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Noor Muhammad Vs. Mahmud Khan Fayaz Khan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1930All699
AppellantNoor Muhammad
RespondentMahmud Khan Fayaz Khan and anr.
Excerpt:
- - a matter decided behind the back of the judgment-debtor without notice to him may well have been decided in accordance with law, but it cannot be held to be res judicata. 673. that case, however, is clearly distinguishable, for notice had been given to the judgment debtor and the matter could therefore be held to be res judicata. but even had it been otherwise we have clearly an application for execution made to the receiving court at allahabad, and by section 3, lim......respondent here, obtained a simple money decree. on 18th july 1924 he applied for transfer of the decree for execution to allahabad, but allowed that application to be dismissed in default. on 23rd may 1928 the decree-holder certified to the court a payment in part discharge of the decree. on 19th december 1928, the decree-holder applied for transfer of his decree to allahabad to enable him to execute for the balance against property of the judgment-debtor situated in allahabad. it is the order on this application that has been held to constitute the question of limitation res judicata and in my view wrongly held. upon receipt of this application the munsarin of the court detailed certain of the preliminary history of the case and expressed some doubts as to whether the application was.....
Judgment:

Boys, J.

1. This is the judgment debtor's application in revision of an order of a Court to which a Small Causes Court decree had been transferred for execution rejecting an objection by the judgment-debtor that the application for execution was barred by limitation, the rejection being founded on the view that the question of limitation had already been decided and was therefore res judicata. The judgment-debtor contends that though the question of limitation was decided by the Court transferring the decree, that decision was not res judicata. The facts are as follows:

2. On 27th April 1922 the decree-holder, respondent here, obtained a simple money decree. On 18th July 1924 he applied for transfer of the decree for execution to Allahabad, but allowed that application to be dismissed in default. On 23rd May 1928 the decree-holder certified to the Court a payment in part discharge of the decree. On 19th December 1928, the decree-holder applied for transfer of his decree to Allahabad to enable him to execute for the balance against property of the judgment-debtor situated in Allahabad. It is the order on this application that has been held to constitute the question of limitation res judicata and in my view wrongly held. Upon receipt of this application the munsarin of the Court detailed certain of the preliminary history of the case and expressed some doubts as to whether the application was not beyond time, but the learned Judge of the Court of Small Causes upon that report recorded a brief order that the application was 'within time' and ordered the transfer as asked for. The order as to limitation and the order as to transfer were made without notice to the judgment debtor. On 12th March 1929 the decree-holder applied to the Allahabad Court for execution, and on 22nd May 1929, the judgment-debtor filed an objection that the application was barred by limitation. The learned Judge of the Court of Small Causes dismissed this objection saying:

The decree under execution has been received from the Small Cause Court, Agra, and before that Court the question as to limitation arose. That Court decided that the execution petition is within time. The question as to limitation being thus once decided between the parties it cannot be reopened subsequently in another Court.

3. This was in fact a finding that the question of limitation was res judicata. In this I cannot agree. A matter decided behind the back of the judgment-debtor without notice to him may well have been decided in accordance with law, but it cannot be held to be res judicata. For the respondent decree-holder it is contended that the case should not be sent back to the lower Court to decide the question of limitation because that Court, as it is contended, would have no jurisdiction to decide the question, and any such question must be decided by the Court which passed the decree. In support of this proposition I have been referred to certain cases, but in my view none of them is in point It was held in Ramu Rai v. Dayal Singh [1894] 16 All. 390 that the Court which passed the decree had power to decide a question of limitation. But there was no finding that a Court receiving the decree and having an application for execution made to it had no power in any circumstances to decide that question of limitation. I have been also referred to Rajitagiripathy v. Bhavani A.I.R. 1924 Mad. 673. That case, however, is clearly distinguishable, for notice had been given to the judgment debtor and the matter could therefore be held to be res judicata. The decision reported in Husein Ahmad v. Saju Mohammad [1891] 15 Bom. 28, so far as it is applicable, is rather against the respondent than otherwise. But it is a judgment of a few lines and the facts are not apparent in their entirety. The answer to the question of the Court's jurisdiction appears to me to be found in Section 3, Lim. Act. It is admitted in this case that no application for execution was made to the Court passing the decree, but merely an application for transfer of the decree. But even had it been otherwise we have clearly an application for execution made to the receiving Court at Allahabad, and by Section 3, Lim. Act, any Court having an application made to it must suo motu determine the question of limitation. The answer to that question may be easy or it may be difficult, but it is manifest that it has not merely power but a duty to determine the question. I therefore set aside the order of the lower Court and return the case to that Court to decide the objection of the judgment-debtor. Costs of this revision will abide the result.


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