S. Mohan, J.
1. The plaintiff is the appellant in this civil miscellaneous second appeal and the short facts are as follows: The plaintiff and defendants 1 to 9 constituted members of a joint family. The plaintiff is the son of the second defendant (since deceased). The first defendant was the brother of the second defendant. Defendants 3 and 4 are the other brothers of the first defendant and defendants 5 to 9 are the sons of the third defendant. The appellant filed O.S. No. 9 of 1943 for partition and separate possession of his one-fourth share in the plaint A and B schedule properties and for the management of the C schedule temple and its properties in turns between himself, second defendant, first defendant and defendants 3 to 9 for a period of two years by turns and for accounts in respect of the income. A decree was passed on 31st March, 1944. It is with reference to Clause 3 of the decree concerning the schedule, the entire dispute has arisen. That clause reads as follows : 'The C schedule properties be managed in turns between the plaintiff and the second defendant on the one hand and defendants 1 and 3 to 9 on the other, each branch for a period of two years'. According to the plaintiff, the third respondent's possession came to an end on 7th October, 1974 and, therefore, he preferred E.P. No. 267 of 1974 on 17th October, 1974 for recovery of possession of the C schedule as provided in the above clause-- inter alia objections were taken, firstly that Clause 3 of the decree was merely declaratory in nature and, therefore, was not executable and, secondly, since the last of the execution petitions came to be filed only on 29th September, 1948, the present execution petition, being beyond the twelve year period of limitation as prescribed under Article 136 of the Limitation Act, was barred by time. Both these objections were overruled by the executing Court. On appeal in C.M.A. No. 46 of 1975, these objections were upheld and, consequently, the execution petition was dismissed. Hence the present A.A.A.O.
2. Mr. Rajararn, the Learned Counsel appearing for the appellant contends before me that the lower appellate Court erred in relying upon. Subba Rao v. Venkatanarasimha Rao : AIR1951Mad736 and Ramanathan Ghettiar v. Madura Sri Meenakshi Sudareswarar Devasthanam : AIR1938Mad256 , to hold that Clause 3 was merely declaratory in character since those two cases related to scheme decrees under Section 92 of the Code of Civil Procedure. It is the further submission of the Learned Counsel that if the third respondent's management came to an end only on. 6th October, 1974 the present execution petition, having been filed on 17th October, 1974 was well within time. With the leave of the Court, he also sought to raise another point based on the principle of constructive res judicata. According to him, E.P. No. 203 of 1946 was filed and the question as to the nature of Clause 3 was not raised there and inasmuch as that has not been done, on the principle of constructive res judicata the present plea that Clause 3 were merely declaratory in nature cannot be raised. (I allowed him to raise this because it is not disputed by the respondents that the said execution petition was preferred in 1946 and was also dismissed by an order of the learned Subordinate Judge of Madurai on 4th September, 1940 and this plea was not specifically raised. Moreover, this is purely a question of law). In support of this, the Learned Counsel relies on Shanmugavelu v. Karuppannaswami (1954) M.W.N. 733 : A.I.R. 1954 Mad. 1070.
3. In meeting, these submissions, it is contended by Mr. Veluswami, the Learned Counsel appearing for the respondents that the principle of constructive res judicata will not apply here since it is a pure question of law and to such cases the said principle cannot be made applicable in view of the decision in Mathura Prasad v. Dossibai : 3SCR830 . On the point of limitation, it is the contention of the Learned Counsel appearing for the respondents that the last of the execution petitions was filed only in 1948 and there is no proof that the third respondent was in management till 6th October, 1974 in which event the present execution petition would be barred in view of Article 136 of the Limitation Act.
4. Suffice it for the purpose of the C.M.S.A. to deal with only two questions, namely : (1) the principle of constructive res judicata; and (2) limitation. If I am to hold that the principle of constructive res judicata applies the other question as to whether Clause 3 is merely declaratory in nature or is capable of execution becomes purely academic. As seen from the records, E.P. No. 203 of 1946 was filed by the plaintiff for the enforcement of Clauses 3 and 4 of the decree in O.S. No. 9 of 1943. It was contended in opposition to this execution petition that Clauses 3 and 4 were in the nature of a preliminary decree and this contention was negatived by the executing Court by its order, dated 4th September, 1946. That order has become final and binding between the parties. It was well open to the judgment-debtors, i.e. the respondents herein to have raised this plea that Clauses 3 and 4 were merely declaratory in nature. But for the reasons best known to them, they did not do so. In such an event, undoubtedly, the principle of constructive res judicata will apply. In fact in Shanmughavelu v. Karuppanrtaswami : AIR1954Mad1070 , it was held that the order made by the executing Court recognising the right of the decree-holder to execute the decree after overruling the objection of the judgment-debtor operates as res judicata as regards the maintainability of the execution application. I am unable to see as to how Mathura Prasad v. Dossibai : 3SCR830 is helpful to the respondents. At page 2359, it was observed:
A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise.
In the instant case, no decision was rendered on the question of jurisdiction of the executing Court. The plea is totally different, namely, failure of the present respondents to raise this plea as to the non-executability of the decree.
5. Turning to the question of limitation, the executing Court has clearly stated in its order that the third respondent was in possession till 6th October, 1974 and the petitioner's turn of management started only on 7th October, 1974 and, therefore, the execution petition was in time. Surprisingly, the learned District Judge would not even refer to this vital fact, but would merely hold that the last of the execution petitions was ordered on 29th September, 1948, and therefore, the present application was barred being more than thirty years after the date of the decree and more than twenty-six years after the last execution petition was disposed of and that Article 136 of the Limitation Act would apply. This finding, in my view, ignores the vital fact of the third respondent's possession up till 6th October, 1974 as noted by the learned Subordinate Judge. If the limitation is reckoned from that date, namely 7th October, 1974 when alone the right of the present plaintiff became enforceable, certainly the execution petition is within, the time. Therefore, I have little hesitation in setting aside the judgment of the lower appellate Court and restore the order of the executing Court. Consequently, the civil miscellaneous second appeal will stand allowed with costs. No leave.
6. Mr. Rajaram, the Learned Counsel appearing for the appellant does not press this application in view of my order in the above C.M.S.A. and, consequently, this application (C.M.P. No. 9060 of 1975) will stand dismissed. No costs.