Skip to content


Romesh Chunder Bundopadhya and anr. Vs. Bandey Karim and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal65
AppellantRomesh Chunder Bundopadhya and anr.
RespondentBandey Karim and ors.
Cases ReferredMungul Pershad Dichit v. Grija Kant Lahiri I.L.R.
Excerpt:
limitation - application for execution--res judicata. - .....the present case is the converse of that case. if, in the present case the subordinate judge had decided, on the 5th of march 1881, that the decree was not barred by limitation, the judgment-debtor could not, upon the application of the 7th of april 1881, he heard to say that the decree was barred by limitation; and by the same course of reasoning, inasmuch as the subordinate judge decided on the 5th of march 1881 that the decree was then barred by limitation, and as that order has become final, the decree-holder, cannot now, upon the application of the 7th of april 1881, be heard to say that it is not barred by limitation. under these circumstances we must reverse the decree of the courts below, and direct that the application for execution be dismissed.2. the appellants will be.....
Judgment:

Field, J.

1. The question in this case is whether, when a Court, upon an application for execution, has decided that the execution is barred by limitation, and that order has become final in consequence of no appeal-having been preferred therefrom, such order will, upon a subsequent application made for execution of the same decree, operate as a bar to execution. The facts of the present case are, that, on the 5th of March 1881, the Subordinate Judge made the following order: 'It appears that the case is barred by limitation. The decree was passed on the 27th of July 1874, and this petition of execution states that an application for execution was made in 1878. Now it is clear that that application must have been made more than three years after the decree was passed. It is not shown that any step was taken to enforce the decree in the interval so as to save it from being barred by limitation. Case dismissed with costs.' A review of this order was applied for on the 7th April 1881; and, on the 7th May 1881, the following order was passed: 'This is an application for review of an order disallowing an application for execution. The order disallowing sets out the grounds of refusal. This application does not set out any ground, save a vague and bold statement in explanation of laches all through from the representation of an incorrect application down to the disposal of it. I do not consider the creditor entitled to review of the order, and no case has been made for it. I disallow the application with costs.' On the same date on which the review was applied for,-that is, the 7th of April 1881,-a fresh application for execution was presented, and the question which we have now to decide is whether this application of the 7th of April 1881 is barred by the order of the 5th of March 1881, which decided that the execution was barred by limitation, and against which no appeal was preferred. Both the lower Courts have decided this question in the negative. They have proceeded upon the general ground that the principle of res judicata is not applicable to execution-proceedings. The question, whether the principle of res judicata is applicable to proceedings after decree was discussed in the cases of Hurrosoondary Dassee v. Jugobundhoo Dutt I.L.R. 6 Cal. 203; Rup Kuari v. Ram Kripal Shukul I.L.R. 3 All. 141 and Delhi and London Bank v. Orchard L.R. 4 I.A. 127; S.C. I.L.R. 3 Cal. 47. We do not, on the present occasion, propose to go into this broad, general, and probably difficult question, whether the principle of res judicata, as enunciated in Section 13 of the Code of Civil Procedure applies in all its generality to proceedings after decree. We limit our decision to the exact question which is raised in the present case, and that is, whether the Court, having once decided that the execution is barred by limitation, that decision is a bar to further execution. We think that it is a bar. In the case of Mungul Pershad Dichit v. Grija Kant Lahiri I.L.R. 8 Cal. 51; S.C. L.R. 8 I.A. 123 a seventh application for execution was filed on the 22nd of September 1877, and the High Court held that this application for execution was barred, because the decree was barred when a previous application for execution was made on the 5th of September 1874. The Judges said: 'A decree once dead, no proceeding by means of an application out of time could revive it.' Their Lordships of the Privy Council reversed this decision, and on this ground, that, on the 8th of October 1874, an order for attachment was made by the Subordinate Judge. The Privy Council said: 'That order was made by a Court having competent jurisdiction to try and determine whether the decree was barred by limitation. No appeal was preferred against it; it was acted upon, and the property sought to be sold under it was attached, and remained under attachment until the application for the sale now under consideration was made'; and further down, 'the Subordinate Judge had jurisdiction, upon the petition of the 8th of October 1874, to determine whether the decree was barred on the 8th of October 1871, and he made an order that an attachment should issue. He, whether right or wrong, must be considered to have determined that it was not barred. A Judge, in a suit upon a cause of action, is bound to dismiss the suit, or to decree for the defendant if it appears that the cause of action is barred by limitation. But if, instead of dismissing the suit, he decrees for the plaintiff, his decree is valid, unless reversed upon appeal; and the defendant cannot, upon an application to execute the decree, set up as an answer that the cause of action was barred by limitation.' Now the present case is the converse of that case. If, in the present case the Subordinate Judge had decided, on the 5th of March 1881, that the decree was not barred by limitation, the judgment-debtor could not, upon the application of the 7th of April 1881, he heard to say that the decree was barred by limitation; and by the same course of reasoning, inasmuch as the Subordinate Judge decided on the 5th of March 1881 that the decree was then barred by limitation, and as that order has become final, the decree-holder, cannot now, upon the application of the 7th of April 1881, be heard to say that it is not barred by limitation. Under these circumstances we must reverse the decree of the Courts below, and direct that the application for execution be dismissed.

2. The appellants will be entitled to their costs in both the Courts below.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //