1. We are unable to agree with the Subordinate Judge that because the order of 1911 recognizing the right of the decree-holder to execute the decree was passed ex parte, that order cannot be res judicata against the judgment-debtor. This is opposed to the decision in Subbiah Naicker v. Ramanathan Chettiar 22 Ind. Cas. 899
2. The only point for consideration is in the words of Mookerjee, J., in the decision of Mon Mohan Karmakar v. Dwarka Nath Karmakar 7 Ind. Cas. 53 whether the judgment-debtor allowed 'an order for execution to be passed against him at one stage of the proceeding, when he had an opportunity to contest the validity of that order.' If he so allowed such an order to be passed, he 'cannot be permitted' in subsequent proceedings in that suit to contest the validity of that order and to re-open questions which he ought to have met in the former proceeding.
3. We respectfully differ from the view of the learned Judge (from whose decision this Letters Patent Appeal has been preferred) that the conclusive character of the adjudication in the former proceeding as to the right of the decree-holder to execute the decree on the date of the former application can be affected by the subsequent dismissal of that application for default, and we hold that Sheoraj Singh v. Kameshar Nath (1902) A.W.N. 63 is more in conformity with the rule of law laid down by their Lordships of the Privy Council in Mungul Pershad Dichit v. Girija Kant Lahiri 11 C.L.R. 113 We find nothing in Bholanath Bass v. Prafulla Nath Kunda Chowdhry 5 C.W.N. 80 or Mon Mohan Karmokar v. Dwaraka Nath Karmakar 12 C.L.J. 312, quoted by Mr. T. Narasimha Aiyangar, which is opposed to the principle of the decision in Sheorai Singh v. Kameshar Nath (1902) A.W.N. 63. The learned Judges in those two cases merely state that on the facts of those cases, the principle did not apply. Mr. T. Narasimha Aiyangar suggested that the counter-petition in this case filed in October 1933 might be converted into a petition to set aside the ex parte order of 1911, and the case alight be sent back for deciding the question whether the 1st defendant had notice of the order of 1911 within 30 days of the counter-petition (for, else, it would be barred as a petition to set aside the ex parte order of 1911), and whether the notices taken in the Execution Petition of 1911 were duly served. But the 1st defendant is dead and the counter-petition does not state that the notices were not duly served or that the 1st defendant had no knowledge of the order of 1911 before it was passed or after it was passed till within 30 days before this date of the counter-petition in this case. Following the course adopted in Subbiah Naicher v. Ramanathan Chettiar 22 Ind. Cas. 899 we decline to allow the conversion of the counter-petition.
4. The appeal is allowed, the order of the Subordinate Judge is set aside and he is directed to pass fresh orders on the execution petition with reference to the above remarks. The contesting judgment-debtor must pay the costs of the appellant in this Court.