M.C. Ghose, J.
1. This is a second appeal by the judgment-debtors in an execution case. In the primary Court they pleaded that the execution case was barred by limitation. The decree holders sought to avoid the plea of limitation by pleading that on two separate dates the judgment-debtors had paid sums of Rs. 4 and Rs. 7 and by-such payments under Section 20, Lim. Act, limitation was saved. The judgment debtors asserted that the alleged payments were not true, that no payments had actually been made. The trial Court on hearing the evidence came to the conclusion that the payments alleged by the decree-holders were not true. Thereupon the trial Court held that the case was barred by limitation. It may be stated here that the suit was instituted in 1922, and the final decree was obtained in November 1922., The last execution case was started in February 1924 and was dismissed on 18th March 1924. The second execution case was started in August 1924. and was dismissed in November 1924. The third execution case which is now in question, was started on 10th April 1933. Prima facie this third execution case was barred by limitation as it was started nine years after the second execution case. The decree-holders alleged payments of Rs. 4 in July 1927 and Rs. 7 in April 1930. As stated above both these payments were found by the trial Court to be not true. The learned Subordinate Judge in appeal did not reverse the finding. On a perusal of his judgment it appears that he accepted the finding that the alleged, payments were not made by the judgment-debtors. He allowed the appeal on the ground that on 10th April 1933. the Court ordered the issue of notice under Order 21, Rule 22 upon the judgment debtors to show cause why the decree, should not be executed against them. 13th May 1933 was fixed as the next, date of hearing. On that date it was said that notice had been served but the judgment-debtors did not appear. The Court recorded the order:
No objection by the judgment-debtors. Issue notices under Order 21, Rule 66, fixing 10th June 1933.
2. On 10th June the judgment-debtors appeared and made an objection that the execution case was barred by limitation. The learned Subordinate Judge held on authority of the case of Lalit Mohan Roy. v. Sarat Chandra Saha,. 1933 Cal 855 that as the judgment debtors did not appear on 13th May to make an objection to the execution, it was sufficient to act as constructive res judicata and the judgment-debtors were not entitled on 10th June subsequent to plead that the case was barred by limitation. In our opinion the view taken by the Subordinate Judge is not warranted by law. The case of Lalit Mohan Roy. v. Sarat Chandra Saha,. 1933 Cal 855 was based on the decision of their Lordships of the Judicial Committee in Mungal Pershad Dikchit v. Girja Kant Lahiri (1882) 8 Cal 51. In that case the question for decision in respect of 7th petition of 22nd September 1877, was whether the previous execution case of 1874 had been barred by limitation. It was said that the case of 1874 was filed more than three years after the previous execution case of 1871. Accepting that view the primary Court, as well as the High Court held that the petition of 1874 was barred by limitation and, as such, the subsequent petition of 1877 was also barred by limitation. Their Lordships of the Judicial Committee observed that in the case of 1874 notice was issued on the judgment debtor on 10th September 1874. The notice was served on 23rd September 1874; then the decree-holder petitioned to attach the properties on 8th October 1874. The sale proclamation was issued thereafter. Then the judgment debtor appeared and filed a petition on 21st January 1875 asking to stop the sale for seven days. Further, on 25th January 1875, the judgment-debtors petitioned to stop the sale for three months admitting the debt and admitting that the attachment should remain. It was held, in those circumstances, that it was too late for the judgment-debtor to take the plea of limitation in respect of the case of 1874. Their Lordships stated thus:
Here an order for attachment was made by the Subordinate Judge on 8th October 1874, after notice served on the judgment-debtor on 23rd September 1874, to show cause why the decree should not be executed against him. The order was made by a Court having competent jurisdiction to try and determine whether the decree was barred by limitation. No appeal was preferred against it; it was acted upon and the property sought to be sold under it was attached, and remained under attachment until the application for the sale now under consideration was made.
3. It is clear then from the decision of the case of Mungal Pershad Dikchit v. Girja Kant Lahiri (1882) 8 Cal 51 that their Lordships held the case to be res judicata on the ground that the order was made by a competent Court and the party who had the right to appeal did not appeal against it. In Lalit Mohan Roy. v. Sarat Chandra Saha,. 1933 Cal 855 the matter was decided on the same principle, namely, that the notice having been served on the judgment-debtor and the properties having been attached, the judgment-debtor had aright to appeal against the same but he did not appeal against the order of attachment nor did he appear in Court within the period which is allowed in law for the purpose of appeal. After the period of the appeal was over the judgment-debtor appeared and took the plea that the execution was barred by limitation. This Court held on the authority of the case of Mungal Pershad Dikchit v. Girja Kant Lahiri (1882) 8 Cal 51 that the plea of limitation could not be taken by the judgment-debtor at that stage. In the present case the notice under Rule 22 was issued on 10th April fixing 13th May. On 13th May the judgment-debtors not appearing a further rule was issued for attaching the property fixing 10th June. On 10th June the judgment-debtors appeared and stated that they had not received the notice under Rule 22 and they pleaded limitation. In the first Court the decree-holders did not traverse the plea of the judgment-debtors that they had not received notice under Rule 22, nor did they plead in the first Court that the judgment-debtors were bound by the rule of constructive res judicata, on the ground that they did not make their objection on 13th May. On the contrary they sought to avoid the plea of limitation by allegation of two payments. It was for the first time argued in the Court of appeal below that the judgment-debtors non-appearance on 13th May concluded the matter by the principle of res judicata.
4. In our opinion this view is wrong. When on 10th June the judgment-debtors appeared and took their plea of limitation they were within time to appeal against the order of 13th May, and the primary Court, also had authority to review the order of 13th May on the petition of the judgment-debtors. Both the appeal and the petition for review being within time, the Court was within its jurisdiction on 10th June to entertain the petition of the judgment-debtors, that the case was barred by limitation. In our opinion the rule of constructive res judicata does not apply, to the facts of this case. On the facts the first Court found that the payments were not true and the case was barred by limitation. The Court of appeal below did not reverse that finding. The appeal is therefore allowed and the execution petition dismissed on the ground of limitation. In the circumstances the parties will bear their own costs throughout.
5. I agree.