P. Chandra Reddy, C.J.
1. This appeal has been referred to a Full Bench by our learned brothers Manohar Pershad and Kumarajju JJ. as they thought that it involves important questions of law which will be adverted to presently.
2. The facts and the circumstances leading upto the litigation may be briefly related. The appellant obtained a decree against the respondents on the 28th December, 1931. He levied execution of his decree on the 31st of October 1932 seeking to attach all the move-able and immoveable properties of the judgment-debtor and part satisfaction was recorded. Subsequently, a number of execution petitions were filed with prayers either for attachment of the properties of the judgment-debtors or for his arrest. It is not necessary to make a detailed reference to them except to the one which preceded the execution petition in question and that is the one dated 25-8-1951. In this petition, the decree-holder prayed for attachment of the properties of the judgment-debtors. It must be noted here that by this time more than 12 years had lapsed from the date of the decree. Notwithstanding this, the judgment-debtors did not raise any objection that it was barred under Section 48 C. P. C. However, as the appellant did not pay the process fee, it was dismissed for default. Within three years thereof, the present execution petition giving rise to this appeal was filed. This time also the mode in which the assistance of the Court was sought was by attachment of the immovable properties of the judgment-debtors.
3. This was resisted by the judgment-debtors on the plea that the decree became barred under Section 48 C. P. C. The executing Court disallowed this objection since the prayer in the present execution petition was the same as in the previous one viz., the attachment of the properties. The trial Court accordingly ordered execution to. proceed. On appeal, the District Judge differed from the conclusion of the trial Judge and dismissed the execution petition. The decree-holder, aggrieved by this decision, brought the present appeal.
4. Initially, it came up for hearing before Srinivasachari J. It was argued before the learned Judge that the present E. P. could not be regarded as a fresh application so as to be hit by Section 48 C. P. C. and secondly that the judgment-debtors were precluded from taking the objection that it was barred by limitation having failed to do so in the previous execution petition which was presented more than 12 years after the date of the decree. The learned Judge, being of opinion that these points were not free from difficulty., desired that they should be disposed of by a Division Bench. When it was posted before a Division Bench consisting of Manohar Pershad and Kumarayya JJ., they returned the matter to the Full Bench as they thought that these points are of general importance affecting several decrees. This is how the matter comes up before this Full Bench.
5. Two points are presented by the learned Counsel for the appellant: (i) the prayer being identical, namely, the attachment of the properties of the judgment-debtors in the present execution petition and in the preceding one, the present E. P. cannot be described as a fresh application within the purview of Section 48 and (ii) that the doctrine of constructive res judicata comes into play in this case in that the judgment-debtors did not invoke Section 48 C. P. C. in the prior execution petition, which was preferred more than 12 years after the making of the decree.
6. On the first question, it is contended by the learned Counsel that there is no scope for invocating Section 48 as the present execution petition sought attachment of the immoveable properties of the judgment-debtors in the previous petition and consequently it could not be equated to a fresh application as contemplated by Section 48 C. P. C. This argument is sought to be founded upon Sadashiv v. Raja Kistappa Naik, ILR 1951 Hyd. 84 : (AIR 1950 Hyd 15). We do not think that this ruling lends countenance to that theory.
7. The two points that were urged before Me learned Judge were: (i) Has the question of execution proceedings not being barred been previously, decided either expressly or by implication so as to make that adjudication res judicata. In subsequent proceedings and, if that be not so, (ii) is the present application a fresh application so as to prevent the Court from passing any order upon it under Section 262 C. P. C. The learned Judge answered the first one in the affirmative. Having thus decided the first point, they said that any adjudication on the second question was unnecessary. Therefore, this case does not assist the appellant on this controversy, though it lends support to the contention of the appellant on the second Question.
8. The Firm of Phoolchand Chandumal v. Laxman, ILR 1955 Hyd. 471, is also not of any assistance to the appellant. There, the preceding Execution Petition was dismissed for default and another E. P. which was subject-matter of appeal in the High Court was filed with same prayers as in the prior one. It was presented more than 12 years of the passing of the decree. This left the judgment-debtor to raise the objection that it was barred under Section 48. The learned Judge disallowed the contention put forward on behalf of the appellant since he thought that the dismissal for default of the earlier execution application did not put an end to the execution and it was merely kept in abeyance. It was Stated by him that it was clear from the order of dismissal for default that the intention of the trial Judge was not finally to dispose of the execution proceedings and consequently the application before him was one for continuance and revival of the execution proceedings and as such Section 48 did not create any obstacle in the way of the decree-holder executing the decree. The learned Judge observed that
'In order to entitle an application to be treated as one in continuation of to revive a former application there should have been no final disposal or there should have been a wrong dismissal on account of some obstacle, which then existed but which was subsequently removed.'
9. It is clear from these remarks of the learned Judge that there would be no scope for argument that the petition for execution filed after 12 years would not be regarded as a fresh application merely because there was identity of prayers in both the applications. The only test is whether it is a substantive application or an ancillary or incidental one. If an application for execution has been finally disposed of and another application is filed for the same purpose, it would be fresh application as it is substantive one and not an ancillary or incidental application so as to take it out of the category of fresh applications within the connotation of Section 43.
10. Nor is Venkappa v. Lashmikanth Rao, ILR 1955 Hyd 797 : ((S) AIR 1956 Hyd 7), of any avail to the appellant. What was laid down there was that to attract Section 43 C. P. C., an application for execution, should be a substantive one for execution and not one which is merely ancillary or incidental to the previous application, that is to say 'if the decree-holder seeks to set the Court into motion to take further proceedings in respect of an application already pending or where the application has been recorded or where the execution proceedings have been suspended by reason of appeal or other proceedings, it would not be regarded as a fresh application.' The learned Judges rejected the submission that inasmuch as the decree-holder had abandoned the relief of attachment of properties and prayed for the arrest of the judgment-debtor in the E. P. which was held to be pending, the application that he made subsequently for the attachment of the properties in the same E. P. after the case came back from the Judicial Committee, Hyderabad must be deemed to be a fresh application. We are not called upon to consider whether the view of the learned Judges on that question is correct or not as that controversy does not arise here. There, the previous execution petition was pending according to the decision of the Judicial Committee of Hyderabad and the decree-holder merely fifed an application to take on file that application and attach the properties of the judgment-debtor. That was not a case where the previous execution petition was finally disposed of. It was a case of an interlocutory application in the E. P. for reviving the old one and continuing the execution proceedings. This case does not afford any analogy here. Thus, the proposition advanced by the Counsel for the appellant is not backed up either by authority or by the language of Section 43.
11. On the contrary, there is a long course of authority for the position that when once an execution petition is dismissed for default of the decree-holder, it terminates the execution proceedings and a subsequent application for the same purpose would constitute a fresh application within the meaning of Section 43. There is no question of continuing or reviving a petition which has been finally and properly dismissed. It is a different matter if the petition was dismissed without any fault on the part of the decree-holder or without notice to the parties. In such an event, the execution petition would Be treated as one pending in the eye of law.
12. In Tripura Sundaramma v. Abdul Khader, 64 Mad L. J. 664 : (AIR 1933 Mad 418) (F8), the mortgagee-decree-holder filed an execution application for the sale of the mortgaged properties on 2nd October 1922 which was dismissed on 16-1-1923 owing to non-payment of batta for fresh sale notice as ordered by the Court. Meanwhile, there was litigation started by third persons as regards the character of the property mortgaged. On the termination thereof, the mortgagee-decree-holder put in another execution application on the 23rd of September 1927. This was dismissed as time barred. On an appeal by the decree-holder against that order, it was decided by the Full Bench of the Madras High Court that since the earlier application for execution had been finally and properly dismissed for non-payment of batta and the latter execution petition was filed more than three years from the date of the order passed on the former one, it should be deemed to have been barred by limitation. On the question whether the latter application could be considered to be one in continuation of or in revival of the former, the rule was stated by Sundaram Chetty J., who was one of the members of the Full Bench, in the following words :
'It seems to me clear that there should have been no final disposal or there should have been a wrong dismissal on account of some obstacle which then existed but which was subsequently removed, in order to entitle the applicant to have the latter application treated as one in continuation of or to revive the former one''.
13. To like effect is the judgment of this Court in Varanasi Padmanabham v. Joga Rao 1958-1 Andh W. R. 266 : (AIR 1958 Andh Pra 402). It was held there that, if an execution application was dismissed for nonpayment of batta, it was a final order within the purview of Article 182(5) and the second application filed more than three years from that date was barred by limitation. It appears that in the cited case, the second application also was for the same relief.
14. This is also the effect of Chandmal v. Pratapgiriji Chela Narsinghgirji ILR 1957 Andh Pra 615 : (AIR 1958 Andh Pra 655).
15. In Venkata Lingama Nayanim v. Venkata Narasimha Rayanim, 1946-2 Mad L. J. 383 : (AIR 1947 Mad 216) an execution petition was filed for attaching certain villages belonging to the judgment-debtor. During the pendency of that petition, an application was filed for proceeding against new villages not specified in the original petition after the expiry of 12 years from the date of the decree. The objection of the judgment-debtor was that this application should be regarded as a fresh application. In accepting this contention, Patanjali Sastri J., (as he then was), who delivered the opinion of the Court, stated, inter alia :
'Thus an application for execution is an application for attachment and sale of certain property or for the arrest and detention in prison of the judgment-debtor or for taking some other steps in execution of a decree. The Code contemplates successive application's being made to the Court to execute the decree by taking one or more of such steps and the Court is bound to assist the decree-holder in the mode required by him subject to the exercise of its discretion as to simultaneous execution against the person and property of the judgment-debtor under Rule 21, provided of course that the application is not barred by any provision of law. It seems to me that, under such a scheme, every application requiring the Court to proceed against a particular property is a substantive application for execution and an application for attachment and sale or for sale without attachment of property B where a previous similar application in respect of property A has succeeded or failed or is still pending is a fresh application for execution and cannot be treated as one for amending and continuing the prior application, although the prayer in the later application may be worded in that manner'.
16. It is thus seen that, in the judgment of the learned Judges, an execution application in a pending execution petition for proceeding against the properties not included in the original execution petition is also a fresh application within the meaning of Section 43.
17. It was alternatively contended by the learned Counsel for the appellant that, even if the present application is to be regarded as a substantive petition for execution, it would not still fall within the denotation of a fresh application. We are unable to appreciate this argument. A substantive application for execution is a fresh application within the words of Section 43. This point does not need much elaboration. Suffice it to say trial the very decision ILR 1955 Hyd. 797 : ((S) AIR 1956 Hyd 7) (FB) just cited above furnishes an answer to this argument. It is stated by the Full Bench:
'Therefore what is contemplated under this section by the words 'fresh application' is a substantive application for execution and not one which is merely ancillary or incidental to a previous application'.
This submission is, therefore, rejected as being devoid of substance.
18. This takes us to the question as to the applicability of the doctrine of res judicata. The argument addressed to us in this behalf by the learned Counsel is founded again on ILR 1951 Hyd. 84 : (AIR 1950 Hyd 15). It is true that this decision lends support to the contention of the learned Counsel. Therefore, the question for consideration is whether this is rightly decided.
19. It is no doubt well recognised that the general principles of res judicata will be applicable to execution proceedings. It is also a settled rule of law that, Where the judgment-debtor failed to raise all his objections to the application for execution which he might and ought to have raised, and the application was allowed, all such objections would be deemed to have been impliedly decided against him. We are row required to determine the scope and limits of this doctrine with reference to Section 48 C. P. C. It is worth quoting here Section 43 C. P. C., in so far as it is material for this enquiry. It recites :
'Where an application to execute a decree rot being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of 12 years from (a) the date of the decree sought to be executed'.
20. It is manifest that this section fixes an absolute bar to the execution of the decree after the expiration of 12 years from the date of the decree save as provided therein. It deals with the maximum limit of time for execution and no application would be entertained after this period, notwithstanding that the last application was filed within three years of the final order made on the previous application as required by Article 182 of the Limitation Act. To put it differently, the section does not supersede the law of limitation enacted by Article 182 but merely imposes the outside period after which execution could rot be granted even if the requirements of Article 182 were fulfilled.
21. We will now proceed to consider the impact of the principle of res judicata on Section 48 C. P. C. to recall the facts of this case, though the previous execution petition was filed after 12 years from the date of the decree and notice was issued to the judgment-debtors, they did not raise any objection based upon Section 48. The execution application under consideration was presented within three years thereof. How does the failure of the judgment-debtors to take the objection that it was barred under Section 48 C. P. C. in the earlier petition affect his right relating to the present petition? Would it preclude them from opposing the subsequent applications for execution on the ground that they are attracted by Section 43? ILR 1951 Hyd 84 : (AIR 1950 Hyd 15) answered it in the affirmative. The learned Judges look the view that the question of limitation having been constructively and expressly decide against the judgment-debtors, they could not have it reopened. In coming to this conclusion, the Division Bench relied on decisions which, in our opinion, do not support it. None of them is authority for the proposition that an implied adjudication that a particular execution petition does not offend against Section 48 C. P. C. prevents the judgment-debtor from contesting a subsequent application on the strength of the Section 43 C. P. C. It is not necessary to make a detailed reference to these cases. It is sufficient to glance at them as briefly as possible.
22. The doctrine of Aswini Kumar V. Karamat AM AIR 1943 Cal 165; and Bhagwan Singh v. Barkat Ram AIR 1943 Lah 129, was that a judgment-debtor could not question the validity of the first execution petition in the next petition though the former was actually barred not having filed within three years of the date of the decree as required by Article 182 of the Limitation Act, if an order was made for execution of the decree. There, though execution was levied after four years of the decree, no objection was raised by the judgment-debtor that it was not in time and an order for execution was made. However the execution petition was dismissed for failure on the part of the decree-holder to take further steps. Within three years thereof, the E. P. giving rise to the appeal in the High Court was presented. The contention urged on behalf of the judgment-debtor that the previous execution petition was out of time was disallowed by the High Court on the ground that this point was impliedly decided against him.
23. In the Lahore case AIR 1943 Lah 129 m a similar situation, the learned Judges accepted the plea of the decree-holder that the validity of the first application could not be allowed to be challenged when the subsequent application was within time.
24. One of the rules stated in Venkatranga V. Sithamma, AIR 1941 Mad 440; is that the principle of res judicata is applicable to execution proceedings though Section 11 does not apply in terms and that the ex parte order made under Order 23 Rule 1 would be binding on him so long as it is not reversed and would therefore operate as res judicata between the parties and the judgment-debtor could not raise the plea of limitation in subsequent proceedings even though the application on which the order was passed did not fructify and was eventually struck off or dismissed. The issues arising in that case did not bear on Section 48 C. P. C.
25. Raja of Ramnad v. Velusami Tewar 48 Ind App 45 : (AIR 1921 PC 23) also does not throw any light on the question of the applicability of the principle of res judicata to Section 48 C. P. C. The facts set out in the head-note of the report are as follows :
'Upon an application by the appellant to a Subordinate Judge to be brought on the record as assignee of a partially executed decree, the respondents (Judgment-debtors) denied the assignment, alleged that the right to execute the decree was barred by limitation and questioned the liability of certain properties to attachment. The Subordinate Judge by his order of December 13, 1915, recognised the assignment, allowed the appellant to execute the decree and gave him permission to file a fresh application for attachment. There was no appeal from that order. The appellant attached certain properties and various claims were disposed of. Upon the matter coming before the Subordinate Judge to be finally dealt with, he held that execution of the decree was barred by limitation.'
26. This was affirmed by the High Court The Judicial Committee of the Privy Council reversed this decision in the view that the order of December 13, 1915, was positive order allowing the appellant to execute the decree and that it was not open to the Court subsequently to hold that execution was barred by limitation. It may be noted that the plea of limitation was founded on Article 182 of Schedule I of the Limitation Act. This pronouncement of the Privy Council, as already mentioned, does not govern the question arising under Section 48 C. P. C. It is seen that none of these cases supports the view expressed by the learned Judges in ILR 1951 Hyd 84 : (AIR 1950 Hyd 15) or renders any assistance to the decree-holder. These decisions only deal with the three years rule of limitation and embody the rule that points decided in an earlier execution petition will not be agitated in subsequent execution proceedings. That does not disentitle the judgment-debtor from contending that the fresh execution petition is barred. He is only precluded from showing that the order previously made was Wrong. If that were the legal position, we fail to see how the decree-holder can take advantage of the implied adjudication made in the previous application that the decree could be executed, if the application under consideration is barred by reason of Section 48 C. P. C.
27. For the above reasons, with great respect to the learned Judges, we are unable to agree with the opinion expressed by them in ILR 1951 Hyd 84 : (AIR 1950 Hyd 15).
28. The following observations of the Full Benchin ILR 1955 Hyd 797 : ((S) AIR 1956 Hyd 7) occurring atpage 806 (of ILR Hyd) : (at p. 10 of AIR) and reliedon for the appellant, do not in any way advance the caseof the appellant :
'Where, after the service of notice of an application for execution by the decree-holder, judgment-debtors do not raise the plea of limitation stating that the application is a fresh one presented after the expiry of 12 years from the date of the decree, they cannot be allowed to raise the same at a subsequent stage'.
The rule contained in this passage is that the principle of res judicata comes into play even in regard to different stages of the same execution petition. When once an order is made for the execution of the decree and that has become final, in the same execution petition he cannot impeach that order.
29. As we have already stated, Section 48 sets out the outer limits for entertaining an execution petition though it does not stand in the way of a Court making an order on a petition filed within 12 years. The object of the Legislature as could be gathered from the section is that execution proceedings should not be kept pending indefinitely. It requires the decree-holder to be diligent in realising the fruits of the decree. Even if successive applications are filed within three years of each other, it would not avail the decree-holder if the last one is not put in within the period specified in Section 48. The fact that the prior execution petition filed after the expiry of 12 years was impliedly held to be not barred would not help him since unlike under Article 182, the previous petition does not furnish the starting point of limitation. The judgment-debtor is under no obligation to establish that that the earlier petition was out of time. It is enough for him to show that the E. P. which was the subject-matter of enquiry is hit at by Section 48, C.P. C.
30. We are reinforced in this opinion of ours bythe judgments of two Divisional Benches of the MadrasHigh Court. .
31. In Dakshinamurthi Pillai v. Vedamurthy Mudaliar, 53 Mad L J. 440 : (AIR 1927 Mad 842) in the prior execution petition put in more than 12 years from the date of the High Court decree, no objection on the ground of limitation was taken by the appellant. Notwithstanding this, a Divisional Bench of the Madras High Court decided that the order in the prior execution petition did not for ever remove the operation of Section 48 C. P. C. out of the way of all future execution petitions since all that was impliedly decided in the earlier execution petition was that that petition was barred by the 12 years rule.
32. This was followed by another Divisional Bench of the Madras High Court in Adaikppa Chettiar v. Natesan Chettiar 32 Mad LW 615 : (AIR 1931 Mad 381). A contention similar to the one urged before us was repelled by Venkata Subba Rao J. one of the members of the Bench in the following words :
'In the present case, we are concerned with the twelve year rule of limitation. The point to note is that previous petition unlike in the other case does not furnish the starting point. To maintain that the present application is out of time, the judgment-debtor has no need to show that the farmer order is wrong. He can accept it as right and still contend that the present petition is barred. This fundamental difference, the argument of the respondent ignores'.
He also observed that 48 Ind App 45 : (AIR 1921 PC 23) did not support the respondent's contention.
33. To a like effect are the observations of Madhavan Nair J., who was the other member of the Divisional Bench.
34. This is also the view expressed by a single Judge of the High Court of Madhya Bharat in Jaganath v. Takhat Singh, AIR 1952 Madh Bha 9.
35. What emerges from the above discussion is that a judgment-debtor is not precluded from contending that a fresh execution application filed after 12 years was barred under Section 48 C. P. C. notwithstanding that he did not take this plea in the preceding application which was also presented after 12 years. Accordingly, our answer to the second question is that the present Execution Petition filed more than 12 years from the date of the decree is time barred by virtue of Section 48.
36. We, therefore, dismiss the Second Appeal. The parties will bear their own costs throughout.