Venkatasubba Rao, J.
1. The lower Court made an order transmitting the decree for execution as against defendants 4 and 5. This appeal has been filed by defendant 5 who impeaches that order. The following pedigree may be found useful:
Lakshman Chetty Ramaswamy Chetti
defendant 1 (died) prior to the filing
| of O.S. No. 10 of 1912
Kasi Chetti defendant 2 |
Kasi Chetti Adaikappa Chetti
defendant 3 defendant 4
died 29th March 1922
2. A certain Sreenivasa Naicker filed O.S. No. 10 of 1912 in the Sub-Court of Tuticorin for the recovery of about Rs. 23,000 due upon a promissory note executed by Lakshmana, defendant 1, in his favour. In that suit four persons were joined as defendants, Lakshmana and his son (representing one branch) and the two sons of Ramaswami (representing the other branch). I may note at once that defendant 5 was not made a party to that suit. A decree was passed on 10th February 1913, against defendant 1 personally and against the family properties, of all the defendants that had been impleaded. The plaintiff, Sreenivasa, assigned the decree on 27th July 1914, in favour of the respondent Natesa Chetti. His right as assignee-decree-holder was recognized by the High Court on 23rd January 1917. On 28th November 1924, defendants 1 and 4 were respectively brought on the record as the legal representatives of the second and third, who had in the meantime died. Several execution applications were from time to time filed, so that the decree might not get barred under the three years rule. The respondent filed the execution application (E.A. No. 1028 of 1928) which is the subject of this appeal in the usual form, on 1st October 1928. In addition to that application, he filed on the same date a separate petition for bringing defendant 5 on the record, in the place of his deceased father, defendant 3. The two applications were resisted by both defendants 4 and 5, but their objections were overruled by the learned Subordinate Judge, who directed the decree to be transmitted for execution as against them.
3. From this statement, it is clear that when the execution application in question was filed, more than 12 years had elapsed from the date of the decree. Section 48, Civil P.C., would ordinarily be a bar to the execution, but the respondent relies upon certain fraud, under Clause 2 (a) of that section, which he contends prevents the running of the Statute of Limitation. That clause runs thus:
Nothing in this section shall be deemed(a) to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of 12 years, where the judgment-debtor has by fraud or force, prevented the execution of the decree at some time within 12 years immediately before the date of the application.
4. He admits that the fraud alleged by him is that of defendant 1, but says that it enables him to treat the decree as being alive even as against defendant 4. The first question that this appeal raises is, whether this contention is correct. He next urges that defendant 4 is prevented on the ground of res judicata from pleading that the decree is barred by the 12 year rule. The facts that need be referred to in this connexion are the following. The respondent filed on 1st November 1927, E.A. No. 1509 of 1927. Defendant 4 did not appear to contest it and an order was made on 18th April 1928, transmitting the decree for execution. It will be seen that this application of November 1927, was itself filed after the lapse of 12 years from the date of the decree. What the respondent urges is, that the order then made, involves the decision that the decree was nevertheless in force and that defendant 4 is precluded from now raising the plea that it is barred by the twelve year rule. I may observe that the question of res judicata is a new point raised by the respondent for the first time in appeal. He next contends that if defendant 4 is barred by res judicata, defendant 5 is equally barred on the principle of representation. The latter, besides controverting each of these positions, further asserts that the application as against him is in any event barred as it was filed more than three years-after his father's death.
5. The facts which are said to constitute fraud on the part of defendant 1 are these. I have said that the plaintiff, Sreenivasa assigned his decree to the respondent on 24th July 1914. Two petitions were subsequently filed, one by the respondent and the other by Lakshmana, defendant 1. The former applied that the transfer to him should be recognized; Lakshmana prayed that satisfaction of the decree should be recorded. His case was shortly this. He executed a mortgage in favour of one Ramanatha, allowing a part of the consideration to remain in his hands, with that part, Ramanatha discharged the decree but he fraudulently obtained its transfer in favour of the respondent. This was his. case and the first Court believing it, refused to recognize the transfer in favour of the respondent and dismissed his application, but somewhat strangely rejected also the application of Lakshmana. Both Lakshmana and the respondent being dissatisfied with these orders, filed appeals to the High Court. It found that defendant 1 did not make out his case and rejected his application and as a necessary consequence, recognized the transfer in favour of the respondent. The application for recording, satisfaction was made on 31st July 1914, and the judgment of the High Court was pronounced on 23rd January 1917. The respondent contends that the fraud of defendant 1 having been only then discovered, the time began to run under Section 48, Clause 2 (a), from that date.
6. I think I have stated the material facts and shall now proceed to consider the legal contentions raised.
7. Numerous cases have held that the word .'fraud' in this provision should be liberally interpreted. In Visalakshi Ammal v. Sivasankara Taker  4 Mad. 292 a fictitious transfer of his property made by a judgment-debtor, was held to amount to ' fraud'. In Annamalai Goundan v. Rangaswami Chetti  6 Mad. 365 eluding service of warrant and making applications which had the effect of staying execution, was held to be 'fraud.' In Venkayya v. Raghavacharlu  22 Mad. 320 locking up the house so as to prevent attachment of moveable property was similarly held to be 'fraud.' In Ramanathan Chettiar v. Mohideen Sahib A.I.R. 1924 Mad. 836 it was again held that the evasion of arrest was 'fraud' within the meaning of Section 48. Having regard to these and other similar rulings, the appellant's learned Counsel did not contest the position that defendant 1's conduct in pleading a payment, found not to have been made, amounts to 'fraud' under this section.
8. The question then is, does the fraud of defendant 1 extend the time even as against defendant 4? Section 48 cannot, in my opinion, mean that the fraud on the part of one judgment-debtor, gives a new starting point as against his co-debtors. The construction suggested for the respondent leads to manifest injustice. It is enacted by way of exception, that the judgment-debtor guilty of fraud cannot avail himself of the rule which says, that a decree shall not be executed after the lapse of the 12 years. Why should an innocent judgment-debtor suffer for the fraud of his co-debtor? The view of Sundara Iyer, J., in Abdul Khadir v. Ahammad Shaiwa Rowther  35 Mad. 670 which differed from that of Phillips, J., was upheld in the Letters Patent appeal by a Bench of three Judges : Abdul Khadir v.' Ahammad Shaiwa Rowther  33 Mad. 419. The following sentence embodies the opinion of Sundara Aiyar, J.:
At any time, I am unable, against what appears to me to be the plain meaning of the words of the section, to hold that fraud by one judgment-debtor would give relief to the decree-holder against his co-judgment-debtor.
9. Sir Arnold White, C. J., says in his judgment at p. 423 in the Letters Patent appeal, in which the other two Judges concurred:
It seems to me that there is not only no equity in favour of the judgment-creditor but that it would be inequitable that a judgment-debtor should be deprived of the benefit of the prescribed limitation by reason of acts done by his joint judgment-debtor, over whom he has presumably no control and for whose action he is not responsible.
10. It is argued for the respondent that the fraud here being of a different kind, 'the present case is distinguishable from the case cited. Defendant 1 in that case evaded arrest and it was held that his fraud did not give a fresh starting point as against defendant 2. The fraudulent act there could benefit only the party who committed it. But in the present case, it was falsely asserted that the decree became satisfied and that plea would enure to the benefit of not only the party who put it forward but also his co-judgment-debtors. This is the contention advanced, but the distinction adverted to does not affect the principle, namely, that it would be unjust that one party should suffer for the wrongdoing of another.
11. I may cite a Privy Council case John v. Dodwell & Co.  A.C. 563 which though not a decision on the Limitation Act, is yet very instructive by analogy.
12. The respondents authorized the manager of their business at Colombo to draw cheques in their names upon their banking account for the purpose of the business. In 1909 and 1910 the manager bought shares on his own behalf through the appellants as brokers, and in payment of the price fraudulently gave them cheques drawn by him upon the respondent's account. The appellants received the amount of the cheques without fraud but with knowledge that the manager without apparent authority, was drawing for his own purposes upon the respondents' funds. The appellants paid over the proceeds of the cheques (except a small part) to the sellers of the shares. The respondents did not discover the fraud of their manager until October 1911; In January 1913, they sued the appellants in Ceylon to recover the amount of the cheques.
13. It was held that the claim fell within Section 11 of the Prescription Ordinance of Ceylon which allows a three year period in cases not expressly provided for, and that whether under English law or Roman - Dutch law as administered in Ceylon no new cause of action arose when the fraud was discovered, since the fraud was not that of the appellants nor of any person for whom the they were responsible. Viscount Haldane observes in his judgment thus:
Mr. Upjohn, in arguing the case of the respondents with conspicuous fairness, drew their Lordships' attention to these pages in the Digest. They think that they illustrate a general principle, applicable in Ceylon or in England, that to enable the defence of concealed fraud to be relied on as giving a new cause of action, the fraud must be shown to be the fraud either of the defendant himself or of some one for whose action in the matter in question he has assumed responsibility.
14. The Supreme Court thought that it was sufficient to show that the appellants had obtained the cheques from a person who had committed a fraud and concealed it, although they themselves had not been guilty of fraud. In coming to that conclusion, they were influenced by the decisions of the English Courts of Chancery such as that of Lord Eldon in Huguenin v. Baseley  15 Ves. 180 who said, in his judgment:
that he should regret that any doubt could be entertained whether it is not competent to a Court of equity to take away from third persons the benefits which they have derived from the fraud, imposition, or undue influence, of others.
15. Their Lordships of the Committee then point out that the doctrine of restitution of property by third persons deriving a benefit does not apply to a new cause of action arising from a concealed fraud. The law is tersely stated in the following passage:
In the present case there is a statute of limitation and in order to escape from its application it is necessary to show that there is a subsequent and independent cause of action which arises from the concealment of the fraud. Such a separate cause of action arises, as their Lordships have already said, only out of the conduct of a person who is held to have been responsible for the fraud and has in breach of his duty concealed it.
16. I shall not cite any English cases recognizing this principle beyond merely referring to the judgment of Lord Alverston, C. J., in McCallum In Re: McCallum v. MoCallum  1 Ch. 143. The respondent's contention that the fraud of defendant 1 gives rise to a new cause of action even as against defendant 4 by reason of his having derived a supposed benefit, is thus clearly untenable and must be rejected.
17. For the respondent it is next argued, that defendant 1 must be deemed to have been the agent of defendant 2-3 and that the fraud of the agent gives a fresh starting point as against the principal. The facts relied on for this argument are these: The decree was passed in 1913 on a promissory note executed by defendant 1 in 1910. The suit itself was filed in 1912. There was a partition in 1911 between Lakshmanan Chetty and Ramaswami Chetty. It contains no reference to the debt in question, but there is a general clause that each party is to be liable for his own debts. It is now argued that this deed makes defendant 1 liable for the debt in question and that by implication he must be deemed to have been constituted defendant 3's agent for paying, it off. It is next asserted that the debt became merged in the decree of 1913, and that when defendant 1 falsely pleaded that it had been discharged, it must be deemed that he was acting not only on his own behalf but also on behalf of his principal defendant 3. We must point out that this contention has been for the first time raised in this Court. There is not a scrap of evidence to show that defendant 1 was the agent of defendant 3. The partition dead does not in the least avail the respondent. It merely accounts for defendant 3 not having taken any steps in regard to this decree. It-did no more than provide that each of the executants was to be liable for his own debts and this debt was not even specified. When subsequently the decree' was passed against both, defendant 3 as between themselves was in a position to say:
The debt is not mine; I shall have nothing to do with it.
18. I fail to see how any agency can be implied from these facts. If the respondent wished to rely upon any such ground, he ought to have made below a. specific allegation and proved it by evidence. This contention therefore must be rejected.
19. I shall now proceed to deal with the contention of res judicata raised. As I have pointed out in an earlier paragraph, the assignee decree-holder contends that defendant 4, by reason of a certain previous order, is now precluded from pleading, that the execution is barred under the 12 year rule. If this contention fails, the further question does not arise, whether defendant 5 is also barred by res judicata on the theory of constructive representation. The respondent's argument on the point of res judicata I have already sat forth. The order which is said to operate as res judicata is the one made on Execution Petition 1509 of 1927. It was filed on 1st November 1927, that is, more than 14 years after the date of the decree. On 4th January 1928, the Judge endorsed upon this the word 'notice' and on 18th April 1928 ha made the final order 'send.' This means that the Judge directed the decree to be transmitted. The respondent's argument is that the order then made decides by implication, that the decree was in force on the date of the previous petition. His argument is so far sound, but how does it follow, from this that the present application is not barred? Now let us look at the previous petition to find out what was decided on the former occasion. The application presented was in the prescribed tabular form. In the column headed ' Date of decree' the respondent gave two dates : (1) 19th February 1913, (2) 23rd January 1917. This is obviously misleading. How can the decree have two dates? It may be stated (with the information we now possess) that the second date happens to be that, when the High Court recognized the assignment in his favour. Under no other column in this petition does he again refer to this date. Nor does his application contain any hint that it was on; that date that his right was recognized. The Judge, as is usual in such cases, trusted to his clerks. They endorsed on the docket of the petition : .
D. D, 23rd January 1917;
D. L. P., 28th November 1924;
More than one year.
20. The Judge, without further, scrutiny, ordered 'notice.' I may explain that D. D. means 'date of decree' and D. L. P. stands for 'date of last petition.' The respondent having raised the point of res judicata for the first time in this Court no formal evidence is forthcoming as to what these symbols mean. What then happened is however quite manifest. As the Judge had no reason to suspect that the decree was not one of 1917 the only point that mattered was, what was the interval of time between the petition before him and the previous one? That being more than a year, the Judge, in the usual course, ordered notice, and defendant 4 having failed to appear on the due date and contest the petition, the Court ordered execution. Eight or wrong this order involves the decision that the decree was then executable and defendant 4 is estopped in any proceeding from asserting the contrary.
21. But is there any implied finding either that there was fraud or that it was discovered on 23rd January 1917? There was not a word said about fraud; in deed, not the remotest suggestion of it. On the contrary, the decree-holder, misled the Court (wilfully or not, it; matters little) into believing that the decree was passed in 1917. Are we now to assume that the previous order had the effect of holding that, contrary to patent facts, the proper date of the decree is 23rd January 1917? Fortunately, we are not asked to proceed on any such absurd hypothesis. It is not in regard to the date of the decree that the ground of res judicata is urged. But what the respondent contends is, that we must hold that in the previous order is involved the finding, that owing to fraud, the time was extended. This contention is utterly untenable. I may in this connexion refer to a circumstance which, in my opinion, is most significant. E.A. No. 831 of 1924 is one of the previous execution applications filed by the respondent. It was filed on 1st August 1921, that is before the expiry of 12 years from the date of the decree. In that petition, as in those that followed, he mentions the date of the decree as being 10th February 1913 as well as 23rd January 1917. The 12 year period not having then expired, it was inconceivable that the decree-holder was then relying upon any fraud. This shows how utterly futile the argument is, that by referring to the date, 23rd January 1917, in the latter petition, (that is E.A. No. 1509 of 1927 filed on 1st November 1927) the decree-holder intended to rely upon the ground of fraud.
22. Having made this observation I shall now approach the question from a some-what different standpoint. The previous application defendant 4 could have resisted by pleading limitation. Had he appeared in Court and said that the execution was barred, the matter would have been enquired into. That being then a defence open to him, the former order must be held to involve the decision. that the application was not barred. He cannot now assert that the previous application was in fact barred by limitation. He is debarred from showing that and nothing more. Can the former order be said to involve any adjudication as to the starting point? The date of the previous petition is, as I have said, 1st November 1927. The order, for aught we know, might have proceeded upon the footing that the starting point was in 1915; even in which case the former petition of 1927 would be in time, but the present one of 1928 would not. Conversely, the previous order might similarly be said to involve that the starting point was somewhere in 1926, in which case it would be open to the plaintiff to contend that the decree would not be barred till 1938. In other words, the previous order is not inconsistent with there being an implied decision, that the starting point was any one of the numerous (365 by 12) days, that intervened between 1st November 1915 and 1st November 1927. The argument is clearly unsound and must be rejected.
Certainty is essential for the application of the rule of res judicata and the Court would not prevent the re-agitation of a matter whore it is not certain that the previous decision proceeded on a particular ground: B. Bayyan Naidu v. B. Suryanarayana  37 Mad. 70 :
'If it appear that several distinct matters may have been litigated, upon one or more of which the judgment may have been passed without indicating which of them was thus litigated, and upon which the judgment was rendered, the whole subject-matter of the action will be at large: Russell v. Place  2 W.R. 248 quoted in Vythilinga Mudaliar v. Ramachandra Naicker : (1904)14MLJ379 .
'Where a conclusion is indisputable and could have been drawn only from certain premises, the premises are equally indisputable with the conclusion, But ...'such a conclusion must be inevitable or it cannot be drawn'...If there is ambiguity...the matter is open to controversy in subsequent proceedings: Munisami Naidu v. Ammani Ammal : (1905)15MLJ7 .
23. This principle of res judicata is applied also in In Re: Alsop and Joy's Contract  61 L.T. 213.
24. I may also extract the following passage from the judgment of Mellish, L. J., in In Re: Bank of Hindustan, China & Japan (Alison's case) (15):
It is clear I apprehend that the judgment of the Courts of Common law is not only conclusive with reference to the actual matter decided but that it is also conclusive with reference to the grounds of the decision, provided that from the judgment itself the actual grounds of the decision can be clearly discovered : In Re: Bank of Hindustan etc.  9 Ch. A. 1.
25. Mr. T.M. Krishnaswami Aiyar for the respondent contends that any matter which might and ought to have been made a ground of defence on the former occasion should be deemed to have been directly and substantially in issue : see Section 11, Expl. 4, Civil P.C. I fail to see how this rule can help him. How could defendant 4 be expected to answer a charge of fraud not made? The rule refers to a ground of defence which might and ought to have been raised, but any such defence can relate only to a matter either expressly or impliedly alleged. Let me take an example.: A sues B for the first instalment due under a bond, and though the claim on the face of it is barred, succeeds in obtaining an ex parte decree. Let us suppose that he could have relied on an acknowledgment in writing signed by B, but that it was not referred to for some reason in the plaint. He then 'brings a second suit for a subsequent instalment. Can he assert that the previous ex parte decision has impliedly decided that the writing produced then for the first time amounts to a valid acknowledgment? Can he contend that it was decided by implication in the former suit, that the writing furnishes the starting point from which limitation is to be computed? The answer is plainly in the negative. The present case does not differ in substance from this illustration.
26. The rule referred to, means this and nothing more, that defendant 4 was bound to resist the previous petition, on all the grounds possible for him to urge according to his knowledge at that time, at the risk of being debarred from relying on them in any subsequent proceeding. The application of the rule may be thus illustrated. A, a Hindu, dies leaving a widow and a brother, B. The widow sues B for recovery of certain property alleging that it was the self-acquired property of her husband. B alleges that the property was joint family property and that on the death of A he became entitled to it by right of survivorship. The Court finds that the property was the self-acquired property of A and decrees the widow's claim. Subsequently B sues the widow to recover the same property from her, claiming the same as a devisee under A's will. The suit is barred as res judicata, for B might and ought to have set up the claim under the will as a ground of defence in the former suit.
When a plaintiff claims an estate, and that defendant, being in possession, resists that claim, ha is bound to resist upon all the grounds that it is possible for him according to his knowledge then to bring forward. Srimutt Rajah Moottoo Vijaya v. Katama Natchiar  11 M.I.A. 50.
27. Similarly, the present defendant 4 cannot be permitted on any ground to show that the decree was not in full force on the date of the former petition. But what the respondent contends is something very different; he says that defandant 4 is debarred from showing that the decree is not alive when the present application was filed.
28. Let me go back to the example given. The first suit decided that the property belongs to A's widow and not to B. That is the decision in the suit and the relief granted is based on that decision. B cannot urge on any ground in a subsequent proceeding, that the property is his. Apart from the relief granted, there is an adjudication of the issue, express or implied, that A and B became divided. That question again is barred as res judicata. But to bring out the respondent's point, I shall vary the facts of this example. Suppose that A's widow was in a position to, but did not, rely upon a writing that evidences the separation she had alleged. She now brings a second suit to enforce a covenant in it by B, to pay a stated sum to A's husband. B disputes the genuineness of that writing. Can it be maintained that the previous decision contains an implied finding in favour of this document? Such an argument is fanciful, but this is on all fours with what the respondent urges. The point does not admit of serious doubt, but I have dwelt upon it at this length, as the opposite of what I am holding has been very strongly contended for.
29. The respondent's contention fails on yet another ground. When the judgment-debtor has no sufficient notice of the right claimed against him, the order passed in execution proceedings cannot operate as res judicata. In Narayana Pattar v. Gopalakrishna Pattar  28 Mad. 355 the notice to B on A's execution application did not specify that interest was claimed; held: that the order granting interest ex parte had not the force of res judicata, so as to estop B from disputing the claim in subsequent proceedings. To the same effect is the ruling in Ramasami Naik v. Ramasami Chetty  30 Mad. 255. In Sheik Sudan v. Ramchandra Bhunjgaya  11 Bom. 537 the application went beyond the terms of the decree and West, J., observes:
Such an order, prima facie, only of an executive character, could not possibly have the effect of res judicata, unless the judgment-debtor being called on to dispute, if he wished or if he could, a certain proposition of right and consequential demand of relief or action by the judgment-creditor, had then either failed in his contention to the contrary, or at any rate, allowed the judgment to go by default: see also Chidambaram Chetti v. Kandasami Goundan A.I.R. 1924 Mad. 1.
30. The cases relied on by the respondent do not really help him. What they decide is, that the judgment-debtor is bound by the order previously made. He is precluded from showing that it is wrong. The cases generally deal with the three year rule of limitation. The starting point being the previous application, if that was by the former order held to be in time, the judgment-debtor cannot show that it was in fact barred. He is bound by the former decision right or wrong, and if the previous petition was in time, that furnishing the starting point, the second one filed within three years of it is necessarily not barred. This is all that the rulings relied upon by the respondent decide. In the present case we are concerned with the twelve year rule of limitation. The point to note is that previous petition, unlike in the other case, does not furnish the starting point. To maintain that the present application is out of time the judgment-debtor has no need to show that the former order is wrong. Ho can accept it as right and still contend that the present petition is barred. This fundamental difference the argument of the respondent ignores. Mungul Persahd Dichit v. Grija Kant Lahiri  8 Cal. 51 and Rajah of Ramnad v. Velusami Thevar A.I.R. 1921 P.C. 23 do not therefore support the respondents' contention. The same remark applies to Rajit Giripathi v. Bhavani Shanker A.I.R. 1924 Mad. 673. I fail to see what bearing any of the three following eases cited has on the point to be decided:
Govinda Menon v. Krishna Mannadiar A.I.R. 1923 Mad. 649 Rama Kirpal v. Rup Kuari  6 All. 269 and Beni Ram v. Nanhu Mal  7 All. 102.
31. The only decided case on the point is Dakshinamurthi Pillai v. Vedarnurthy Mudaliar : AIR1927Mad842 to which ray learned brother was a party. In that a contention similar to the one now alleged for the respondent was raised and was summarily rejected.
32. For the various reasons I have given, the ground of res judicata taken by the respondent fails.
33. If defendant 4 himself is not precluded from raising the plea, the question whether defendant 5 is so precluded on the principle of representation does not arise. Nor is it necessary, in the view I take, to deal with the point raised by the appellant that the application as against him is, in any event, barred by time as it was filed more than three years after his father's death.
34. In the result, the appeal of defendant 5 is allowed with costs throughout.
Madhavan Nair, J.
35. This appeal arises out of application E.P. No. 1028 of 1928 made by the assignee decree-holder in O.S. No. 10 of 1912 on the file of the Subordinate Judge's Court, Tuticorin, for the transmission of the decree for concurrent execution to the sub-Courts at Ramnad, Madura, Devakotta, Sivaganga and Dindigul as the properties of the defendants are situate within the jurisdiction of those Courts.
36. The decree was passed on 10th February 1913 and the application for transmission was presented on 1st October 1928, i. e., more than 12 years after the decree. The judgment-debtor objected that the execution of the decree was barred by Section 48 (1), Civil P. C, as more than 12 years had elapsed since the date of the decree and the decree-holder had made prior application for execution. The assignee decree-holder claimed exemption from the bar of limitation under sub Clause 2 (a) of the section. The relevant portions of Clauses 1 and. 2, Section 48, Civil P.C., are as follows:
(1) 'Where an application to execute a decree....his been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of 12 years from (a) the date of the decree sought to be executed.
(2) Nothing in this section shall be deemed (a) to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of 12 years, where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time immediately before the date of the application.
37. The contention of the assignee decree-holder in the lower Court was that his application was not barred by time as the execution of the decree was prevented by the fraud of defendant 1 definitely established on 23rd January 1917, i. e., 'at some time within 12 years immediately before the date of his application,' that is 1st October 1928, as required by Clause 2, Section 48, Civil P.C. This contention was upheld by the lower Court and the transmission of the decree as prayed for was ordered.
38. This appeal has been filed by defendant 5 against that order. It may be stated here that in this Court the respondent, i. e. the assignee decree-holder, has not only relied on the contention urged in the lower Court, but has also sought to support the lower Court's order by raising another contention, namely that the appellant is precluded from raising the present contention by a previous order dated 4th January 1928, passed by the Subordinate Judge on E.A. No. 1509 of 1927, dated 1st November 1927, for transmitting the decree for execution to the Madura Sub-Court.
39. To appreciate the arguments of the parties in all their fulness it is necessary to state a few facts. The plaintiff in O.S. No. 10 of 1912, one Srinivas Naick, obtained a decree for Rs. 28,283-12-0 due on a promissory note dated 15th September 1910, and executed by defendant 1 in favour of the plaintiff for Rs. 21,000. The decree was against defendant 1 and the family properties of all the defendants. There were four defendants to the suit. Defendant 5 was not a party to it. The relationship of the defendants to each other appears from the following table:
------------------------------| |Lakshmanan Chettiar Ramaswamy Chettiar (defendant 1) (died)| |defendant 2. ------------------ | |defendant 3 defendant 4.|defendant 5.
40. Defendant 1 and the deceased father of defendants 3 and 4 are brothers. Defendant 2 is the son of defendant 1. Defendant 5, the present appellant, was brought on record in the course of the late execution application as the legal representative of defendant 3. After obtaining the decree the decree-holder, on 18th October 1913, filed E.P. No. 101 of 1913 for attachment and sale of the immovables of defendant 1. The sale was ordered, but it was stopped for want of proper bids on 30th July 1914. On 29th July 1914, the decree-holder assigned the decree in favour of the present respondent, i. e., the petitioner in E.P. No. 1028 of 1928 for Rs. 25,000. On 31st July 1914, defendant 1 filed C. M. P. No. 330 of 1914, praying for recording full satisfaction of the decree. Ho stated that one M. L. M. Ramanathan Chettiar paid the money to the decree-holder on his behalf through his brothers-in-law Ramanathan Chettiar and Murugappa Chettiar and his agents in pursuance of an agreement made for the discharge of the decree debt and that the decree was thus entirely discharged. He also stated that he had learned that the said Ramanathan Chettiar, without taking a receipt, that the decree was fully discharged, had obtained the assignment of the decree in the name of a person who is his own man (see paras. 4 and 6 of the affidavit of defendant 1 in C.M.P. No. 330 of 1914) meaning evidently the present respondent. On 22nd February 1915, the respondent, i. e., the assignee decree-holder, filed E.P. No. 15 of 1915 for recognizing the assignment and for the attachment and sale of the immovables of defendant 1. Both the petitions, E.P. No. 15 of 1915 and C. M. P. No. 330 of 1914 were hoard together by the Subordinate Judge and both were dismissed by him. The assignee decree-holder as well as defendant 1, preferred appeals against the order of the Subordinate Judge. In these appeals i. e., C. M. P. No. 307 of 1915 and C. M. A. No. 362 of 1915 the learned Judges of the High Court came to the conclusion that the probabilities
are on the whole against the counter-petitioner's (defendant 1's) contention and in favour of the petitioner (assignee decree-holder).
41. C.M.A. No. 362 of 1915 was therefore dismissed with costs and C.M.A. No. 307 of 1915 was allowed with costs. In the result, the petitioner in E.P. No. 15 of 1915 was recognized as the assignee decree-holder and the lower Court was directed to restore his petition to its file and proceed with the execution. A more detailed statement of the allegations of the assignee decree-holder and defendant 1 in their respective applications and of the findings of the Courts is not necessary for the purposes of this appeal, as it is conceded by the appellant that the High Court may be taken to have impliedly found in its order on C. M. A. No. 307 of 1915 and C. M. A. No. 362 of 1915 that fraud may be imputed to defendant 1, as any improper means resorted to, to prevent execution, has been held to be fraud within the meaning of Clause 2, Section 48, Civil P.C. The date of the High Court's order is 23rd January 1917. This order is relied on by the assignee decree-holder to show that the judgment-debtor has by fraud prevented the execution of the decree on 23rd January 1917, i. e.,
sometime within 12 years immediately before the date of the present application as required by Clause 2, Section 48 of the Code.
42. After the order of the High Court, the assignee decree-holder filed eight execution applications including the present one, all of which were petitions for transmission of the decree for execution to other Courts. It is not necessary to refer to all these applications for the purposes of this appeal but mention must be made of E.A. No. 1509 of 1927, dated 1st November 1927, the petition filed immediately before the present application, as the order made on this application is relied on to show that the appellant is precluded from raising the plea of the bar of limitation in the present application. The details of the application will be referred to later on. Before this application was filed defendants 2 and 3 had died. Defendant 1 was made the legal representative of the deceased defendant 2 and defendant & who was already on record, was made the legal representative of the deceased defendant 3 by application No. 1378 of 1924 by the assignee decree-holder. Defendant 1 has been now adjudged an insolvent. The order for transmission on E.A. No. 1509 of 1927 was passed on 4th January 1928 after notice to the defendants. As no steps were taken in the Madura Sub-Court in pursuance of this order the records were returned and the assignee decree-holder filed the present application, E.A. No. 1028 of 1928 for again transmitting the decree to other Courts. Along with this application a civil miscellaneous petition was filed by the assignee decree-holder to implead the present appellant, styled therein defendant 5, as the legal representative of the deceased defendant 3. He is the son of defendant 3. The assignee decree-holder pleaded ignorance of this fact till now, and the learned Subordinate Judge, on the ground that the decree debt is binding on the estate of defendant 3 in the hands of defendant 5, directed him to be impleaded as defendant 3's legal representative and ordered the transmission of the decree as prayed for.
43. Defendants 2 and 3 having died, and defendant 1 having been adjudged an insolvent the defendants who contest the petition are defendants 4 and 5, and this appeal has been filed, as already mentioned, by defendant 5.
44. The first question that arises for consideration in this appeal is whether the 'fraud' of defendant 1 can be availed of by the assignee decree-holder under Clause 2, Section 48, Civil P.C., to claim exemption as against the other defendants from the bar of limitation enacted by Clause 1 of the section. The learned District Judge answered the question in the affirmative as the fraud practised by defendant 1 and the obstruction to execution caused by him enured to the benefit of the other defendants, and inasmuch as by such fraud the decree-holder was not able to execute the decree. It is argued on behalf of the appellant that the judgment-creditor in this case, the assignee decree-holder, could claim the benefit of Clause 2 of the section only as against the judgment-debtor who had by force or fraud prevented the execution of the decree, i. e. defendant 1, and not as against the other defendants. On the other side it is contended that, in a case like the present one, where the joint judgment debtor has by fraud prevented the execution of the decree, the judgment-creditor can claim exemption under the proviso not only against that judgment-debtor but also against the other judgment-debtors who have not prevented the execution of the decree by the commission of any such fraud. The question is not free from difficulty; but so far as this Court is concerned, the point is clearly covered by authority : see Abdul Khadir v. Ahammad Shaiwa Ravuthar. In that case, as in the one before us, a creditor obtained a joint and several decree against two judgment-debtors, defendants 1 and 2. Defendant 1 prevented by fraud the execution of the decree at some time within twelve years immediately before the date of the application to execute the decree. Defendant 2 did not commit any fraud nor was he a party to the fraud committed by defendant 1. The case first came up for decision before a Bench of two Judges, Sundara Ayyar and Phillips, JJ. : see Abdul Kadir v. Ahammad Shaiwa Rowther, but owing to a difference of opinion between them Sundara Ayyar, J., holding that execution was barred as against defendant 2, and Phillips, J., holding that execution was not barred as against both, an appeal was preferred under Article 15, Letters Patent. The case then came up for decision before a Bench of three Judges : Sir Arnold White, C. J., Sankaran Nair and Tyabji, JJ. The learned Judges agreed with the opinion of Sundara Ayyar J., and held that the application in that case was barred as against defendant 2, i. e. the judgment-debtor who did not commit the fraud nor was a party to it.
45. In support of his conclusion, the learned Chief Justice, with whom the other Judges agreed, relies on the use of the expression ' judgment-debtor ' in the singular number in Clause 2. This is what. he says:
Now, the words are 'the judgment-debtor.' No doubt the expression 'judgment-debtor' in the singular includes the plural. But as it seems to me it includes the plural in this sense: 'where the judgment-debtor has, or if there are two or more judgment-debtors the judgment-debtors have, by fraud or force, prevented the execution of the decree, etc.' That construction of the section is in accordance with the literal meaning of the words and with the well-known principle of construction, which is now embodied in the statute, that the singular includes the plural.
46. It is pointed out in the judgment that if we accept the other conclusion suggested, then we would be reading into the section a great deal which is not there and doing violence to the express language of the section. The argument that the construction of the section accepted by the Judges would be inequitable to the decree-holder is met with this observation:
It seems to me that there is not only no equity in favour of the judgment-creditor but that it would be inequitable that a judgment-debtor should be deprived of the benefit of the prescribed limitation by reason of acts done by his judgment-debtor, over whom he has presumably no control and for whose action he is not responsible.
47. I think the reasoning adopted by the learned Chief Justice and the general considerations referred to in his judgment may well be applied to the facts of the case before us. I can see no reason why the fact that benefit has accrued to the joint judgment-debtors by the fraud of one of them with which they had nothing to do should be a reason for exempting a judgment-creditor from the bar of limitation as against those judgment-debtors. It was open him to proceed against them in spite of the fraud of the particular judgment-debtor. His inactivity, for which he now claims exemption was not brought about by their conduct. As the learned Chief Justice points out in the passage already quoted, it is inequitable that one judgment-debtor should be deprived of the benefit of the law by acts done by his joint judgment-debtor over whose action he has no control. It seems to me that, on principle, as well as on authority, the contention of the appellant should be upheld. I do not think that the decision in Abdul Khadir v. Ahammad Shaiwa Rawthar is distinguishable on the ground that the fraud of defendant 1 in that case, which consisted in evading the execution of the warrant of arrest taken out against him was purely a personal one and resulted only to his exclusive advantage and not to the advantage of the other judgment-debtor. The judgment is clearly not based on any such special consideration, but on general principles and on the natural meaning of the words used in the section, In this connexion attention may be drawn to the decision in Thorne v. Heard and Marsh  A.C. 495. That case dealt with Section 8, Trustee Act of 1888, 51 and 52 Vict. C. 59, and exemption was claimed under the section from the operation of the Statute of Limitations on the ground that the person proceeded against was guilty of acts of fraud. In the course of the judgment, Lord Davey made the following observations:
I only desire to say this: In my opinion, if fraud,, or a nondiscovery of fraud, is to be relied on to take a case out of the Statute of Limitations, it must be the fraud of or in some way imputable to the person who invokes the aid of the Statute of Limitations.
48. If I may respectfully say so, I think this observation embodies a general principle and may well be applied in' interpreting the expression 'fraud of the judgment-debtor' in Clause 2, Section 48, Civil P.C., though the decision having regard to its facts has no direct bearing on the case before us. I would therefore hold that the fraud of defendant 1 in this case cannot be availed of by the assignee decree-holder to claim exemption from the bar of limitation as against defendant 3 and consequently as against his legal representative, defendant 5 also.
49. I shall now refer to another plea urged by the respondent to make defendant 3 liable on account of the ' fraud ' of defendant 1 and that is, that defendant 1 must be considered to have been the agent of the defendants for taking the necessary steps for the discharge and satisfaction of the decree and that therefore the fraud committed by him must be attributed to the principals, as he, their agent, must be considered to have acted within his authority when he com-mitted the fraud. It is impossible in this appeal to give any serious attention to this argument. The question of agency is a mixed question of fact and law very largely depending upon the evidence in the particular case. This question which is now very strongly urged was not put forward in the lower Court. There is no trace of it in the lower Court's judgment and the materials now put before us are not by any means sufficient to arrive at a decision on the question. In support of the plea that defendant 1 must be considered to be an agent of defendant 3 reliance is placed upon the counter affidavit of the present appellant, filed by him in the civil miscellaneous application put in the lower Court along with E.P. No. 1028 of 1923 to make him the legal representative of defendant 3: para. 3 of this affidavit to which our attention was drawn is as follows:.Defendant 1 is the divided uncle of defendant 3, and under the registered deed of partition between defendant 3's father and defendant 1, the present debt has to be paid exclusively by defendant 1. The decree-holder was aware of the deed of partition, and the undertaking under it of defendant 1.
50. In this paragraph the appellant was pointing out to the petitioner that there was no purpose in conducting execution proceedings against defendants as the debt covered by the decree had to be paid according to the partition arrangement by defendant 1 exclusively and so in justice the discharge of that debt was his exclusive duty and that though the decree is a joint decree, defendant 3 should not be troubled with its performance. What is urged is that the debt is. the personal debt of defendant 1 which only defendant 1 should be called upon to pay. This does not by any means show that defendant 1 has been constituted an agent for the payment of the decree debt by defendant 3 or the other defendants. On the contrary the statement in the paragraph negatives any idea of agency. No other paragraphs in the affidavit have been referred to in support of the present contention. No question of agency was suggested in the affidavit filed by the assignee decree-holder and I can find no reference to it in the counter affidavit filed by defendant 5. The partition deed referred to has not been filed in these proceedings; but we were invited to look into some paragraphs of it to find out the nature of the debt referred to in the counter affidavit. Neither party has been able to give an intelligible explanation as to what this dead says about this debt. On these flimsy and unsatisfactory materials it is impossible to decide whether defendant 1 acted as the agent of the third and other defendants with regard to the satisfaction of the decree. The appellant points out that, throughout the course of these proceedings, neither defendant 3 nor defendant 4 at any time acted in unison with defendant 1. In all the execution proceedings prior to E.P. No. 15 of 1915 and C. M. P. No. 330 of 1915 all the four defendants were parties; but in the proceedings relating to E.P. No. 15 of 1915 and C. M. P. No. 330 of 1915, in which the fraud of defendant 1 was established, defendants 3 and 4 did not appear either in person or by pleader. I have no doubt that the argument that defendant 1 should be deemed to be the agent of defendant 3 and the other defendants is purely an afterthought and has therefore been urged here for the first time. In this view there is no need to discuss the numerous cases, that were brought to our notice to show that defendant 3 is liable on account of the fraud of defendant 1 on the ground that he is his agent.
51. The next argument raises the question whether the principle of constructive res judicata referred to in Expl. 4, Section 11, Civil P.C., can apply to execution proceedings; and whether the appellant is precluded from raising the plea of the bar by limitation put forward by him by reason of the fact that he had opportunity of raising the same objection in the proceedings in E.P. No. 1509 of 1927 dated 1st November 1927, but had failed to do so. In that application as in the present one, the assignee-decree-holder requested the Court to transmit the decree for execution to another Court. The application contained the usual particulars required to be mentioned under Order 21, Rule 11 and Section 39, Civil P.,C. It is not necessary to describe the contents of this application, but reference may be made to para. 3 of the application wherein the date of decree is given, as this is important in connexion with the argument relating to constructive res judicata. The following details appear in para. 3 against the heading ' date of the decree ':
10th February 1913.
3. Date of the decree.
23rd January 1917.
52. To this application defendant 4 was a party not only on his own behalf, but also as the legal representative of his deceased brother, defendant 3, but defendant 5, the present appellant was not a party at he had not been brought on record as the legal representative of defendant 3 at that date. The following endorsements made by the Court appear on the back of the application:
Order 21, Rule 25.DD. 23rd January 1917.DLP. 28th November 1924. More than a year.Notice by 4th January 1928. 25th November 1927. (Judge's signature).
53. There was some discussion at the Bar as to what D D and D L P meant. D D refers obviously to the date of the decree (sea Col, 3 of the application) and D L P means the date of the last application which was, B.A. No. 1378 of 1921, dated 28th November 1921. The copy of the notice sent to the judgment-debtors has not been produced; but it may be taken to be the usual notice under Order 21, Rule 22, Civil P.C., as required by Rule 138, Civil Rules of Practice which states that in an application for transmission notice of the application shall be given in all cases in which under Order 21, Rule 22 notice of application for execution is required. Under Order 21, Rule 22, the Court executing the decree is directed to issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him. We may take it therefore that the notice sent to defendant 4 in this case simply asked him to show cause on a specified date why the decree should not be executed against him. On the day fixed for hearing, the judgment-debtors on whom the notice had been served did not appear, and the Court passed an order Send' as appears from the endorsement on the back of the application. Afterwards nothing further was done on this application. It is on this application and the order passed on it that the argument of constructive res judicata is based by the respondent.
54. The provisions of the Civil Procedure Code having a bearing on the question are Section 11 and Expl. 4 to that section which run as follows:
55. Section 11:
No Court shall try any suit or issue in which be matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of thorn claim, and litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and his been heard and finally decided by such Court.
56. Explanation 4:
Any matter which might and ought to have been made a ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
57. Having regard to those provisions the respondent puts his argument in this way: on the receipt of the notice issued to him to show cause why the decree should not be executed, defendant 4 had an opportunity of appearing before the Court and pleading that the execution of the decree was barrel at that date under Section 48, Civil P. C, as the application for execution was presented 12 years after the decree and that the assignee decree-holder could not rely on the fraud of defendant 1 to claim exemption from the bar of limitation against the other judgment-debtors; and since he failed to raise this plea which he ought to have raised as a ground of defence, it should be presumed that the Court when it passed the order 'send' finally decided the question of limitation against the judgment-debtors thereby holding impliedly that fraud within the meaning of Clause 2, Section 48, was found to have been committed by defendant 1 on 23rd January 1917 and that by his fraud the execution of the decree was prevented against all the judgment-debtors and that the. assignee-decree-holder has a period of 12 years to execute the decree commencing from 23rd January 1917. It is argued that since all these matters should be deemed to have been decided by the Court when it passed its order 'send' in E.P. No. 1509 of 1927, it is not open to defendant 4 to raise those very contentions in the present application having regard to Expl. 4, Section 11, Civil P.C. It is further urged that since defendant 4 who represents the estate of the deceased defendant 3 is precluded from raising the above contentions, defendant 5 the present appellant is also bound though he was not a party to E.P. No. 1509 of 1927 since he also is a representative of the deceased defendant 3 and the estate which he represents should be deemed to have been sufficiently represented by defendant 4 when the Court passed its order so as to make that order binding on the estate, i. e., on all its representatives. This means that the previous order becomes binding on the present appellant through defendant 4. The appellant meets these contentions with the argument that the rule of constructive res judicata as explained in Clause 4, Section 11, Civil P. C, does not apply to execution proceedings, that the order on E.P. No. 1509 of 1927 has not impliedly decided that the starting point of limitation is 23rd January 1917, and that even if defendant 4 is bound by the order, the appellant, defendant 5 is not in any way bound by it. I shall deal with both those arguments separately.
58. On the question whether the principle of constructive res judicata as contained in Clause 4, Section 11, Civil P. C, applies to execution proceedings, the following decisions of the various High Courts were brought to our notice : Lahshmanan Chetty v. Kuttayan Chetty  24 Mad. 669 Narayana Pattar v. Gopalakrishna Pattar, Ramasami Naik v. Ramasami Chetty, Allupati Kopila Patro v. Allupati Kasinadha Patro  17 M.L.J. 310 Somasundaram Pillai v. Chokkalingam Pillai  40 Mad. 780 Subramania Aiyar v. Raja Rajeswara Dorai  40 Mad. 1016 Chidambaram Chetti v. Kandasami Goundan, Nachiappa Chettiar v. Subbier A.I.R. 1923 Mad. 505, Kandaswami Chettiar v. Maruda Pillai A.I.R. 1924 Mad. 145 Govinda Menon v. Krishna Mannadiar, Rajit Giripathi v. Bhavani Shankar, Kaliya Perumal Naidu v. Subramanian Chettiar : AIR1928Mad203 , Lakshmanan Chetty v. Palaniappa Chetty : AIR1928Mad1052 , Subramanian Chettiar v. Ramanathan Chettiar : AIR1929Mad199 , Sheik Budan v. Ramchandra Bhunjgaya, Mahadeo v. Trimbakbhat  50 I.C. 972 Ramchandra Venkatesh v. Shrinivas Krishna A.I.R. 1922 Bom. 238 Gadigappa Chanbasappa v. Shidappa Gurushidappa : AIR1924Bom495 Kishan Sahai v. Aladad Khan  14 All. 64 Behari Lal v. Majid Ali  24 All. 138 Kalian Singh v. Jagan Prasad  27 I.C. 950 Kalian Singh v. Jagan Prasad  37 All. 589 Phul Chand v. Kandhyalal : AIR1922All247 Sheo Mangal v. Hulsa : AIR1922All413 Dwarka Das v. Muhammad Ashfaqullah : AIR1925All117 , Dip Prakash v. Dwarka Prasad : AIR1926All71 and Prithi Mahton v. Jamshed Khan A.I.R. 1922 Pat. 289.
59. There is no question that the general principles of law underlying the doctrine of res judicara apply to execution proceedings. This has been decided in a series of cases by the Privy Council: see Delhi and London Bank Limited v. Orchard  3 Cal. 47 Rama Kirpal v. Rup Kuari and Beni Ram v. Nanhumal in the loading case of which Rama Kirpal v. Rup Kuari the following observations occur in the judgment delivered by Sir Barnes Peacock:
The question (if the term 'res judicata' was intended as it doubtless was, and was understood by the Full Bench to refer to a matter decided by a Court of competent jurisdiction in a former suit) was irrelevant and inapplicable to the pre-sent case. The matter decided by Mr. Probyn was not decided in a former suit, but in a proceeding of which the application in which the orders reversed by the High Court were made was merely a continuation. It was as binding between the parties in every proceeding in that suit, or as a final judgment in a suit is binding upon them in carrying the judgment into execution. The binding force of such a judgment depends, not upon Section 13, Act 10 of 1877, but upon general principles of law. In it were not binding, there would be no end to litigation.
60. In England the principle of res judicata. has been applied to proceedings in the same suit: see Pearth v. Marriott  22 Ch. D. 182.. In that case in the Court of Appeal Jessol, M.R., observed thus:
What is the meaning of res judicata? It is a decree inter partes on the same subject.
61. And whether the adjudication operates as a bar in proceedings had in continuation of the same suit or in a separate and distinct suit, the effect is the same: the matter passes in rem judicatum.
62. The decisions of the Privy Council show that, though Section 11, Civil P.C., does not in terms apply to an execution proceeding because the question arises in the same suit and not in a second suit-; the general principles of law on which the section is based should be held to apply' to execution as otherwise there would be no end to litigation. I think for the same reason the principle underlying Expl. 4 to the section should also he held applicable to execution proceedings. It is hardly necessary to mention this specially, as Expl. 4 is only an amplification of Section 11 and both the section and the explanation are based on the same general principles of law that a matter once decided by a competent Court should not be agitated again between the same parties; but I am drawing special attention to it because it was very strenuously argued before us that the principle underlying the doctrine of res judicata, when applied to execution proceedings, should strictly be confined to cases where the question at issue was expressly decided in the prior application as in the Privy Council cases just; noticed and should not be extended to cover cases where the question at issue may be said to have been impliedly or constructively decided in the course of the prior application. In other words, the argument the principle underlying Expl. 4, Section 11, Civil P.C., should not be applied to execution proceedings at all. It is clear to me that though there may be found statements in support of this position in some of the judgments of our High Courts, the decisions of the Privy Council do not lend any support to this contention. In my opinion this contention is clearly untenable in view of the decisions of the Privy Council in Mungul Pershad Dichit v. Grija Kant Lahiri and Rajah of Ramnad v. Velusami Thevar which directly bear on this question.
63. In Mungal Pershad Dichit v. Grija Kant Lahiri the loading case on this point, the Judicial Committee held that:
although the execution of a decree may have been actually barred by time at the date of an application, made for its execution, yet, if an order for such execution has boon regularly made by a competent Court having jurisdiction to try whether it was barred by time or not, such order, although erroneous, must, if unreversed, be treated as valid,
and binding on the parties in subsequent proceedings in execution. The order which was held to have the force of res judicata in the subsequent proceedings is referred to at p. 59 in the report in these terms:
Here an order for attachment was made by the Subordinate Judge on 8th October 1874, after notice served on the judgment-debtor on 23rd September l874, to show why the decree should not be executed against him. The order was made by a Court having competent jurisdiction to try and determine whether the decree was barred by limitation. No appeal was preferred against it; it was acted upon, and the property sought to be sold under it was attached, and remained under attachment until the application for the sale now under consideration was made.
64. It is clear from the judgment that the question whether the petition was barred by limitation, was not raised and expressly decided when the prior order was passed, but their Lordships held that since there was an order passed against the judgment-debtor the point must necessarily be taken to have been decided against him by implication.
65. In Rajah of Ramnad v. Velusami Thevar when an assignee of a decree applied to be brought on the record and to have the decree executed, execution was allowed though the judgment-debtors resisted the application on the ground that it was barred by limitation. In the order granting execution the plea of limitation was not expressly dealt with-it was held by their Lordships that in a. subsequent application the plea of limitation could not be raised, for it must be taken to have been decided in the order on the prior application. In that case no doubt the plea of limitation was taken but their Lordships remark:
It was not only competent to the present respondents to bring the plea forward on that occasion, but it was incumbent on them to do so if they proposed to rely on it, and moreover it was in fact brought forward and decided upon. No appeal was from the order then made, and therefore it was not competent for the Subordinate Judge to admit the plea on subsequent proceedings or to consider it in his order of 31st March 1917.
66. As remarked by Fawcett, J., in Gadigappa Chanbasappa v. Shidappa Gurushidappa:
The judgment of their Lordships (of the Privy Council) mainly proceeded on the ground, that the respondents ought to have raised that defence, and that not having done so and having lost that opportunity they could not be allowed to raise the plea in the subsequent proceedings. It is only as a strengthening of the argument that Lord Moulton says: 'Moreover it was in fact brought forward and decided upon'; and even taking the main argument as obiter dictum, it is clearly entitled to very great weight.
67. I think this case demolishes completely the argument of the appellant that the principle of Expl. 4, Section 11, should not be applied to execution proceedings.
68. In Madras, Expl. 4 has always been applied to execution proceedings. In the latest decision, in Rajit Giripathi v. Bhavani Sankar, full effect is given to the Privy Council decision in Rajah of Ramnad v. Velusami Thevar. The Bombay High Court also has in its latest decision in Gadigappa Chanbasappa v. Shidappa Gurushidappa, applied' Expl. 4 to execution proceedings, though in some of its prior decisions [sea Mahadeo v. Trimbakbkat and Ramchandra Venkatesh Sholapur v. Srinivas Krishna, Kulkarni], it showed an inclination to hold that the principle of res judicata applied to execution proceedings does not necessarily involve the result that the point which is not heard and, decided but which might and ought to have been raised, must be treated as necessarily decided as under Rule 11 of 'the Code. The Allahabad High Court also has held [sea its latest decision Dip Prakash v. Dwaraka Prasad], that the principle of Expln. 4, Section 11 would apply to execution proceedings, though in some of its earlier decisions, such as Kalyan Singh v. Jagan Prasad, Letters Patent appeal against Kalian Singh v. Jagan Prasad and Sheo Mangal v. Hulsa, it expressed opinions to the contrary. The observation in Prithi Mahton v. Jamshed Khan that the special rules laid down in Expl. 4, Section 11, which goes beyond the doctrine of res judicata, ought not to be applied generally to execution cases, is obiter.
69. It follows from the above decisions that, though neither Section 11, Civil P.C., nor any of its explanations, can in terms apply to an execution proceeding be-cause the question arises in a proceeding which is a continuation of the same suit, and not in a second suit, yet where a 'point has bean decided in execution by a competent Court after notice to the counter-petitioner either expressly or by necessary implication, that decision is binding upon the parties in subsequent execution proceedings. - We in this case are concerned only with the latter part of this rule which has special reference to what is generally, though inaccurately, called the doctrine of constructive res judicata. Where a point has been decided expressly in a prior proceeding, obviously there cannot be much difficulty in applying the principle of res judicata; but the difficulty arises where the point has not been directly decided but is to be deemed to have been by implication decided when the order was passed, as he who ought to have raised the point in defence failed to do so when he had an opportunity of doing it. This is the reason why in various cases learned Judges have observed that the principle of constructive res judicata should be applied with great caution in execution proceedings and, this is also the reason why decisions of the same Court on similar points sometimes appear to be (inconsistent. Pitfalls in the application of the rule of constructive res judicata in (execution proceedings may be avoided if, as pointed out in Subraminia Ayyar v. Raja Rajeswara Dorai, we keep steadily in view the principle that the party who is sought to be affected by the bar of res judicata should have notice of the point likely to be decided against him and should have an opportunity of putting forward his contentions against such a decision. The following decisions of our Court will serve as illustration to this rule. In Narayana Pattar v. Gopalakrishna Pattar an application was made for restitution, claiming interest thereon at 12 per cent. The notice served on the respondent in the proceedings did not contain any intimation of the claim for interest. Execution was ordered by way of arrest, but as process was not paid no further action was taken. When the applicant again moved the Court the respondents who did not appear on the first occasion appeared and objected to the grant of interest. It was held that the notice issued to, them, such as it was, was insufficient to fix them with the knowledge of the claim for interest and thereby bar them raising any controversy in the matter on their failing to appear on the day fixed. Following this decision, it was pointed out in Ramasami Naick v. Ramasami Chetti that where application is not for the execution of something which has been directed to be done by any decree or order so as ipso facto to carry information as to what the claim made and the relief prayed for are, notice to the judgment-debtor without inserting the specific prayers will not render the order made upon such application res judicata : see also Chidambaram Chetti v. Kandasami Goundan.
70. I shall now consider how far the appellant in the present case is precluded from raising his present contentions by the order 'send' passed in E.P. No. 1509 of 1927. It is said that he ought to have resisted the passing of that order when he received the notice of the application, and because he failed to do so he should not be allowed to raise his present contentions. I have already drawn attention to the notice served upon defendant 4. There is no reference in it to Section 48, Civil P.C., nor is there any indication in it that the assignee decree-holder her intended to rely on the fraud committed by defendant 1 to claim against him and all the others exemption from the 12 years' rule of limitation. That petition was filed within three years of the prior application. No one could have known at that time what use the assignee decree-holder was going to make of the date 23rd January 1927, mentioned in it as one of the dates of the decree in column 3. Did he really intend to treat it as the data of the decree, or did he intend then, as ha now argues, to indicate by it that he was going to rely on the fraud of defendant 1 under Clause 2, Section 48, Civil P.C., or did he intend to trait it as the starting point of limitation in some other way? There was not a suggestion of fraud on the part of defendant 1 in the notice sent to defendant 4.
71. In what light is the insertion of the date 23rd January 1917, in that application to be understood? It is clearly not the date of the decree, for we know, and column. 3 also states it, that the date of the decree is 10th February 1913. There could have been therefore no mistake about the date of the decree nor do I think it is possible to hold that the decree-holder should have necessarily intended, by inserting that date, to show that he was referring to the fraud of defendant 1 which would entitle him to claim exemption from the bar of limitation as against' the other defendants. This becomes quite obvious from the fact that E.P. No. 831 of 1924, also a prior execution application which was filed within 11 years after the decree - the 23rd January 1917-is referred to in Col. 3 along with the other two dates, the only difference being that on this occasion these are described as 'decree numbers' instead of the 'date of the decree' as in E.P. No. 1509 of 1927. The importance of this application lies in the fact that at that time there was no need for the assignee decree-holder to draw any attention to the fraud of defendant 1 or to Section 48, Civil P.C., as the application, being within 11 years after the date of the decree, was not barred by the 12 years' rule of limitation. The mention of this specific date was in no way of any use to the assignee-decree-holder at that time; and yet he referred to it then and repeated it again in E.P. No. 1509 of 1927. But it is clear to my mind that he did not till this moment intend to use it for the specific purpose to support which he use it now. Why should we be asked to assume that 23rd January 1917, should necessarily be repeated as the data of the fraud? As pointed out by the appellant it was open to the assignee decree-holder, if he intended then, to make use of Clause 2 in his favour to assign the fraud to any date during the period of the 12 years immediately prior to the date of E.P. No. 1509 of 1927 commencing from 1915. The appellant is not expected to imagine a possible case that might be put forward on behalf of the assignee decree-holder and to answer it in response to the notice which gave no indication whatever as to what the decree-holder was going to argue in respect of this point. In these circumstances it is impossible to hold that the order on the prior execution application impliedly decided that owing to the fraud of defendant 1 the assignee decree-holder obtained an extension of 12 years to execute the decree from 23rd January 1917. The notice simply stated why the decree should not be executed against him; there was absolutely nothing in the notice to show that the assignee decree-holder was contemplating to invoke the aid of Section 48, Clause 2, Civil P. C, in his favour. If the notice served by the respondent had alleged fraud as a ground for claiming exemption from the bar of limitation, then his argument, that the appellant should have raised his present contention in E.P. No. 1509 of 1927 should certainly prevail. It is obvious that the ground of defence that a party ought to raise in the application of the rule of constructive res judicata can have reference only to the matter alleged against him as a ground of attack. With respect to that all the grounds of defence that he has should be pleaded. As fraud was not referred to in the prior proceedings it cannot be said that the appellants ought to have then raised with respect to it all his present defences within the meaning of the rule in Expl. 4 Section 11.
72. As he failed to oppose the application on the receipt of the notice it is not open to defendant 4 now to plead that the application, E.P. No. 1509 of 1927 is barred by the 12 years' rule; the order then passed impliedly decided that the decree was then executable and defendant 4 cannot be allowed to urge that that order was wrong in any subsequent proceeding. To that extent the bar of res judicata will operate against him; but. that does not mean that he is precluded from contending that the present execution application is affected by the 12 years' rule. For the reasons already mentioned, the order then passed cannot be interpreted as involving any decision as regards the starting point of limitation. It is not necessary for maintaining the present application that the appellant should prove that the order on the prior application was wrong. This feature distinguishes the present case from Mungul Pershad Dichit v. Girja Kant Lahiri where the only point for decision whether the decree was barred by the three years' rule of limitation was held to have been impliedly decided in the order on the prior application. In this connexion attention may be drawn to the decision of this Court in Dakshinamurthy Pillai v. Vedamurthy Mudaliar. In that case the decree of the High Court, which was sought to be executed, was dated 23rd February 1911. One of the questions was whether E.P. No. 150 of 1924, dated 4th April 1924, was within time. It was argued that since in a prior E.P. No. 130 of 1923, dated 18th July 1923, which was also put in more than 12 years from the date of the decree, no objection on the ground of limitation had been taken by the appellant, he was barred by res judicata from pleading that bar to any subsequent execution petitions but the argument was not accepted and the Court made the following observation in the judgment which may well be applied to the present case also:
All that was implicitly decided on E.P. No. 139 of 1923 was that that petition was not barred by the 12 years' rule. That decision cannot for ever remove the operation of Section 48, Civil P.C., out of the way of all future execution petitions.
73. It follows therefore that defendant 4 is not barred by the plea of constructive res judicata from raising his present contentions.
74. The law is well settled that a prior decision to have the force of res judicata must not be wanting:
in that certainty which is an essential element in the case of every estoppel : see Vythilinqa Mudaliar v. Ramachandra Naickar and Munusami Naidu v. Annual.
75. As pointed out in Bommidi Bayyan Naidu v. Bommidi Suryanarayana
certainty is essential for the application of the rule of res judicata and the Court would not prevent the re-agitation of a matter where it is not certain that the previous decision proceeded on a particular ground: see also In Re: Bank of Hindustan, China and Japan (Alison's case).
76. Sir J. Mellish, L.J., observed:.that the judgment of the Courts of Common law is not only conclusive with reference to the actual matter decided, but that it is also conclusive with reference to the grounds of the decision, provided that from the judgment itself the actual grounds of the decision can be clearly discovered.
77. In this case it is clear from what I have said that it is impossible to state, with any precision, the ground or grounds on which the decision as regards limitation implied in the order 'send' passed on the prior application is based, i. e., whether it is based on the ground that the date of the decree is 23rd January 1917, which it is not or whether defendant 1 committed fraud on that date or at some other time daring the 12 years prior to that application or on the ground that the date 23rd January 1917, marks the starting point of limitation for some other reasons. As the particular ground on which the prior decision proceeded is not certain, that decision cannot have the force of res judicata on this additional ground also.
78. As defendant 4 is not barred by res judicata from raising the present contentions, the question whether defendant 5 though not a party to E.P. No. 1509 of 1927 is also affected by the rule of res judicata from raising the present contentions by virtue of the representation by defendant 4 of the estate of defendant 3 in the prior proceedings does not arise for consideration.
79. It follows from what has been said above that the present appellant, i. e., defendant 5 is free to raise the contention that the decree sought to be executed is barred by the 12 years' rule of limitation contained in Section 48, Civil P.C. Accepting his contention for the reasons given in the earlier part of the judgment I hold that the assignee decree-holder cannot avail himself of the fraud of defendant 1 to keep the decree alive as against the other defendants.
80. In the result, this appeal by defendant 5 is allowed with costs throughout.