PARTABA Vs. GANGA BUX

JUDGEMENT

(1.) This is the second appeal of the judgment-debtors against the appellate order dated 14-7-1945, of Shri K. N. Joshi, District Judge, Rae Bareli, dismissing the objections of the judgment-debtors against the execution of the decree.

(2.) The facts so far as they are relevant for the purposes of this appeal are as follows: On 2-6-1930, Ram Narain Singh obtained a decree for contribution against eighteen defendants, including Lachman Prasad and Acchaibat Nath. The liability of each defendant was separately specified. During the course of the execution proceedings Lachman Prasad died and on the record were brought Suraj Narain and Bindesty wari Prasad, objectors-appellants, At a later Stage of the proceedings, Acchaibat Nath also died and in his place were brought on the re-cord Basdeo, Kalp Narain and Tribhawan Nath, objectors-appellants. The first execution application wag made on 6-7-1931, against all the judgment-debtors, including Lachman Prasad and Acchaibat Nath. This was consigned to records on 17-12-1981. The second execution application was given on 19-12-1982, and was consigned to records on 28-2.1933. It was not against Lachman Prasad and Acchaibat Nath. The third execution application was made on 1-6-1834, against several judgment-debtors including Lachman Prasad and Acchaibat Nath. This application was clearly within time. It was dismissed on 6-10-1934. The fourth execution application was filed on 27-10-1936, but not against Lachman Prasad and Acchaibat Nath. This was consigned to records on 29-10-1937. The fifth execution application was given on 19-12-1939, by Ganga Bakhsh respondent, son of the original decree-holder, against Acchaibat Nath and Suraj Narain and Bindeshwari Prasad, appellants, the legal representatives of Lachman Prasad, who was then dead. This application was infructuous and was consigned to records. This application had clearly been made more than three years after the final order in the last application against them or their predecessors which was dismissed on 6-10-1934. The sixth application was given on 28-7-1942, by the respendent against Suraj Narain and Bindeshwari Prasad, objectors, and Acchaibat Nath. It is in this application that the present objection on the question of limitation was raised. This application was registered, and on 28-7-1942, it was directed that a prohibitory order for attachment should issue on the responsibility of the decree-holder. The order was actually issued on 30-9-1942, and it was directed that notice should issue to the judgment-debtors to ascertain what objections, if any, they had against the sale of the property. The attachment was made on 13-11-1942. Notices were then issued on 16th/18th November 1942, requiring the judgment-debtors to show cause against the sale of the property. These notices were duly served, and on 11-12-1942, the Court recorded an order that the service on the judgment-debtors was sufficient but they were absent. On 20-2-l943, it was recorded that the judgment debtors were absent, and it was ordered that the execution application should be transferred to the Collector. Some time later, the papers were apparently returned to the executing Court on account of some defect. This defect was got cured on 4-3-1944. In the meantime, while the papers were with the executing Court, an application was made on 19 1-1944, that Acchaibat Nath then being dead, his heirs, objectors appellants, Basdeo, Kalp Narain and Tribhawan Nath, be brought on the record and notice under Order 21, Rule 22, Civil P. C. should be issued to them. Notices were issued in due course. All the legal representatives were duly served. It, however, appeared that on the notice of Basdeo the endorsement of the service was sufficient, but by an oversight it had not been signed. The papers were accordingly returned to the Civil Judge, Allahabad, to whom they had originally been sent for service, for the necessary signature. This was dons by the Civil Judge, Allahabad on 1-5-1944. On 3-6-1944, the Court ordered substitution of Basdeo, Kalp Narain and Tribhawan Nath, objectors. The execution application was accordingly amended and so also the execution register and the papers were apparently sent to the revenue Court, On 2-9-1944, the present appellants filed objections, the main objection being that the application of 1939 was time barred and therefore the present application for execution was also time barred. On 4-9-1944, the Court ordered that a rubkar should issue to the revenue Court to stay proceedings.

(3.) The objections were heard on merits and it was decided by the Court that the execution application was not time barred. The objectors appellants then went up in appeal. It was urged that the application of 1939 was barred because it had been made more than three years after the date of the last order in the previous application which was disposed of on 6-10-1934. The respondent urged before the Court that this objection on the question of limitation should have been raised long before, and it should have been raised before the execution was transferred to the revenue Court. The learned lower appellate Court held that this contention was correct, and as the objection had not been raised earlier, the principles of res judicata applied, and the objection could not be raised by the present objectors. The Court relied upon Raghubar Singh Gokaran, 3 O. W. N. 241 : (A. I. R. (13) 1926 Oudh 291). The appeal was dismissed.