1. The facts out of which this appeal arises are as follows: On 18th May 1936, the appellant obtained a decree for a sum of Rs. 3341-6-0 against the predecessor-in-interest of the present respondents. Some time in August 1941, that is to say, more than five years after the decree was pronounced, the appellant filed an application for execution, in which he averred that he had received from the judgment-debtor three payments during the course of the years 1938 and 1939. It should be noted here that no document in the handwriting of, or, signed by the person making the payment was put in, and that the provisions of Section 20, Limitation Act, could not, therefore, be said to apply. A notice under Order 21, Rule 22, Civil P. C., was served upon the judgment-debtor and the execution case was put down for hearing on 18th September 1941. On 9th September 1941, the decree-holder filed a petition in which he stated that he had received a further sum of Rs. 50 from the judgment-debtor in part satisfaction of the decree. This petition was obviously put in at a time when the judgment-debtor was not present. On 13th September 1941, the application for execution was heard and the executing Court made an order in the following terms:
Notice received after service. Decree-holder's petition dated 9th September 1941 praying for disposing of the case on part satisfaction on receipt of Rs. 50 is put up to-day. Ordered: that the petition is considered and allowed and the case be dismissed on part satisfaction with costs.
2. No steps of any kind seem to have been thereafter taken until 1st June 1942, when the appellant commenced another execution case against the present respondents who are heirs of the original judgment-debtor. The respondents at this stage raised the objection that the execution was barred by time, inasmuch as the first execution application presented by the appellant in August 1941, was made more than three years after the date of the decree. Both the Courts below have held that the execution is barred by limitation and the present appeal is preferred against that decision. On behalf of the respondents, it is contended that the execution is barred by time, inasmuch as it was sought to be enforced more than five years after the decree, and, there was at no time any determination of the executing Court that the decree was alive and was capable of execution in August 1941 when 'the first petition for execution was presented. In support of this contention, reliance is placed upon the case in Bir Bikram Kishore Manikya v. Khaliler Rahaman ('35) 22 A. I. R. 1935 Cal. 664. In that case, the material facts were as follows: Upon an execution petition having been filed a notice under Order 21, Rule 22, Civil P. C., was served upon the judgment-debtor. On the day of hearing, no objection that the petition was barred by limitation was taken by the judgment-debtor, nor were any steps taken by the decree-holder and the execution-petition was dismissed for default. Upon the decree-holder subsequently preferring another application for execution, it was held that the judgment-debtor was not precluded from taking the objection that the first application was barred by time.
3. On behalf of the appellant, however, it is argued that the judgment-debtor is precluded from taking the present objection by reason of the principle of constructive res judicata as enunciated by the Privy Council in Mungul Pershad Dichit v. Grija Kant Lahiri ('82) 8 Cal. 51: 8 I. A. 123: 4 Sar. 249 (P.C.). On behalf of the appellant, reliance is placed on the case in Lalit Mohan v. Sarat Chandra ('33) 20 A. I. R. 1933 Cal. 855. The short facts of that ease were as follows: Upon an application for execution of a decree having been started, a notice under Order 21, Rule 22, Civil P. C., was served upon the judgment-debtor who did not appear on the due date. Thereupon an order for attachment of his property under the provisions of Order 21, Rule 54, Civil P.C., was made. Subsequently, the judgment-debtor appeared and pleaded that the application for execution was time-barred. In this case it was held that the principle laid down in Mungul Pershad Dichit v. Grija Kant Lahiri ('82) 8 Cal. 51: 8 I. A. 123: 4 Sar. 249 (P.C.) applied and that the judgment-debtor was precluded from raising the plea of limitation. The facts in Bir Bikram Kishore Manikya v. Khaliler Rahaman ('35) 22 A. I. R. 1935 Cal. 664 call for careful examination. It is clear from the judgment that the execution case was dismissed, because the Court found itself unable to proceed with it owing to the absence both of the decree-holder and of the judgment-debtor. Henderson J. in his judgment stated that the Munsif did not proceed to pass any order which must, by necessary implication, show that he thought that the decree-holder was entitled to go on with the execution and that the order could not be interpreted as showing that the question of limitation was by implication decided. Mitter J., in a separate judgment stated that in that case there was no adjudication that the application for execution was in time, and that no declaration to that effect could be gathered by necessary implication from the order that was actually passed.
4. The question really is whether the order of the executing Court, dated 13th September 1941 in the present ease was such an adjudication upon the merits of the application as to import a declaration that the decree was still alive and capable of execution. There can be little doubt, provided the judgment-debtor had notice of the application for execution, that he would be bound by any declaration, even though it were merely implicit that the decree was still alive. It is not disputed in the present case, that notice under Order 21, Rule 22, Civil P. C., was served upon the judgment-debtor. On behalf of the respondents, it is contended that the order of 13th September 1941, does not in any way show that the Court was holding the execution case to be competent or, that it was deciding that the decree was alive. We cannot see our way to entertain this contention. The judgment refers, to the petition, dated 9th September 1941, for disposing of the case on part satisfaction, and the order shows that effect was given to that application inasmuch as the case was dismissed on part satisfaction. It is not conceivable that the Court would have made such an order unless it was in the first instance of the opinion that the application for execution was within time. Had the Court been of the opinion that the application for execution was barred by limitation, it would have been the duty of the Court under Section 3, Limitation Act, to dismiss that application forthwith, without applying its mind to any question relating to satisfaction or otherwise of a part of the decree. Far from dismissing the application, under Section 3, the executing Court proceeded to declare what the petition asked to be declared, that is, part satisfaction, and then it went on to saddle the judgment-debtor with the costs of the application. In these circumstances, we are unable to hold that the order of the executing Court did not proceed upon the basic assumption that the decree was alive and capable of execution. The judgment-debtor having been served with notice of that particular application for execution, and he not having appeared to raise any objection to it, it follows, upon the principle laid down in Mungul Pershad Dichit v. Grija Kant Lahiri ('82) 8 Cal. 51: 8 I. A. 123: 4 Sar. 249 (P.C.) which was applied in Lalit Mohan v. Sarat Chandra ('33) 20 A. I. R. 1933 Cal. 855, that it is not open to the judgment-debtor to raise the plea of limitation at this stage. The appeal is allowed but we make no order as to costs.
5. The execution case will proceed. It will be open to the judgment-debtors to raise in the executing Court any objection they may be advised to other than the objection which has been disposed of in this appeal. Let the records be sent down as early as possible.