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Subbiah Naicker Vs. Ramanathan Chettiar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported inAIR1914Mad162; (1914)ILR37Mad462; 22Ind.Cas.899; (1914)26MLJ189
AppellantSubbiah Naicker
RespondentRamanathan Chettiar
Cases ReferredMochai Mandal v. Meseruddin Mollah
Excerpt:
civil procedure code (act v of 1908), sections 37, 38, and 150 - jurisdiction to execute decree--pending execution proceedings--transfer of properly sought to he sold to the jurisdiction of another court--rea judicata in execution proceedings--ex parte order passed after notice, effect of--objection petition, when, can be treated as application to set aside ex parte order--order ix, rule 13, application of. - - ' we might add that the new section 150 introduced by the new code seems to clearly imply that the whole business of a court might be transferred to another court without any order of transfer being passed by a superior court under section 24 or any other section of the code, either as regards a particular case or as regards all the cases pending in a particular court. now the.....1. the second defendant, one of the three judgment-debtors, is the appellant before this court. this appeal has arisen out of an execution petition put in by the decree-holder. the facts are a little complicated, and though it is not necessary to retail all the facts, it is necessary to set out the following for understanding the contentions on both sides:2. the decree in this case was passed so long ago as march 1898 in favour of one arunachallam chettiyar. there were several execution petitions by the said decree-holder himself. the decree is then alleged to have fallen, in a partition between two members of the decree holder's family and a partner of the family firm, to the share of the said partner who also held a power of attorney from the decree-holder. this partner filed execution.....
Judgment:

1. The second defendant, one of the three judgment-debtors, is the appellant before this Court. This appeal has arisen out of an execution petition put in by the decree-holder. The facts are a little complicated, and though it is not necessary to retail all the facts, it is necessary to set out the following for understanding the contentions on both sides:

2. The decree in this case was passed so long ago as March 1898 in favour of one Arunachallam Chettiyar. There were several execution petitions by the said decree-holder himself. The decree is then alleged to have fallen, in a partition between two members of the decree holder's family and a partner of the family firm, to the share of the said partner who also held a power of attorney from the decree-holder. This partner filed execution petitions in 1905 and 1907. Finally on the 21st April 1909, Execution Petition No. 389 of 1909 was filed by a next friend on behalf of the minor son of the said partner after the death of the latter.

3. We must here state that the decree was passed by the District Mansif'ti Oourt of Srivilliputtur and all these applications including the Execution Petition No. 38 of 1909 of 21st April 1909 ware instituted in that Court. On this application No. 389 of 1909, notice was ordered to be issued to defendants to show cause why the decree should not be executed by sale of properties which had been attached long ago and which attachment was still subsisting. For the purpose of this appeal, it is necessary only to consider the notice issued to the second defendant, that notice having been issued in July 1909 by the Srivilliputtur Munsif's Court for second defendant's appearance on 10th August 1909 to show cause against execution. The process-server took the notice to the second defendant's village on 31st July 1909 for service on the second defendant. What took place there appears from the endorsement of the Village Munsif on the process-server's return and that endorsement is as follows:--'On enquiry made on 31st July 1909 at 9 A.M., regarding the second defendant, the females in the second defendant's house and the inmates of the adjoining house state that it is two days since he went to Sankaranayinarkoil, that the date of his return is not known and that no proper male heir is present on the spot; the duplicate of the notice to the said second defendant is affixed to the front door of his house.' With a return to this effect, the process-server returned the notice to the Court on the 6th August 1909, on the 10th August 1909 (which was the date fixed in the notice for the second defendant to appear to show cause), the District Munsif made a record to this effect 'Notice affixed, defendant absent, adjourned to 14th instant for batta for proclamation.' (The learned District Judge seems to have thought that the 10th August 1909 was a mistake for the 10th December 1909 but it seems that there is no such mistake and the order was really passed on 10th August 1909 by the Munsif. On 18th October 1909, the proclamation was settled and the sale date was fixed for 10th December 1909. The sale fixed for 10th December 1909 seems to have been again adjourned to some other date in 1910 on account of certain other proceedings which it is unnecessary to detail.

4. In May 191.0, the Ramnad district was newly constituted by the Local Government and the Srivilliputtur District Munsif's Court was placed under the Ramnad District Judge. The properties which had been attached by the Srivilliputtur District Munsif in execution of the decree of 1897 came under the jurisdiction of the Additional District Munsif of Tinnevelly, having boon taken away from the Srivilliputtur District Munsif's jurisdiction, On these facts, the next friend of the minor who claims to be the decree-holder (we shall call him 'Respondent') and who had put in the Execution Petition No. 389 of 1909 in April 1909 in the Srivilliputtur District Munsif's Court put in Miscellaneous Petition No. 838 of 1911 in the Additional Munsif's Court of Tinnevelly praying among other things that the execution proceedings instituted in the Srivilliputtur Munsif's Court in April 1909 might be continued in the Additional District Munsifs Court of Tinnevelly after obtaining all the records from the Srivilliputtur Court. The seventh and eighth paragraphs of the affidavit accompanying this petition of February 1911 are as follow:

As the properties which are mentioned in the said sale proclamation and which are applied for for being sold in this suit are situate in Kurivikulam Katukuthagai, Kurinjakulam village in Sankaranayinarkoil taluk, within the jurisdiction of this Court, as the Srivilliputtur Munsifs Court in which stops had been taken before this, has been abolished in so far as this district is concerned, as the said Court has lost its jurisdiction in matters of execution in respect of the decrees of this district and as this Court itself has now jurisdiction to execute the decrees connected with this district, it is necessary and reasonable to continue and execute through this Court itself the petition pending in the said Srivilliputtur Munsifs Court.

Moreover, this plaintiff made an application to the said Srivilliputtur Munsif's Court; but the said application has been returned with an endorsement stating that the entire records aforesaid have been sent to this Court, with reference to matters stated in paragraph 6 above, The application so returned is herewith filed.' The Additional District Munsif dismissed this application. The conclusions he came to are (as we understand them):

(a) the decree of the Srivilliputtur District Munsifs Court was not transferred to the Additional District Munsifs Court for execution though a portion of the records were sent to the Tinnevelly Additional District Munsif's Court on the transfer of the territorial jurisdiction by the District Munsif of Srivilliputtur himself.

(b) The District Munsifs Court of Srivilliputtur has not ceased to exist nor has it ceased to have jurisdiction to execute its own decree on the transfer of territory from its jurisdiction as such transfer did not take away the jurisdiction to entertain applications for execution and to pass orders thereon which it had under Section 223 of the Civil Procedure Code.

(c) The Additional District Munsifs Court of Tinnevelly did not acquire the jurisdiction to execute the decree under Section 649 of the old Civil Procedure Code, or Section 150 of Act V of 1908 because the Additional District Munsif's Court of Tinnevelly could acquire the jurisdiction, only if the Court of the District Munsif of Srivilliputtur ceased to exist or to have jurisdiction to execute the decree.

(d) The ex-parte order passed by the Srivilliputtur District Munsif s Court on the 10th August 1909 allowing execution to proceed against the second defendant because he did not appear though held to have been duly served could not be treated as estopping the second defendant so as to preclude him from objecting to the minor respondent executing the decree (the objection being based on the ground that execution is barred by limitation and that his right to execute had not been satisfactorily proved). The reason for second defendant's not being so estopped is that the notice issued under Section 248, Civil Procedure Code, in July 1909, was not personally served upon him and he was not otherwise aware of such notice. See Mochai Mandal v. Meseruddin Mollah (1911) Cri.L J. 26.

(e) The said applications of 1905 and 1907 are however in accordance with law and hence the execution petition of April 1909 was not barred by limitation.

5. These were the conclusions of the Additional District Munsif of Tinnevelly and he rejected the decree-holder's petition to continue proceedings in his Court on the ground that his Court had no jurisdiction to so continue the proceedings. The minor respondent then appealed to the District Judge against this order of the Additional District Munsif of Tinnevelly refusing to continue the execution proceedings inaugurated in April 1909. The learned District Judge's conclusions may be stated thus:

(a) Section 150, Civil Procedure Code, provides that, when the business of any Court is transferred to any other Court, the latter shall have the same powers and duties as the former had in respect of it. Hut (according to the learned District Judge) the Execution Petition of 1909 was a pending business in the Srivilliputtur Munsif's Court when it lost its jurisdiction over the territory (in which the attached properties were situated) on 1st June 1910 and such pending business was not legally transferred to the Additional District Munsif of Tinnevelly. So the minor petitioner could not take advantage of Section 150, Civil Procedure Code, and contend that the Additional District Munsif of Tinnevelly Was a Court to which the business of the Srivilliputtur Munsif's Court was transferred.

(b) Hut the Srivilliputtur Munsif's Court, though it continued to exist and to be held in the same station and continued to have jurisdiction over a portion of its former territorial jurisdiction must be deemed to have 'ceased to exist' within the meaning of Section 37, Clause (b), of the Civil Procedure Code; because the territories within its jurisdiction had been transferred to the newly created Ramnad district by the Local Government and appeals from its decrees and orders lay thereafter to the Ramnad District Court and not to the District Court of Tinnevelly. Hence the Court which passed the decree had now become the Additional District Munsif's Court of Tinnevelly. In other words, the learned District Judge's view was that as the Srivilliputtur Munsif's Court ceased to exist, the Court which originally passed the decree ceased to exist and the additional District Munsif's Court of Tinnevelly became the Court which passed the decree within the meaning of Section 37, Clause (b) and hence it ought to continue the execution proceedings.

(c) The second defendant could not raise the question of limitation by reason of the alleged legal invalidity of the execution petitions of 1905 and 1907 as the order of the Srivilliputtur Munsif's Court of the 10th August 1909 allowing execution after declaring the service on second defendant to have been duly effected cannot be questioned by the second defendant now as he has not had that ex-parte order (allowing execution) set aside by proceedings in appeal or by any other legal means open to him. On the basis of the conclusions (b) and (c) above, the learned District Judge set aside the Additional District Munsif's order and remanded the petition for disposal of Execution Petition No. 389 of 1909 by that Court from the point it had reached on 23rd February 1910. It is against this appellate (District Judge's) order of remand that the present Civil Miscellaneous Appeal No. 61 of 1913 has been filed before us. The arguments of the learned vakil for the appellant before us might be shortly stated thus:

(a) The learned District Judge was right in saying that Section 150, Civil Procedure Code, refers to the transfer of business owing to an order of transfer by a superior Court as under Section 24 or any such similar order and that mere alteration of jurisdiction through the Local Government's notifications does not transfer any business within the meaning of Section 150; but the learned District Judge was in error in holding that the Srivilliputtur District Munsif's Court ceased to exist within the meaning of Section 37, Clause (b) merely by reason of the fact that the territory over which the said Court had to exercise' jurisdiction was included in a new district, the portion in dispute in these execution proceedings and which also formed the basis of the venue of the suit having been transferred to the Tinne-velly Additional Munsifs Court's jurisdiction.

(b) The Srivilliputtur District Munsifs Court not having ceased to exist, it also did not cease to have power to exercise jurisdiction within the meaning of Section 37, Clause (b) because as the Court which passed the decree, it continued to have jurisdiction under Section 38, Civil Procedure Code (old Section 223) even though the property attached in execution of the decree had been transferred to the jurisdiction of the Additional District Munsif of Tinnevelly.

(c) As the Srivilliputtur District Munsifs Court continued to have jurisdiction to execute the decree, the Additional District Munsif's Court did not obtain jurisdiction either to execute the decree or to continue tho execution began in the Srivilliputtur Munsif's Court, only one of the two Courts being capable of executing the decree.

6. We shall consider briefly each of these three contentions. Before the new Code was passed, there was a conflict between the decisions of the Calcutta High Court and the decisions of the Madras High Court in respect of the question whether a Court which passed the decree which directed the sale of immoveable properly had jurisdiction to order the sale of that property if after the decree and. before the application for sale, the said property had been transferred by the Local Government's notification from its jurisdiction to the jurisdiction of another Court. The principal decisions of the Calcutta High Court on this question are Latchman Pundeh v. Maddan Mohun Shye I.L.R. (1881) Cal. 513, Kartic Nath Panday v. Tilukdhari Lall I.L.R. (1888) Cal. 667, Prem Chand Dey v. Mokhoda Debi I.L.R. (1890) Cal. 699, Kali Pado Mukerjee v. Dino Nath Mukerjee I.L.R. (1898) Cal. 315, Jahar v. Kamini Debi I.L.R. (1901) Cal. 238 and Udit Narain Chaudhuri v. Mathura Prasad I.L.R. (1908) Cal. 974. We do not think it necessary to deal in detail with every one of these oases. Kartic Nath Panday v. Tilukdhari Lall I.L.R. (1888) Cal. 667 was virtually overruled by the Full Bench decision in Prem Chand Dey v. Mokhoda Debi I.L.R. (1890) Cal. 699. The result of all these cases is that though under Order XXI, Rule 10 (old Section 230), the application for execution by sale of properties which had passed out of the territorial jurisdiction of the Court which passed the decree, might be made to the Court which passed the decree, it may also be made to the Court which had acquired jurisdiction over the said properties as it is also included in the definition of the Court which passed the decree by the strength of Section 37, Clause (b) as the Court which passed the decree had ceased to have jurisdiction to sell the properties decreed to be sold. Hence according to the result of these decisions of the Calcutta High Court both the Courts which passed the decree and the Court which had since obtained jurisdiction over the property could entertain an application for execution of the decree.

(d) Though both Courts could entertain the application, the Court which passed the decree had ceased to have jurisdiction to order the sale of properties and hence could not itself order a sale and if the execution application is made to it, it must transfer it to the Court which had now obtained jurisdiction over the properties for passing and executing the order for sale.

7. Thus the Calcutta High Court decisions make a distinction between the jurisdiction to entertain the execution application and the jurisdiction to order sale of properties in execution and while it gives jurisdiction to both the Courts which originally passed the decree and the Court which has since obtained jurisdiction over the territory to entertain applications, the said decisions give jurisdiction only to the latter Court to order the sale of the properties.

8. As regards the Madras High Court, the principal cases are Gomatham Alamelu v. Komandur Krishnamacharlu I.L.R. (1904) Mad. 118, Panduranga Mudaliar v. Vythilinga Reddi I.L.R. (1907) Mad. 537, Subbaraya Mudaliar v. Rakki I.L.R. (1909) Mad. 140 and Alagappa Mudaliyar v. Thiyagaraja Mudaliyar (1910) M.W.N. 477. In Gomatham Alamelu v. Komandur Krishnamacharlu I.L.R. (1904) Mad. 118 it was merely held that if a Court which had not got jurisdiction had passed a decree for sale of the properties outside its jurisdiction without objection by the defendant, suoh a decree is not a nullity and the judgment-debtor could not object to the validity of such a decree in execution proceedings. In Panduranga Mudaliar v. Vythilinga Reddi I.L.R. (1907) Mad. 537, it was held that the Court which passed the decree for sale had jurisdiction to entertain an execution application for sale of that property even though the property had been transferred to the jurisdiction of some other Court. Apart from the question of its jurisdiction to entertain the application, whether it could itself order the sale of that property was not and need not have been considered in that case, because the decree-holder in his application for execution, also prayed for the transfer of the decree to the Court which had since obtained jurisdiction over the properties directed to be sold. The decision in Panduranga Mudaliar v. Vythilinga Reddi I.L.R. (1907) Mad. 537 seems therefore, to be not in conflict with the Calcutta decisions which only negative the right of the Court which passed the decree to order the sale of the properties which had passed out of its jurisdiction, but, do not negative the right of that Court to entertain the application for execution. Subbaraya Mudaliar v. Rakki I.L.R. (1909) Mad. 140 do ponded upon the meaning of Section 189 of the Madras Estates Land Act though there is a general observation that even when a statute takes away the jurisdiction of a class of Courts to hear suits of a certain nature and transfers the jurisdiction to hear such suits to another class of Courts, the first class of Courts does not lose the jurisdiction over the suits pending at the time of the passing of the Act which so transfers the jurisdiction. In Alagappa Mudaliyar v. Thiyagaraja Mudaliyar (1910) M.W.N. 477 doubt was thrown upon this decision in Panduranga Mudaliar v. Vythilinga Reddi I.L.R. (1907) Mad. 537 and the learned Judges (Wallis and Krishnaswami Ayyar,JJ.) say that the question whether the transfer of a local area from the jurisdiction of one Court to another Court would not divest the original Court of jurisdiction over even pending suits was a question of 'considerable difficulty'. The learned judges, therefore without deciding that question disposed of the case on the assumption that the notification of the Local Government deprived the Subordinate Judge's Court of Tuticorin from trying the pending suit and they got over the difficulty by transferring the case to his file from that of the new Court (Ramnad Court) to whose file it had been transferred (ex hypothese) by the notification. We are inclined to think that the Calcutta decisions in making a distinction between the jurisdiction to entertain applications and the jurisdiction to pass orders on such applications are not strictly logical ; and that the Court which passed the decree for sale of a property cannot even entertain an application in execution for sale of such properties. However the really important question is now settled in Calcutta, namely, that the now Court which has since obtained territorial jurisdiction over the property ordered to be sold or sought to be attached and sold in execution has jurisdiction both to entertain an application in execution for such sale as also to pass orders on such applications. In volume 11, Encyclopaedia of Law and Procedure, pages 713 and 714, the following passages occur: 'A proper and lawful exercise of delegated legislative authority, or the direct exereise of constitutional power, will operate to abolish a court or not, according to the intent expressed or lawfully to be implied within the principles heretofore stated. This intent governs in determining the effect of the adoption of a new constitution, of the creation, alteration, and reorganization of new districts, circuits or other judicial sub-divisions, of the detaching, attaching, annexation and consolidation of districts and the transfer of jurisdiction in general.' 'And it has been held that in the absence of a constitutional or statutory provision to the contrary, causes pending in the abolished Courts' (the same principle must apply by analogy where a portion of the jurisdiction is transferred) 'are transferred by operation of law to the new courts, no certificate or order transferring them being necessary....The new Court will obtain and may proceed to exercise jurisdiction over causes lawfully transferred....This rule includes authority to hold the remainder of a term which was in session when the statute took effect; the right to amend records relating to the judicial action of the superseded court.' In. volume 40 Encyclopaedia, page 129, it is said: 'Where, pending an action a new county or district is created or existing lines are altered, so that the subject-matter of the action or the residence of defendant is thrown into a different county or district from what it was when the action was instituted, there is some conflict of authority as to whether the venue should be changed accordingly, or whether the action should proceed where it was instituted without a change of venue. The question depends largely upon the provisions of the statutes.' In the American Digest, volume 13, at page 1943, a decision is referred to in which it was held that a statute giving exclusive jurisdiction to justices, in certain cases and containing no clause saving pending suits, deprived the Circuit Courts (which till then had jurisdiction over such cases) to try even pending suits. Another case is quoted in which a decree rendered by a probate Court in a suit after the Court was deprived of its jurisdiction by an Act (which came into force while the suit was pending) was reversed in appeal as passed without jurisdiction: Remington v. Smith 1 Colo., 53. It seems to us on principle that unless the authority which changes the venue reserves the right to the Court which has lost the jurisdiction to continue pending proceedings (affecting the property so transferred to another jurisdiction), such proceedings are also ipso facto transferred by the change of venue to the new Court, the records relating to that action becoming part of the records of the new Court. In the present case, it appears that since the change of venue was made from the Srivilliputhur Munsif to the Additional District Munsif of Tinnevelly, the Srivilliputhur District Munsif sent all the records remaining in his Court in Execution Petition No. 389 of 1909 to the Additional District Munsif's Court of Tinnevelly, thus washing his hands completely of that affair. We think he was right in doing so. As stated in Prem Chand Dey v. Mokhoda Debi I.L.R. (1890) Cal. 699, 'so far as the Procedure Code is concerned, execution of a decree is only a continuation of the suit, and there appears no legitimate reason why a Court in the later stage of a suit should have greater powers than it possessed at its institution. But however that may be, a comparison of Section 223 with the last paragraph of Section 649 seems to us to indicate that territorial jurisdiction is a condition precedent to a Court executing a decree.' We might add that the new Section 150 introduced by the new Code seems to clearly imply that the whole business of a Court might be transferred to another Court without any order of transfer being passed by a superior Court under Section 24 or any other section of the Code, either as regards a particular case or as regards all the cases pending in a particular Court. The introduction of this new section indicates, in our opinion, that the Calcutta view which held that by the change of venue made by a local Government, the business of a Court which loses jurisdiction over a certain area so far as it relates to cases affecting the lands in the transferred area will be ipso facto transferred to the new Court has. been adopted by the Legislature. We are unable to agree with the learned District Judge that the word 'transfer' of business under Section 150 covers only transfers made under special provisions of the Civil Procedure Code and we have found it difficult to follow the reasoning of the learned District Judge who relies on Sections 8(1), 13(2) and (3) and 17(1) of the Bengal Civil Courts Act. Those provisions appear to us to have little bearing on the decision of this question. In the result we hold that the learned District Judge was right in his conclusion that the Additional District Munsif's Court of Tinnevelly has jurisdiction to continue the proceedings in execution initiated in the Srivilliputhur Munsif's Court in 1909. Our reason for that conclusion is that the Srivilliputhur Munsif's Court ceased to have jurisdiction to continue the proceedings in execution, whereas the reason given by the learned District Judge is that the Srivilliputhur Munsif's Court ceased to exist. Even if we are wrong in the above view, we are prepared to get over the difficulty sought to be raised on the question of jurisdiction by transferring the Execution Petition No. 389 of 1909 from the Srivilliputhur Munsif's Court for disposal to the file of the Additional District Munsif of Tinnevelly, a similar expedient having been resorted to by the learned judges who decided Alagappa Mudaliyar v. Thiyagaraja Mudaliyar (1910) M.W.N. 477.

9. The next point sought to be argued by the appellant was whether the execution application of 1909 was barred by limitation. The question of limitation depends upon certain fact alleged by the judgment-debtor, the truth of which facts has not been gone into by the lower Appellate Court as it was contended by the decree-holder that those facts cannot be gone into, the second defendant being bound by the ex-parte order of August 1909 allowing execution of the decree in the respondent's favour. On the other hand, the appellant's contention is that the order of August 1909 being an ex-parte order is not legally binding on him and has not the legal effect of estopping him from questioning its validity at later stages of the execution proceedings if he proves that he had no notice of the date fixed for the hearing of the execution petition of 1909. The respondent's rejoinder to this is that till the appellant has that order of August 1909 set aside by proceedings under Section 108, Civil Procedure Code (new Order IX, Rule 13) or by proceedings in appeal, it is binding on the appellant and estops him from denying the respondent's right to execute the decree. Now the order of August 1909 was no doubt an ex-parte order but it was passed after notice was issued to the second defendant (appellant) to show cause why such an order should not be passed and after the Court had satisfied itself on the affidavit and the return of the process-server that the notice had been only served, though by affixture to the outer door of second defendant's house. An ex-parte order passed after issue of notice and after the Court had held that the service of the notice was duly effected is, it seems to us, on general principles binding as res judicata on the defendant just as much as a contested order or decree. It has now been settled--see Hara Chandra Bairagi v. Bepin Behari Das (1911) Cri.L.J. 38 --that an ex-parte decree does operate as res judicata. See also Raja Kumara Venkata Perumal Raja Bahadur v. Thatha Ramasamy Chatty I.L.R. (1912) Mad. 75 where BENSON and SUNDARA AYYAR, JJ., express the view that an ex-parte decree does estop the parties to the suit from disputing its validity afterwards. This effect of an ex-parte decree or order passed after notice (declared to be duly served on the respondent) does not rest merely upon the provisions of the Civil Procedure Code, Section 11, but upon general principles of jurisprudence. Though as pointed out by the Privy Council in Thahur Prasad v. Fakir-ullah I.L.R. (1895) I.L.R. 17 All. 106 (P.C.) the special provisions of the Civil Procedure Code like the old Sections 43 or 373, or 103 which preclude a litigant from bringing a fresh suit in respect of certain claims though they had not been actually heard and decided in the first suit, could not apply to execution proceedings, the general principles of jurisprudence which govern the Courts as regards res judicata or estoppel by record do apply to execution proceedings and have been so applied following the well-known case of Mungal Pershad Dichit v. Grija Kant Luhiri I.L.R. (1882) Cal. 51 by all the Indian Courts.

10. There is, again, no hardship in treating ah order passed ex-parte, in execution proceedings as binding on the judgment-debtor provided that notice had been issued to him and had been declared duly effected by the Court. For, if he was really ignorant of the notice, he is entitled under Section 108, Civil Procedure Code (Order IX, Rule 13 of the new Code) to have the ex-parte order set aside by putting in his application within one month of his knowledge of the order under Article 164 of the Limitation Act. It is contended by the appellant's learned vakil, Mr. L.A. Govindaraghava Ayyar, that Order IX, Rule 13, Civil Procedure Code, does not apply to ex-parte orders passed in execution but only to ex-parte decrees in suits. We think that that argument cannot be accepted. Orders in execution which come under Section 47, Civil Procedure Code, are decrees as defined in Section 2 of the Code and hence ex-parte orders passed in execution are ex-parte decrees and Order IX, Rule 13, provides generally for the setting aside of ex-parte decrees and not only for the setting aside of those classes of ex-parte decrees which are not also orders passed under Section 47 in execution proceedings. We are fortified in this view by the decision in Krishna Chandra Pal v. Protap Chandra Pal (1906) Cri.L.J., 276.

11. As regards the obiter dictum of Mookerjee,J., in Sreepati Charan Chowdhury v. Shamaldhone Dutt (1912) 15 Cri.L.J. 123 that the whole of the rules in Order IX do not apply to execution proceedings, we need only say that the learned judge was not directing his attention to overy one of the 14 rules in Order IX when he pronounced that dictum, but was generally considering the question whether the bar of fresh proceedings in suits enacted in Rules 9, 12 and so on will apply to execution proceedings. There is no allusion in the learned judge's decision to Krishna Chandra Pal v. Protap Chandra Pal (1906) Cri.L.J. 276 which directly held that Section 108 (Order IX, Rule 13), applied to execution proceedings. The argument of the appellant's learned vakil based on the fact that in Article 164 of the Limitation Act, the general expression 'Summons' is used instead of 'Summons or notice,' does not convince us that Article 164 was intended to apply only to decrees strictly so called and not to orders in execution which come under the definition of decrees in the Civil Procedure Code. Besides the remedy under Section 108, the defendant could also have sought the remedy by way of appeal against the ex-parte order. We are therefore reasonably clear that the ex-parte order of August 1909 allowing execution in favour of the respondent cannot be questioned in the further stages of the execution proceedings by the appellant. The learned District judge was therefore right in refusing to go into the question whether the respondent was barred by limitation or any other cause from prosecuting the Execution Petition No. 389 of 1909.

12. It is next contended that the unstamped objection statement, dated 27th July 1911, put in by the second defendant might be treated as an application (under Order IX, Rule 13) to set aside the ex-parte order passed in August 1909 in the respondent's favour and that an opportunity should be given to the appellant to provo as such applicant that he was not duly served with notice of the execution petition before that order of August 1909 was passed and that he had no knowledge of the passing of that order till within one month of his filing this statement in July 1911. No doubt, in Mochai Mandal v. Meseruddin Mollah (1912) Cri.L.J. 26, an objection by the judgment-debtor that no notice had been really served upon him and that he had no knowledge of an order passed against him (allowing execution of the decree) was treated as of the same effect as an application to set aside the ex-parte order allowing execution and on its being not denied by the decree-holder that the judgment-debtor had not been duly served and did not have knowledge of the previous order allowing execution till 8 days before the judgment-debtor preferred his objections, that order was treated as not binding upon him. But we think in the present case, the objection statement of July 191.1 cannot be treated as an objection to set aside the ex-parte order of August 1909(a) as it is not stamped as an application (b) as there is no prayer in that statement to set aside the order of August 1909 and (c) as it does not appear from it when the second defendant had notice of the order of 2nd December 1909, that is, whether he had notice only within one month of the filing of this memorandum of objections and whether if the objection statement be treated as an application to set aside the order of August 1909, such an application is not barred by limitation. If second defendant had knowledge (as seems probable from the other proceedings in the case) of the order of August 1909 more than a month before the filing of the statement of objections in July 1911, he was barred from applying to set aside the ex-parte order of 1909.

13. In the result we dismiss the appeal with costs.


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