Mt. Keshar Kuer vs Rajeshwari Narain Singh

Mohammad Noor, J.—This miscellaneous appeal arises out of an execution proceeding, the point involved being whether the application for execution was barred by limitation. The decision of this depends upon the question whether there was an order for execution on a previous application which was admittedly barred by limitation. The learned Subordinate Judge has stated the facts very clearly. The previous application, to which I have just referred was presented on 28th September 1932, the execution case being registered as No. 396 of that year. It was filed more than three years after the dismissal, on 20th September 1929 of a previous application for execution. The learned advocate of the appellant has contended that as a notice under O. 21, R. 22, was served upon the judgment-debtor and there was an order of execution in that case, it must be taken that the plea of limitation was raised and decided against the judgment-debtor and is now res judicata. We have therefore to consider whether there was an order for execution on the basis of which the principle of S. 11. Civil P.C., that any matter which might and ought to have been made ground of defence or attack in such former suit (in this case execution proceeding) shall be deemed to have been a matter directly and substantially in issue in such suit (in this case the execution proceeding) can be applied to this ease. The application for execution filed on 28th September 1932, is not before us. According to the learned Subordinate Judge it was simply an application for sending a copy of the decree and certificate for execution to another Court. The learned advocate has contended that the learned Subordinate Judge was wrong and that it was an application for execution. Be that as it may, for the purposes of the present appeal the position of the decree-holder will not improve even if that application was a formal application for execution. We are not concerned with the application for execution but with the order for execution, and I am clearly of opinion that there was no such order. The only order was, as it is clear from the copy of the order sheet, which the learned advocate showed us, to send a copy of the decree and certificate for execution to another Court. That order, it seems, was afterwards re-called, and then again there was an order that the proceeding in another Court should continue on the basis of that copy and certificate. Now an order for sending a decree to another Court for execution is not an order for execution. Such an order can be made without there being a formal application for execution; it can be made on a simple application without any form and can in no circumstances, be held to be an order for execution. Therefore there being no order for execution on the basis of the application presented on 28th September 1932, the present application is clearly barred by limitation. The view of the learned Subordinate Judge is correct. I would dismiss this appeal with costs.

Saunders, J.

I agree.