1. The facts lie in a brief compass and are not in dispute. The appellant is the assignee of the decree, dated 31st March, 1942, which entitled the decree-holder to bring the hypotheca to sale. Defendant 1 and defendant 6 were adjudged insolvents ; they were entitled between them to a 2/3 share in the hypotheca ; the mortgage itself was held not to be binding on the Official Receiver in whom their assets vested. Though the appellant asked for the sale of the entire hypotheca, it was conceded that his right, if any, could be enforced only against a third share of the hypotheca, the equity of redemption which has vested in defendants 7 and 8.
2. E.P. No. 133 of 1942, the first of the applications filed for the Execution of the decree, was filed on 4th July, 1942, but it was ultimately dismissed on 5th February,1943- The next Execution Petition No. 225 of 1947 was filed on 3rd November, 1947, more than three years after the termination of the proceedings in E.P. No. 133 of 1942. Notice was ordered to the judgment-debtors, but apparently none of them contested the claim to execute the decree. Sale was ordered on 15th March, 1948 and the properties were brought to sale. This petition too proved infructuous, and it was dismissed on 30th June, 1948. The next attempt to execute the decree was in 1949, when E.A. No. 276 of 1949 was filed on 19th August, 1949, and orders were obtained to transfer the decree to the Court of the District Munsif, Ranipet, for execution ; but no further proceedings were taken in that Court. It was after that that the appellant obtained the assignment of the decree. He filed E.P. No. 205 of 1952 on 1st August, 1952. Notice was ordered to the judgment-debtor but only the Official Receiver entered appearance. One of the defences he put forward was that E.P. No. 225 of 1947 could not be viewed as a step-in-aid of execution as the right to execute the decree was barred on the date that application was filed. The answer of the appellant was that the principle of constructive res judicata applied, and the order of the Court in E.P. No. 225 of 1947 to sell the hypotheca barred the investigation of the plea of limitation at this stage.
3. The learned Subordinate Judge upheld the defence put foward by the Official Receiver and directed the dismissal of the execution petition in its entirety. The assignee decree-holder appealed. As we have pointed out, the real question in appeal is whether the appellant is entitled to execute the decree against the 1/3 share which has not vested in the OfficialReceiver. Independent of the plea of limitation, the 2/3 that has vested in thev Official Receiver was not available to the appellant to proceed against. The judgment-debtors interested in the equity of redemption in the remaining third did not participate in the proceedings either in the lower Court or before us.
4. The plea of limitation would have been well-founded had it been put forward as a defence in the proceedings, in E.P. No. 225 of 1947, before the Court ordered execution of the decree. No such defence was taken, and the order of the Court itself was ex parte the judgment-debtors. The question is, does not decision in E.P. No. 225 of 1947 bar an investigation of the plea of limitation, at this stage in the proceedings in the subsequent application to execute the decree, E.P. No. 205 of 1952.
5. The rule laid down by a Division Bench of this Court in Venkatranga Reddi v. Chinna Sitkamma : AIR1941Mad440 , applies and the plea of res judicata will have to be upheld. To negative the plea of res judicata and to uphold that of limitation, the learned Subordinate Judge relied on the judgment of Krishnaswami Nayudu, J., in Appayya v. Venkataratnam : AIR1954Mad1 . The learned Subordinate Judge apparently did not notice that the decision in Venkatranga Reddi v. Chinna Sithamma : AIR1941Mad440 , from which Krishnaswami Nayudu, J., differed, was that of a Division Bench. The correctness of the decision of Krishnaswami Nayudu, J., in Appayya v. Venkataratnam : AIR1954Mad1 , and even the propriety of the course he took in differing from the decision of Division Bench of this Court were commented on adversely by another Division Bench in Shanmugavelu v. Karu-pannaswami : AIR1954Mad1070 . The principle laid down in Venkatranga Reddi's case'1, was reaffirmed in Shanmugavelu v. Karuppannaswami : AIR1954Mad1070 . Even independently of that, we are bound by the authority of Venkatranga Reddi's case : AIR1941Mad440 the principle laid down in which we respectfully accept as correct. As pointed out in Shanmugavelu v. Karuppannaswami : AIR1954Mad1070 ,
it is now well-established that if an order to execute is passed in an execution petition the Court is deemed to have decided (1) that the petitioner has a right to execute, (2) that the judgment-debtor is liable to satisfy the decree, (3) that the decree is executable, and (4) that it is not barred by limitation.
6. That was the effect of the order to sell, dated 15th March, 1948, passed in E.P. No. 225 of 1/347.
7. The appeal is allowed ; the order of the Subordinate Judge is set aside, and E.P. No. 205 of 1952 is remanded for disposal afresh according to law. As the claim against the Official Receiver was bad even independent of the plea of limitation, the appellant will pay the costs of the Official Receiver, both in the lower Court and in this Court.