Lallubhai Shah, Ag. C.J.
1. This appeal arises out of execution proceedings. The few facts, which have a bearing on the points arising in the appeal, may be briefly stated.
2. A consent decree was passed in May 1909. The execution proceedings were transferred to the Collector. Certain im-moveable property of the judgment-debtor was sold on June 9, 1914, and purchased by the auction-purchaser who is now represented by his heir the respondent No. 1. The judgment-debtor applied to the Mamlatdar on July 4, for setting aside the sale and deposited the amount required by rule 89 of Order XXI of the Civil Procedure Code. The Mamlatdar had no authority, under Rule 17 of the rules then in force relating to sales by the Collector, to accept this application. But instead of referring the applicant to the civil Court he accepted the deposit and asked the applicant to appear before the civil Court on August 8. He sent the deposit and probably the application also to the Court: but that application, it is stated to us, is not on the present record. The judgment-debtor appeared before the Court and made a fresh application on that day to the Court for setting aside the sale. On this notices were issued.The auction purchaser agreed on September 24, that the sale might be set aside; but as the decree-holder was not served a fresh notice had to be issued for which apparently owing to ignorance; no bhatta was paid. The application was accordingly dismissed for default. The judgment-debtor appealed to the District Court from this order. This appeal was beyond time, but the delay was condoned. The auction-purchaser appeared at the hearing but the decree-holder did not. After hearing the parties who were represented the learned District Judge set aside the order under appeal and directed that the application to set aside the sale should be proceeded with. The auction-purchaser appealed to this Court and in that appeal (Second Appeal No. 1046 of 1916) an objection was taken by the judgment-debtor that no appeal lay. But the Court held that the order was made under Section 47, Civil Procedure Code, in execution proceedings and disallowed the objection. On the merits the appeal failed and the decree of the District Court was confirmed with costs on July 19, 1919.
3. In the Court of the first instance finally the decree-holder did not appear though he was served and the auction-purchaser's heir who appeared in person made no defence, In the result the sale was set aside on July 9, 1921.
4. The auction-purchaser appealed to the District Court and for the first time pleaded limitation on the basis that the proper application to the Court was made more than thirty days after the sale. The learned District Judge allowed the appeal on that ground. He held that the application of July 4, 1914, to the Mamlatdar which would be in time was not an application to the Court under rule 89, and that the application to the Court on August 8, 1914, was beyond time. In the result on October 7, 1922, the judgment-debtor's application of 1914 to the Court to set aside the sale was dismissed with costs. The judgment-debtor has now appealed to this Court.
5. A preliminary objection is taken on behalf of the first respondent, the auction-purchaser, that the order of the District Court is final according to Section 104(2), Civil Procedure Code, as being an order made in an appeal provided by Order XLIII Rule (1), Clause (j). Apparently this would be a good objection. It is urged, however, on behalf of the appellant that in Second Appeal No. 1043 of 1916 rightly or wrongly the order passed by the District Court in appeal from the order dismissing the application for default was held to be an order under Section 47, Civil Procedure Code, and the auction-purchaser succeeded in having his appeal heard on the merits on that basis. It is urged that the parties are bound by that decision throughout these proceedings and that it is not open to the auction-purchaser now to contend that the order is not in execution but strictly under Rule 89 I do not quite understand how the Court accepted that view, which the auction-purchaser now contests. It seems to me clear that the order then made by the first Court had the effect of disallowing the application and the parties are bound by the decision of this Court so far as the proceedings taken on this application of the judgment-debtor are concerned; If the order then made could form the subject matter of a second appeal, it is difficult to see how the auction-purchaser who then maintained that position could now maintain that the order now passed is not one under Section 47. Though the point is not free from difficulty, on the whole I am of opinion that on these facts the preliminary objection must be disallowed
6. On the merits two points have been urged on behalf of the appellants. First, it is contended that in view of the order of the District Court, dated June 9, 1916, directing the application to be proceeded with and in view of the order of the High Court confirming that order the point of limitation is not open to the auction-purchaser. Secondly, it is urged that on the special facts the application of July 4 should be accepted as a proper application, as otherwise the party would suffer on account of the act of the Maralatdar who must be treated as an officer of the Court for execution purposes. The Mamlatdar may have wrongly accepted the application and the deposit money, contrary to Rule 17 of the Rules applicable to such sales. But he having done so, it is urged, the party would be justly under the impression that the application was in order and no party should suffer for the mistaken action of an officer of the Court.
7. As regards the first point, on the special facts, I have come to the conclusion that the point of limitation is not open to the respondents. The principles upon which the orders passed in execution proceedings are binding upon the parties are stated in Ram Kirpal Shukul v. Mussumat Rup Kuari (1883) L.R.11 IndAp 37, and the decisions in amchandra v. Shriniwas I. L, R. (1921) 46 Bom. 467; 24 Bom. L.R. 97 and Mahadeo v. Trimbakbhat (1918) 21 Bom. L.R. 344 are merly illustrations of the application of those principles. What is binding upon the parties is the point actually decided. The principle of Explanation IV of Section 11, Civil Procedure Code, has no direct application; but in determining the exact effect of the point decided on the subsequent proceedings the principle cannot be altogether ignored. In the present case we have the fact that the auction-purchaser was agreeable in September 1914 to the sale being set aside. When the judgment-debtor ap pealed to the District Court he raised no objection that the application was time-barred and an order directing that the sale be proceeded with was made. He appealed from that order to this Court but raised no objection that the order of the District Court was wrong as the application was clearly beyond time. The said order was confirmed by the High Court on the merits after hearing the parties. If, therefore, proper effect is to be given to the necessary implication of this order in the light of the proceedings then taken by the auction-purchaser it seems to me that the point of limitation is not open to him now. On the facts of the case this point really means whether the application to the Mamlatdar could have been treated as a proper application under Rule 89. It is true that according to the wording of Rule 89 as also Rule 17 of the rules framed by Government which were then applicable to sales held by the Collector, such an application could not be so treated. That is the view accepted in Tipangavda v. Ramangavda I.L.R. (1919) 44 Bom. 50; 22 Bom. L.E. 35. and Shantmurti v. Narayan I.L.R. (1920) 45 Bom 1132 23 Bom. L.R. 476. But when the order directing the application to be proceeded with was made, the parties would be bound by it in subsequent proceedings, and it seems to me to be necessarily involved in that order that the application was accepted as a good application by the Court without any objection by the parties. They cannot now go back upon that position. It seems to me that the observations in Raja of Ramnad v. Velusami Tevar (1920) L.R. 48 I.A. 45, 48; 23 Bom. L.R. 701 apply to this case.
8. In this view of the matter it is not necessary to consider the second point raised by Mr. Nilkanth in support of the appeal.
9. This case affords one more illustration of the hardship and inconvenience that arise in consequence of the wording of the said rules.
10. In spite of the provision that the Collector is to refer the party who applies to have the sale set aside to the civil Court, cases like the present one are apt to arise when the party applies to the officer who has held the sale and that officer accepts the deposit money. It seems to me that an alteration in the wording of Rule 89 of Order XXI and, if necessary, also in the wording of Rule 16 of the New Rules corresponding to Rule 17 of the Rules that were in force in 1914. which would permit an application to set aside a sale being presented to the officer holding the sale within thirty days is the proper remedy to meet such cases, though the final disposal of the application may rest with the Court.
11. This particular case has presented some difficulty to my mind and, but for the special facts, it is probable that we could not have given the relief to the appellant to which we think he ought to be justly entitled, when an application has been made by him to the officer holding the sale with the necessary deposit.
12. I would allow the appeal and restore the order of the first Court with costs here and in the lower appellate Court on the auction-purchaser (respondent No. 1).
13. The preliminary objection that no appeal lies under Section 104(2), Civil Procedure Code, is undoubtedly supported by Tipangavda v. Ramangavda I.L. R (1919) 44 Bom.50 22 Bom. L.R 35. But I agree that the point is res judicata under the decision of Appeal No. 1046 of 1916. It is true that the adjudication was in the same proceeding as the present one, viz., the judgment-debtor's application to set aside the sale under Order XXI, Rule 89, and it is an arguable point whether such an adjudication can operate as res judicata. Thus in Subramania Ayyar v. Raja Rajeswara Dorai I.L.R. 40 (1916) Mad, 1016 Seshagiri Ayyar J. says, 'there is no authority for the proposition that in the course of the same application an order passed at one stage of it would be res judicata at its further stage.' But since this was said we have the authority of the Privy Council in Hook v. The Administrator-General of Bengal I.L.R. (1921) Cal. 499; 23 Bom. L.R. 648 for the contrary view. There the first adjudication was one in the course of the same proceedings, as those in which the question of res judicata arose, viz., in an administration suit instituted in the High Court. The High Court of Calcutta held that the decision did not operate as res judicata in view of Section 11 of the Code of Civil Procedure. This requires that the adjudication should be in a former suit between the same parties, which would not cover the case of an adjudication in the same suit at a previous stage. But their Lordships held this view was erroneous and that the plea of res judicata was good on the general principles of law referred to in the leading case of RamKirpal. Shukul v. Mussumat Rup Kuari (1883) L.R. 11 IndAp 37. In my opinion, therefore, the preliminary objection should be disallowed.
14. The main contention put before us by appellant's pleader is that it is unjust that the judgment-debtor should suffer from the failure of the Mamlatdar to carry out the directions contained in Rule 17 of the rules regarding the execution of decrees by a Collector, under which he should have referred the judgment-debtor to the civil Court instead of himself accepting the deposit and application and instructing him to appear in the civil Court on a certain date. The possibility of consequent hardship is referred to in Shantmurti v. Narayan (1920) 23 Bom. L.R. 476 where there had been a similar neglect to observe this Rule 17, but on the other hand there were no merits in the judgment-debtor's failure. In the present case there are clearly such merits, especially having regard to the fact that the auction-purchaser in September 1914 agreed to the application; but on the other hand there can be no doubt that, as ruled in Tippangavada v. Ramangavda, the Collector or Mamlatdar is not the Court within the meaning of Order XXI, Rule 89, and therefore a judgment-debtor, who presents his application to such officer, cannot stop limitation running against him. It seems impossible, in these circumstances, to apply the maxim actus euriai neminem gravabit.
15. The only question, therefore, which remains is whether the auction-purchaser is precluded from raising the objection of limitation now put forward by reason of the fact that he had the opportunity of raising the same objection in the previous litigation of 1916-1919. This raises the question whether the principle of constructive res judicata referred to in explanation (iv) of Section 11 of the Civil Procedure Code can apply in execution proceedings. I have examined all the cases on this point that I can find in the authorised reports; and I do not think that there is any real authority for the proposition that it cannot be so applied; all that is laid down is that the cases in which it can be applied are exceptional, and that caution is needed in applying it.
16. Thus in Sheo Mangal v. Musammat Hulsa I.L.R. (1921) All. 159 the Court held that from the rulings cited before them it does not necessarily follow that the principle of implied res judicata would apply to execution proceedings' and Kalyan Singh v. Jagan Prasad I.L.R. (1915) All. 589 is referred to as deciding that 'if a judgment-debtor does not take any objection as to the decretal amount entered in the application for execution, that does not preclude him from raising the point at a subsequent stage.' The latter decision is criticised by Walsh J. in Phul Chand v. Kanhaiya Lal I.L.R. (1921) ALL. 130 and it is pointed out that any previous adjudication of the question of the balance due would have been irrelevant. These decisions therefore do not justify the view that the principle of constructive res judicata can never apply in execution proceedings. In Subramania Ayyar v. Raja Rajeswara Dorai I.L.R. (1916) Mad. 1016 the Court says:--
As we had occasion to remark on more than one occasion recently, the principle of constructive res judicata should be very cautiously applied to execution applications. In the first place, the legislature has not enacted specifically that the rule of res jndicata applies to execution proceedings. The reason is obvious. It is open to a decree-holder to proceed piecemeal with his execution. He is not bound to proceed against all the properties comprised in the decree at once, and consequently the principle underlying the general rule of res judicata is not in terms applicable to execution proceedings. At the same time, as pointed out by the Judicial Committee, parties should not be allowed to agitate the same question alter it has been once decided; and this dictum of their Lordships has been extended to cases where the parties had an opportunity to object to the decision, but did not avail themselves of that opportunity. One principle seems to be clear, and that is, that the party who is sought to be affected by the bar of res jidicata should have notice of the point which is likely to be decided against him and should have an opportunity of putting forward his contentions against such a decision.
17. This does not go to the extent of saying that the principle of constructive res judicato cannot be applied to execution proceedings. The question has also been considered by the Patna High Court in Prithi Mahton v. Jamshad Khan I.L.R. (1922) 1 Pat. 593 Dawson Miller C.J. says:--
I further think, however, that although the doctrine laid down in section 11 of the Civil Procedure Code relating to res judicata may be applied and rightly applied in certain proceedings in execution arising out of the same judgment so as to put an end to litigation and may possibly be applied in certain casea where separate suits have been brought raising points which have already been decided in execution cases fought between the same parties, still I do not think that the special rules laid down in the Exaplanation to that section which go beyond the ordinary doctrine of res judicata ought to be applied generally in execution cases.
18. This also allows an exceptional case where the principle of Explanation (iv) to Section 11 can be applied in execution proceedings. The rulings of this Court do not, I think, go any further. In Mahadeo v. Trimbakbhat (1918) 21 Bom. L.R. 344 my learned brother had a somewhat similar point, though with very different facts, before him. In his judgment he says:--
No doubt if the principle of explanation (iv) to Section 11 wore applied, it would mean that the Court in dismissing the application of 1914 decided that the other applications and acknowledgments were not sufficient to save limitation. The rule of res judicata applicable to execution proceedings makes all decisions binding upon the parties in subsequent proceeding but it does not...involve the result that any point which is not heard and decided but which might and ought to have been raised must be treated as necessarily decided as under Section 11 of the Code
19. Here again this does not go further than saying that the principle of Explanation (iv) to Section 11 does not necessarily apply in execution proceedings, it does not say that it can never apply in execution proceedings. This case was approved in Ramchandra v. Shriniwas I.L.R. (1921) 46 Bom. 467; 24 Bom L.R. 97. Macleod C.J. there says:--
The only ground on which this Darkhast could be rejected would be that the petitioner ought to have relied upon the acknowledgment of June 1917. when he filed the previous Darkhast, and not having done so he is for ever barred from relying upon it. It does not seem to me that the doctrine of res judicata can be extended to that length.
20. But the actual decision proceeded upon the ground that in the earlier darkhast there was no adjudication that the execution of the decree was barred but only that the application was not shown to be in time. Therefore, I think there is nothing in the previous decisions of this Court, which debars us from holding that the principle of constructive res judicata may apply in the present case, and in my opinion there is the strongest authority in support of such an application. In Raja of Ramnad v. Velusami Tevar (1920) 23 Bom. L.R. 701 their Lordships in the Privy Council had a somewhat similar case before them. The appellant in that case had applied for the attachment of certain property in 1916. The respondent pleaded limitation to which the appellant rejoined that an order of December 13, 1915, was an adjudication that there was no legal impediment to execution. That order was one allowing the appellant to execute the decree, but the High Court of Madras held that this could not be read as an adjudication on all the respondents' objections to such an order, including one regarding limitation which they had undoubtedly made. On appeal the Privy Council held that this view was erroneous and that the plea of limitation was barred as res judicata. In the judgment Lord Moulton says:--
The order of December 13, 1915, is a positive order that the present respondent should be allowed to execute the decree. To that order the plea of limitation, if pleaded, would, according to the respondents' case, have been a complete answer, and therefore it must be taken that a decision was given against the respondents on the plea. No appeal was brought against that order, and therefore it stands as binding between the parties. Their Lordships are of opinion that it is not necessary for them to decide whether or not the plea would have succeeded. It was not only competent to the present respondents to bring the plea forward on that occasion, but it was incumbent on them to do so if they proposed to rely on it, and moreover it was in fact brought forward and decided upon.
21. These remarks apply very cogently to the present case. In the previous litigation of 1916 to 1919 the judgment-debtor was pursuing his application to have the sale set aside. The plea of limitation, if it had then been raised would have been a complete answer, and in the circumstances it was incumbent on the auction-purchaser, if he proposed to rely on this plea, to have put it forward on that occasion.
22. Therefore, as in the Privy Council case so here, the plea is barred. It is true that in the Privy Council case the point of limitation had already been taken, whereas it was not raised in the present case; but the judgment of their Lordships mainly proceeded on the ground that the respondents ought to have raised that defence, and that not having done so and having lost that opportunity they could not be allowed to raise the plea in the subsequent proceedings. It is only as a strengthening of the argument that Lord Moulton says 'moreover it was in fact brought forward and decided upon; and even taking the main argument as obiter dictum, it is clearly entitled to very great weight.
23. In the judgment of this Court in Appeal No. 1046 of 1916 it is said, It is not suggested that on the merits the order of the District Judge is wrong. There are rather complicated difficulties in the appellant's way by reason of his having failed to bring the heirs of a deceased respondent on record, anil his having failed within the time allowed to have the notice served on another respondent. The appeal is dismissed with costs.' In my opinion this clearly means that, apart from the difficulties just mentioned, the judgment-debtor's application should be allowed to proceed, as ordered by Mr. Clements in 1910, and that no contention had been raised that on the merits his order was wrong. It, in my opinion, amounts to an adjudication by this Court that there was no legal bar to the application being proceeded with, and in my opinion that decision operates as res judicata in regard to the present objection about limitation. In Raoji v. Bansilal I.L.R. (1919) 43 Bom. 735 21 Bom. L.R. 835 the desirability of expedition in deciding whether a judicial sale ought or ought not to be set aside is pointed out, and this seems to me obviously a case where the principle of finality in litigation should be applied. The result of allowing the objection would be to waste the litigation of 1916 to 1919. It is obvious that the auction-purchaser had all the facts within his knowledge, or means of knowledge, on which this plea of limitation could have been made by him in 1916, for he appeared before the Subordinate Judge and was represented by a pleader, at the hearing of the appeal in the District Court. It would be different if this was a case where new facts had arisen, which were not then in existence on which a plea of limitation could be raised, such as are referred to in Humphries v. Humphries (1910) 1. K.B. 796, 801; on appeal  2 K.B. 531, C.A. But in the present case there are no such new facts. Humphries v. Humphries shows that in English law this equitable principle is well recognised, and I can see no adequate reason for confining it to suits and not allowing it to be raised in suitable cases in execution or other miscellaneous proceedings. On the other hand I quite agree with the rulings already referred to that groat caution should be used in applying it, and that generally speaking the mere fact that an objection has not been raised at one stage of execution proceedings is not a sufficient ground for holding that the objection is barred at another stage. But the present case is, in my opinion, clearly one where the principle can be properly applied.
24. Therefore, the lower Court was wrong in holding that there had been no previous adjudication on this point, and that the plea of limitation could now be raised. I agree with the order proposed by the I earned Chief Justice.
25. I also agree as to the desirability of amending Order XXI, Rule 89, and Rule 16 of the rules regarding execution of decrees by a Collector.