1. This appeal arises out of an application filed by the plaintiff decree-holder in O.S. No. 31 of 1919 on the file of the Court of the Subordinate Judge of Cuddalore for bringing on record one Ramaswamy Chetty as the legal representative of the deceased 4th. defendant and also for transmission of the decree to the Sub-Court, Devakottah, for execution under Section 39 of the Code of Civil Procedure. As required under Rule 138, Clause (1) of the Civil Rules of Practice, the application stated the particulars set out in Clause (a) to (i) of Order XXI, Rule 11 of the Code of Civil Procedure and the circumstances relied on by the petitioner justifying the transmission of the decree; and notice of this application was sent under Rule 138 Clause (3) to the defendants. The 1st defendant, the appellant before us, did not offer any objection to the legal representative being brought on the record. He did not object to the transfer of the decree also, but he contended that the decree was not executable for various reasons and that these objections should be decided before the transfer was ordered. The learned Judge brought the legal representatives on the record and ordered the transfer of the decree to the Devakottah Sub-Court as prayed for, holding that the objections which the 1st defendant has raised as to the executability may, if so advised, be advanced in the Executing Court.
2. In this appeal, the 1st defendant argues that the decree is inexecutable and is barred by limitation and that the Subordinate Judge was bound in law to dispose of these objections before ordering the transfer. The respondent contends that the proper Court to deal with these objections is the Executing Court and that the order of the Subordinate Judge is only a ministerial order against, which no appeal lies. He relies mainly on the decision in Chutterput Singh v. Sait Sumari Mal 36 Ind, Cas. 602 : 43 C. 903 : 23 Cri.L.J. 645 : 20 C.W.N. 889 which is referred to with approval in Banku Behary Chatterji v. Naraindas Dutt .
3. The question whether the objections as regards the executability of the decree should be decided by the Court which transfers the decree or the Court to which it is transferred for execution was considered and decided by this Court in Kallepalli Rajilagiripathy v. Kallapalli Bhavani Sankaran : AIR1924Mad673 in favour of the view advanced on behalf of the appellant, In that case the learned Judges accepted the argument that if the debtor had an opportunity of appearing and pleading that the application was barred by limitation and failed to do so, Section 11 Explanation IV of the Code of Civil Procedure will be applicable and that the question would be res judicata because it was one which might and ought to have been put forward to show that the decree was not one that was executable. After referring to the leading cases Mungal Pershad Dichit v. Grija Kant Lahiri 8 C.51 : 11 C L.R. 113 : 8 I.A, 123 : 4 Sar. P.C.J. 249 and Rajah of Ramnad v. Velusami Tevar : (1921)23BOMLR701 as regards the application of the principle of constructive res judicata in execution proceedings, the learned Judges stated their conclusion thus: 'It would appear from this that, even in an application for transfer of a decree it is open to the judgment-debtor to plead limitation and in fact he ought to do so. If the decree is barred by limitation, the transfer of it to another Court is a mere infructuous proceeding which ought not to be taken and, therefore, if a valid plea of limitation is available it should be urged in order to prevent multiplicity of proceedings.'
4. According to this decision it is clear that the Cuddalore Court in this case should have dealt with the objections which the appellant urged as regards the executability of the decree; and that it is the proper Court to deal with such objections. This case was followed in the decision reported as Muthuveeraswami Naidu v. Annamalai Chettiar : AIR1926Mad411 to which one of us was a party. The identical question again came up for consideration very recently (20th January, 1928) in Arunachalam Pillai v. Shanmugham Pillai (1928) M.W.N. 152 and the learned Judges followed the two earlier decisions of this Court, we have referred to. In this last case the two Calcutta cases relied on by the respondent were referred to and distinguished. In our opinion, the decision in Chutterput Singh v. Sait Sumari Mal 36 Ind Cas. 602 : 43 C. 903 : 23 Cri.L.J. 645 : 20 C.W.N. 889 approved by the Privy Council in Banku Behary Chatterji v. Naraindas Dutt 101 Ind. Cas, is inapplicable in the circumstances of the present case. In that case, the question was whether the Master on the Original Side of the High Court of Calcutta who had no authority to decide limitation could revive a decree by ordinary transmission in a case where he need not have even issued notice and no one appeared for the judgment-debtor. We have here to consider whether a Court which had authority to decide questions of limitation, and which was bound to issue notice and heard the parties can decline to go into the question of limitation and other grounds rendering the decree inexecutable. We are inclined to think that it cannot so decline both on principle and on the authority of the previous decisions of this Court. The observations of the Privy Council in Banku Behary Chatterji v. Naraindas Dutt : (1927)29BOMLR850 should be understood with reference to the special practice prevailing in the Calcutta Courts. If the judgment-debtor after receiving notice to show cause why the decree should not be transferred to another Court for execution does not raise all his objections to execution, such as limitation, discharge, etc, it will not be open to him to raise such pleas in a later execution petition on the ground of constructive res judicata.
5. Further, it appears to us that the application under Section 39 is an application governed by Section 3(1) of the Limitation Act and the Court must go into the question of limitation. It also appears to us that the order having been passed by the Subordinate Judge after the issue of notice to the judgment-debtor and hearing his objections, cannot be considered to be a ministerial order.
6. We must, therefore, set aside the order and remand the petition to the lower Court for disposal according to law, we may note that apart from the plea that the decree is not executable, no other objection to the transmission of the decree has been urged before us by the appellant. The appellant will get his costs, here and in the Court below.