1. This is an appeal against an order of the learned Subordinate Judge of Hughly, dated the 8th January 1913. The sole question raised by the appellants in this case is whether the application for execution of a certain decree is barred by limitation. The learned Judge of the lower Appellate Court has held that it is barred and the present appeal has been preferred by the decree-holders against that order.
2. The decree-holders obtained the decree as long ago as the 14th April 1903 in the Court of the Munsif of Govindpur in the District of Manbhum for Rs. 500. The first application for execution was made as long ago as the 23rd July 1903. That application was dismissed for default on the 5th September 1903.
3. The next application for execution was dated the 9th July 1906. Notice of that application was ordered to be issued on the 21st July 1906 : and, according to the appellants, the notice was actually served on the 27th July 1906, one of the decree-holders identifying the judgment-debtors to the serving peon. It is essential for the appellants in the present case to show that what took place on the 27th July 1906 comes under either Clause 5 or Clause 6 of Article 182 of the Indian Limitation Act. How the appellants can say that the mere fact that one of them went along with the serving peon to identify the judgment-debtors was itself a step-in-aid of execution, I do not understand. If a person goes along with the serving peon to identify a party, that would not be a step-in-aid of execution but is one of the necessary preliminaries to enable the Court to deal with the matter when the party, if served, comes before it. In the present case, the learned Subordinate Judge came to the conclusion that the 21st July 1906 when notice was directed to be issued, was the proper date from which he should calculate the time from which the period of limitation commenced to run. I think the learned Judge rightly rejected the 27th July, 1906 as being that date on the ground that one of the decree-holders went along with the serving peon to identify the judgment-debtors. That application was also dismissed for default on the 4th August 1906 :
4. Then the third application was made on the 27th July 1909. The office reported on the next day that the application was barred by limitation. The learned Judge, on the 9th August 1909, without any notice to the judgment-debtors, held that the application for execution of the decree was not barred and directed notice to issue. On the same day the application was registered and, nothing else having been done, on the 4th September 1909 the application was dismissed for default.
5. Then the present application was made on the 24th April 1911 and the decree was transferred to the Court of the Munsif at Amta in the District of Hughly for execution, and the learned Judge of the lower Appellate. Court held that the decree became incapable : of execution because no steps-in-aid of execution had been taken between the 21st July 1906 and the 27th July 1909. It is said that the order of the Court, dated the 9th August 1909, holding that the decree was not barred is binding on the judgment-debtors until it is set aside. But that is not so. It is quite true that an ex parte decree passed by a Court is a good decree : but, if the decree is made in the absence of and without notice to the other party, of course that decree does not bind the other party or does not stand in his way of showing what, were the true facts of the case, and it seems to me that the judgment-debtors not having had any notice of the order of the 9th August 1909 are entitled to show that the decree has become barred by limitation by reason of no steps having been taken between the 21st July 1906 and the 27th July 1909. I think the learned Judge of the lower Appellate Court came to a correct conclusion when he held that this decree was not capable of being executed. That being so, the present appeal fails and must be dismissed. Having regard to the fact that the judgment-debtors have got rid of the liability under the decree, I think there ought not to be any order as to the costs of this appeal.