JUDGMENT
Madhavan Nair, J.
1. The question for determination in this Civil Miscellaneous Second Appeal is whether Execution Petition No. 693 of 1920 is barred by limitation.
2. The facts are briefly these: the 7th counter-petitioner is the appellant and represents the judgment-debtors. The respondent’s predecessor-in-interest obtained a mortgage-decree against the judgment-debtors on 2nd April 1907, wherein one month’s time was fixed for payment of the mortgage-money. The decree was a preliminary one under Section 88 of the Transfer of Property Act and no order absolute for sale had been passed after the preliminary decree. The First Execution Application No. 505 of 1911 was filed on 11th September 1911. This was more than three years after the passing of the preliminary decree, but the decree-holder stated in it that Rs. 20 were paid out of Court towards the decree and that the same was endorsed on the back of the decree. The petition was dismissed for non-payment of additional batta on 24th October 1911. There were subsequent applications for execution of the decree in 1913 and 1916 which were all dismissed on various dates on account of non-payment of batta.
3. The fifth application for execution, Execution Petition No. 751 of 1917, was filed on 13th August 1919. On this application notice under Order 21, Rule 22, Civil P. C., was issued to the judgment-debtors. They did not appear and an order dated 11th February 1918, “proclaim and sell on 10th April 1918” was passed, but no sale took place as by that date a suit had been filed by the counter-petitioner for a declaration that the mortgage-decree obtained by the decree-holder did not affect his rights as the purchaser in execution of his own mortgage-decree and a stay order stopping execution of the decree has been received. The suit was disposed of on 23rd October 1920. On 20th December 1920 the respondent put in Execution Petition No. 693 of 1920 for execution which was pending till 23rd November 1921, on which date the execution was again stayed by the appellate Court. The appeal was dismissed on 15th February 1922. The respondent then put in on 15th September 1922, another application for restoration of Execution Petition No. 693 of 1920 and it was restored.
4. The appellants contended: (a) that the decree passed in the suit was inexecutable; (b) that the first application for execution was itself barred by the three years rule of limitation, and (c) that at any rate Execution Petition No. 693 of 1920, the application with which we are concerned, is barred by the 12 years’ rule prescribed by Section 48, Civil P. C. The lower Courts held that, since the order on Execution Petition No. 351 of 1917, “proclaim and sell,” passed after the service of notice operated as res judicata, it was not open to the appellant to raise now the questions (a) and (b). They also held that Execution Petition No. 693 of 1920 was not barred by the 12 years’ rule inasmuch as it was in effect a revival of Execution Petition No. 351 of 1917 which could not be proceeded with on account of the various stay orders referred, to. The learned Subordinate Judge further held that 11th February 1918, the date of the order “proclaim and sell” on Execution Petition No. 351 of 1917, should be taken as the date of the passing of the final decree in this case, in which case it would be obvious that no question of limitation would arise at all.
5. In support of his argument that the appellant is not barred by the principle of res judicata from putting forward the pleas (a) and (b), namely, that the decree is inexecutable and it is barred by limitation, Mr. Rama Rao relies upon the decision of the Full Bench in Chidambaram Chetti v. Kandasami Goundan A. I. R. 1924 Mad. 1 In that case it was held that
where you have nothing more than the nonattendance at the hearing of an application to settle the terms of a sale proclamation the respondent cannot be taken to be estopped by reason of that non-attendance on the principle of res judicata from thereafter denying the liability of the property to execution (per Sir Walter Schewabe, C. J.)
6. I think that decision is inapplicable to the atrics of the present case. The notice served on the judgment dobtor in that case after stating that the decree-holder had applied for the sale of the property continued:
You are hereby informed that the 14th day of August 1920, has been fixed for the purpose of settling the proclamation of sale.
7. As the learned Chief Justice pointed out:
The respondent had no notice at all that the matter of the ownership of the property would or could come up for decision on the hearing of the application for settlement of the terms of the proclamation of sale. He did not even get a draft of the proposed terms. All that he was told was that a certain date had been fixed for settling those terms, and it would be a very remarkable thing if, on receipt of such notice, it were to follow that, if he did not attend on that occasion, he must be taken to have attended and raised the question whether or not the property was the property of the judgment-debtor.
8. The notice served upon the judgment-debtor in this case prior to the passing of the order “proclaim and sell” was not a notice for settling the terms of the proclamation. Though the order, as it contains the word “proclaim,” might suggest that the notice issued to the parties was one for settlement of the terms of the proclamation of sale, as a matter of fact, we find that the notice was more comprehensive in its terms. It runs as follows:
Whereas the plaintiff in Original Suit No. 5 of 1907 has made an application for sale by auction of the property in this suit, notice is hereby given to you that you are to appear before this. Court on 4th February 1918, to show cause why execution of the decree should not be granted.
9. The whole question as regards the executability of the decree was raised by the notice, and if the appellant did not express his objections on that occasion, he could not afterwards do so on the principle of res judicata. The decision in Chidambaram Chetti v. Kandasami Goundan A. I. R. 1924 Mad. 1 is, therefore, inapplicable to the present case. I am told that the two words “proclaim and sell” appear in the order dated 11th February 1918, because two notices, one for settling the terms of the proclamation and the other directing sale were sent to and served simultaneously on the appellant in accordance with practice prevailing in the Mufussal Courts. However that may be, in view of the terms of the notice we are concerned with, and on which the order was passed, the appellant is clearly barred by res judicata from raising his pleas (a) and (b).
10. Mr. Lakshmanna for the respondent argues that the decision in Chidambaram Chetti v. Kandasami Goundan A. I. R. 1924 Mad. 1 is inapplicable for another reason also. According to him, that decision should be limited to cases where objections as regards title of property arising apart from the decree are raised by the judgment-debtor and should not be applied to cases where objections to execution arising on the decree itself and necessarily implied in all execution applications are raised by the parties. In Chidambaram Chetti v. Kandasami Goundan (J) the judgment-debtor’s legal representative objected to execution on the ground that the property belonged to him and not to the deceased judgment-debtor. In view of the terms of the notice issued in this case, which have been already referred to, it is not necessary to examine any further the scope of the decision in Chidambaram Chetti v. Kandasami Goundan A. I. R. 1924 Mad. 1 though it may be said that the principle of the decision in Rajah of Ramnad v. Velusami Tevar A. I. R. 1921 P. C. 23 seems to support the contentions of the respondent on this point.
11. It was open to the appellant to raise both the objections which he now puts forward to the executability of the decree when the order “proclaim and sell” was passed against him. Since he did not do so, his present contentions are clearly barred by the principle of res judicata.
12. The next argument is that Execution Petition No. 693 of 1920 is barred by the 12 years’ rule prescribed by S. 40, Civil P. C., but this was not pressed before me, and, therefore, need not be considered. I agree with the view of the lower Court on this point also. In the result this Civil Miscellaneous Second Appeal is dismissed with costs.
