1. This is a Letters Patent appeal by a decree-holder under the following circumstances: The decree-holder has made an application for execution of a decree in Suit No. 127 of 1923 in which a decree was passed in his favour in F.A. No. 204 of 1925 by this Court on 8th May 1929. The present application was made on 8th December 1932 and the decree-holder relies for saving limitation under Article 182(5), Limitation Act, on a previous application made by him on 29th March 1932. The question before us is whether that previous application is one which comes within the terms of Article 182(5) which provides as follows:
The date of the final order passed on an application made in accordance with law to the proper Court for execution, or to take some step in aid of execution of the decree or order.
2. The application made on 29th March 1932 was for four items: (1) Rs. 179, costs of the appeal; (2) Rs. 178-8-0, costs of application for leave to appeal to the Privy Council; (3) Rs. 268-12-0, costs of another Suit No. 100 of 1926; and (4) Rs. 131-4-0, the amount by which mesne profits were reduced by the High Court in Suit No. 100 of 1926. The applicant had thus claimed execution in regard to two suits. One of these suits was the present suit which was a suit for possession of the property. The other Suit No. 100 of 1926, is a suit for damages for cutting down certain trees. The parties in the two suits were the same. Before notice had issued to the judgment-debtor on the application of 29th March 1932, counsel for the applicant said that an order under Section 144, Civil P.C., was necessary for an item for which execution was desired (jis raqam ka ijra chahta hai). The Court therefore passed an order that the application was not entertainable. This was an order of rejection of the application. Learned Counsel for the judgment-debtor contends firstly that the application was not in fact according to law, and, secondly that this point has been decided in favour of his client by the Court passing the order that the application was not entertainable.
3. On the other hand for the decree-holder it was represented that the application was according to law in regard to the items which were concerned with Suit No. 127 of 1923 and its appeal, and that mere inclusion of other items for which execution was asked would not make the whole application one which was not in accordance with law. It was further contended that inasmuch as no notice had issued to the judgment-debtor under O.21 the order of the Court could not amount to res judicata. The matter before us would have come before the Court under Order 21, Rule 17 which states that on receiving an application for execution of the decree the Court shall ascertain whether the requirements of Rules 11 to 14 have been complied with. The Court found that those requirements were not complied with on the admission of the counsel for the decree-holder and the Court therefore struck off the application as not entertainable.
4. We do not think that any question of res judicata can arise from an order which was not inter partes and which was merely the rejection of an application by the Court. There are certain rulings of this Court and of their Lordships of the Privy Council in regard to the question of limitation in execution proceedings. In Kayastha Co., Ltd. v. Sita Ram Dube 1929 52 All 11, there was a Full Bench decision in which the matter before the Division Bench which was referred to the Full Bench was the application of one Raghunath Prasad on 13th February 1919 to have his name entered as the transferee of the decree-holder and that application was rejected by the execution Court. Nevertheless the question which was referred was whether limitation was saved by this application and the question dealt with was whether an application which was not shown to be bona fide would save limitation. It is true the actual question of the grounds on which the application was rejected was not the subject of reference to the Full Bench but presumably that aspect of the question might have been brought to the notice of the Full Bench, but no suggestion of that sort was made.
5. This ruling of the Full Bench was afterwards affirmed by their Lordships of the Privy Council in Khalil-ur-Rahman Khan v. Collector of Etah 1934 ALJ 110. In consideration of these rulings we are of opinion that there is no res judicata arising from the application and the order on it, and further that the application is one which would save limitation because, so far as the items concern with Suit No. 127 of 1923 the application was one which was in accordance with law. Therefore as a new start for limitation arose from the order rejecting that application the present application for execution is within time. Accordingly we allow this Letters Patent appeal and we set aside the order of the learned Single Judge of this Court and we restore the order of the learned Subordinate Judge with costs throughout and we dismiss the objection of the judgment-debtors and direct that proceedings in execution should continue.