Vyapuri Goundan and Others vs A.C. Chidambara Mudaliar

The plaintiff: obtained a decree on a mortgage against the defendants. The decree directed a certain amount to be paid with future interest on the

principal at 18 per cent, per annum. Various payments were made by the defendants from time to time. There have in all been 14 applications by

the plaintiff for execution. In the first 12 applications he appropriated the payments in a certain way (which it is necessary to describe). In the 13th

application, i.e., the one immediately preceding the present one, he made his calculation of the amount due to him in quite a different way with the

result that the amount was shown to be much larger than what would be due according to the method of calculation adopted in the previous

applications. The Court held without issuing notice to defendants that the plaintiff was not entitled to the larger amount arid returned his application

with the direction that he should amend the amount due to him in accordance with the mode of calculation previously adopted by him. He never

appealed against this order, nor did he obey the direction to amend his petition. It was accordingly rejected. He put in the present application after

the period allowed for amendment had elapsed but before the previous application was rejected. Ho made his claim in the present application on

the same basis as in the 13th application. The District Munsif held that he could not do so. On appeal the District Judge held that the plaintiff was

not bound to adopt the mode of calculation previously adopted, erroneously in the Judge''s opinion. We are of opinion that the order of the Munsif

on the 13th application holding that the plaintiff was not entitled to claim a larger amount on a now basis must be held to bar the contention that ho

is entitled to do so. The order was a judicial adjudication that the plaintiff was not entitled to calculate the amount due to him on a certain basis.

The plaintiff was certainly entitled to appeal against it, if so advised, and he failed to do so. The ground in which the District Judge has held the

contrary view is that the order was passed without notice to the defendants and could not therefore be regarded as a decision between the two

parties. In our opinion this view is wrong. The plaintiff''s petition for execution was a proceeding between him and the defendants and the order

decided the question of the plaintiff''s right as against them. The fact that the defendants were not called on to appear and answer the plaintiff''s

claim is immaterial. Suppose a suit is dismissed as barred by limitation without notice to the defendant on the ground that the plaintiff''s own

allegations show that the suit is barred. It would be impossible to hold that the plaintiff could sue again on the same cause of action. In execution

proceedings orders may be passed without notice to defendant. If any such order is against the defendant and further proceedings in execution are

subsequently dropped by the plaintiff and afterwards commenced again, the previous order against the defendant would'' not bar him from setting

up any defence that may have been adjudicated on without notice to him. This is not on the ground that the former order was not one passed

between the parties, but because an ex parte order cannot bind a party against whom it is passed without his having an opportunity to make his

defence. But the bar of former adjudication cannot be avoided by a party who had such an opportunity. The learned vakil for the respondent has

relied on three cases in support of his contention that the former order is not conclusive against his client. Hiralal Bose v. Dwija Charan Bose

(1906) 3 C.L.J. 240 Bholanath Das v. Prafulla Nath Kundu Chowdhry ILR (1901) Calc. 122, and Delhi and London Bank, Limited, v. Orchard

(1878) Calc. 47; but none of these is in point. In Bholanath Dass v. Prafula Nath Kundu Chowdhry (1901) 28 Calc. 122 the judgment-debtor put

in a counter-petition stating that the plaintiff''s application for execution was barred. Both parties failed to appear on the date fixed for the hearing

and the Court dismissed for default both the petition for execution and the counter-petition. When the plaintiff again applied for execution, the

defendant again set up the plea of limitation and the Court held that the former order did not bar his plea as the dismissal of the counter-petition

was not based on the merits of the plea. In Hiralal Bose v. Dwija Charan Bose (1906) 3 C.L.J. 240 also the previous application for execution

was struck off without any judicial determination on the question of limitation which was set up in the subsequent application. In Delhi and London

Bank, Limited, v. Orchard ILR (1878) Calc. 47 the head note of which in the report is inaccurate, all that Their Lordships of the Privy Council

held was that an order sending an application for execution to the record room on the ground of non-receipt of the Commissioner''s sanction which

was required under the law was not a judicial determination of any question between the parties. There was no decision on the question of

limitation at all. See Manjunath Badrabhat v. Venhatesh Govind Shanbhog ILR (1882) 6 Bom. 54.

We reverse the order of the Lower Appellate Court. The plaintiff may amend his petition by substituting the amount due to hint in accordance

with his former calculation. He must pay the appellants'' costs here and in the Lower Appellate Court.

The case is remanded to the District Munsifs Court for fresh disposal according to law.