1. The question raised by this appeal relates to the finality or otherwise of certain objections made in the course of execution. It is necessary to state the facts of the case in order to appreciate the contention raised by the appellants. It appears that a suit for dissolution of partnership was pending in the Court of the Subordinate Judge (Second Court) of Mymensingh and a receiver was appointed in that suit. The receiver obtained a decree against the present appellants judgment-debtors in January 1921, for debts due to the firm in respect of which the dissolution proceedings have been started. The receiver made several attempts to have the decree satisfied by execution. His last application for execution was filed on 7th July 1926 and was dismissed on 3rd September the same year. On 2nd April 1929 this decree which is sought to be executed was allotted to the present respondent. The respondent filed an application for execution on 21st May 1930 alleging payment of certain interest in Sravan 1336 and certain other subsequent payments in Pous 1336 and later. That application for execution was registered subject to the case of limitation.
2. The notice under Order 21, Rule 22, Civil P.C., was ultimately served on 10th August 1930 and there is an order in the order sheet of that date showing that the notice was served and that the service was proved. The present appellant did not appear on that date and the Court directed an attachment under Order 21, Rule 54 of the Code. On 3rd December 1930 a farther notice was issued under Order 21, Rule 66 of the Code for settlement of price to be mentioned in the sale proclamation, and this notice was served on 12th December 1930. On 12th December 1930 the present appellant appeared and he obtained an adjournment to enable him to put in his objection. On the 20th idem the present appellant filed an objection. He denied in the objection payments alleged by the decree-holder and he pleaded limitation. The Subordinate Judge who dealt with the matter in the first instance upheld this objection of the judgment debtor and dismissed the execution case on the ground that it was barred by limitation.
3. Against this order an appeal was taken to the Court of the District Judge of Mymensingh and the learned District Judge was of opinion that the execution was in effect time barred when the present application for execution was filed. But he was of opinion that having regard to the order of the Court dated 22nd August 1930 directing the issue of attachment under Order 21, Rule 54 of the Code, it was not open to the present appellant to raise the contention at a subsequent stage of the execution proceedings that the application was not barred by the statute of limitation. In this view he set aside the order of the Munsif and directed that further proceedings in execution should be allowed.
4. Against this order the judgment-debtors have preferred this appeal and it has been contended and very strenuously on behalf of the appellants that there has been no decision on the question of limitation by the order of 22nd August 1930 and that the principle analogous to the principle of res judicata which has been applied by the learned District Judge should not have been applied to the present case. In our opinion this contention has really no substance in it. It has been decided by their Lordships of the Judicial Committee so far back as in the very well-known case of Mungal Pershad Dichit v. Girija Kant Lahiri (1910) 8 Cal 51 that where a decree-holder applies for execution and the judgment-debtor being entitled to and having had an opportunity to raise a plea of limitation, as in the present case, does not do so and an order for execution by attachment is made on the application the judgment-debtor is precluded from raising that plea at a subsequent stage in the said execution proceedings. It has been sought to distinguish the facts of the present case from those of Mangal Pershad Dichit's case (1910) 8 Cal 51 on the ground that the question of limitation was not determined in the present case as it was not raised, the present appellant not appearing after the service of notice. It is difficult to distinguish the facts of Mangal Pershad Dichit's case (1910) 8 Cal 51 from the facts of the present case for there, as here, there was a service of notice on the judgment-debtor as to why attachment should not issue and the order for attachment was made by the Subordinate Judge on 8th October 1874. As I have pointed out notice was served on him to show cause why the decree should not be executed against him. With reference to this order their Lordships of the Judicial Committee observed this:
The 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.
5. Here also as in Mungal Pershad Dichit's case (1910) 8 Cal 51 the present appellant did not appear in pursuance of the notice to show causa why execution processes for attachment should not issue, and in his absence the order was made for issue of attachment and execution processes on 3rd December 1930, when notice under Order 21, Rule 66 of the Code was served. The present appellants came in and took time to file an objection and the objection was actually filed on 20th December 1930. It is not in our opinion open to them now to raise it when they did not raise it when the notice to show cause was issued on them. Their Lordships of the Judicial Committee have also considered in a subsequent case, namely, in the case of Raja of Ramnad v. Velusami Tevar AIR 1921 PC 23, questions similar to the one with which we are dealing in the present case; and it is instructive to quote from their Lordships' decision a portion of the remarks made by their Lordships in the said case as it is pertinent to the present controversy. Their Lordships said this:
In these final proceedings he permitted the defendants to raise again the plea that the above order of December 1915, did not preclude the defendants from raising the plea that the defendants were barred by limitation. Their Lordships are of opinion that it was not open to the learned Judge to admit the plea. The order of 13th December 1915, is a positive order that the present respondent should be allowed to execute the decree. To that order the plea of limitation if pleaded, would according to the respondent's case have been a complete answer, and therefore it must be taken that a decision was given against the respondents on the plea. No appeal was brought against that order, and therefore it stands as binding between the parties. Their Lordships are of opinion that it is not necessary for them to decide whether or not the plea would have succeeded. It was not only competent to the present respondents to bring the plea forward on that occasion, but it was incumbent on them to do so if they proposed to rely on it, and moreover it was in fact brought forward and decided upon. No appeal was brought from the order then made, and therefore it was not competent for the Subordinate Judge to admit the plea on subsequent proceedings, or to consider it in his order of 31st March 1917, and the same remark applies to the judgment of the High Court on 7th March 1913, from which this appeal is brought.
6. Applying these remarks to the facts of the present case it is absolutely clear that it was open to the present appellants to prefer an appeal against the order made on 22nd August 1930, directing attachment to issue. That order could only be sustained by holding that the Court decided by the plainest implication that the decree was still subsisting and that it was not barred by the statute of limitation. That order could not be sustained unless that was the view which was taken on the previous occasion; and against such order there is no doubt that an appeal would lie as between the parties in the suit under Section 47 of the Coda and no appeal having been taken at any stage prior to the execution the order passed must be taken as final between the parties in the matter.
7. It remains to notice a few cases on which reliance has been placed on behalf of the appellants. The first of these cases is the case of Bhola Nath v. Prafulla Nath (1901) 28 Cal 122. An examination of that case will show that although notice was issued to the judgment-debtors before the decree was actually transferred to another Court in consequence of change of jurisdiction it does not appear that before the order for attachment was issued by the second Court that notice was served again on the judgment-debtors. The second Court bad, by the transfer of jurisdiction, been given the power to execute the decree. But the notice was given by the first Court. Besides there is another point of difference and that is this: that the application for execution was ultimately dismissed by reason of default and the judgment-debtor after the attachment order had been made by the second Courts came in and objected to the execution on the ground that it was barred by limitation. After several adjournments principally at the instance of the decree-holder when the case came on for hearing neither parties had appeared and the Court refused the application for execution and disallowed the objection of the judgment-debtors. The facts therefore are distinctly dissimilar to the facts of the present case. Another case which has been relied on is the case of Subramania Ayyar v. Raj Rajeswara Dorai (1917) 40 Mad 1016. An examination of that case will show that the notice which was issued before the order of attachment was not a notice to show cause why execution should pot issue but was notice to show cause why his heirs should not be brought on the record as the legal representatives of the deceased judgment-debtor for the purpose of execution and the legal representatives had no notice that any particular property of theirs was going to be attached. On the other hand there are observations of Seshagiri Ayyar, J., which would support the view which we are taking. The learned Judge says thus:
At the same time as pointed out by the Judicial Committee, parties should not be allowed to agitate the same question after it has been once decided; and this dictum of their Lordships has been extended to cases where the parties had an opportunity to object to the decision, but did not avail themselves of that opportunity. One principle seems to be clear, and that is, that the party who is sought to be affected by the bar of res judicata should have notice of the point which is likely to be decided against him and should have an opportunity of putting forward his contentions against such a decision.
8. These conditions were fulfilled in the present case and according to the view of the learned Judge just referred to the objection of the appellants is not tenable. The result is that the appeal fails and must be dismissed with costs. The hearing fee is assessed at one gold mohur.
M.C. Ghose, J.
9. I agree.