1. The substantial question of law argued in this appeal is, whether or not an application presented on the 11th January 1903 for execution of a mortgage-decree made on the 31st July 1895 is barred by limitation. The Courts below have can currently held that it is not open to the judgment-debtors to take exception to the application on the ground of limitation, inasmuch as they did not urge any such objection to the grant of a previous application in the execution proceedings, made within the immediately preceding three years on the 29th May 1907. To test the validity of this position, it is necessary to refer in detail to the material facts which are not disputed and which are indeed all matters of record.
2. The mortgage decree which was made on the 31st July 1895 directed a sale of the mortgaged properties in the first instance, to be followed, if the sum realised proved insufficient to satisfy the judgment-debt, by a sale of the other properties of the debtor; in other words, it embodied a mortgage-decree pro(sic)-so-called as well as a personal decree (sic) ordinary course would be passed under Section 90 of the Transfer of Property Act at a subsequent stage of the proceedings. The decree was made absolute on the 23th February 1898. On the 3rd March 1698, the first application for execution was presented, Sale took place in due course, but was set aside on the 24th September 1898. On the 11th March 1899, there was a second application for execution of the mortgage-decree. The properties were sold on the 5th November 1899 and purchased by the decree-holder himself. As the decree still remained unsatisfied in part, on the 6th March 1900, the decree-holder applied for realization of the balance by the sale of properties of the judgment-debtor not covered by the mortgage. These were sold on the 6th August 1900 and purchased by the decree holder; the sale was confirmed on the 18th September following. On the 29th August 1901, the judgment-debtor applied to have the sale of the mortgaged properties set aside on the ground of fraud and material irregularity. This application was successful, and the sale was set aside on the 5th October 1901. On the 17th January 1903 the decree-holder, who had purchased on the 6th August 1900 properties not included in the mortgage, applied for delivery of possession thereof. He did not, however, prosecute this application and it was dismissed for default on the 29th January. Shortly after, on the 20th March 1903, the decree-holder applied for a fresh sale of the mortgaged properties, but he failed to prosecute the application which was dismissed for default on the 11th May 1903. Nothing further appears to have been done in respect of either the mortgaged or the non-mortgaged properties till 1907. On the 29th May of that year au application was made by the legal representatives of the decree-holder, who had meanwhile died, for delivery of possession of the mortgaged properties purchased by him on the 6th August 1900. This application was granted ex parte and possession was delivered on the 16th June 1907. Immediately after this, the judgment-debtor applied to the Court to set aside the sale held on the 6th August 1900, on the allegation that the proceedings had throughout been fraudulent, that he had no knowledge of the execution proceedings or of the sale or of the application for delivery of possession, and that he was first apprised of what the decree-holder had done when the legal representatives of the latter took possession of the non-mortgaged properties on the 16th Jane 1907. This application was successful and the sale held oil the 6th August 1900 was set aside, on the 28th March 1908. The Court proceeded on a twofold ground, namely, first, that as the sale of the mortgaged properties had been set aside, the decree-holder was not entitled under the terms of the decree to retain the fruits of the execution taken out by him for the realization of the balance of the decree; and, secondly, that the processes had been deliberately suppressed and the proceedings were throughout fraudulent. The decree-holder auction-purchaser, appealed against this decision, and, on the 20th June 1908 the order of the Court of first instance was affirmed on the ground that the sale was fraudulent and the judgment-debtor had no knowledge of the execution proceedings at any stage thereof. Meanwhile on the 11th January 1908 the decree-holder had initiated the present proceedings by an application for execution in which he asked for the sale of the mortgaged properties. To this, the judgment debtor objected on the ground that the application was barred by limitation. The Courts below have not determined whether this objection is well founded; but they have proceeded on the ground that it is not open to the judgment-debtor to take this objection, inasmuch as no objection was taken by him to the application for delivery of possession made on the 29th May 1907. In support of this position reliance has been placed upon the decision of the Judicial Committee in the case of Mungul Pershad Dichit v. Grija Kant Lahiri 8 C. 51 : 11 C.L.R. 113 : 8 I.A. 123. The line of reasoning which has found favour with the Courts below may be thus stated. The application for delivery of possession made on the 29th May 1907 may be treated, upon the authority of the cases of Sariatoolla Molla v. Raj Kumar Roy 27 C. 709 : 4 C.W.N. 681, Moti Lal v. Makund Singh 19 A. 477 and Lakshman an Chettiar v. Kannammal 24 M. 185, as an application to the proper Court to take a step-in-aid of execution, though Judicial opinion upon the point is by no means uniform, see for instance, Punchanan v. Nrisingha Misc. App. 21 of 1892, decided by Ameer Ali and Gordon, JJ. on the 7th April 1893). This application, upon the authority of the decision of the Bombay High Court in the case of Hanmantrav Pandurang Joglekar v. Subaji Girmaji 8 B. 257, ought to have been made within three years of the confirmation of the sale on the 18th September 1900. The application of the 27th May 1907 was, therefore, clearly barred by limitation. As no objection was taken by the judgment-debtor to the grant of this application and as the application for execution now before the Court was made within three years from the 27th May 1907, it is not open to the Judgment-debtor to raise question of limitation, on the assumptionthat the principle, which underlies the case of Mungul Pershad Dichit v. Grija Kant Lahiri 8 C. 51 : 11 C.L.R. 113 : 8 I.A. 123, applied to all orders in execution, whether made upon an application for execution or upon an application to the proper Court to take some step in aid of execution. In our opinion, there is an obvious fallacy involved in this line of argument, apart from the question of the validity of the several assumptions involved therein. The decisions of the Judicial Committee in Mungul Pershad Dichit v. Grija Kant Lahiri 8 C. 51 : 11 C.L.R. 113 : 8 I.A. 123, Ram, Kirpal v. Rupkuari 6 A. 269 : 11 I.A. 37 and Beniram v. Nanhumal 7 A. 102 : 11 I.A. 181, affirm, as is explained in the cases of Srihary Mundid v. Murari Chowdhry 13 C. 257, Bhagwan Jetharam v. Dhondi 22 B. 83 and Khosal v. Ukiladdi 11 B. 537, the doctrine that a decision at any stage of execution proceedings cannot be questioned at a later stage of the proceedings, not because; it is res judicata under Section 13 of the Civil Procedure Code, but upon general principles of law, for if it were not binding, there would be no end to litigation. The substance of the decision is that a party to an. execution proceeding who allows an order for execution to be passed against him at one stage of the proceedings, when he had the opportunity to Contest the validity of that order, cannot be permitted at a subsequent stage of the proceedings to re-open the whole matter in controversy. The essence of the matter is that, as Mr. Justice West puts it in Sheik Budan v. Ram Chandra Bhunjaya 11 B. 537, the judgment-debtor, though called on to dispute, if he wished or if he can, a certain proposition of right and consequential demand of relief or action by the judgment-creditor, either fails in his contention to the contrary or, at any rate, allows the judgment to go by default. That doctrine is manifestly, inapplicable to the present case. When the application for delivery of possession was made on the 29th May 1907, the judgment-debtor admittedly had no notice thereof. It has further been conclusively established in the proceedings to set aside the execution sale, that the judgment-debtor had no notice of the proceedings at any stage thereof, and was first apprised of them when possession was delivered to the decree-holder auction-purchaser on the 16th June 1907. He at once came into Court and took exception to the entire proceedings. It is perfectly true that he did not question the. validity of the order for delivery of possession on the narrow ground that the application of the 29th May 1907 was barred by limitation he went to the very root of the matter and questioned, as he was entitled to do, the legality of the whole proceedings on the ground that they were vitiated by fraud. It cannot under these circumstances be held that the ex parte order made on the 29th May 1907, without notice to the judgment-debtor and without knowledge on his part that execution proceedings were pending against him, operates as a bar to the determination of the objection of limitation urged by him against the application of the 11th January 1908. If the matter is still open for consideration, as we hold it is, then, upon the facts stated, there is no room for controversy that the application is barred by limitation.
3. The result, therefore, is that this appeal must be allowed, the order of the Court below discharged, and the application of the 11th January 1908 dismissed on the ground that it is barred by limitation. The appellant is entitled to costs in all the Courts. We assess the hearing fee in this Court at three gold mohurs.