1. The question for determination in this case is whether the present application for execution of the decree obtained by the respondent is barred by limitation.
2. The first Court held that the application was barred by limitation. On appeal the Lower Appellate Court has reversed that decision, and hence this appeal by the judgment-debtors.
3. The contention on behalf of the appellants is, that the present application is barred, because the application preceding it was barred; and when once an application for execution is barred by limitation, no subsequent application, though made within three years after it, can be held to be in time. In answer to this contention, the learned Counsel for the respondent says, as the Court of Appeal below has said in its judgment, that though the last preceding application for execution might have been barred by limitation, yet the appellants are precluded by an order of the Court from urging that it was so barred.
4. Now this is how the facts as found by the Lower Appellate Court stand. The last preceding application for execution was made in November 1896. Thereupon notice was issued to the judgment-debtors. The decree was then transferred to another Court in consequence of change of jurisdiction. An order of attachment was issued by this second Court. The judgment-debtors then came and urged that the application for execution was barred by limitation. And after several adjournments granted principally at the instance of the decree-holders, when the case came on for hearing, neither party having appeared, the Court by its order refused the application for execution, and disallowed the objection of the judgment-debtors.
5. This last mentioned order disallowing the judgment-debtors objection, it is contended for the respondents, precludes the appellants from urging now that the previous application was barred, and in support of this contention the case of Mungul Pershad Dichit v. Grija Kant Lahiri (1881) I.L.R. 8 Cal. 51; L.R. 8 I.A. 123 is relied upon; while on the other hand, the learned Vakil for the appellants argues that the case cited is distinguishable from the present, that the order relied upon merely disallowed the judgment-debtors' objections for default, without deciding on the merits that they were invalid, and that such an order, as has been held by the Allahabad High Court in Tileshar Rai v. Parbati (1898) I.L.R. 16 All. 198 cannot debar the appellants from raising the same objections again.
6. The case of Mungul Pershad Dichit v. Grija Kant Lahiri (1881) I.L.R. 8 Cal. 51; L.R., 8 I.A. 123 differs from the present in this, that, whereas in that case, the judgment-debtors acknowledge the validity of the order for attachment made upon the previous, application, in the case before us the judgment-debtors impugned the attachment, and the execution proceedings instituted by the previous application; and this is certainly a point of difference in favour of the appellants. But then it is argued that there is another point of difference between the two oases which has the opposite effect, and makes the present case a stronger one against the appellants than the case cited, and that point is this, that whereas in the case cited, there was only an order for attachment of property acquiesced in by the judgment-debtors which was held to preclude them from objecting to the validity of the application on which that order was made, here there was an express order disallowing the very objection that the judgment-debtors are now raising, namely, that the previous application was barred by limitation; and that order remaining un reversed must, upon the authority of the case cited, operate as a bar to the present contention of the appellants. But I am unable to accept this view as correct. There is nothing to show that the Court disallowed the objection of the judgment-debtors on the merits. On the contrary the fact, appearing upon the order sheet, that the case was adjourned at the instance of the decree-holder to enable his pleader to produce authority in support of his contention, would rather go to show that the merits were on the other side. The dismissal, of the objection was evidently on account of the objector's default in appearing; and as simultaneously with such dismissal, the application for execution was itself refused and not simply struck off, the dismissal of the objection cannot rightly be held to operate as a bar to its being ugred when the decree-holder applies for execution again. This view is in accordance with the case cited for the appellants.
7. Again, as the order refusing the application for execution, which was the order disposing of the execution proceeding instituted, was not based upon the order disallowing the judgment-debtors' objections, but was made in spite of it, the order disallowing the judgment-debtors' objections cannot be held to be conclusive against them. This view is supported by the observations of the Privy Council in the case of Run Bahadur Singh v. Lucho Koer (1884) I.L.R. 11 Cal. 301: L.R. 12 I.A. 23. I may add that as the application for execution was refused and not simply struck off, the order for attachment, and any attachment made in pursuance thereof, must be taken to have become in operative upon the refusal of the application for execution.
8. For the foregoing reasons, I am of opinion that the contention of the appellants should prevail, the order of the Court of appeal below should be set aside, and that of the first Court refusing the present application for execution restored with costs in this Court and in the Court below.
9. I conour.