1. Appeal against the order of the Subordinate Judge of Narsapur, in A.S. No. 191 of 1922.
2. The decree-holder, in O.S. No. 1156 of 1913 filed execution applications, in 1914, 1918 and 1919. On 7th December, 1921 the judgment-debtor moved the Court of execution under Order 47 of the Civil Procedure Code for a declaration that the execution petition of 1918 was barred by limitation, and thus the proceedings of 1919 would also not be valid.
3. It has been found by the District Munsif in the original proceedings that the petitioner was duly appraised of the execution petition of 1919 and then was the time that she should have contested the validity of that of 1918. The question for determination is whether she can raise the plea at this late stage.
4. The case reported in Rajitagiripathy v. Bhavani Sankaran : AIR1934Mad673 , is good authority for holding that such pleas should be advanced at the earliest opportunity and if the party fails to take action, he cannot raise them on subsequent occasions. The Privy Council ruling reported in Raja of Ramnad v. Velusami Tevar (1921) 48 I.A. 45 is to the same effect. The passage quoted on page 756 of Rustomji's Limitation Act, 3rd Edition:
The reasonable contraction of the words of Clause 5, Article 182, would seem not to allow a roving, examination into all the previous applications in order to ascertain whether there might not be a weak link in the chain
seems, as the learned commentator himself observes, to be unequivocally worded. It might run,
there is nothing in law absolutely prohibiting a party from examining all the previous applications; but, in practice, he will often find that he is barred by res judicata.
5. I find that the present case is one where the party had full opportunity of raising the question at the time of the application of 1919 and she cannot raise it after the proceedings of 1918 and 1919 have been allowed by her to be treated as in accordance with law. The findings of the Lower Courts are correct.
6. I see no force in the contention that the learned Subordinate Judge gave no finding; he distinctly states what he holds to be the correct view, but adds that it is unnecessary because he has also found that no petition lies under Section 17 of the Code of Civil Procedure, a point which requires no consideration, since I have confirmed the order of the Lower Courts on the merits.
7. The appeal is dismissed with costs.