V.R. Newaskar, J.
1. This appeal arises out of execution proceeding. Two questions are raised:
1. That the Execution Petition No. 4 of 1960 in the course of which the order under appeal is passed is barred by limitation.
2. That the Court below had erroneously applied the principle of constructive res judicata in negativing the plea of the judgment-debtor regarding limitation.
Both these contentions raised in this appeal are without substance.
2. As regards the question regarding limitation the point raised in the Court below was that there was no prior execution as against the appellants Ramlal, Laxman and Kanhaiyalal and relief is claimed against the appellants for the first time in the present execution petition in respect of the decree dated 140-1956 on 7-11-1960. This contention was factually incorrect as the prior execution case No. 5 of 1957 was against the appellants as is clear from the record of that execution petition before me. The objection regarding limitation was tried to be put forward in a slightly different form before me. It was contended that the present execution is more than three years after the last order in the prior execution petition. This last order is said to be dated 2-11-1957. The present execution petition having been filed on 7-11-1960, it is said, is barred under Article 182, Clause (5) of the Limitation Act. This contention also has no substance. The last order in the former execution was dated 31-12-1957 when the Court decided the matter and directed It to be relegated to the record room. Apart from the questionwhether it amounts to the dismissal of the execution petition or not it certainly Is an order subsequent to 2-11-57 and in the course of on execution proceeding which was pending till then. Reliance was placed on behalf of the appellants upon the decision reported in AIR 1939 Matt 841 Chindambaram v. Murugesam. This decision has no application to the circumstances of this case.
3. On the question of constructive res judicata it is enough to say that the decision of the Supreme Court in Mohanlal v. Benoy Kishna, AIR 1953 SC 65, clearly lays down that the principle of constructive res judicata applies to the execution proceedings and that even questions such as regarding jurisdiction cannot be allowed to be raised if not raised at the proper time. It was contended, relying upon the decision reported in Genda Lal v. Hazari Lal, AIR 1936 All 21 (FB), that so far as the question of limitation is concerned as long as the execution proceeding is alive and pending the question of limitation can be raised at any stage although that question was not raised earlier when a notice under Order 21, Rule 22, C. P. C. was given.
4. In my opinion in view of the principle underlying the decision of their Lordships of the Supreme Court in AIR 1953 SC 65, it cannot be said that any exception can be made in the case of a question regarding limitation on considerations such as are dealt with in the aforesaid Allahabad decision. In Harnath Rai v. Hirdai Narain, AIR 1953 Pat 242 and Venkappa v. Lakshmikant Rao, (S) AIR 1956 Hyd 7 (FB), it is held that the principle of constructive res judicata applies not only to different execution applications but also to different stages of the same execution petition. In the present case, notice under Order 21, Rule 22, C. P. C. was issued to the judgment-debitors on 25-1-1961. The judgment-debtors appeared and objected on certain grounds. Their objections were overruled and an order for attachment of certain movable properties was passed. The movables were actually attached. The judgment-debtors appeared and submitted an application stating therein that the property attached is liable to be-released in view of Section 60, C. P. C. It was thereafter that the judgment-debtors by means of a separate- application sought to raise a question regarding limitation.
If the judgment-debtors wanted to contend that the execution petition was incompetent by reason of the bar of limitation it was incumbent upon them to raise the question when the notice was issued to them to show cause why the decree should not be executed against them. They had the opportunity to raise the plea of limitation then. They not having done so and the Court having passed order regarding attachment of their property which was actually carried out the Court should be deemed to have decided that the execution petition was not barred by limitation and was competent. This is the effect of the principle of constructive res judicata.
5. The contentions on both the counts being untenable the appeal is dismissed with costs.