Basil Scott, Kt., C.J.
1. The question which has been argued is whether a judgment-debtor against whom an application for execution is made in July 1910 in respect of a decree passed in September 1898, can be allowed at this stage to object that the second of a series of Darkhasts which commenced in September 1900 was out of time.
2. The lower Courts have both held that the matter is res judicata and that it is not open to the defendant now to raise the point.
3. The second Darkhast in regard to which the question arises was taken out on the 28th of September 1903, 25 days more than three years after the prior Darkhast. It has been held that notice under Section 248 was waived by the judgment-debtor, but he is not shown to have appeared on the Darkhast and an order for attachment was issued. That order, however, was acted upon, because, the judgment-creditor failed to point out the property to be attached, and the Darkhast was accordingly struck off.
4. It is no doubt true that decisions in execution to which Section 13 of the Civil Procedure Code does not in terms apply, are often treated as matters of res judicata by analogy to the provisions of that section. Instances of this kind will be found in Lakshmanan Chetti v. Kuttayan Chetti ILR (1901)Mad. 669, Sheoraj Singh v. Kameshar Nath ILR (1902) All. 282, and Hari Ganesh v. Yamunabai ILR (1897) 23 Bom. 35. But it is easy to push the analogy too far and when we come to a case of this kind where there is no evidence of any hearing it is difficult to hold that the matter has been finally heard and determined as against the defendant.
5. In the Madras case above referred to the matter was held to be res judicata against the defendant, because, the order for arrest had been issued and the order had been carried out, no objection was taken to it, and no appeal was preferred by the defendant. That is a case in which the Court would be justified in presuming that the defendant is aware of all the proceedings and had waived any objection on the ground of limitation.
6. On the other hand in Bholanath Dass v. Prafulla Nath Kundu Chowdhry ILR (1900) Cal. 122, the Court held that the judgment-debtor was not precluded from raising an objection on an application for execution that a previous application was barred by limitation. It was held that there was nothing to show that the Court had disallowed the objection of the judgment-debtors on the merits.
7. That was a stronger case than the present one against the judgment-debtors, for, in that case there was an order disallowing, on the first application, the objection which the judgment-debtors took on the subsequent application. The High Court, however, thought that as there was nothing to show that that objection of the judgment-debtor had been disallowed upon the merits, it might be taken again.
8. For these reasons we set aside the decree of the lower Court and remand the case in order that the objection as to limitation concerning the Darkhast of the 28th of September 1903 may be investigated.
9. Costs should be costs in the Darkhast.