P L D 1955 Dacca 17 (PLP)

CHOWDHURY, J.--‑This appeal is by the judgment‑debtor and arises out of an objection petition filed by him under section 47 of the Code of Civil Procedure objecting to the execution of the decree obtained by the respondent on the 28th September, 1935, for a sum Rs. 1,762‑3‑

6. There was 8 execution cases previous to the present one, being Execution Cases Nos. 55 of 1935, 21 of 1936, 144 of 1937, 83 of 939, 151 of 1942, 13 of 1945, 37 of 1946 and 94 of 1946. The appellant objected to the present execution case on the ground of limitation. His case is that the Execution Case No. 83 of 1939 was dismissed on 30th August, 1939, and the Execution Case No. 151 of 1942 filed on 12th December, 1942, was out of time and, therefore, the subsequent execution proceedings including the present one are out of time. The Courts below relying on the Privy Council case of Mungul Pershad Dichit and another v. Grija Kant Lahiri Chowdhury (8 I. A. 123 =I. L. R. 8 Cal. 51.), dismissed the objection. The lower Appellate Court dismissed the appeal holding that as the judgment debtor' appellant on whom notice under Order 21, Rule 22, of the Code of Civil Procedure had been issued and served in that Execution Case No. 151 of 1942 did not object to the limita tion, his plea of the bar of limitation in the present case is barred by constructive res judicata. Hence this second appeal by the judgment‑debtor. Mr. Debesh Chandra Bhattacharyya, the learned advo cate for the appellant, contends that as the question of limit ation has not been decided in that execution case, it cannot be held to be barred by constructive res judicata. Mr. Nirmal Chadra Nandi, the learned advocate for the respondent, on the other hand, contends relying on the above mentioned Privy Council case that though there was no express decision of the point when the Court issued notice under Order 21, Rule 22 of the Code of Civil Procedure on the judgment‑debtor to show cause why the execution of the decree should not proceed against him and when he did not avail himself of the opportu nity to show cause in that execution case nor in the subsequent proceedings, he is barred now from raising the question of limitation either on account of the bar of constructive res judicata or on account of estoppel by judgment. Undoubtedly the question of limitation is not expressly decided either in Execution Case No. 151 of 1942 or in sub sequent execution proceedings. But the question is whether it can be taken to have been decided by necessary implication. It is not disputed that the Execution Case No. 83 of 1939 was dismissed on 'the 30th August, 1939. The date of the dismissal of this execution case is shown both in the execution petition in Execution Case No. 151 of 1942 and the Court Register to be as 14th December, 1939. The judgment‑debtor contends that the decree‑holder in collusion with the dealing assistant of the Court had caused that false entry in the Court Register in order to give life to the dead decree and to his appli cation for execution of the decree in Execution Case No. 151 of 1942 and as such fraud is practised upon the Court as to the question of limitation. On the other hand, the decree‑holder contends that he was misled by the wrong date in the Court Register with reference to which the petition for execution of the decree in Execution Case No. 151 of 1942 was drawn up. Be that as it may, much does not depend upon that; because even if the order obtained by the decree‑holder is tainted with fraud practised upon the Court, the order is not void but voidable and must be avoided in due course of law which has not been done in this case. Now coming to the question whether the point of limitation can be taken to have been decided by necessary implication in Execution Case No. 151 of 1942, we must look to the order passed in that execution case. With reference to the certified copy of the order‑sheet in Money Execution Case No. 151 of 1942, we find the following order: "1. 12th December, 1942, Register. D. H. to file process fee and processes by 21st December, 1942. Pleader's fee Rs. 10. 2. 21st December, 1942. Requisites filed. Issue notice (21‑22) C. P .C. upon J. Drs. fixing 22nd January, 1943, for orders and return. Copy of decree filed be kept. 3. 22nd January, 1943. Notice served, No further step taken by the D. Holder. that the case be dismissed for default." From the order‑sheet of Money Execution Case No. 151 o 1942, it appears that the Court has not taken any step beyond serving notice on the judgment‑debtor and the execution case was dismissed for default of the decree‑holder on the date fixed for showing cause in pursuance of notice under Order 21, Rule 22, C. P. C. Neither he directed the decree‑holder to take step in execution of the decree nor did he direct the B execution to proceed or attach the property of the judgment debtor. It was dismissed for default. Therefore, it cannot be said that the question of limitation was, by necessary implica tion, decided by the Court to debar the judgment‑debtor to agitate the point in subsequent proceeding. In the case of Khosal Chandra Roy Chowdhury and another v. Ukiladdi and others (14 C W N 114 (117)) Mookherjee and Vincent, JJ, observed as follows: "These cases affirm the doctrine that where the question, whether execution of the decree is barred by limitation, is not decided because the parties do not appear, there is obviously no bar to the adjudication of the objection when actually raised at a later stage of the proceedings. It is manifest that here the question of limitation cannot be said to have been decided even by implication when the third application for execution was dismissed for default on the 28th March, 1905. The mere issue of a notice under section 248 C. P. C. not followed by any order for execution or by any act of the Court such as attachment of property in furtherance of execution, cannot be construed as an adjudi cation by the Court that the application is not barred by limitation and is maintainable under the law." This decision has been followed by Henderson and Mitter, JJ, in the case of Bir Bikram Kishore Manikya Bahadur v. Khalilur Rahman (A I R 1935 Cal. 664.). The same view has been taken by Gopendra Nath Das, J, in the case of Aswini Kumar Das Gupta anal others v. Keramat Ali Khan (A I R 1948 Cal. 165.). The same principle has been enunciated in the case of Lalit Mohan Roy and others v. Sarat Chandra Saha (37 C W N 752). The Privy Council case of Mungul Pershad Dichit and another v. Giria Kant Lahiri Chowdhury (supra) has laid down that if a question of limitation can be taken to have been decided by necessary implication; it will operate as a bar to agitate the question of limitation in the subsequent stage of the same proceeding or in subsequent proceeding. This Privy Council case has been taken into consideration in the case reported in A I R 1935 Cal. 664 (supra) and A I R 1948 Cal. 165 (supra). Therefore, we are unable to hold that the present appellant is barred from agitating the question of limitation on account of the order passed in Money Execution Case No. 151 of 1942. The matter does not rest there. If the application for execution of the decree giving rise to the Money Execution Case No. 151 of 1942 is barred by limitation the subsequent execution proceeding must be out of time. We do not know what happened to the Execution Cases Nos. 13 of 1945 and 37 of 1946 but the order‑sheet of the Execution Case No 94 of 1946 is before us. From that order‑sheet it appears that the decree‑holder started the execution case and in that execution proceeding, properties of the judgment‑debtor were attached. The order No. 8, dated the 15th March, 1947, in Money Execu tion Case No. 94 of 1946 runs as follows: "8. 15th March, 1947. Judgment‑debtor No. 1 files a petition stating that he compromised with the D. Holder Bank and prays for striking out the case. D. H's pleader gives consent to this prayer of the J. Dr. provided .the attachment do subsist." ORDERED That the case be struck off. The order of attachment do subsist." This execution case is also out of time because the Execution Case No. 151 of 1942 was out of time. The judgment‑debtor appellant did not raise any objection as to the question of limitation. Here the Court has passed an order of attachment and it can be taken to have decided the question of limitation by necessary implication. If we consider this order, there is no doubt that the case comes within the principle laid down in the Privy Council case of Mungul Pershad Dichit and another v. Girja Kant Lahiri Chowdhury (supra), as well as the Privy Council case of Raja Ramnad v. Vlusami Tevar and others (L R 48 I A 45). In the last mentioned case, Their Lordships of the Privy Council had to consider an application of the assignee of the decree to be brought on the record with was resisted by the judgment‑debtor on several grounds including the plea that there was no valid assignment of the right to execute the decree and the decree was barred by limitation. The Court decided the first point in favour of the assignor and allowed the execution to proceed but did not decide expressly the question of limitation. Their Lordships held that it was not only competent to the present respondents to bring the plea forward on that occasion, but it was incum bent on them to do so if they proposed to rely on it, and moreover it was in fact brought forward and decided upon. Therefore in view of the principle laid down in the Privy Council cases mentioned above and followed in the case cited above, there is no doubt that the question of limitation has been decided by the Court by necessary implication, not in Money Execution Case No. 151 of 1942 but in Money Execution Case No. 94 of 1946. In the present execution case the judgment‑debtor appellant is not entitled to agitate the point. Mr. Debesh Chandra Bhattacharyya, the learned advocate for the appellant has relied on the case of Fakir Chandra Biswas and others v. Ekkari Sarkar and others (42CWN560) where it has been held that if the plaintiff was not aware of the existence of the gift in the previous suit decided against him, it will not operate as res judicata in a subsequent suit based on the deed of gift and contended that the fact of limitation was not known to the judgment‑debtor at the time when he filed an appli cation in Money Execution Case No. 94 of 1946 and his client was entitled to agitate the question of limitation in the subsequent proceeding, namely, the present execution pro ceeding. The facts of the case reported in 42 C W N 560 (supra) are quite different from the facts of the present case and the principle laid down has got no application in the present case. It cannot be said that the judgment‑debtor is not aware of the limitation. The learned advocate for the appellant also relied on the Full Bench case of Genda Lal v. Hazari Lal (A I R 1936 All. 21), where it has been held that a judgment‑debtor is not precluded by the principle of res judicata from raising the plea of limitation in an execution proceeding unless there was express adjudication on the question of limitation against a judgment‑debtor in an earlier proceeding or at an earlier stage of the same execution proceeding or if there was adjudication implied in an order which, taken with the surrounding circum stances, should be taken to imply a conscious determination of the question of limitation adversely to the judgment‑debtor ; or if the judgment‑debtor did not fail to take the plea of limitation when it might and ought to have been taken, and no relief prayed for in the execution application, was granted, nor a partial satisfaction of the decree was obtained by the decree‑holder. This case instead of supporting the contention of the learned advocate for the appellant rather goes against him and supports the contention of Mr. Nandi that at least in Execution Case No. 94 of 1946, the Court by necessary implication decided the question of limitation against the judgment‑debtor. The result, therefore, is that this appeal is dismissed with costs. ISPAHANI, J.‑I agree. A. H. Appeal dismissed.