1. This is an appeal by the Decree-holder against the order of Sanjeeva Row Nayudu, J. in A. A. O. 121 of 1959, dismissing his execution petition as barred under Section 48 of the Civil Procedure Code, reversing the order of the execution Court that execution could proceed.
2. The facts necessary for appreciating the contention raised before us are these: The decree, which is being executed, was passed on 22nd September 1331 F. corresponding 1o September 1921. It is a decree for money. There were a number of execution petitions filed previously, the present one being the ninth. It was filed an 20-3-1957. The Decree-holder applied for proceeding against the property of the first defendant. A notice under Order 21, Rule 22 C. P. C. was issued to the Judgment-debtor (the first defendant). The judgment-debtor did not appear and the attachment of immoveable property was effected, as prayed for. At a subsequent stage, a notice was issued to the judgment-debtor under Order 21, Rule 68 'C. P. C. The judgment-debtor did not also appear in response to this notice. The Court ordered sale of the property. Subsequently, the judgment-debtor entered appearance and objected to the execution of the decree on the ground that the execution petition was barred under Section 48 C. P. C. The execution Court held that the judgment-debtor was precluded from raising the objection by the rule of constructive res judicata relying on Venkatranga Reddy v. Chinna Seethamma, AIR 1941 Mad 440 and Puttappaji v. Mallappa, AIR 1944 Mad 420.
3. The judgment-debtor appealed to this Court. Out learned brother Sanjeevarao Nayudu, J. took a contrary view and directed the dismissal of the execution petition as barred under Section 48 C. P. C. The Decree-holder has filed this appeal under Clause 15 of the Letters Patent aggrieved by the said decision adverse to him.
4. The short question is whether the judgment-debtor is precluded by the rule of res judicata from resisting the execution on the ground of limitation, he having failed to take this plea at the earlier stages of the execution.
5. We are proceeding on the premises that the objection, if taken at an earlier stage of the execution proceedings, would have effectively thrown out the execution proceedings.
6. There can be no controversy that the rule of constructive res judicata applies to execution proceedings, that is to say, that the objections which might and ought to have been taken must be deemed to have been decided against the party. It is also a settled proposition that even an erroneous decision on a question of law operates as res judicata between the parties to it, and that the correctness or otherwise of a judicial decision has no bearing on the question whether or not it operates as res judicata, i.e., the rule operates even if there has been an erroneous order at a prior stage of the execution proceedings. These propositions, which are indisputable and settled are restated and affirmed by the Supreme Court in Mohanlal Goenka v. Benoy Krishna Mukherjea, : 4SCR377 .
7. A further indisputable proposition is that the rule of res judicata applies not only to successive execution petitions as such but also at successive stages of the same execution petition. In the instant case, the question arises if the judgment-debtor is barred by the rule of constructive res judicata from raising the plea that the execution petition is barred under Section 48, C. P. C. he having failed to appear and object when notice was issued to him under Order 21, Rule 22 C. P. C. and when the Court ordered the sale. There appears to be consistent authority that the judgment-debtor is so precluded-
In Raja of Ramnad v. Velusami Tewer, AIR 1921 PC 23 the assignee of a partially executed decree applied to the Subordinate Judge to be brought on record in place of the Decree-holder. The judgment-debtors denied the assignment and the liability of certain properties to attachment. They alleged that the right to execute the decree was barred by limitation. The Subordinate Judge recognised the assignment, allowed the assignee to execute the decree and gave him permission to file a fresh application for attachment. That order was not appealed again. In the final proceedings, the Subordinate Judge permitted the judgment-debtor to raise again the plea of limitation. In the course of the judgment, Lord Moulton observed as follows:
'Their Lordships are of opinion that it was not open to the learned Judge to admit this plea. The order of the 13th December 1915, is a positive order that the present appellant should be allowed to execute the decree. To that order the plea of limitation if pleaded, wouldaccording 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 respondent 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 more-over it was in fact brought forward and decided upon.'
This ease was expressly referred to by the Supreme Court in : 4SCR377 .
8. Venkatalingam v. Dhanaraj Girji, AIR 1929 Mad 826 was a case of a judgment-debtor who failed to appear and object on a notice and the Court passed an ex parte order for the attachment of the properties. At a subsequent stage, he applied for a review of the ex parte order of attachment in execution. The execution court refused the review. The learned Judges upheld the rejection of the review petition by the execution Court, holding that the defendant having allowed the order to be passed ex parte, was concluded by that order. The learned Judges held that the ruling of the Judicial Committee in AIR 1921 PC 23 governed the case.
9. AIR 1941 Mad 440, was a case of an execution being levied for money. E. P. 5 of 1930 was indisputably barred by time, but though notice to show cause why the decree should not be executed was duly served on the judgment-debtor, he did not oppose and object to the application, and Court ordered the issue of a warrant for his arrest. The Decree-holder did not prosecute the petition further and it was dismissed on 10th March 1930. A subsequent application was put in 1933 within three years of the' previous one, which also was dismissed for non-prosecution. The next E.P. was fled on 7-10-1936 Ex. P-86 of 1936. The judgment-debtor raised the plea of limitation based upon the execution petition No. 5 of 1930 having itself been filed beyond time. The Decree-holders tried to repel the plea saying that arrest had been ordered on that petition and the judgment-debtor was, therefore, precluded by the principle of res judicata from raising the plea.
Patanjali Sastri, J. (as he then was) who delivered the judgment of the Court discussed the application of the principle of res judicata at great length. The learned Judge expressed that an order for execution made after notice to the judgment-debtor who did not appear and offer any objection, precluded him from raising a 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. So the plea of bar by the rule of res judicata could be successfully invoked by the decree-holder. We may also notice that the learned judge expressly dissented from the view expressed in Genda Lal v. Hazari Lal, AIR 1936 All 21 thus:
'Where no objection is taken, but the application for execution does not fructify, the judgment-debtor is not debar-red by the principle of 'res judicata' from raising the question of limitation later.'
10. We are referring to this express dissent by the learned Judges, as our learned brother Sanjeeva Row Nayudu, J. has based his decision mainly on the acceptance of that view of the Full Bench of the Allahabad High Court.
11. 57 Mad LW 356 : AIR 1944 Mad 420 was a case where an execution petition was filed out of time. Noticewent to the judgment-debtors but they did not appear, and an order was passed for sale of properties. At a later stage an objection of limitation was taken. The objection was found to be untenable. The learned Judge expressed thus:
'If an order to execute is passed in an execution petition, then by implication the Court has decided:
(1) that the petitioner has a right to execute; (2) that the judgment-debtor is liable to satisfy the decree; (3) that the decree is executable; and (4) that it is not barred by limitation. The result is that at no subsequent stage after an order to execute has been passed is it open to the judgment-debtor to dispute the correctness of these four implied decisions.'
The learned Judge referred to AIR 1941 Mad 440 : 53 Mad L W 181 as being in conformity with the view that he expressed. Referring to Section 3 of the Limitation Act the learned Judge stated that
'the weak point of the argument based on Section 3 was that when the Court ordered the property to be sold, it decided -- rightly or wrongly -- that the application was not barred by limitation, and so had no power to pass any subsequent orders inconsistent with its earlier decision, and that when the Court passed an order adverse to the respondent that the property should be sold, he had a right of appeal under Section 47; and as he did not exercise that right he is barred from disputing the correctness of the order at a subsequent stage.'
12. This view has been consistently stuck to by the Madras High Court. Our attention is drawn to a Full Bench decision of the erstwhile Hyderabad High Court in Venkappa v. Lakshmikant Rao, ILR (1955) Hyd 797: ((S) AIR 1956 Hyd 7). It was held therein in conformity with the ruling in AIR 1921 PC 23 and AIR 1929 Mad 826 as follows:
'Where, after the service of notice of an application for execution by the decree-holder, the 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 view taken by the erstwhile Hyderabad High Court has been referred to with approval in the Full Bench decision of this Court in Venkatarama Reddy v. K. Buchanna, : AIR1963AP1 . Endorsing the view expressed by a Full Bench of the erstwhile Hyderabad High Court, the learned Chief Justice observed:
'..... 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 (judgment-debtor) cannot impeach that order.'
As against the consistent weight of authority we are unable to sustain the view of our learned brother Sanjeeva Row Nayudu, J. based mainly on the proposition adumbrated by the Full Bench of the Allahabad High Court in AIR 1936 All 21. We have indicated in the earlier part of this judgment that the view was expressly dissented from in AIR 1941 Mad 440 : 53 Mad L W 181.
13. We are in respectful agreement with the views expressed in AIR 1941 Madras 440 : 53 Mad LW 181, which still hold the field.
14. Sri Narasimha Iyyengar has argued that the decision in 1962-2 Andh WR 160 at p. 169: (AIR 1963 Andh Pra
1 at p. 5) would support his contention that the objection that the execution petition is barred under Section 48, C. P. C. could be taken at any stage, and relied on the concluding part of the judgment of the Full Bench which is in these words (p. 169) (of Andh W R) : (at p. 5 of AIR):
'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.'
We may at once state that the instant case does not present similar facts. It is a case where the judgment-debtor failed to object at a prior stage of the same execution proceeding and came up with his objection at a later state.
15. We do not consider that the above observations of the Full Bench of this Court would lend countenance to the contention that the objection that the execution petition is barred under Section 48, C. P. C. could be taken successfully at a later stage of the same execution petition, having filed to take it at an earlier stage. The Full Bench has lucidly brought cut the distinction between a plea of limitation under Section 48, C. P. C. and such a plea with reference to Article 182 of the Limitation Act and affirmed the fundamental distinction as stated by Venkata Subbarao J. in Adaikappa Chettiar v. Natesan Chettiar, 32 Mad LW 615 : (AIR 1931 Mad 381). For reasons of expedience and fullness we extract hereunder the distinction aptly brought out:
'In the present case, we are concerned with the twelve-year rule of limitation. The point of 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 former 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.'
16. For the said reasons, we consider that our learned brother Sanjeeva Row Nayudu, J. has decided against the consensus of authority and, as such, we find it difficult to uphold his decision.
17. We find that the judgment-debtor is precluded from raising the plea that the execution petition is beyond time and offends Section 48, C. P. C. by the rule of constructive res judicata.
18. We set aside the order of our learned brother Sanjeeva Row Nayudu, J. and restore the order of the execution Court that the execution could proceed.
19. The appeal is allowed with costs.