1. This appeal is against an order rejecting an application filed by the appellant under the provisions of Section 47, Civil P.C. The appellant instituted a suit for ejectment against the respondent. He lost it and was made liable for costs. Why the appellant does not pay this petty sum and put an end to this matter, we cannot conceive. Be that as it may, he paid nothing and the respondent eventually took out execution. Two grounds have been taken, the first being that the application is barred by limitation and the second being that consent is necessary under Section 86, Civil P.C. Prima facie the application for execution was barred by limitation. The respondent attempted to save limitation by an allegation that a sum of Rs. 3 had been paid out of Court. This allegation has not been specifically investigated. A notice for which there is no provisions in the Code, was served on the appellant's agent. Then a notice under Order 21, Rule 22 was issued on 1st March 1932. The date fixed for the filing of an objection by the appellant was 29th March 1932. The appellant did not appear and the Munsif passed an order in these terms: 'The case is dismissed for default without cost.' The present execution was started at a later date.
2. The contention of the respondent is that it is no longer open to the appellant to raise the plea of limitation. In our judgment that contention cannot be supported. As I have already noted, it was open to the appellant to file an objection on 29th March 1932 and he did not do so. But 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. The only thing which had to be done on 29th March was to see whether the appellant filed an objection or not. The order dismissing the case for default was therefore quite unreasonable. It cannot be interpreted as having any definite meaning. As there is nothing to show that the question of limitation was by implication decided, it is still open to the appellant to raise it. On the second point both the Courts below held that no consent is necessary because the respondent is a tenant of the appellant and therefore is entitled to institute a suit without consent under the provisions of Sub-section (5), Section 86. In our opinion, sub Section (5), is entirely distinct from Sub-section (3). The two sub-sections were really dealing with two quite distinct matters. In view of the plain terms of Sub-section (3) we are of opinion that the consent referred to is necessary before the respondent can proceed against the property of the appellant.
3. This appeal must therefore be allowed and the orders of the Courts below dismissing the appellant's objection must be set aside. The appellant must be allowed to file an objection on the ground of limitation, and the matters will be determined upon such evidence as the parties may adduce. The Munsif is also directed to give the respondent requisite time to apply for the consent referred to in Section 86 of the Code. We make no order as to costs.
R.C. Mitter, J.
4. I agree with the order passed by my brother. The decree for costs was passed on 12th December 1928. The present application for execution of the decree was filed on 23rd February 1933, which is said to have been put in within time by reason of the provisions of Clause 5 of Article 182, Limitation Act. To follow the argument of the decree-holder a few dates are necessary. On 2nd January 1932, that is to say, beyond three years of the date of the decree, the first application for execution by the decree-holder was filed. In that application the decree-holder stated that the judgment-debtor had paid him out of Court a, sum of Rs. 3 which he wanted to certify under the provisions of Order 21, Rule 2; the application for execution was not registered on that date, inasmuch as on the face of it, it was barred by limitation having been presented more than three years from the date of the decree. The Court issued a notice upon the judgment-debtor to file objections, if any with regard to the question of limitation by 28th January 1932. The notice was served on the judgment-debtor but he did not appear with the result that the Court registered the application for execution, on 2nd February 1932. Another notice under Order 21, Rule 22 was issued upon the judgment-debtor fixing 28th March as the date for putting in his objections, if any, to the execution of the decree. The 28th March was a holiday and the matter was taken up on 29th March. On that date the Court recorded an order in this form:
The 28th March being a holiday the case is taken up to-day. Notice served. No further steps taken. The case is dismissed for default without costs.
5. The judgment-debtor says that Clause 5 of the Article 182 does not apply, because the application for execution which was filed on 2nd January 1932 was not an application made in accordance with law within the meaning of that clause, it being an application which was barred by limitation. The question is whether the judgment-debtor is entitled to raise the point as to whether the application for execution which was made on 2nd January 1932 was an application for execution made beyond time. On this point both the Courts below have held that the judgment-debtor was not entitled to raise that question by reason of the principle enunciated in the well known case: Mungal Pershad Dichit v. Girja Kant (1882) 8 Cal 51. I agree with my brother that the lower Courts have taken an incorrect view of the matter. The principle is that if there is an adjudication on the question of limitation either expressly or by necessary implication that the earlier application was in time, the judgment-debtor cannot raise that self same question again. In this particular case there was no adjudication that the application put in on 2nd January 1932 was in time. The only question is whether such an adjudication was made by necessary implication.
6. The notice which was issued on the judgment-debtor to file objection, if any, with regard to the question of limitation, by 28th January 1932, is a notice not provided by law at all. When execution of a decree is applied for beyond a year of its date, the only notice provided for under the Code, is notice under Order 21, Rule 22 and the judgment-debtor is entitled to come in and object to the execution of the decree on any valid ground after getting the notice under that rule. In this case after the application for execution has been registered such a notice was issued, but on the date on which the judgment-debtor was asked to show cause, the Court dismissed the application for execution stating that the decree-holder had not taken any further steps. If after service of notice on the judgment-debtor under Order 21, Rule 22 the executing Court had issued any further process in aid of execution, or had asked the decree-holder to take further steps in that respect, it could have been said that there was an adjudication that the application for execution was in time by necessary implication. But the fact that the application for execution was dismissed for default of the decree-holder of the same date when the judgment-debtor was asked to show cause, militates against the view that there was an adjudication that the application for execution had been made in time, by necessary implication. In this connexion I may quote here the following observation of Mookerjee, J. and Vincent, J, in Khosal Chandra v. Ukiladdi (1910) 14 CWN 114, at p. 117:
These cases affirm the doctrine that where the question, whether the execution of the decree is barred by limitation, is not decided because the parties do not appear, there is obviously no bar to the adjudication of the objection when actually raised at a later stage of the proceedings. It is manifest that here the question of limitation cannot be said to have been decided even by implication when the third application for execution was dismissed for default on 28th March 1905. The mere issue of a notice under Section 248, Civil P.C., not followed by any order for execution or by any act of the Court such as attachment of property in furtherance of execution, cannot be construed as an adjudication by the Court that the application is not barred by limitation, and is maintainable under the law.
7. I should add that the later cases have modified this statement of the law to a little extent, it being held that even if there be no attachment, the question that the application is in time will be deemed to have been decided in favour of the decree-holder by necessary implication if the Court after service of notice under Order 21, Rule 22 simply asks the decree-holder to take further steps in aid of execution. For these reasons I agree with my brother, that the question which was raised in the lower Courts, have been wrongly decided. All that is now necessary is that it must be further considered whether the application of 2nd January 1932 was barred or not; and for the purpose of consideration of this question, the fact whether Rs. 3 had been paid by the judgment-debtor out of Court on 2nd October 1931 must be ascertained and if paid, whether under circumstances which will bring the case within the provisions of Section 20, Lim. Act. With regard to the interpretations put upon the different clauses of Section 86 of the Code, I entirely agree with my brother. I am definitely of opinion that Sub-section (5) is really a proviso to Sub-section (1). Sub-section (3) deals with the question of execution and is independent of Sub-section (1).