1. This is an appeal by the decree-holder arising out of an execution proceeding. It appears that on 7th March 1922, the Bombay High Courts on the original side passed a decree for a sum of money against S. Johnson and Co. That decree was transferred for execution to the Jhansi Court and an application for execution of that decree was filed by the decree-holder on 25th September 1922. The decree was sought to be executed against Habib Bakhsh, who was described as son and heir of Rahim Bakhsh, alleged to be a former partner of S. Johnson and Co. An objection was raised on behalf of Habib Bakhsh that the decree was a nullity inasmuch as the suit had been instituted at a time when the sole partner Rahim Bakhsh was dead. The execution Court at Jhansi on 13th December 1923, held that Rahim Bakhsh was the sole proprietor of the firm known as S. Johnson & Co., and that he was dead on the date of the institution of the suit at Bombay. The application for execution was accordingly dismissed and on appeal to this Court the order of the Subordinate Judge was confirmed on 25th March 1925 and the findings of fact namely that Rahim Bakhsh was the sole proprietor of S. Johnson & Co. and that he was dead on the date when the suit was filed in the Bombay High Court were affirmed. It was further held that Habib Bakhsh was not bound to apply to the Bombay High Court for having the decree against a dead man formally set aside and that consequently an infructuous application made by him under Order 9, Rule 13, Civil P.C., was no bar to his plea that the decree was a nullity. This order became final and the execution proceedings in the Court of the Subordinate Judge at Jhansi were accordingly dropped.
2. It appears now that on 1st September 1926 the decree-holder made a fresh application in the Bombay High Court accompanied by an affidavit. Neither the application nor the affidavit is before us, but a copy of the order passed by the Bombay High Court, dated 12th November 1926, is on the record. Under that order leave was granted to the decree-holder to execute the decree against Habib Bakhsh as a partner of the firm of S. Johnson & Co. Curiously enough that order does not even refer to the findings arrived at by this High Court in a judgment inter parties. Although the order does not specifically mention it, one may presume that it was passed under Order 21, Rule 50, Civil P.C., and that leave was granted to the decree-holder under Sub-clause (2) of that rule. This order was followed by the transmission of the decree to the Jhansi Court afresh. I may note that although notice had been issued to Habib Bakhsh by the Bombay High Court a second time, he for some reason or other did not choose to appear and the order dated 12th November 1926 was passed ex parte.
3. When the matter was taken up by the Jhansi Court in the execution department a fresh set of objections were filed by Habib Bakhsh reiterating the previous two pleas that Rahim Bakhsh was the sole proprietor of S. Johnson & Co., and that he was dead at the time when the original suit in the Bombay High Court was instituted. There was a further plea that the orders passed by the Subordinate Judge and affirmed on appeal by the High Court in 1923 and 1925 respectively were a bar to a fresh execution of the same decree which had been held to be a bullity. The learned Subordinate Judge has accepted the objections of Habib Bakhsh and has dismissed the application; hence this appeal.
4. The first question which has been strenuously pressed before us by the learned advocate for the appellant is that the order granting leave to execute the decree against Habib Bakhsh as a partner of S. Johnson & Co., is an order which, independently of Order 21, Rule 50, Civil P.C., comes within the scope of Section 47, Civil P.C., and is operative as a decree and is therefore a bar to the present objection. It seems to me that this contention cannot be accepted. It is not every order which is passed by an execution Court that automatically comes under Section 47. Only such orders as decide a question between the parties to the suit or their representatives, relating to the execution, discharge or satisfaction of the decree, come under it. And reading Section 47 with Section 2, Civil P.C., it is also clear that such orders must amount to a formal expression of an adjudication which conclusively determines the right of the parties in regard to the matters in controversy. A grant of leave to apply for execution does not prima facie amount necessarily to a conclusive adjudication of the rights of the parties. It seems to me that by itself such an order would not be a decree by virtue of the provisions of Sections 2 and 47, Civil P.C. This view is confirmed by the circumstances that the legislature has thought fit to confer expressly a right of appeal in a special case under Order 21, Rule 50, Sub-clause (3), presumably because such an order would not have necessarily come under Section 47, Civil P.C.
5. The substantial question before us is whether by virtue of the provisions in Sub-clause (3), Rule 50, in Order 21 an ex parte order granting leave amounts to a decree or has the force of a decree. Examining Sub-clause (2) of that rule carefully one finds that it has to be split up into two parts. When the decree-holder claims to be entitled to a decree to be executed against a person whose name does not appear in the decree and who does not come under Sub-clause (1) it is his duty to apply to the Court which passed the decree for leave to execute it. If 'the liability is not disputed' the Court has discretion to grant such leave. If 'such liability is disputed' the Court has to order that the liability of such person be tried and determined in the manner in which any issue in a suit may be tried or determined. Sub-Clause (3) specifically provides that where the liability of any person has been tried and determined the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. The language of Sub-clause (3) is narrow in its scope and cannot be extended so as to cover both classes of orders passed under Sub-clause (2). It seems to mo that the way in which Sub-clause (3) is drafted indicates that only such order granting leave as is passed after dispute and after the question has been tried and determined as if it wore an issue in a suit, is to have the force of a decree. But an ex parte order passed without the question having been specifically tried and determined has not the force of a decree. It follows therefore that the order of the Bombay High Court dated 12th November 1926, which was an ex parte order granting leave and under which the question of the liability of Habib Bakhsh was never tried and determined, has not the force of a decree.
6. The next contention of the appellant is that the order transmitting the decree for execution is itself an order in execution and is binding on the Jhansi Court which cannot go behind it. This contention cannot be accepted. Under Section 39 the Court which passed the decree may send the decree for execution to another Court. The sending of the decree for execution to another Court is not by itself an execution of the decree, though an application for such a transmission may amount to taking steps in aid of such execution. It is therefore impossible to hold that the order transmitting the decree is itself final and precludes Habib Bakhsh from raising the question either that the decree transmitted is a nullity or that the question of nullity has been previously decided by the High Court which is binding on the parties.
7. It therefore seems to me that subsequent order passed by the Bombay High Court cannot supersede the orders passed in execution by the Subordinate Judge in 1923 and the High Court in 1925, which being orders under Section 47 amounted to decrees and have force as such.
8. Of course if the recent order passed on 12th November 1926 had amounted to an order passed in execution under Section 47, it would have superseded the previous orders in execution even though it had been passed in the teeth of such orders. It is the last order which would have been operative so far as the question of res judicata is concerned. I would, therefore, dismiss this appeal.
9. The facts of the case which have given rise to this appeal lie within a very small compass. The appellants obtained a decree from the original side of the Bombay High Court against S. Johnson & Co. on 7th March 1922. The decree was transmitted for execution to the Court of the Subordinate Judge of Jhansi and an application was presented for attachment and sale of the property of Habib Bakhsh as son and heir of Rahim Bakhsh who was alleged to be the original proprietor of the defendant firm. Habib Bakhsh opposed the application for execution on the ground that he was not a partner of the firm against which the decree was passed, that the firm was owned by single proprietor Rahim Bakhsh, that at the time of the passing of the decree Rahim Bakhsh was dead and that the decree obtained against the dead man was an absolute nullity and could not be executed against him. These contentions were upheld by the executing Court which dismissed the application for execution and the order was upheld in appeal by this Court on 25th March 1925.
10. On 1st September 1926, the decree-holders applied to the Bombay High Court for leave to execute the decree against Habib Bakhsh as a partner of the firm against which the decree was originally passed. This application was presumably made under Order 21, Rule 50, Civil P.C. Notice was issued to Habib Bakhsh but he did not appear in the Bombay Court to contest the application and an order was passed granting leave to the plaintiff firm to execute the decree against Habib Bakhsh as partner. This order was made on 12th November 1926. Pursuant to this order the decree-holders applied for execution of the decree against Habib Bakhsh in the Court of the Subordinate Judge of Jhansi and were met by the plea that the application was in the teeth of the decision of the executing Court dated 13th December 1923 confirmed on appeal by the High Court on 25th March 1925. It was contended that the said decision operated as res judicata. This plea has found favour with the Court below and the application has been dismissed. The decree-holders come up to this Court in appeal. The sole question is as to whether the order dated 12th November 1926 which was passed by the Bombay Court has the force of a decree within the meaning of Section 47, Civil P.C. read with Section 2. of the said Code.
11. Order 21, Rule 50, Civil P.C., could not be of any avail to the decree-holders inasmuch as an ex parte order granting leave to the decree-holders does not amount to a decree within the meaning of Order 21, R-50, Civil P.C. There was no dispute as to the liability of the respondent before the Bombay Court; no order wag made for the trial of an issue relating to this; and the liability of the said person was not tried and determined. It was never in the contemplation of the legislature to invest an ex parte order of the description such as has been passed against the respondent with the force of a decree within the meaning of Order 21, Rule 50(3), Civil P.C. A distinction has been clearly drawn between an ex parte order granting leave where the matter is not disputed and an order granting leave after contest. It is the latter order which has been placed on the same footing as an order under Section 47, Civil P.C. on questions relating to execution, discharge or satisfaction of a decree.
12. It has been argued that the ex parte order is a decree within the moaning of Section 47 coupled with Section 2, Civil P.C. The answer to this contention is quite obvious. There was no question raised between the parties or their representatives relating to the execution, discharge or satisfaction of the decree. The order passed by the Bombay Court was an ex parte order, no order having been passed regarding the rights of the parties relating to the execution, discharge or satisfaction of the decree as the result of a contest upon an issue raised. An order merely granting leave to a party to execute the decree is not an order relating to the execution of the decree. There is no getting away from the fact that the order passed by the Subordinate Judge of Jhansi on 13th December 1923 was an order inter parties relating to the execution of the decree in which it was held that the decree obtained against S. Johnson & Co. was not against the firm but was a decree against Rahim Bakhsh personally and that the said decree was a nullity because it had been obtained against a dead person. The order in question was a decree within the meaning of Section 2, Civil P.C. and the parties are bound by it. The later order dated 12th November 1926 is not operative as a decree and it does not preclude the respondent from pleading the former decision as a bar to the present application under the rule of res judicata. The Court below has arrived at the correct conclusion. I have no hesitation in holding with my learned colleague that the appeal should be dismissed.