration. It may be mentioned that on the 4th of May, 1935, the Limitation Act, which was in force in Jaipur, provided for a period of three years for presenting an application for execution from the last date of execution. The amendment permitting a period of three years from the date of the last order on the previous application was made on the 5th of May, 1937 (vide Jaipur Gazette of 15th May, 1937 ). The trial Court accepted the plea of the judgment-debtor, and dismissed the application of 21st February, 1950, as barred by limitation. On appeal, the learned District Judge was of opinion, firstly, that Gulzarilal was Mukhtar Am of Kishan Lal and the sons of Kishan Lal were living with him, and that he had filed the application of 24th March, 1933, as guardian of Gindorilal and Madanlal, and, therefore, the application was properly presented. He also observed that in the application of 1st February, 1944, one of the cows of the judgment-debtor had been attached, and personal service of the application under Order XXI, Rule 22, had been made on the judgment-debtor, and, therefore, the objection of the judgment-debtor in respect of the application of 21st February, 1950, was barred on the principle of constructive res judicata. He relied on Adhilakshmi Ammal v. Srinivasa Goundan, AIR 1944 Mad 193 (A) and Promotha Nath v. Habu Mia, AIR 1945 Cal 335 (B ). The judgment-debtor died in the meanwhile, and his legal representative Surjan Singh has come in second appeal. The finding of the learned District Judge that Gulzari Lal had made the application on 24th March 1933, as guardian of Gindoorilal and Madan Lal is contrary to the record. That application does not even mention the names of Gindoorilal and Madan Lal, but clearly mentions the names of Badrilal and Gulzarilal as decree-holders in place of Kishan Lal, the application itself being filed by Gulzarilal alone. The statement of Gulzarilal that the decree related to the assets of the joint Hindu family is also obviously false, as in 1942 he made an application that the heirs of Kishanlal were Gindoorilal and Madan Lal, and that his own name and that of Badri Lal had wrongly been mentioned. The fact that he was acting as a Mukhtar Am for Kishan Lal also shows that he was acting on behalf of Kishanlal, and not on behalf of the joint Hindu family, of which Kishan Lal may have been a member. He stated in cross-examination that this decree fell into the share of Kishan Lal and Shri Dhar and their descendants. If this was so, then the real decree-holders were Gindoorilal and Madan Lal with Shri Dhar, and not Gulzari Lal and Badri Lal. The trial Court was, therefore, correct in holding that Gulzari Lal had no authority to file the application for execution on 24th March, 1933. The next explication filed on 4th May, 1935, was barred by time according to the then law of Limitation. The subsequent applications are of no assistance for the purpose of saving limitation, and unless the objection of the judgment-debtor could be barred on the principle of res judicata, this appeal must succeed. Learned counsel for the respondents frankly conceded that he could not find any material for supporting the finding of the learned District Judge that in the application for execution of 1st February, 1944, a cow of the judgment-debtor had been attached. He, however, relied on the execution application of 1st February, 1944, in which the service of the judgment-debtor had been effected in pursuance of notice under Order XXI, Rule 22. Further in the execution application of 12th March, 1947, after service of notice, the Court issued orders on 9th May, 1947, for the issue of the warrant of arrest of the judgment-debtor in execution of the decree. Learned counsel for the appellant's reply In respect of these two execution applications was that they did not fructify, both being dismissed for default, the first on the 1st of April, 1944, and the second on the 5th of June, 1947. The leading case on this subject where the entire previous case law has been fully discussed is the Full Bench decision of the Allahabad High Court In Genda Lal v. Hazari Lal, AIR 1936 All 21 (C ). After a review of the authorities, Sulaiman C. J. came to the conclusion, among other things, that "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 same proposition was put forward by Niamatullah J. in slightly different words, when he said that: " The judgment-debtor is not barred by the principle of res judicata, unless, (1) ** ** ** (2) ** ** ** (3) where the judgment-debtor might and ought to have taken the plea of limitation, but failed to do so, and the final result of the application was to grant the relief of partial satisfaction of the decree to the decree-holder. " This case was followed in Mannu Lal v. Hanuman Singh, AIR 1951 All 398 (D), where It was held that "an order bringing the heirs of the judgment-debtor on the record or a mere attachment of property in execution proceedings is not a fructification of the decree, and the plea of the judgment-debtor raised at a later stage that the execution petition is barred by time is not barred by the doctrine of res judicata. " A Division Bench of the Oudh Chief Court in Peoples Bank or Northern India Ltd. v. Aijaz Ali, AIR 1942 Oudh 219 (E) held that "where the execution proceeding has net fructified the failure of the judgment-debtor to file an objection on the ground of limitation does not preclude him from filing such an objection on a subsequent application. " In Karali Prasad v Probodh Chandra, AIR 1950 Cal 513 (P), it was held that "when on an application for execution a notice is issued under Order 21, Rule 22 followed by an order under Order 21, Rule 66 but the notice is not served, the judgment-debtor cannot be said to have an opportunity to raise the question of limitation, and, therefore, he will not be debarred from raising the question in subsequent execution application. " It was further held, and it is important for the present case, that "even assuming that the notice under Order 21, Rule 22 was served but the judgment-debtor did not appear, the judgment-debtor can raise objection to the sale and take the point of limitation in subsequent proceedings. " Reliance was placed on Chatterput Singh v. Daya Chand, AIR 1915 Cal 350 (G ). In Appayya v. Venkataratnam, AIR 1954 Mad 1 (H), the Madras High Court held that service of notice under Order XXI, RULE 22, followed by an order of arrest after such notice in the absence of the judgment-debtor or any objection by him did not amount to any adjudication on the question of limitation and, therefore, the principle of constructive res judicata could not be applied so as to preclude the judgment-debtor from raising the objection of limitation in subsequent execution. AIR 1936 All 21 (FB) (C) was relied on. Air 1936 All 21 (FB) (C) was also relied upon and approved in Bindraban v. Gauri Shankar, Air 1951 Pepsu 96 (I ).
(3.) OF the two cases relied on by the lower Court, the Calcutta case was one in which the earlier application was dismissed on part satisfaction. The other case of Madras no doubt lays down that "if the service was sufficient, then the judgment-debtor was bound by all orders passed Which impliedly decided any question that he might have raised with regard to the executability of the decree". A different view, however, was apparently taken in AIR 1954 Mad 1 (H), which was decided by a Division Bench. The weight of authority is, therefore, in favour of the view taken in AIR 1936 All 21 (FB) (C), and I am in respectful agreement with that view. The plea of the judgment-debtor in the present case is, therefore, not barred on the principle of constructive res Judicata, as the applications in which the notices were served did not fructify. The appeal is, therefore, allowed, the order of the first appellate Court is set aside, and that of the first Court allowing the objection of the judgment-debtor is restored. The execution application of the respondents will stand dismissed as being barred by time. The respondents will pay costs of the appellant in all the three Courts. .;