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Khosal Chandra Roy Chowdhury and ors. Vs. Ukiladdi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in3Ind.Cas.47
AppellantKhosal Chandra Roy Chowdhury and ors.
RespondentUkiladdi and ors.
Cases ReferredBandey Karim v. Romesh Chunder Bundopadhya
Excerpt:
execution of decree - question of limitation when not decided--subsequent adjudication lawful--civil procedure code (act xiv of 1882), section 248--issue of notice--no adjudication that application not barfed--decision at one stage cannot be questioned subsequently--res judicata--general principles of law. - .....december 1907 for execution of a decree obtained by the appellants on the 28th november 18899 is barred by limitation. the court of first instance held that the application was not barred because successive applications for execution had been made within three years from the date when an application had been made to the proper court to take a step-in-aid of execution of the decree. the district judge on appeal has held that as a previous application for execution had been refused on the ground that it was barred by limitation, no sub-sequent application could be entertained. the first application for execution was made on the 6th july 1901 and process fees were paid on the 26th july following. the application, however, was not presented and was subsequently dismissed. on the 25th july.....
Judgment:

1. The substantial question of law which calls for decision in this appeal is whether an application made on the 20th December 1907 for execution of a decree obtained by the appellants on the 28th November 18899 is barred by limitation. The Court of first instance held that the application was not barred because successive applications for execution had been made within three years from the date when an application had been made to the proper Court to take a step-in-aid of execution of the decree. The District Judge on appeal has held that as a previous application for execution had been refused on the ground that it was barred by limitation, no sub-sequent application could be entertained. The first application for execution was made on the 6th July 1901 and process fees were paid on the 26th July following. The application, however, was not presented and was subsequently dismissed. On the 25th July 1904 a second application for execution was filed. On this the Court recorded the following order on the 1st August 1904 the pleader to show why tin's application should not be rejected as time-barred by limitation.' On the 9th August following the Court 'rejected the application for execution by the following order, the pleader cannot state how it is not time-barred. On the face of it, it is time-barred and is rejected.' No appeal was preferred against this order. But on the 28th January 1905 a, third application for execution was filed. Notices were served on the judgment-debtors; the application was, however, dismissed for default on the 28th March 1905. On the 20th December 1907, the decree-holder filed fourth application for execution and commenced the proceedings which have culminated in this appeal.

2. On behalf of the appellants, the order of the Court below has been assailed substantially on two grounds, namely, first, that as notices were issued on the application of the 28th January 1905 and no objection to execution was taken on * behalf of the judgment-debtors, it is not open to them in the present proceedings to plead that a previous application for execution was barred by limitation; and secondly, that the order of the 9th August 1904 was not an adjudication upon' the question of limitation and it is still open to the decree-holders to show that execution has at no stage been barred by limitation. In our opinion each of these contentions is unsustainable and must be overruled.

3. As regards the first ground taken on behalf of the appellants reliance has been placed upon the decision of the Judicial Committee in Mungul Pershad Die-hit v. Grija Kant, Lahiri 8 I. A. 123 : 8 C. 51 : 11 C.L.R. 113. That case is an authority for the proposition that although a decree may really be barred at the date of some order made for its execution, such order though erroneously made is, unless set aside in duo course of law, final and binding upon, the parties in all subsequent stages of the proceedings. This principle has obviously no application to the circumstances under which the order of the 28th March 1905 was made. It is clear that no order for execution was made in the course of the proceedings taken on the basis of the second application for execution, Nothing was done beyond the issue of notices under Section 248 of the Code of Civil Procedure requiring the judgment-debtors to show cause why the decree should not be executed against them. After service of notices the execution proceedings were dismissed for default of the decree-holders. There, was no adjudication by the Court directly or indirectly that the decree-holders were entitled to proceed with execution. The present case is in our opinion, governed by the principle laid down by this Court in Bholanath Dass v. Profulla Nath Kundu Chowdhry 28 C. 122 and Hira Lal Bose v. Dwija Charan Bose 3 C.L.J. 240 : 10 C.W.N. 209. These cases affirm the doctrine that where the question, whether 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 the 28th March 1905. The mere issue of a notice under Section 248, C.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. Some reliance was placed by the learned vakil for the appellants upon the cases of Dkonkal Singh v. Phakkar Singh 15 A. 84 and Tileshar Rai v. Parbati 15 A. 198. But the principles deducible from these cases do not in any way support his contention. The first case merely shows that the issue of a notice under Section 248 gives a fresh starting point for limitation 'whether such notice is issued on a valid or on an invalid application for execution. The second decision shows that when there has been no judicial determination of the question, whether an application for execution is barred by limitation, it is competent to the Court to entertain and allow the objection at a subsequent stage. We must consequently hold that the order of the 28th March 1905 does not in any way affect the decision of the question of limitation raised in the present proceedings. The first ground taken on. behalf of appellants cannot, therefore, be sustained.

4. In support of the second ground taken on behalf of the appellants it is contended that the order of the 9th August 1904 by which the second application for execution was rejected as time-barred was not an adjudication so as to bar a subsequent determination of the same question. In support of this position reliance was placed on the decision of the Judicial Committee in the case of The Delhi and London Bank, Limited v. Orchard 3 C. 47 : 4 I. A. 127 which it was argued was an authority for the broad proposition that an order refusing an application to execute a decree is not an adjudication within the rule of res judicata or within Section 2 of Act VIII of 1859. After a careful examination of the judgment delivered by Sir Barnes Peacock in that case, we are of opinion that the contention of the appellants is not well-founded. No doubt if we ignore the statutory rule for the interpretation of judgments that every judgment must be read as applicable to the facts proved or assumed to be proved and governed and qualified by the particular facts of the case, we may hold that the Judicial Committee intended to lay down a general rule irrespective of the nature of the order by which execution had been refused in the case before them. Such a mode of interpretation, however, would be manifestly erroneous. As was pointed out by Mr. Justice Melvill with the concurrence of Westropp, C. J. in the case of Manjunath Badrabhat v. Venkatesh Govind Shanbhog 6 B. 54 the onus in the case before the Judicial Committee which is set out in the judgment of Sir Barnes Peacock was very peculiar in its terms. It did not decide that the application was barred 'by limitation. It was simply to the effect that as the sanction of the Commissioner which was required under a local law had not been received the application for execution must be sent to the record-room. This could not be treated as an adjudication that the application was time-barred. This explains why the Judicial Committee held that the order relied upon as a bar was not an adjudication. We may add that from the report of the case in Indian appeals it is fairly clear that Sir Barnes Peacock intended to limit the decision to the question whether the doctrine of res judicata applied to cases in execution; this is obvious from the observation made by him in the course of the argument of the counsel for the respondent. The wider question whether upon general principles of law, an order mails in the course of execution proceedings ought to be allowed to be re-opened at any subsequent stage of the proceedings, does not appear to have been raised before the Judicial Committee. This explains the guarded statement that the order relied upon as a bar was not an adjudication within the rule of res judicata or within Section 2 of Act VIII of 1859. If this view were not taken of the true effect of the decision of the Judicial Committee in 'Delhi and London Bank v. Orchard 3 C. 47 : 4 I. A. 127 we should be driven to the conclusion that it is inconsistent with at least three subsequent decisions of the Judicial Committee, namely, Mungal Pershad Dichit v. Grija Kant Lahiri 8 I.A. 123 : 8 C. 51 : 11 C.L.R. 113; Ram Kirpal v. Rup Kuari 11 I.A. 37 : 6 A. 269 and Beni Ram v. Nanhu Mal 11 I.A. 181 : 7 A. 102 it is worthy of note that the judgment in the first and second of these cases was delivered by Sir Barnes Peacock, who was also a party to the judgment in the third case. These cases affirm the doctrine that a decision at one stage of execution proceedings cannot be questioned at a later stage of the proceedings, not because it is res judicata under Section 13, C. P. C. but upon general principles of law, for if it were not binding there would be no end to litigation. We are, therefore, not prepared to interpret the decision of the Judicial Committee in Delhi and London Bank v. Orchard 3 C. 47 : 4 I.A. 127 as laying down any general principle of law inconsistent with the principle enunciated in the three subsequent decisions to which reference has been made, and this view, we may add, has been taken by a Full Bench of the Allahabad High Court in the case of Dhonkal Singh v. Phakkar Singh 15 A. 84. Our attention was invited to the decision of this Court in Hurrosoondary Dassee v. Jngobundhoo Dutt 6 C. 203 in which it appears to have been held upon the authority of The. Delhi and London Bank, Limited v. Orchard 3 C. 47 : 4 I.A. 127 that the refusal of an application to execute a decree is not a bar to a second application for execution of the same decree, inasmuch as the first order of refusal is not an adjudication within the rule of res judicata. The terms of the previous order are not set out in the judgment and we are not in a position to say whether it amounted to an adjudication that the application was barred by limitation. But if the learned Judges intended to lay down any rule of general application, the decision is inconsistent with the principle laid down by the Judicial Committee in the three cases we have mentioned and cannot consequently be treated as binding upon this Court. In fact it was treated as not so binding in the case of Bandey Karim v. Romesh Chunder Bundopadhya 9 C. 65 : 11 C.L.R. 145. If the matter is examined as one of principle apart from authorities, there can, in our opinion, be no question as to the answer which ought to be given to the contention of the appellants. To determine whether the order of the 9th August 1904 was an adjudication, one test is useful. Was it an order made under Section 244, C. P. C, and could an appeal have been preferred against it by. the decree-holders? If an appeal had been preferred could the judgment-debtors successfully contend that there was no adjudication by the Court of first instance to be reviewed by the Court of Appeal? The answer must be in the negative, for the order effectively debarred the decree-holders from reaping the fruits of their decree. It is difficult to appreciate how it can be seriously contended that the order was not an adjudication determining the rights of the decree-holders to execute the decree. We must hold that the second ground upon which the order of the District Judge is sought to be assailed cannot be maintained.

5. The result, herefore, is that the order of the Court of Appeal below must be affirmed and this appeal dismissed with costs.

6. We assess the hearing fee at two gold mohurs.


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