1. This is an appeal by the decree-bolder arising out of an execution proceeding. A simple money decree was passed on 1st August 1924, and an application, which was in accordance with law, was made on 23rd July 1927, for execution, but had become infructuous because the decree-holder was unfortunately murdered. On 18th June 1930, an application was made on behalf of his three sons for substitution of their names and for execution of the decree. The application was signed by a pleader and was accompanied by a vakalatnama in which however the place meant for the name of the pleader was left blank, and the vakalatnama did not bear any signature of the pleader showing that he had accepted it. The facts were overlooked by the office, and the Court ordered notices to issue to the judgment-debtors. They did not appear to show cause or raise objections. The Court accordingly ordered that the names of the sons of the deceased decree-holder should be brought on the record in his place and that execution should proceed. The proceeding however did not fructify and the execution case was ultimately struck off.
2. On 14th November 1930, a fresh application for execution of the same decree was made and notice ordered to issue. The judgment-debtor on this occasion appeared and objected that the present application was barred by time inasmuch as the previous application of 18th June 1930, was not an application in accordance with law. The Courts below disallowed the objection on the ground that it was no longer open to the judgment-debtor to raise any such plea. In second appeal a learned Judge of this Court has come to the conclusion that the judgment-debtor is not prevented from raising this matter.
3. So far as the defect in the vakalatnama is concerned, the point is covered by the authorities of this Court, namely, Muhammad Ali Khan v. Saktu (1913) 19 I.C. 674 and Chitta v. Jafo 1931 All. 767. The application as filed had not been filed by a duly authorised person and was not in accordance with law.
4. The only question that remains for consideration is whether it is open to the judgment-debtor to raise this objection now when he failed to appear on the previous occasion. Four cases have been referred to in this connection. The case of Mungal Pershad Dichit v. Girja Kant Lahiri (1882) 8 Cal. 51 was a case under the corresponding section of Act 9 of 1871, but in that case, as pointed out by their Lordships of the Privy Council at p. 60, the attachment of the property in pursuance of the order in execution was continuing and the judgment-debtor had consented to such continuance. The second application was to give effect to that continuing attachment. Accordingly it was laid down that the judgment-debt or was estopped from contesting that the attachment itself was invalid because the order for attachment had been made on an application which itself had been barred by time. The case is accordingly clearly distinguishable. Similarly the case of Dwarka Das. v. Mohamed Ashfaqullah 1925 All. 117 was a case where-the Court had actually ordered the substitution of the name of the transferee of the decree-holder, and it was held that at a subsequent stage the judgment-debt or could not be allowed to say that the order directing substitution of names was invalid because no valid transfer had in fact taken: place. There the judgment-debtor was impugning the validity of the order directing substitution of names itself. Again in the case of Dip Prakash v. Dwarka Prasad 1926 All. 71 90 I.C. 83 the order passed for execution was fully carried out and the platforms which the decree-holder wanted to have demolished was actually demolished by the Amin of the Court in pursuance of the order. The judgment-debtor was therefore not allowed to come up at a later stage and claim compensation on the ground that the previous application on which the order had been made was defective.
5. In the case of Raja of Ramnad v. Velusami Tevar 1921 P.C. 23, when notice was issued to show cause why the applicant should not be brought on the record as an assignee of a partially executed decree, the judgment-debtors appeared, denied the assignment and objected that the right to execute the decree was barred by limitation and also questioned the liability of certain properties to attachment. These objections were overruled, the assignment was recognised and the decree-holder was allowed to execute the decree and was given permission to file a fresh application for attachment. After the order had become final and attachment of some properties was made, the judgment-debtor objected that the execution was barred by time. Their Lordships of the Privy Council overruling the Indian Court held that it was no longer open to the Court subsequently to hold that execution was barred.
6. It is noteworthy that in the last mentioned case the judgment-debtor had appeared and filed objections. The Court therefore had to proceed under Order 21, Rule 23(2) and had to consider the objection and make such order as it thought fit. Its order was therefore binding on the judgment-debtor and appeared as an estoppel by judgment.
7. None of these cases was a case where the judgment-debtor had not appeared and the order was passed ex parte. The scheme of the provisions of Order 21, seems to be that when an application for execution, or for taking a step-in-aid of execution is made, the the Court has to see prima facie, principally on the office report, whether the application is in accordance with law and not barred by time, and is not otherwise improper. In the absence of the judgment-debtor, the Court not finding any apparent defect in the application or such defect not being brought to its notice, orders notice to issue to the judgment-debtor, under Rule 22 where the application is made more than three years after the date of the decree or when it is made against the legal representative of a party. In other cases notice is not even issued. Order 21, Rule 23, provides 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 the decree to be executed. It is therefore apparent that when after notice has been issued, the Judgment-debtor does not appear and does not file objections, the Court is not called upon to make any further investigation into the matter, but it is its duty to order the decree to be executed. The order has to be passed automatically and there is no occasion for the Court to exercise its judgment as to the merits of any possible objection that might have been raised if the judgment-debtor had appeared. In such circumstances it is difficult to say that when the Court has no discretion in the matter, its order directing the decree to be executed is an adjudication of the dispute between the parties which operates as res judicata by implication.
8. If the order directing the decree to be executed were continuing and were operative, and proceedings were being taken in pursuance of it, the judgment-debtor would not be allowed to go behind that order and challenge is propriety when he had not appeared. But if the proceedings somehow or other terminated, it would be difficult to say that the ex parte order made by the Court at the time when the notice was issued or the necessary order which had to be made by the Court when he did not appear, operates as res judicata and must be deemed to have finally decided that the application filed before the Court had been in every way proper and valid. In the present proceedings the judgment-debtor is not saying that the order for substitution of names made be the Court was invalid. As a matter of fact under Order 22, Rule 12, no application for substitution of names is an execution proceeding is at all necessary. There being no bar of limitation, it would have been open to the execution Court to have the defect the vakalatnama rectified and order substitution forthwith. But what the judgment-debtor now objects to is that the defective application which has been made on 18th June 1930, cannot serve as a fresh starting point for purposes of limitation. He does not challenge the order directing substitution of names but urges that the application or which the order was made not being in accordance with law does not save limitation. We find it difficult to hold that the judgment-debtor in this fresh proceeding is barred from raising this objection. The view taken by the learned Judge is correct. We accordingly dismiss this appeal with costs.