P.N. Mookerjee, J.
1. This appeal is at the instance of a surety judgment-debtor and it arises out of a proceeding under Section 47, Civil P. C.
2. The relevant facts lie within a short compass. On 4-5-1939, there was an award made under the Co-operative Societies Act in favour of the decree-holder respondent and against the judgment-debtor No; 1 Charu Chandra Boy Choudhury and the present appellant as the surety. This decree was put into execution in 1940 in Money Execution Case No. 315 of 1940 and the decree-holder wanted to proceed in that case against certain properties alleged to belong to the judgment-debtor Charu Chandra Roy Choudhury. The judgment-debtor took the matter before the Debt Settlement Board under the Bengal Agricultural Debtors Act and on receipt of a notice under Section 34 of that Act, the learned Munsif stayed all further proceedings in the execution case. -The stay order continued from 4-11-1940 to 12-8-1948.
In the meantime, however, in 1947, the decree-holder put the decree again into execution in Money Execution Case No. 56 of 1947 and on 14-8-1948 this second Execution case was dismissed as time-barred.
The decree-holder, however, thereafter proceeded with his first Execution case without any objection from the judgment-debtor on the ground of limitation or on the ground of its being barred by res judicata by reason of the order dated 14-8-1948 dismissing the second execution case as time-barred; and eventually in the said first execution case, viz., Money Execution Case No. 315 of 1940, the properties alleged by the decree-holder to belong to the judgment-debtor Charu Chandra Roy Choudhury were attached in due course and when subsequently they were released on a claim being filed by some other parties, the decree-holder did not proceed further with the said execution casewith the result that it was dismissed for default on 12-4-1950.
Thereafter on 16-5-1950, the present execution, viz., Money Execution Case No. 21 of 1950, was started by the decree-holder against the surety judgment-debtor who is the appellant before me for realisation of the award dues by attachment of the salary of the said surety judgment-debtor. Against this execution an objection was preferred by the surety judgment-debtor under Section 47, Civil P. C. contending that this execution case was barred by res judicata by reason of the decision in the second execution case that the same was time-barred. Both the courts below have overruled this objection and against this concurrent decision, the present appeal has been preferred by the surety judgment-debtor.
3. The only point which requires consideration in this appeal is whether the present execution case was barred by res judicata by reason of the decision in the second execution case that the same was time-barred. From the facts which have been stated above, it is quite clear that, after the dismissal of the second execution case on the ground of limitation, the decree was allowed to be executed without objection by the judgment-debtor either on the ground of limitation or on the ground of its execution being barred by res judicata by reason of the aforesaid decision. The actual res judicata in the appellant judgment-debtor's favour was thus superseded by a later res judicata, though constructive, in favour of the decree-holder respondent.
In these circumstances, the courts below were right, in my opinion, in holding that the plea of res judicata on the basis of the said decision in the second execution case was no longer open and that, accordingly, the said plea of the surety judgment-debtor could not be accepted. I hold, therefore, that the two courts below were right in overruling the objection under Section 47 of the Code in the present case and their decision must be affirmed.
4. In the result, therefore, this appeal fails andit is dismissed, but in the circumstances of thiscase, I would make no order as to costs.