1. This appeal arises out of execution proceedings. The decree under execution was passed on the 12th of December 1910. It was a partition decree in which the shares of the plaintiff and the defendants were determined. The defendant No. 4 made an application No. 789 of 1914, for execution of the decree, on the 2nd of November 1914. That application was rejected as time-barred. The order made thereon was in these terms: 'The Darkhast was given on the 2nd of November 1914. The decree was passed on the 12th of December 1910. It is therefore not in time under Article 182 of the Limitation Act. The applicant says that it is in time because the defendant No. 5 had given some Darkhasts to execute the decree against some defendants within three years from the date of the decree and this Darkhast was given within three years from those Darkhasts. This statement itself is too vague. He does not give even the numbers of the Darkhasts or their dates. He produces no copies to show them. His pleader fails to show that it is in time. It is therefore rejected with costs as time-barred.' The present application for execution was made on the 13th of January 1915 and he pleaded that it was within time in consequence of certain earlier applications made by other parties and that there were acknowledgments of the liability under the decree by some of the defendants. On this the following issues were raised by the Court of first instance :--(1) Does the applicant prove that the Darkhast is in time as alleged by him? and (2) Whether in view of the order in Darkhast No. 789 of 1914, the point of the present application being in time is not res judicata. The learned Second Class Subordinate Judge was of opinion that the Darkhast was in time but rejected it on the ground that the order in Darkhast No. 789 of 1914 operated as res judicata. The defendant No. 4 appealed to the District Court and the learned District Judge agreeing with the Subordinate Judge came to the conclusion that the order in the said Darkhast operated as res judicata and dismissed the appeal summarily without expressing any opinion as to whether, apart from the plea of res judicata, the application would be in time.
2. Defendant No. 4 has preferred this appeal against the decree of the lower appellate Court and has contended that the order in the Darkhast of 1914 cannot operate as res judicata. The respondents have not appeared, though they have been served, and I have not had the advantage of hearing any argument in support of the view which has found favour with the lower Courts.
3. The point is by no means free from difficulty. It seems to me, however, that the true reading of the order made on the Darkhast of 1914 involves the result that the question whether the present Darkhast is in time as alleged by the applicant is not res judicata. Any order previously made in execution proceedings would undoubtedly be binding upon the parties in all subsequent proceedings and would operate as res judicata. The ground upon which such an order is binding upon the parties is thus stated in the case of Ram Kirpal Shukul v. Mussumat Rup Kuari (1883) L.R. 11 IndAp 37: 'It was as binding between the parties and those claiming under them as an interlocutory judgment in a suit is binding upon the parties in every proceeding in that suit, or as a final judgment in a suit is binding upon them in carrying the judgment into execution. The binding force of such a judgment depends not upon Section 13, Act X of 1877, but upon general principles of law. If it were not binding there would be no end to litigation.' That is, as I understand the observations, the provisions of Section 11 of the Code do not in terms apply to an order made in execution proceedings but that anything decided by that order must be treated as binding upon the parties in the subsequent proceedings. If it was essential for the plaintiff to rely upon the Darkhast of 1914 as being in time undoubtedly he would be prevented from showing that that Darkhast was not barred by limitation as it was in terms rejected as time-barred. But the order does not purport to decide the question as to whether any other Darkhasts and acknowledgments, such as are now relied upon, are sufficient to save the present application. No doubt if the principle of explanation IV to Section 11 were 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 proceedings but it does not necessarily 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. No doubt the proceedings now relied upon as saving limitation might have been made a ground for saving the application of 1914. But if it is not made a ground and if there is no decision on the point, I do not think that the application of the doctrine of res judicata to execution proceedings would involve the result that it should be taken to have been decided. At least, as I read the decisions bearing on this point, I do not understand the rule to go so far. As it is not essential for the purpose of determining whether the present application is in time or not for the plaintiff to establish that the application of 1914 was in time I do not think that the rejection of that application on the ground that it was not shown to be within time can operate as decisive of the question whether the other applications and acknowledgments, which are now brought to the notice of the Court, are in fact sufficient to save limitation. The two cases which have been relied upon by the Court of first instance are in my opinion distinguishable on their facts In the case of Bandey Karim v. Romesh Chunder Bundopadhya I.L.R.(1882) Cal. 65, the facts show that the execution of the decree was held to be barred prior to the application in which the question as to res judicata arose and the learned Judges distinctly observed : 'We do not, on the present occasion, propose to go into this broad, general, and probably difficult question, whether the principle of res judicata as enunciated in Section 13 of the Code of Civil Procedure applies in all its generality to proceedings after decree. We limit our decision to the exact question which is raised in the present case, and that is, whether the Court, having once decided that the execution is barred by limitation, that decision is a bar to further execution.'
4. Similarly in Manjunath Badrabhat v. Venkatesh Govind Shanbhog I.L.R.(1881) 6 Bom. 51 it appears from the facts of the case stated at page 62 that the previous decision expressly related to the application of the 30th of November 1871 and that it was based on the ground that the execution of the decree was barred as more than three years had elapsed between the first and the second application--that is, between the applications of April 1868 and November 1871. The very question which was decided then was raised by the decree-holder in the subsequent proceedings and the learned Judges held that the application of the 30th of November 1871 which was on a previous occasion held to be time-barred could not be held in subsequent proceedings to be within time or rather that that decision could not be reconsidered and must be accepted as final and binding upon the parties. It does not appear that apart from the application of the 30th of November 1871 in that case the decree-holder could have successfully pleaded that his application for execution then under consideration would be within time.
5. I have referred to the decisions in Delhi and London Bank v. Orchard and Mungul Pershad Dichit v. Grija Kant Lahiri Chowdhry (1881) L.R. 8 IndAp In the first of these two cases, with reference to the order of the 10th of December 1869 their Lordships observed as follows :--'It was contended that the rule of res judicata applied, and that the application made on the 4th of May, 1871, was barred by the order of the Deputy Commissioner of the 10th day of December, 1869, from which no appeal was preferred. But their Lordships are of opinion that the order of the 10th day of December, 1869 was not an adjudication within the rule of res judicata, or within Section 2 of Act VIII of 1859.' The terms of the order are set forth in the judgment at pages 131 and 132. In Mungul Pershad's case the previous order then under consideration has been referred to at page 131 of the report in these terms : 'Here an order for attachment was made by the Subordinate Judge on the 8th of October, 1874, after notice served on the judgment-debtor on the 23rd of September, 1874, to show cause why the decree should not be executed against him. The order was made by a Court having competent jurisdiction to try and determine whether the decree was barred by limitation. No appeal was preferred against it; it was acted upon, and the property sought to be sold under it was attached, and remained under attachment until the application for the sale now under consideration was made.' That order was held to be binding upon the parties. I do not think that either of these decisions conflicts in any way with the view which I take of the order on the application of 1914 in the present case. The distinguishing feature of the present case is that it is not essential for the applicant to question the adjudication as to the application of 1914 in order to save the present application. As I read the order there is no adjudication that the execution of the decree was barred but only that the particular application was not shown to be in time. To that extent and to that extent only the adjudication is binding upon the parties and in my opinion the doctrine of res judicata in execution proceedings could not be carried further so as to make this adjudication equivalent to an adjudication that the other applications and acknowledgments now relied upon were not sufficient to save limitation.
6. On these grounds I am of opinion that the question whether the present application is in time is not res judicata and that the question must be determined on its merits.
7. I would accordingly allow the appeal, set aside the decree of the lower appellate Court, and remand the appeal for disposal according to law.
8. Costs here to be costs in the appeal.