Gopendra Nath Das, J.
1. This appeal is on behalf of the decree-holder. The appellant obtained a final decree in a mortgage suit on 6th September 1938. On an allegation that the judgment-debtor had paid a sum of Rs. 7 towards the decree the appellant started execution proceedings on 7th September 1942. Notice under Order 21, Rule 22, Civil P.C., was directed to be issued and it appears from order No. 11 dated 7th January 1943, that the notice under Order 21, Rule 22, Civil P.C., had been served prior to that date. The Court directed the decree-holder to file the costs and necessary processes by 14th January 1943. The judgment-debtor did not appear on that date in pursuance of the notice under Order 21, Rule 22, Civil P.C. On 14th January 1943 the judgment-debtor appeared and prayed for time to file objections to the execution of the decree. On his prayer time was allowed till 21st January 1943. On that date neither the decree-holder nor the judgment-debtor appeared. The judgment-debtor did not file any petition of objection for which time was granted to him. As the decree-holder did not appear to take further steps the execution case was dismissed for default on 21st January 1943. Two days later on 23rd January 1943, the judgment-debtor filed a petition of objection to the execution of the decree but this petition was not entertained as the execution case bad already been disposed of. On 18th January 1944 the decree-holder filed another petition for execution of the decree. The order recorded on that date is to the following effect:
Application filed on 18th January 1944. Enter in (R) 5 and put up on 22nd January 1944 for orders Decree-holder to file all requisites and fill up columns 3 and 8 correctly in the meantime.
The execution case was registered as execution case No. 8 of 1944. On the next day costs etc. were filed but certified copy of the satisfaction petition was not filed on that date. The Court directed the decree-holder to remove the defects of the application by 28th January 1944. On that date the case was adjourned to 5th February 1944 on the decree-holder's prayer to take necessary steps. On 5th February 1944 the defects were recorded to have been removed but the case was adjourned in order that the decree-holder may call for the records of the earlier execution case. After certain intermediate orders it appears that on 29th March 1944 the records of the previous execution case were received. The case was to be put up for further orders on the next day which was 30th March 1944. The Court directed the issue of notice upon the judgment-debtor to show cause by 80th March 1944 if the payment as alleged by the decree-holder and mentioned in column 5 of the execution petition was true or not. This notice is on the records of this case and it appears that no steps were taken by the decree-holder to have the notice served. On the next date, i.e., 30th March 1944 the decree-holder filed a petition stating that service of notice under Order 21, Rule 22, Civil P.C., was not necessary. By order No. 8 passed on the same date the Court held that there was no necessity for issuing notice under Order 21, Rule 22, Civil P.C. The order then proceeded to say 'Cost and process put in Issue notice under Order 21, Rule 66, Civil P.C. fixing 2nd May 1944 next for return.' On 2nd May 1944 the Court recorded the following order:
Notice served. The decree-holder files a process fee of Rs. 1 only. It appears that the decree-holder did not file any petition under Order 12 which is required under the rules, Put up on 12th May 1944 for further orders. The decree-holder to remove all defects and to put in all requisites by this time with a petition showing the cause of delay.
On 12th May 1944 the Court directed that
the decree-holder do issue registered card on the judgment-debtor to show cause why the execution case shall not proceed as against them as time barred. To 27th May 1944 for return and order. The decree-holder do send the card in the meantime.
On the next day, 27th May 1944, the judgment-debtor prayed for time to file objection in this case The case was adjourned to 6th June 1944 for filing objection and vakalatnama. On 6th June 1944 the order as recorded is this:
It appears that no objection has been filed. Issue sale proclamation under Order 21, Rule 66, Civil P.C. and fix 7th August 1944 for sale at 12 noon. Sale notice to be advertised in the local newspaper, 'Kashipurnibashi'. On 7th June 1944 the order recorded runs to the following effect:It appears that claim and cost of the suit have not been noted in the execution application by decree-bolder. The suit Register has been sent to Dacca. Let it be filled up with reference to the decree (illegible).
On 28th June 1944 the respondent judgment-debtor filed a petition of objection under Section 47, Civil P.C.
2. This objection was registered as Misc. Case No. 369 of 1944. The objections were disallowed by the trial Court, the execution petition being held to be not barred by limitation. On an appeal being taken by the judgment-debtor the lower appellate Court has reversed the order of the trial Court and has held that the present execution is barred by limitation. The lower appellate Court was of opinion that the judgment-debtor was not precluded from raising the plea of limitation either because of the orders passed in the first execution case or of the orders recorded in the present execution case. Against this decision the decree-holder has raised this appeal.
3. Mr. Guha appearing on his behalf has argued that the judgment-debtor is precluded from raising the plea of limitation by reason of principle analogous to res judicata. His contention is that the order passed on 7th January 1943 was an adjudication that the decree was capable of execution on that date and as this order has stood unchallenged either by way of review or by way of an appeal against that order the judgment-debtor is disentitled from saying that the first petition for execution was beyond time. In my opinion, this contention is correct and must be given effect to. The order of 7th January 1943 was passed after a notice under Order 21, Rule 22, Civil P.C., had been served on the judgment-debtor calling upon him to show cause why the decree should not be executed against him. The judgment-debtor did not appear in pursuance of that notice and the Court directed the decree-holder to take further steps in execution of the decree and directed him to file the process and costs. It may be pointed out that although in the petition of objection filed by the judgment-debtor it was generally stated that all processes had been suppressed the judgment-debtor did not examine himself or adduce any evidence in support of his plea, as it appears from No. 23 dated 30th August 1944 which is to the effect that 'neither party examined any witness.' The entry in the order sheet is, as has been held in Gaibandha Loan Office v. Mt. Saiyadunnessa Khatun : AIR1943Cal114 evidence under Section 35, Evidence Act, of proof of service. It must, therefore, be hold that notice under Order 21, Rule 22, Civil P.C., was served in this case. In this view it must be taken that the Court in passing its order on 7th January 1943 was of opinion that the decree was executable and further process in execution might be taken in execution of the decree. The order necessarily implied an adjudication that the decree at the time was capable of execution. This view is supported by the decision in Murlidhar Sukul v. Narsingh Das ('13) 17 C.W.N. 113 at page 115 on which reliance has been placed by Mr. Guha appearing on behalf of the appellant. The order dated 7th January 1943 stands unchallenged and has not been set aside by the judgment-debtor; the fact that the execution case was dismissed for default at a later stage does not, in my opinion, matter: see Kamini Devi v. Aghore Nath ('10) 11 C.L.J. 91 Mr. Guha has relied on several other decisions of this Court in which the same view has been taken. Two of the cases, namely, the case reported in Lalit Mohan v. Sarat Chandra : AIR1933Cal855 and the case reported in Promotha Nath v. Habu Mia : AIR1945Cal335 , reaffirm the principle enunciated in Murlidhar Sukul v. Narsingh Das ('13) 17 C.W.N. 113 referred to above.
4. Mr. Dhar appearing on behalf of the respondent has relied on the decision reported in Boidya Nath v. Bejoy Chandra : AIR1935Cal306 . In that case on 13th May 1933 the executing Court after service of notice under Order 21, Rule 22, Civil P.C., had been effected, recorded the following order: 'No objection by the judgment-debtor. Issue notice under Order 21, Rule 66, Civil P.C., fixing 10th June 1933.' On 10th June 1933 the judgment-debtor appeared and filed an objection inter alia, on the ground of limitation. M.C. Ghose J. with whom Costello J. concurred, was of opinion that the petition of objection filed on 10th June 1933 may be recorded either as a review of the order dated 13th May 1933 or as an appeal from that order. With all respect to the learned Judges it seems to me that the petition of objection filed by the judgment-debtor before the same Court cannot be regarded as an appeal from the order of that Court; nor was the application filed as an application for review as such and the grounds taken were not good grounds for review. It appears, however, that in the case the judgment-debtor in his petition of objection had challenged the service of notice under Order 21, Rule 22, Civil P.C., and the decree-holder did not controvert the allegation. It may be taken, therefore, that the order of 13th M ay 1933 was not an order which was made after due service of notice under Order 21, Rule 22, Civil P.C., and could not be regarded as an adjudication binding on the judgment-debtor who had no notice of the order of the Court calling upon him to show cause why the decree should not be executed. The general observations made in that judgment must be read in the light of the findings arrived at in that case. The observations made in that case were really in the nature of obiter dicta, having regard to the finding on the question of notice under Order 21, Rule 22, Civil P.C. Mr. Dhar relied on a decision reported in Bholanath Dass v. Prafulla Nath ('01) 28 Cal. 122. In that case, this Court held that although notice under Order 21, Rule 22, Civil P.C., had been served and time given on various occasions to the judgment-debtor, the judgment-debtor could raise the plea of limitation, at a later stage. This decision, in my opinion, runs counter to the above decisions of this Court on which reliance has been placed by Mr. Guha and is opposed to the decision of the Judicial Committee reported in Raja of Ramuad v. Velusami Tewar 8 A.I.R. 1921 P.C. 23. In that case the executing decree-holder claiming to be an assignee of the decree had started the execution. By an order dated 13th December 1915 the executing Court recorded the assignment and directed further execution to proceed. Later on the judgment-debtor raised an objection on the score of limitation which was given effect to by the lower Court. the Judicial Committee overruled this view and observed that the order of 13th December 1915 must be taken to be a positive order that the decree-holder was entitled to execute the decree and the order not having been challenged on appeal, precluded the judgment-debtor from raising the bar of limitation at a later stage of the same execution proceeding. Mr. Dhar also relied on a decision of this Court reported in Sureswar Prosad v. Maharaj Bahadur Sinha : AIR1937Cal581 . In that case, however, the fact was that the notice under Order 21, R, 22, Civil P.C., was directed to be issued and on the next day the decree-holder not having taken any stop the execution case was dismissed for default. It cannot, be said that the order relied on by the decree-holder was an implied adjudication that the execution proceeding was to go on. In my opinion, therefore, the judgment-debtor is precluded by the order dated 7th January 1949 from raising the bar of limitation in the present execution case on the ground that first execution case was filed beyond time, in this view it is unnecessary to discuss the effect of the proceedings in the second execution case, i.e., execution case No. 8 of 1944. In my opinion the order passed on 6th June 1944 directing sale-proclamation to issue also proceeded on an implied adjudication that the decree was executable and precluded the judgment-debtor from raising the bar of limitation in the present execution case.
5. Mr. Dhar has argued that in order that the principle enunciated in Mungul Pershad Dichit v. Girija Kanta Lahiri ('82) 8 I.A. 123 may apply, it must be proved that the order directing execution to issue had been acted upon by the Court and refers to the fact that in Mungul Pershad Dichit v. Girija Kanta Lahiri ('82) 8 I.A. 123 there was an attachment effected at the instance of the decree-holder the question whether it is necessary that the order should be followed by an attachment in execution was considered by this Court in Murlidhar Sukul v. Narsingh Das ('13) 17 C.W.N. 113 at page 116. It was pointed out in that case that the absence of attachment was not material in determining the I question whether or not the order previously made directing execution to proceed, involved an adjudication that the decree was executable. To the same effect is the decision reported in Bir Bikram Kishore v. Khaliler Rahaman : AIR1935Cal664 .
6. Mr. Dhar also submitted that in the present case the Court was not right in holding that notice under Order 21, Rule 22, Civil P.C., was not necessary. In my opinion, the last order made in the previous execution case must be taken to have been passed on 21st January 1943, on which date the previous execution case was dismissed for default. The present execution case was started on 18th January 1944 which is within one year of the last order passed in the previous execution case. Moreover, in view of the amendments made by this Court in Order 21, Rule 22 and Order 21, Rule 90, Civil P.C., the absence of notice under Order 21, Rule 22, Civil P.C., does not bar the present execution.
7. the result, therefore, is that this appeal is allowed, the order of Court below is set aside and the order of the Munsif restored with costs throughout. the costs of this appeal which has been heard on two different dates are assessed at five gold mohurs. Leave to prefer an appeal under Clause 15 of the Letters Patent prayed for is refused.