1. These are revisions from decrees of a Court of Small Causes in which a question of limitation is involved. They have been referred to this Bench as there has been some apparent conflict on the question as to how far the principle of res judicata or estoppel by judgment applies to execution proceedings. A money decree was passed on 12th March 1928, and more than three years after that date, namely on 29th November 1932, the decree-holders filed an application in Court certifying the receipt of Rs. 50 on 11th November 1930. No notice of this was, of course, sent to the judgment-debtor, and the certificate was noted. On the 15th February 1933, the first application for execution was filed, and it was stated in the application that Rs. 50 had been received on 11th November 1930; and there was a further allegation that the judgment-debtor had given a slip, which was lost. The decree-holder prayed for the issue of a warrant of arrest. On 16th February 1933 the office reported that the application was in time. Accordingly a notice, possibly under Order 21, Rule 22, Civil P.C., was issued, fixing 6th March 1933. On receipt of a report that the judgment-debtor had received the notice but had not signed it, an order was passed on 6th March 1933 to the effect that, inasmuch as notice had been served on the judgment-debtor, and he had not filed any objection, therefore the application be considered to be within limitation and be entered in the register and be put up for orders. This was an entry made on the order sheet which was initialled by the judge but was not contained in any saparate order. Later on a warrant was issued on 9th March 1933, and the judgment-debtor was arrested and produced before the Court on 23rd March 1933. On this date he filed an objection on the ground that he had never made any payment in November 1930 and that therefore the application was barred by time. The Court summarily dismissed the objection on the sole ground that he had not taken it earlier. He was ordered to be sent to the civil prison, and was released after a week, as subsistence money was not deposited by the decree-holder. The judgment-debtor then filed a fresh objection to the same effect, which was ultimately dismissed on 19th August 1933 on the same ground that the plea of limitation was barred by res judicata. The two revisions before us are from the orders dismissing his objections on 23rd March 1933 and 19th August 1933.
2. The principle of res judicata, as laid down in the Code of Civil Procedure, is contained in Section 11, but that section in terms applies to a subsequent suit and does not in terms apply to applications for execution. A matter which has been finally decided between the parties in a previous suit is, subject to the conditions mentioned in the section, res judicata between the parties and cannot be re-agitated in a second suit. The explanation added to Section 11 further lays down that any matter which might and ought to have been made a ground of defence or attack in the former suit shall be deemed to have been a matter directly and substantially in issue in such suit, and therefore decided against the defendant. Now, where the former suit, even after certain findings are recorded, is actually dismissed, and therefore the dismissal of such suit is not based on those findings against the defendant but is in spite of them, there would be no res judicata. Again, while the suit is pending and the Court is still seized of the case, although it may be that a defendant may not be allowed to reopen a finding which has been recorded on a particular issue, there is nothing to preclude the Court itself from changing its mind and coming to a contrary conclusion, particularly if a new ruling, containing a fresh interpretation of some provision of law, comes into existence in the meantime. It is not Section 11, but the principle of estoppel by judgment underlying that section which has been applied to proceedings in execution with a view to preventing the same point from being re-agitated again.
3. In Ram Kirpal v Rup Kuari (1884) 6 All 269, in a case in which the amount of mesne profits awarded had been once ascertained upon a certain construction put on the decree, their Lordships did not allow the matter to be re-opened on the ground that the decision had become final between the parties upon general principles of law though not under Section 13 of Act X of 1877. In that case an interlocutory judgment in the suit had been passed and was binding upon the parties while carrying the judgment into execution. Again in G.H. Hook v. The Administrator General of Bengal 1921 19 ALJ 366, where an issue as to the construction of a certain will and codicils had been decided in the lifetime of a survivor of the legatees and the point after her death was sought to be raised a second time by the Administrator-General, their Lordships did not allow it to be raised on the ground that the previous decision must be treated as final between the parties though it did not actually come within the purview of Section 11, Civil P.C. It is thus the principle underlying Section 11, which is a general principle of estoppel by judgment which has been applied to execution proceedings, but it does not follow that that principle is much wider in scope or more extensive in application than the principle of res judicata embodied in Section 11 itself. So far as decree-holders are concerned it has been laid down by a Full Bench of this Court in Dhonkal Singh v. Phakkar Singh (1893) 15 All 84 that when an order is made striking an execution case off the file of the pending cases, or dismissing it on grounds other than a distinct finding, that the decree is incapable of execution, that the decree-holder's right to have the decree executed is barred by limitation or by any other rule of law, or on some similar ground on which the application has clearly been dismissed on the merits, the decree-holder is not debarred by the force of any such order from presenting and prosecuting a fresh application for the execution of his decree. Where however there is an express adjudication against the decree-holder which disentitles him either from claiming execution of the whole or part of the decree, such an adjudication would remain binding on him even though he ultimately allows his application to be dismissed or struck off. In a suit, if a defendant fails to file his written statement within the time allowed or fails to appear at the date of the hearing, the suit may proceed ex parte and be may even be prevented from raising a defence afterwards. But if the suit happens to be dismissed or struck off, there would be no bar against the defendant from raising the defence in a subsequent suit. It would seem to follow that ordinarily the mere non-appearance of a judgment-debtor would not debar him from raising an objection if the application for execution is for some reason dismissed and a fresh application is filed.
4. Again, in a suit even if findings are recorded against the defendant, but it is ultimately dismissed or struck off, the findings do not operate as res judicata against the defendant, and it is open to him to raise the points in a subsequent suit. It would seem to follow that where the execution proceeding has not fructified and is therefore not analogous to the decreeing of a suit, a mere non-appearance of the judgment-debtor or failure to file objections should not create an absolute bar. Where, of course, objections are actually filed and dismissed the adjudication is necessarily final. Similarly where in the absence of any objection by the judgment-debtor, orders have been passed on the application which make the application fructuous, and necessarily imply a decision adverse to the judgment-debtor, the matter has to be regarded as having already been adjudicated upon so as not to be capable of being reopened in a subsequent execution proceeding. In a suit, so long as the suit is still continuing, the Court is seized of the whole matter and may go back upon its own finding, though it may not allow a defendant to insist on its being reopened. This would be particularly so where it is the duty of the Court to intervene, for instance, where-insufficient court-fee has been paid, or where a necessary succession certificate has not been obtained or sanction of the Collector, or the Local Government in some cases, has not been obtained, etc. In the same way it would seem prima facie to follow that where it is the statutory duty of the Court to dismiss an application for execution, the mere fact that the judgment- debtor has not chosen to appear and file objections-should not debar the Court from discharging its duty.
5. The mere fact that the judgment-debtor has not thought fit to put in an appearance would not exonerate the Court from acting as required by law. On the other hand, if in a suit certain, pleas, which, if taken, would have been fatal were not taken and the suit resulted in a decree, the defendant is debarred from going behind the decree. By analogy it would follow that where an execution proceeding has become fructuous, so that it may be treated as analogous to the decreeing of a suit the judgment-debtor should not be allowed to go behind the order against him even though the order was passed in his absence and he had failed to appear and file any objections. In the case of a suit a defendant has notice of the full particulars contained in the plaint as a copy is sent out to him. In the case of an application for execution, he may not know the allegations on which the application is actually based. In the Full Bench case of Bisseshur Mullick v. Mahtab Chunder (1868) 10 WR 8, an application for execution was made on 13th September 1865 and notice was issued to the judgment-debtor, and later, on 29th March 1866, it was ultimately struck off. As the original application, was barred by time, the Full Bench expressed the opinion that the application. was not a proceeding within the meaning of Section 20 of Act 14 of 1859 and that
if that application was not a proceeding within the meaning of the section at the time when it was made, it could not subsequently-become so merely because the judgment-debtor did not come in and oppose it. The non-opposition by the judgment debtor clearly was not a proceeding, nor was the issue of the process by the Court in a case in which the process ought to have been refused a proceeding within the meaning of the Act.
6. Under those circumstances the Full Bench came to the conclusion that that application was barred by time, and that it was open to the judgment-debtor to raise such a plea in a subsequent proceeding based on a later application for execution. Their Lordships of the Privy Council distinguished this case in Mungal Prasad Dichit v. Grija Kant Lahiri (1882) 8 Cal 51 at p. 59 on the ground that there no order had been made. Apparently the first application for execution in the Full Bench case had not really fructified in any way; but presumably, after notice had been served on the judgment-debtor, the case must have been registered as an execution case and was dismissed later on after a year.
7. In cases where there is an express adjudication in an execution proceeding, the matter must certainly be final as between the parties. In Beni Ram v. Nanhu Mal (1885) 7 All 102 the decree had been construed by the execution Court to award interest at a certain rate till payment, and it was held that the adjudication in the presence of the parties was final and no contrary construction could be placed upon the decree in a subsequent application in the execution proceedings. There again there was an express adjudication on the point raised by the judgment-debtor who had appeared and filed written objections. Again in many cases in which persons applied to be allowed to execute the decree as representatives of the original decree-holder, it was held that a decision by the Court that they were so entitled could not be re-opened at a subsequent stage at the instance of the judgment-debtor. For instance, the case of Mumtaz Ahamad v. Sri Ram (1913) 35 All 524 (where however the decision also proceeded on the alternative ground that there was no force in the objection) Tej Singh v. Jagin Lal 1916 38 All 289, Dwarka Das v. Muhammad Ashfaq Ullah 1925 47 All 86 but in this latter case, objection was raised to an application for execution of 26th October 1922, although previously, in January 1921, the judgment-debtor, while an earlier application was pending, had deposited a certain amount in Court and prayed that the amount be not paid to the applicant as he was not the transferee; but the Court did not grant his application. The learned Judges considered it as one of the circumstances which estopped him from re-opening the matter.
8. In Raja of Ramnad v. Veluswami Tawar (1921) 48 IA 45 their Lordships of the Privy Council had to consider a similar point in a case where an application to be brought on the record as an. assignee of the decree was actually resisted by the judgment-debtor on several-grounds, including the pleas that there was no valid assignment, that the right to execute the decree was barred by limitation and that certain properties-of theirs were not liable under the decree. On the date fixed for disposal of the objections, the Court recognised the transfer of the decree in favour of the assignee and allowed him to execute the decree and directed that he may file a fresh application for attachment. The judgment-debtors applied for review of the decision on the ground that the application was barred by time, but even that application was dismissed and the Court expressed the opinion that the previous order had not reserved any question of limitation for future determination. The Courts in India had differed' as to the interpretation of this order; their Lordships of the Privy Council-ruled that it was clear that not only the issue of the execution of the decree being barred by limitation was in fact before the Court as shown by the pleadings on that occasion, but that the Judge at that time was aware of it and that his decision must have been the cause of the rejection of this plea. Inasmuch as no appeal was brought against that order, and it stood as binding between the parties, their Lordships held that it was not only competent to the judgment-debtors to bring this plea of limitation-forward on the previous occasion, but that 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. In that case objections had actually been filed by the judgment-debtors and they had resisted the application en the ground of the bar of limitation and the learned Judge, in holding that the transfer was valid and the assignee was entitled to execute the decree, had necessarily decided that the application was not barred by time and indeed he expressed a view that he had not reserved any such question when dismissing the subsequent application for review. As he was aware of the plea when disallowing the objection, their Lordships held that his decision necessarily implied the rejection of the plea of limitation.
9. In cases of devolution of interest where substitution in place of the original decree-holder, though not absolutely necessary, may be made, Order 21, Rule 16 is applicable. No order can be passed for execution of the decree where it has been transferred without notice of such application having been given to the -transferor and the judgment-debtor. When a question arises whether an assignment has been made or not, the -question is something more than a mere matter relating to the execution of the -decree. It may involve a dispute between the original decree-holder and his assignee with which the judgment-debtor may have no concern. It is there-lore something much more than a mere application for execution of the decree against the judgment-debtor. It is the provision of Order 21, Rule 16 which applied only the notice that is issued in such a case is issued under that rule and not -under Rule 22 at all. When on the date 'fixed the matter comes up before the Court, the Court has no option but to decide the matter and has to hold either that an assignment has taken place or that it has not. In such cases there is, and must be an express adjudication of the question, and there is no question of any constructive res judicata or any adjudication by implication only. The case is necessarily one of a direct decision. Much reliance has been placed by the learned Counsel for the decree-holder on Mungal Prasad Dichit v. Grija Kant Lahiri (1882) 8 Cal 51. This is an important case on which a large number of rulings in India have been naturally based. In that case there were a very large number of steps taken by the decree-holder. The point which came up for Consideration before their Lordships was as to whether the sixth application for execution was barred by time, so that it could not be made the basis of a fresh start for purposes of limitation. It is important to bear in mind the proceedings following upon this sixth application. Not only was there no appeal preferred by the judgment-debtor against it, but this application was acted upon and the property sought to be sold under it was attached and remained under attachment until the application for sale which came up for consideration was made. At p. 60 their Lordships enumerated the circumstances which had to be borne in mind and remarked:
Here the judgment-debtor, so far from appealing against the order for the attachment, acknowledged its validity and presented the petition of 25th November 1875 by which he prayed that the sale under the attachment, might be stayed for three months and the execution case struck off for the present with the attachment remaining in force. Upon that petition being presented the creditors agreed to have the execution stayed in accordance with the petition on condition that the attachment on the property should continue.
10. It was on these facts that their Lordships held that it was impossible to hold that if immediately after the expiration of the three months the execution creditor had made the present application it could in the face of the order of 8th October 1874 and the subsequent proceedings have been reversed on the ground that the decree was dead on the earlier date. The decision of their Lordships therefore was not at all based on the simple ground that the judgment-debtor had not appeared in response to the notice issued by the Court. It was based on the important facts that he had not only not appealed from the order but he acknowledged his liability. He prayed for a stay of proceedings for a period and entered into an agreement with the creditors to let the attachment on the property still continue. It was accordingly in the face of the previous order as well as the subsequent proceedings enumerated above that it was held that the order could not be reversed. It seems to me that this decision has in some cases been misunderstood and it has been overlooked that in that case there had been an agreement between the creditors and the judgment-debtor in which the validity of the attachment was acknowledged by the judgment-debtor and he had agreed that that attachment should continue for a certain period. It is also clear that he had appeared in Court and waived all objections to the validity of the attachment.
11. The learned Counsel for the decree-bolder has relied strongly on Dip Prakash v. Dwarka Prasad 1926 48 All 201 , decided by a Bench of which I was a member. But in that case the judgment-debtor had appeared before the Court and filed several objections but failed to raise a particular objection. His objection was disallowed and the execution of the decree was ordered with the result that the Amin was deputed with the specific instructions to demolish the pavement in dispute along with other constructions. The order for the removal of the pavement was carried out by the Amin and the decree was fully executed. It was then that the judgment-debtor appeared on the scene and asked for damages for the loss suffered by him an account of the improper execution. The Bench accordingly held that it was too late for him to re-open the matter. On the other hand, in Official Liquidator v. Hira Lal 1935 ALJ 642, two of us held that where an application for substitution of names as an assignee of the decree was made and the judgment-debtor did not appear to make any objection, but the proceeding did not fructify and the execution case was ultimately struck off, the judgment-debtor was not precluded from pleading that the previous application for execution had been barred by time when he did not challenge the assignment.
12. There are many cases of this Court, a. g., 37 All 589 Kalian Singh v. Jagan Prasad 1915 and Sheo Mangal v. 'Mt. Hulsa 1922 44 All 159 , where objections to the amount entered in the decree sought to be realised have been allowed to be raised for the first time at a much later stage. It would foe inequitable to insist on the enforcement of a decree for the amount larger than what is entered therein merely because the judgment-debtor failed to appear at the first opportunity in response to the notice issued by the Court. A large number of cases have been cited before us, but in most of them except two the judgment-debtor had actually appeared and filed objections. It seems to me that it would be too much to hold that the mere omission to file objections on the first date fixed in the notice debars the judgment-debtor from raising any objection whatsoever and even exonerates the Court from doing its duty in dismissing the application if it is found to be contrary to the provisions of any statutory enactment. 'Where however the application for execution has become fructuous by reason of some definite proceeding having been taken, which necessarily involves the decision that the application must be within limitation, the result would of course be different. Now Section 3, Lim. Act, is imperative and it casts a duty upon the Court to dismiss an application which has not been made within the period prescribed in the schedule. The duty of the Court is not dependent on an objection being raised by the opposite party. Where therefore the application is on the face of it barred by limitation it is the duty of the Court to dismiss it summarily and there is no occasion for calling upon the judgment-debtor to show cause why it should not be admitted. Where however the question of limitation depends on a question of fact which cannot be determined without taking evidence the position would certainly be different.
13. The contention urged before us is that once a notice is issued under Order 21, Rule 22 and the judgment-debtor does not appear and the Court passes an order under Rule 23, Sub-rule (1) then he is debarred from raising any objection whatsoever to the validity of the application even though that application may ultimately be dismissed. Now before that stage arises it is the duty of the Court under Rule 17 to examine the application and satisfy itself that it is in accordance with law. It would also obviously be the duty of the Court's office to report that the application is barred by limitation if it is so prima facie. The Court must therefore make up its mind whether it is within time or not. If it is of the opinion that it is obviously barred by time it should dismiss the application summarily without issuing any notice to the judgment-debtor at all. Rule 22 requires notice to be issued not for the purpose necessarily of calling upon the judgment-debtor to satisfy the Court that the application is barred by time in all oases where the application is made after a certain period from the date of the decree or against the legal rights of the judgment-debtor. Now Rule 23 consists of two sub-rules. Sub-rule (1) says that where the person to whom notice is issued under the last preceding rule does not appear or does not show cause to the satisfaction of the Court why the decree should not be executed, the Court shall order the decree to be executed, while Sub-rule (2) provides that where such person offers any objection to the execution of the decree the Court shall consider such objection and make such order as it thinks fit.
14. It is accordingly apparent that where the judgment-debtor has appeared and offered any objection the Court is bound to consider such objection and must make an order thereon as it thinks fit. Such an order would therefore, if against the judgment-debtor, amount to overruling his objection and dismissing it. It would by virtue of Section 2, read with Section 47, Civil P.C., be a decree which would be appealable at once. On the other hand, if the judgment-debtor does not appear at all and does not offer any objection, and the Court had issued notice on the supposition that the application was in time, no occasion arises for the Court to enter upon an enquiry as to whether the application is or is not barred by time. A mere order that the decree should be executed, which under the sub-rule has to be automatic, cannot be regarded as an adjudication of the question as between the decree-holder on the one hand and the judgment-debtor on the other so as to operate as a bar by implication at all subsequent stages in the same proceeding. The distinction between these sub-rules has in most of the cases cited before us not been pointed out at all. It seems to me that when the Court is merely directing that in the absence of any objection, execution should proceed, it is not adjudicating definitely upon any objection which might have been raised if the judgment-debtor had appeared. If the application does not fructify and is struck off there is no bar of res judicata against the judgment-debtor. On the other hand, where such objections have been actually raised, then the decision upon them is a decree binding upon the judgment-debtor.
15. In this connexion it may be pointed out that it is not every determination of any question that may arise in the execution department which would amount to a decree. As emphasized in section 2 Sub-section (2) a decree is the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all and any of the matters in controversy; and determination of questions under Section 47 are included in it, but such determination must also be a conclusive determination of the rights of the parties with regard to the matter in controversy. In the present case the form, in which the order book was, merely showed that inasmuch-as the judgment-debtor had not filed any objection the application should be considered as within time and should be put up for orders. This was very much like the form which is to be adopted' when an order under Order 21, Rule 17, Sub-rule (4) has to be made. I cannot regard it as a finding on the question, of limitation between the parties which even though the application was now later on dismissed remained binding; on the judgment-debtor.
16. If however some further step had been, taken and the judgment-debtor had remained silent and such step had amounted to the application for execution, fructifying so as to become analogous to a suit being decreed then certainly it would have been too late for the judgment-debtor to raise an objection that the application itself was barred by time. And the bar would have continued even if that application were dismissed and objections were raised in a subsequent execution proceeding that the previous application was barred by time. It seems to me that the principle of res judicata or estoppel by judgment must be applied to execution proceedings within the limits prescribed for that principle when applied to suits and can not be given an unlimited or an extended application. In the case before us there was intimation given to the judgment-debtor that the decree-holder had alleged a receipt of Rs. 50 in November 1930, but there was no intimation that he was also alleging that a slip containing an acknowledgment of the liability had been handed over to the decree-holder and was lost by him later. On the face off the application, it was filed more than three years after the date of the decree, and obviously the mere fact of the payment of a sum of money by the judgment-debtor or its. being certified by the decree-holder in Court, did not amount to any step which would extend the period of limitation. The Court had not before it either any written acknowledgment by the judgment-debtor or any affidavit showing that such a written acknowledgment had existed. No intimation of it was given in the notice to the judgment-debtor. The mere fact that he did not appear in response to the notice did not imply that he admitted that the application was in time when on the face of it, it was barred by limitation. In the present case therefore in the absence of any petition or any-written acknowledgment of the judgment-debtor, the application filed more than three years after the decree was obviously barred by time and the Court should not have issued any notice at all. It may be added that even if the conclusion had been different, this was eminently a fit case in which the original order of 6th March 1933 made on an application which was prima facie barred by time should be revised and set aside. My conclusions therefore are as follows:
(1) Where there has been an express adjudication by the Court in the presence of parties, then the question must be considered to have been finally decided, no matter whether it is raised again at a subsequent stage of the same proceeding, or in a subsequent execution proceeding.
(2) Where an objection is taken but is dismissed or struck off, even though not on the merits, 'and the application for execution becomes fructuous, the judgment-debtor is debarred from raising the question of the invalidity of that application.
(3) Where an objection to execution is taken, but it is not dismissed on the merits or is dismissed for default and the application for execution does not become fructuous, the judgment-debtor is not debarred from subsequently raising the question that that application was not within limitation.
(4) Where no objection to the execution is taken but the application becomes partly or wholly fructuous and such fructification necessarily involves the assumption that the application was made within limitation, then after such fructification the judgment-debtor is debarred by the principle of res judicata from raising the question that that application was not within limitation.
(5) Where no objection is taken but the application for execution does not fructify, the judgment-debtor is not debarred by the principle of res judicata from raising the question of limitation later.
17. I agree with the opinion expressed by the Hon'ble Chief Justice.
18. The question which has been referred to the Full Bench is,
Whether the objection of the judgment-debtor that the application, which is now in execution, is barred by time, is maintainable
19. The circumstances in which the question arose are stated in detail in the judgment of the Hon'ble the Chief Justice. I would mention only such of them as explain the exact scope of the question which the Full Bench' is called upon to answer. A decree was passed against the applicant on 12th March 1928 for Rs. 646. An application for execution of decree was made on 15th February 1933. It stated that the judgment-debtor had paid on 11th November 1930, a sum of Rs. 50, which was certified to the Court on 29th November 1932. It should be noted that no notice was issued to the judgment-debtor when the decree-holder certified payment to the Court and the latter recorded satisfaction of the decree to the extent of Rs. 50. The application for execution, above referred to, was barred by limitation but for the fact that the judgment-debtor was said to have made a payment within three years before the date of the application. A notice was issued to the judgment-debtor under Order 21, Rule 22, Civil P.C. The process-server returned the notice with a report that the judgment-debtor refused to take it. The relief claimed by the application for execution of decree was that satisfaction of the decree be obtained by the arrest of the judgment-debtor. The Court recorded a note, on 6th March 1933, to the affect that the judgment-debtor was served with notice, and as he did not take any objection on the score of limitation, the application be ' deemed to be within time and registered and be subsequently laid before the Court for proper orders. '
20. Three days later, the Court ordered a warrant of arrest to issue. The judgment-debtor was brought under arrest on 23rd March 1933, when he pleaded that the application for execution was barred by limitation. His objection was rejected, as the same had not been taken after the notice was served on him. He was committed to prison, but was released after a week on non-payment by the decree-holder of his subsistence allowance. Thereafter he filed more than one petition of objections at different times protesting against execution proceedings on an application which was barred by time. His objections were rejected on the ground that they had not been taken in due time. These revisions arise out of two interlocutory orders rejecting the judgment-debtor's plea of limitation in the manner already stated. The question which emerges from these facts is whether failure on the part of the judgment-debtor to object, in answer to the notice sent to him under Order 21, Rule 22, Civil P.C., that the application for execution was barred by limitation, precludes him from taking such objection at a later stage of the same proceeding.
21. A mass of case law has been referred to in course of the arguments, from which it is not easy to deduce any precise rule which can be applied to the generality of cases in which a judgment-debtor is said to be precluded from taking the plea of limitation by his failure to take it when a notice under Order 23, Rule 22, Civil P.C., was served on him. In some cases the question was whether a previous application for execution, which was relied on by a decree-holder to save limitation, was itself not barred by limitation. The failure of the judgment-debtor to plead limitation, when he had an opportunity of contesting the first application, was said to be a bar to his right to take that plea when a second application was made by the decree-holder.
22. It is argued on one side that if, in answer to a notice issued on the decree-holder's application for execution, the judgment-debtor does not plead limitation and suffers an order to be passed by the Court that a process of execution be issued, the order presupposes and should be taken to decide impliedly, that the application for execution is not barred by limitation. It is said that even i the application does not, for any reason, result in part satisfaction of the decree, the aforesaid order is conclusive on the question of limitation, when the decree-holder subsequently applies for execution within time from the material terminus a quo afforded by the previous proceedings. It seems to me that the question thus raised cannot be decided by an appeal to the principle of res judicata alone, and that in certain circumstances the judgment-debtor may be precluded from taking the plea of limitation by the general rule of estoppel and not by that species of it which is technically known as estoppel by judgment or res judicata. The ratio decidendi of many judicial decisions, is really on estoppel in the wider sense, though at the first sight they seem to be based on the principle of res judicata. The question, in my opinion, resolves itself into two subordinate issues, namely, whether the judgment-debtor is precluded from taking the plea of limitation by the principle of res judicata; and, if. not, whether there was anything in his conduct which estops him from taking such plea. I would accordingly consider both these issues in answering the question referred to the Full Bench. It cannot be disputed that Section 11, Civil P.C. and its explanation do not, in terms, apply to execution proceedings, but that the general principle of res judicata is applicable: see Ram Kirpal v Rup Kuari (1884)6 All 269. In certain cases it is a question of difficulty how far the rule enacted in Expl. 4 to Section 11, Civil P.C., is part of the general principle of res judicata. Originally no order passed in execution, unless it amounts to an adjudication of the question, can operate as res judicata at a subsequent stage of the same proceedings or proceedings taken on a subsequent application. Where a question of limitation has been expressly adjudicated upon, it is obvious that it cannot be re-agitated subsequently in the same proceeding or in proceedings taken on a second application. Where however no plea of limitation was taken by the judgment-debtor, or if it was taken, the same was not expressly adjudicated upon a question of some nicety arises whether an order of the Court, passed in furtherance of the execution, should be taken to amount to a decision that the application is not barred.
23. In my opinion the principle of res judicata cannot apply, unless the question of limitation should be deemed to have been 'heard and finally decided'. An application for execution can have one of two results.' It is either dismissed, or results in relief being granted to the decree-holder. Where the judgment-debtor did not take the plea of limitation on receipt of notice of the application for execution of decree, or took objection which was dismissed for want of prosecution or for some similar reason, without adjudication by the Court on the question raised by it, and though some process of execution was issued, as desired by the decree-holder, but the application did not result in any relief being granted to the decree-holder and was withdrawn, or dismissed for failure of the decree-holder to do something necessary for the further progress of the execution proceedings, it cannot be said that the issue of limitation was heard and finally decided. The rule contained in Expl. 4 to Section 11, Civil P.C., that any matter that might and ought to have been made a ground of defence or attack in a former proceeding should be deemed to have been a matter directly and substantially in issue in such proceeding, (assuming it to be an integral part of the principle of res judicata) merely requires it to be assumed that such a question was in issue, though not expressly raised. It does not go further and lay down that, regardless of the result of the proceeding, it should be deemed to have been adjudicated upon.
24. As to whether it was finally decided depends upon the manner in which the proceeding terminated. If the ultimate result of the proceeding was such as to be accountable only on the hypothesis that the question of limitation was decided in a certain manner, it may be deemed not only to have been directly and substantially in issue, but also to have been finally decided. For instance, if the question of limitation be deemed to have been a matter directly and substantially in issue, because the judgment-debtor might and ought to have raised the plea, and the application for execution results in a certain property being sold in execution of decree and the sale proceeds applied in part satisfaction of the decree, the question - of limitation should be deemed not only to-have been directly and substantially in-issue, but should also be deemed to have been heard and finally decided, because the final order of the Court terminating the execution proceedings is reconcilable only with one hypothesis, namely that the application for execution was treated by the Court as one not barred by limitation. If, on the other hand, the application for execution was eventually dismissed for some reason the order of the Court terminating the proceeding is quite consistent with the hypothesis that the question of limitation was not heard and finally decided. It is the final result which enables us to determine what questions were in issues which the Court had to decide and did decide in arriving at that result.
25. There is nothing in law to prevent the Court from entertaining the judgment-debtor's plea of limitation at any time during the pendency of the application for execution just as in a pending suit in which ex parte proceedings are taken against a defendant. The Court may[i allow him to appear and take the plea of limitation. The rule contained in Expl. 4 to Section 11, Civil P.C. even where in terms it is applicable, is of no avail to a party pleading res judicata, if the suit was eventually dismissed against him for the obvious reason that the decree proceeds against him and on another ground, and the constructive issue imported by the explanation becomes wholly unnecessary and ceases to be directly and substantially in controversy and, at all events, not heard and finally decided. In this view it is not necessary for the purposes of this case, to consider the broad question whether the rule of constructive res judicata is-applicable to execution proceedings I may however note that it has been persistently held by this Court that it is not see Kalian Singh v. Jagan Prasad 1915 37 All 589 and Phul Chand v. Kanyaiya Lal 1922 44 All 130.
26. In the absence of an express adjudication on the question of limitation, which in itself is an order of the nature contemplated by Section 47, Civil P.C., and therefore a decree, an adjudication cannot be taken to be implied in every interlocutory order which the Court passes in furtherance of execution proceedings. Having regard to the nature of such orders, the circumstances in which they are passed and the absence of such formalities in many cases as invest them with judicial character make it highly undesirable that an intention to 'hear and finally decide' the question of limitation should be imputed to the Court. There is nothing on the record to justify the assumption that the Court has already decided it. Dubious inferences from orders passed by the Court in furtherance of the execution proceedings cannot, in my opinion, be considered to amount to such adjudication as attract the application of the principle of res judicata. Cases of implied decision of questions of limitation stand on a totally different footing. An order of the Court read with other circumstances of the case may lead to the conclusion that the question was present to the mind of the Court, which meant to decide it but gave no adequate expression to its intention in the order. Raja of Ramnad v. Veluswami Tawar (1921) 48 IA 45 was such a case. In that case the judgment-debtor objected to the application for execution on two grounds, namely (1) that the applicant, who claimed to be the assignee of the decree, was not entitled to execute it, and (2) that the application was barred by limitation. The Court recorded an order that:
The transfer of the decree in favour of the petitioner is recognized and the petitioner allowed to execute the decree. The petitioner may file a fresh application for attachment.
27. On a subsequent application for review being made by the judgment-debtor, the Court said that no question was reserved for future determination. In holding that the order of the Court was a bar to the judgment-debtor's plea of limitation taken on a subsequent application, for execution their Lordships observed:
It is clear, therefore, not only that the issue of the execution of the decree being barred by limitation was, in fact, before the Court (as is shown also by the pleadings) on the occasion, but that the Judge at the time was aware of it, and that decision included (as legally must have been the case) the rejection of this plea.
28. Their Lordships clearly took it to be a case of a decision which, though not expressed in plain language, was implied in the Court's order. The test, in my opinion, is whether the terms of the Court's order warrant the belief that it was conscious of the question of limitation arising between the parties and intended to decide it against the judgment-debtor. Every interlocutory order in furtherance of execution proceedings cannot imply a conscious adjudication of the question of limitation only because the Court would not have passed such order, unless it was of opinion that the application for execution was within time, and therefore must be taken to have overruled the plea of limitation. The conclusion at which I have arrived is that the judgment-debtor is not barred by the principle of res judicata, unless: (1) there was an express adjudication on the question of limitation against him in an earlier proceeding or at an earlier stage of the same proceeding; or (2) there was an adjudication implied in an order which taken with surrounding circumstances, should be taken to imply a conscious determination of the question of limitation adversely to the judgment-debtor, or (3) Where the judgment-debtor might and ought to have taken the plea of limitation, but failed to do so, and the final result of the application was to grant the relief of partial satisfaction of the decree to the decree-holder.
29. A judgment-debtor may not be precluded by the principle of res judicata from taking the plea of limitation but he may yet be barred by estoppel arising from his conduct in the course of execution proceedings. The plea of estoppel, in such cases, is not a plea of estoppel against statute. Where an application for execution is made more than three years after the date of the decree, it will not be entertained by the Court at all, unless it shows, on the face of it, that limitation is saved by some step in aid of execution, or part payment or acknowledgment. To that extent the decree-holder makes an allegation of fact. The failure of the judgment-debtor to controvert such allegation, coupled with his conduct in relation to the proceedings, may bring the case within the four corners of Section 115, Evidence Act. The principle of the rule (Order 8, Rule 5. Civil P.C.) that every allegation of fact in the plaint, if not denied specifically or by implication, or stated to be not admitted in the pleadings of the defendant, shall be taken to be admitted, except as against a person under disability may, in the circumstances of the case, be justifiably applied to a judgment-debtor on whom a notice of application for execution of a decree containing an allegation of fact is served. It is easy to conceive of cases in which the judgment-debtor's conduct may imply a tacit admission of the truth of the fact alleged by the decree-holder. A mere admission however cannot operate as an estoppel; but coupled with other circumstances may do so. I have read the judgment of their Lordships of the Privy Council in Mungal Prasad Dichit v. Grija Kant Lahiri (1882) 8 Cal 51, and am of opinion that the judgment-debtor was held to be precluded from raising the question of limitation not by res judicata but by estoppel. Their Lordships have not used the words res judicata anywhere in the judgment. It has been assumed, incorrectly in my opinion, in certain reported cases, that their Lordships based their decision on the principle of res judicata. In that case a number of applications for execution were successively made. They are all stated at p. 57 of the report. The question was whether the seventh application was barred by limitation. That application was admittedly not barred, unless the sixth application, made on 17th October 1874, had become barred by limitation and the decree had become 'dead'. The High Court's order, which their Lordships quoted (p. 59) was, 'A decree once dead, no proceedings by means of an application out of time could revive it.' In refuting the view of the High Court, their Lordships referred to the history of the proceedings taken on the sixth application, and observed as follows:
Here the judgment-debtor, so far from appealing against the order for the attachment, acknowledged its validity, and presented the petition of 25th January 1875, by which he prayed that the sale under attachment might be stayed for three months, and the execution case be struck off for the present, with the attachment remaining in force. Upon that application being presented, the creditors agreed to have the execution stayed in accordance with the petition, 'the attachment on the property attached continuing.' It appears to their Lordships impossible to hold that, if immediately after the expiration of the three months the execution-creditors had made the present application, it could, in the face of the order of 8th October 1874 and the subsequent proceedings, have been reversed, upon the ground that the decree was dead on 5th September 187 J, or on 8th October 1874. The present application having been made within three years after the order of 8th October 1874, is as valid as if it had been made immediately after the expiration of the three months.
30. It is clear to me that the decision of their Lordships of the Privy Council does not rest on any general principle of res judicata, but on the peculiar circumstances of the case before them, which clearly estopped the judgment-debtor from questioning the validity of the proceedings, taken on the sixth application in consequence of his own conduct in taking time and admitting the existence of the debt. The contents of the judgment-debtor's application praying for three months time are noted at p. 57. It is stated that he admitted the debt and agreed to the attachment remaining in force. The case of Raja of Ramnad v. Veluswami Tawar (1921) 48 IA 45 has already been referred to by me. It is a case in which a question of construction was involved, and their Lordships construed a previous order as amounting to an adjudication that the application for execution was not barred by limitation.
31. I do not consider it necessary to notice all the cases that were referred to in course of the arguments. The learned Chief Justice has fully dealt with them. I agree with his views, and answer the question referred to the Full Bench in the affirmative. The answer to the question whether the objection of the judgment debtor, that the application which is now in execution is barred by time is maintainable, is in the affirmative.
32. In view of the opinion expressed by the Full Bench, we allow this revision, and setting aside the order of the Court below, dismiss the application for execution as being time barred with costs in both the Courts.