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Lakshmanan Chetti Vs. Kuttayan Chetti - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Judge
Reported in(1901)ILR24Mad669
AppellantLakshmanan Chetti
RespondentKuttayan Chetti
Cases ReferredMungal Pershad Dichit v. Girija Kant Lahiri Chowdhury L.R.
Excerpt:
limitation act - act xv of 1877, schedule ii, article 179--application in execution more than three years after previous application--omission on part of judgment-debtor to set up bar by limitation--adjudication on application---subsequent application in execution--objection on ground that previous application was barred--res judicata. - .....application no. 524 of the 2nd july 1897 was barred. ha had notice of that application and did not raise any objection to it. the munsif thereupon ordered execution by ordering a warrant for the arrest of the defendant which warrant was duly issued. that was an adjudication upon the application and it was, moreover, acted on, and no appeal has been made in regard to it. it must therefore be held that the question whether the application no. 524 was barred is res judicata. to put the case in the language of their lordships of the privy council, the subordinate judge had jurisdiction upon the petition of the 8th october 1874 to determine whether the decree was barred on the 8th october 1871, and he made an order that an attachment should issue. he whether right or wrong, must be considered.....
Judgment:

1. We consider it is not open to the defendant now to raise the objection that the application No. 524 of the 2nd July 1897 was barred. Ha had notice of that application and did not raise any objection to it. The Munsif thereupon ordered execution by ordering a warrant for the arrest of the defendant which warrant was duly issued. That was an adjudication upon the application and it was, moreover, acted on, and no appeal has been made in regard to it. It must therefore be held that the question whether the application No. 524 was barred is res judicata. To put the case in the language of their Lordships of the Privy Council, the Subordinate Judge had jurisdiction upon the petition of the 8th October 1874 to determine whether the decree was barred on the 8th October 1871, and he made an order that an attachment should issue. He whether right or wrong, must be considered to have determined that it was not barred Mungal Pershad Dichit v. Girija Kant Lahiri Chowdhury L.R. 8. IndAp 123.

2. We accordingly reverse the order of the District Judge and direct execution to issue as prayed. The appellant's costs must be paid throughout by the respondent.


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