Posted On by &filed under High Court, Madras High Court.


Madras High Court
Subbiah Naicker vs Ramanathan Chettiar on 22 January, 1914
Equivalent citations: 22 Ind Cas 899, (1914) 26 MLJ 189


JUDGMENT

1. The 2nd defendant, one of the three judgment debtors, is the appellant before the Court. This appeal has arisen’ out of an execution petition put in by the decree-holder. The facts are a little complicated, and though, it is not necessary to detail all the facts, it is necessary to set out the following for understanding the contentions on both sides.

2. The decree in this case was passed so long ago as March 1898 in favour of one Arunachallam Chettiar. There were several execution petitions by the said decree-holder himself. The decree is then alleged to have fallen in a partition between two members of the decree-holder’s family and partners of a family firm to the share of one partner who also held a power of attorney from the decree-holder. This partner filed execution petitions in 1905 and 1907. Finally on the 21st April 1909, E.P. No. 389 of 1909 was filed by a next friend on behalf of the minor son of the said partner after the death of the latter.

3. We must here state that the decree was passed by the District Munsif’s court of Sriviliputtur and all these applications including the E.P. No. 389 of 1909 of 21st April 1909 were instituted in that court. On this application 389 of 1909, notice was ordered to be issued to defendants to show cause why the decree should not be executed by sale of properties which had been attached long ago and which attachment was still subsisting. For the purpose of this appeal, it is necessary only to consider the notice issued to the 2nd defendant, that notice having been issued in July 1909 by the Srivilliputtur Munsif’s court for the 2nd defendant’s appearance on 10th August 1909 to show cause against execution. The process server took the notice to the second defendant’s village on 31st July 1909 for service on the 2nd defendant. What took place there appears from the endorsement of the Village Munsif on the process server’s return and that endorsement is as follows: “On enquiry made on 31st July 1909 at 9 A.M., regarding the 2nd defendant, the females in the 2nd defendant’s house and the inmates of the adjoining house state that it is two days since he went to Sankaranainar Koil, that the date of his return is not known and that no proper male heir is present on the spot; the duplicate of the notice to the said 2nd defendant is affixed to the front door of the house. ” With a return to this effect, the process server returned the notice to the court on the 6th August 1909. On the 10th August 1909 (which was the date fixed in the notice for the 2nd defendant to appear to show cause,) the District Munsif made a record to this effect “Notice affixed, defendant absent, adjourned to the 14th instant for batta for proclamation. ” (The learned District Judge, seems to have thought that the 10th August 1909 was a mistake for the 10th December 1909 but it seems that there is no such mistake and the order was really passed on 10th August 1909 by the Munsif, On the 18th October 1909, the proclamation was settled and the sale date was fixed, for 10th December 1909. The sale fixed for 10th December 1909 seems to have been again adjourned to some other date in 1910 on account of certain other proceedings which it is unnecessary to detail.

4. In May 1910, the Ramnad District was newly constituted by the Local Government and the Srivilliputtur District Munsifs Court was placed under the Ramnad District Judge. The properties which had been attached by the Srivilliputtur District Munsif in execution of the decree of 1897 cams under the jurisdiction of the Additional District Munsif of Tinnevelly, having been taken away from the Srivilliputtur District Munsif’s jurisdiction. On these facts, the next-friend of the minor who claims to be the decree-holder (we shall call him ” Respondent “) and who had put in the E.P. No. 889 of 1909 in April 1909 in the Srivilliputtur District Munsif’s court put in M. P. No. 33S of 1911 in the Additional Munsif’s court of Tinnevelly praying among other things that the execution proceedings instituted in the Srivilliputtur Munsif’s court in April 1909 might be continued in the Additional District Munsif’s court of Tinnevelly after obtaining all the records from the Srivilliputtur court. The 7th and 8th paragraphs of the affidavit accompanying this petition of February 1911 are as follows:

7. As the properties which are mentioned in the said sale proclamation and which are applied for being sold in this suit are situate in Kurivikolam Katu Kuthagai,, Kurinjakulam village in Sankaranainar Koil Taluq within the jurisdiction of this Court as the Srivilliputtur Munsif’s court in which steps had been taken before this, has been abolished in so far as this district is concerned, as the said court has lost its jurisdiction in matters of execution in respect of the decrees of this district and as this Court itself has now jurisdiction to execute the decrees connected with this district it is necessary and reasonable to continue and execute through this Court itself the petition pending in the said Srivilliputtur Munsif’s court.

8. Moreover, this plaintiff made an application to the said Srivilliputtur Munsif’s court but the said application has been returned with an endorsement stating that the entire records aforesaid have been sent to this Court, with reference to matters stated in para 6 above. The application so returned is herewith filed.” The Additional District Munsif dismissed this application. The conclusions. he came to are (as we understand them):

(a) the decree of the Srivillipattur District Munsif’s court was not transferred to the Additional District Munsif’s Court for execution though a portion of the records were sent to the Tinnevelly Additional District Munsif’s Court on the transfer of the territorial jurisdiction by the District Munsif of Srivilliputtur himself.

(b) the District Munsif’s court of Srivilliputtur has not ceased to exist nor has it ceased to have jurisdiction to execute its own decree on the transfer of territory from its jurisdiction as such transfer did not take away the jurisdiction to entertain application for execution and to pass orders thereon which it had under Section 223 of the Civil Procedure Code.

(c) the Additional District Munsif’s Court of Tinnevelly did not acquire the jurisdiction to execute the decree under Section 649 of the old C.P.C. or Section 150 of Act V of 1908 because the Additional District Munsif’s court of Tinnevelly could acquire the jurisdiction, only if the court of the District Munsif of Srivilliputtur ceased to exist or to have jurisdiction to execute the decree.

(d) the exparte order passed by the Srivilliputtur District Munsif’s court on the 10th August 1909 allowing execution to proceed against the 2nd defendant because he did not appear though held to have been duly served could not be treated as estopping the 2nd defendent so as to preclude him from objecting to the minor respondent executing the decree, the objection being based on the ground that execution is barred by limitation and that his right to execute had not been satisfactorily proved. The reason for 2nd defendant’s not being so estopped is that the notice issued under Section 248 C. P. C in July 1909 was not personally served upon him and he was not otherwise aware of such notice. See Mochai Mandal v. Mesaruddin Mollah (1910) 13 C.L.J. 26.

(e) the said applications of 1905 and 1907 are however in accordance with law and hence the E.P. of April 1909 was not barred by limitation,

5. These were the conclusions of the Additional District Munsif of Tinnevelly and he rejected the decree-holder’s petition to continue the proceedings in his Court on the ground that his Court has no jurisdiction to so continue the proceedings. The minor respondent then appealed to the District Judge against this order of the additional District Munsif of Tinnevelly refusing to continue the execution proceedings inaugurated in April 1909. The learned District Judge’s conclusions may be stated thus:

(a) Section 150 C.P.C. provides that when the business of any Court is transferred to any other court, the latter shall have the same powers and duties as the former had in respect of it. But (according to the learned District Judge) the execution petition of 1909 was a pending business in the Srivilliputtur Munsif’s Court when it lost its jurisdiction over the territory (in which the attached properties were situated) on 1st June 1910 and such pending business was not legally transferred to the Additional District Munsif’s of Tinnevelly. So the minor petitioner could not take advantage of Section 150 C.P.C. and contend that the Additional District Munsif was a court to which the business of the Srivilliputtur Munsif’s court was transferred.

(b) But the Srivilliputtur Munsif’s court, though it continued to exist and to be held in the same station and continued to have the jurisdiction over a portion of its former, territorial jurisdiction must be deemed to have ” ceased to exist ” within the meaning of Section 37 Clause (b) of the C.P.C. because the territories within the jurisdiction had been transferred to the newly created Ramnad District by the local Government and appeals from its decrees and orders lay thereafter to the Ramnad District Court and not to the District Court of Tinnevelly. Hence the Court which passed the decree had now become the Additional District Munsif’s Court of Tinnevelly.

In other words the learned District Judge’s view was that as the Srivilliputtur Munsif’s Court ceased to exist the court which originally passed the decree ceased to exist and the Additional District Munsifs Court of Tinnevelly became the court which passed the decree within the meaning of Section 37 Clause (6) and hence it ought to continue the execution proceedings.

(c) the 2nd defendent could not raise the question of limitation by reason of the alleged legal invalidity of the execution petitions of 1905 and 1907 as the order of the Srivilliputtur Munsif’s Court of the 10th August 1909 allowing execution after declaring the service on 2nd defendant to have been duly effected cannot be questioned by the 2nd defendant now as he has not had that exparte order (allowing execution) set aside by proceedings in appeal or by any other legal means open to him. On the basis of the conclusions (b) and (c) above, the learned District Judge set aside the Additional District Munsif’s order and remanded the, petition for disposal of E.P. No. 389 of 1909 by that Court from the point it had reached on 23-2-1910. It is against this appellate District Judge’s order of remand that the present G. M. Appeal 61 of 1913 has been filed before us. The arguments of the learned Vakil for the appellant before us might be shortly stated thus:

(a) The learned District Judge was right in saying that Section 150 C. P. Code refers to the transfer of business owing to an order of transfer by a superior court as under Section 24 or any such similar order and that mere alteration of jurisdiction through the Local Government’s notifications does not transfer any business within the meaning of Section 150 but the learned District Judge was in error in holding that the Srivilliputtur District Munsiff’s Court ceased to exist within the meaning of Section 37 Clause (b) merely by reason of the fact that the territory over which the said Court had to exercise jurisdiction was included in a new district, the portion in dispute in these execution proceedings and which also formed the basis of the venue of the suit having been transferred to the Tinnevelly Munsif’s Court’s jurisdiction.

(b) The Srivilliputtur District Munsif’s Court not having ceased to exist it also did not cease to have power to exercise jurisdiction within the meaning of Section 37 Clause (b) because as the Court which passed the decree it continued to have jurisdiction under Section 38 C.P.C. (old Section 223) even though the property attached in execution of the decree had been transferred to the jurisdiction of the Additional District Munsif of Tinnevelly.

(c) As the Srivilliputtur District Munsif’s Court continued to have jurisdiction to execute the decree the Additional District Munsiff’s Court did not obtain jurisdiction either to execute the decree or to continue the execution begun in the Srivilliputtur Munsif’s Court, only one of the two Courts being capable of executing the decree.

6. We shall consider briefly each of these three contentions. Before the new Code was passed there was a conflict between the decisions of the Calcutta High Court and the decisions of the Madras High Court in respect of the question whether a Court which passed the decree which directed the sale of immoveable property had jurisdiction to order the sale of that property if after the decree and before the application for sale, the said property had been transferred by the Local Government’s notification’s from its jurisdiction to the jurisdiction of another Court. The principal decisions of the Calcutta High Court on this question are Lutchman Pundah v. Maddan Mohan Shye (1880) I.L.R. 6 C. 513 Kartiknath Pandey v. Taluk Dhari Lall (1888) I.L.R. 15.C 667 Prem Chand Dey v. Mokhoda Devi (1890) I.L.R. 17 C. 699, Kali Pado Mukerjee v. Deno Nath Mukerjee (1897) I.L.R. 25 C. 315, Jahar v. Kamini Debi (1900) I.L.R. 28 C. 238 and Udit Narain Chaudhuri v. Mathura Prasad (1908) I.L.R. 35 C. 974. We do not think it necessary to deal in detail with every one of these cases, Kartiknath Pandey v. Taluk Dhari Lall (1888) I.L.R. 15.C 667 was virtually overruled by the Full Bench decision in Prem Chand Dey v. Mokhoda Devi (1890) I.L.R. 17 C. 699. The result of all these cases is that though under Order 21, Rule 10 (old Section 230) the application for execution by sale of properties which had passed out of the territorial jurisdiction of the court which passed the decree might be made to the court which passed the decree it may also be made to the court which has acquired jurisdiction over the said properties as it is also included in the definition of the court which passed the decree by the strength of Section 37 Clause (b) as the court which passed the decree had ceased to have jurisdiction to sell the properties decreed to be sold. Hence according to the result of the decisions of the Calcutta High Court both the court which passed the decree and the court which had since obtained jurisdiction over the property could entertain an application for execution of the decree.

(b) Though both Courts could entertain the application the court which passed the decree had ceased to have jurisdiction to order the sale of properties and hence could not itself order a sale and if the execution application is made to it, it must transfer it to the court which had now obtained jurisdiction over the properties for passing and executing the order for sale:

Thus the Calcutta High Court decisions make a distinction between the jurisdiction to entertain the execution application and the jurisdiction to order sale of properties in execution and while it gives jurisdiction to both the Courts which originally passed the decree and the court which had since obtained jurisdiction over the territory to entertain applications the said decisions give jurisdiction only to the latter court to order the sale of the properties.

7. As regards the Madras High Court, the principal cases are Gomatham Alamelu v. Komandar Krishnamacharlu (1903) I.L.R. 27 M. 118, Panduranga Mudaliar v. Vythialinga Reddi (1907) I.L.R. 30 M. 537, Subbiah Mudaliar v. Rakki (1908) I.L.B. 32 M. 140 and Alagappa Mudaliar v. Thyagaraya Mudaliar (1910) M.W.N. 477. In Gomatham Alamelu v. Komandur Krishnamacharlu (1903) I.L.R. 27 M. 118 it was merely held that if a court which had not got jurisdiction had passed a decree for sale off the properties outside its jurisdiction without objection by the defendant such a decree is not a nullity and the judgment-debtor could not object to the. validity of such a decree in execution proceedings. In Panduranga Mudaliar v. Vythialinga Reddi (1907) I.L.R. 30 M. 537 it was held that the Court which passed the decree for sale had jurisdiction to entertain an execution application for sale of that property even though the property had been transferred to the jurisdiction of some other Courts. Apart from the question of its jurisdiction to entertain the application whether it could itself order the sale of that property was not and need not have been considered in that case because the decree-holder in his application for execution, also prayed for the transfer of the decree to the Court which had since obtained jurisdiction over the properties directed to be sold. The decision in Panduranga Mudaliar v. Vythialinga Reddi (1907) I.L.R. 30 M. 537 seems therefore to be not in conflict with the Calcutta decisions which only negative the right of the court which passed the decree to order the sale of the properties which had passed out of its jurisdiction, but do not negative the right of that court to entertain the application for execution. Subbiah Mudaliar v. Rakki (1908) I.L.R. 32 M. 140 depended upon the meaning of Section 189 of the Madras Estates Land Act though there is a general observation that even when a statute takes away the jurisdiction of a class of courts to hear suits of a certain nature and transfers the jurisdiction to hear such suits to another class of courts, the 1st class of courts does not lose the jurisdiction over the suits pending at the time of the passing of the Act which so transfers the jurisdiction; la Alagappa Mudaliar v. Thyagaraya Mudaliar (1910) M.W.N. 477 doubt was thrown upon the decision in Panduranga Mudaliar v. Vythialinga Reddi (1907 I.L.R. 30 M. 537 and the learned Judges (Wallis J. and Krishnaswami Aiyar J.) say that the question whether the transfer of local area from the jurisdiction of one Court to another court would not divest the original court of jurisdiction over even pending suits was a question of ” considerable difficulty.” The learned Judges therefore without deciding that question disposed of the case on the assumption that the notification of the Local Government deprived the Subordinate Judge’s Court of Tuticorin from trying the pending suit and they got over the difficulty by transferring the case to his file from that of the new court (Ramnad Court) to whose file it had been transferred (ex-hypothesi) by the notification. We are inclined to think that the Calcutta decisions in making a distinction between the. jurisdiction to entertain applications and the jurisdiction to pass orders on such applications are not strictly logical and that the court which passed the decree for sale of a property cannot even entertain an application in execution for sale of such properties. However the really important question is now settled in Calcutta namely that the new court which has since obtained territorial jurisdiction over the property ordered to be sold or sought to be attached and sold in execution has jurisdiction both to entertain an application in execution for such sale as also to pass orders on such applications. In Vol. II Encyclopaedia of Law and Procedure pages 713 and 714 the following passages occur: “A proper and lawful exercise of delegated legislative authority or the direct exercise of constitutional power, will operate to abolish a court or not, according to the intent expressed or lawfully to be implied within the principles heretofore stated. This intent governs in determining the effect of the adoption of a new constitution, of the creation, alteration and re-organization of new districts circuits or other judicial sub-divisions of the detaching, attaching annexation and consolidation of districts and the transfer of jurisdiction in general. And it has been held that in the absence of a constitutional or statutory provision to the contrary causes pending in the abolished courts ” (the same principle must apply by analogy where a portion of the jurisdiction is transferred) ” are transferred by operation of law to the new courts no certificate or order transferring them being necessary. The new court will obtain and proceed to exercise jurisdiction over causes lawfully transferred. This rule includes authority to hold the remainder of a term which was in session when the statute took effect, the right to amend records relating to the judicial action of the superseded courts &c. In Vol. 40 Encyclopaedia page 129 it is said ” where pending an action a new county or district is created or existing lines are altered so that the subject matter of the action or the residence of defendant is thrown into a different county or district from what it was when the action was instituted there is Some conflict of authority as to whether the venue should be changed accordingly or whether the action should proceed where it was instituted without a change of venue. The question depends largely upon the provisions of the statute.” In American Digest Vol. 13 at page 1943, a decision is referred to in which it was held that a statute giving exclusive jurisdiction to justices in certain cases and containing no clause saving pending suits, deprived the circuit courts (which till then had jurisdiction over such cases) to try even pending suits. Another case is quoted in which a decree rendered by a probate court in a suit after the court was deprived of its jurisdiction by an Act (which came into force while the suit was pending, was reversed in appeal as passed without jurisdiction. Remington v. Smith 1 Ohio. 53

8. It seems to us on principle that unless the authority which changes the venue reserves the right to the court which” has lost the jurisdiction to continue pending proceedings affecting the property so transferred to another jurisdiction such proceedings are also ipso facto transferred by the change of venue to the new court, the records relating to that action becoming part of the records of the new court. In the present case, it appears that since the change of venue was made from the Srivilliputtur Munsif to the additional District Munsif of Tinnevelly the Srivilliputtur District Munsif sent all the records remaining in his court in E.P. No, 389 of 1909 to the additional District Munsiff’s Court of Tinnevelly thus washing his hands completely of that aftair. We think he was right in doing so As stated in Prem Chand Dey v. Mokhoda Devi (1890) I.L.R. 17 C. 699 (F.B.) “so far as the Procedure Code is concerned execution of decree is only a continuation of the suit and there appears no legitimate reason why the court in the later stages of a suit should have greater powers than it possessed at its institution. But however that may be, a comparison of Section 223 with the last paragraph of Section 649 seems to us to indicate that territorial jurisdiction is a condition precedent to a court executing a decree.” We might add that the new Section 150 introduced by the new Code seems to clearly imply that the whole business of a court might be transferred to another court without any order of transfer being passed by a superior court under Section 24 or any other Section of the Code, either as regards a particular case or as regard all the cases pending in a particular court. The introduction of this new section indicates in our opinion that the Calcutta view which held that by the changes of venue made by a Local Government the business of a court which loses jurisdiction over a certain area so far as it relates to cases affecting the lands in the transferred area will be ipso facto transferred to the new courts has been adopted by the Legislature–we are unable to agree with the learned District Judge that the word ” transfer ” of business under Section 150 covers only transfers made under special provisions of the Civil Procedure Code and we have found it difficult to follow the reasoning of the learned District Judge who relies on Sections 8(1), 13(2)(3) and 17(1) of the Bengal Civil Courts Act. Those provisions appear to us to have little bearing on the decision of this question. In the result we hold that the learned District Judge was right in his conclusion that the additional District Munsift’s Court of Tinnevelly has jurisdiction to continue the proceedings in execution initiated in the Srivilliputtur Munsiff’s Court in 1909. Our reason for that conclusion is that the Srivilliputtur Munsiff’s Court ceased to have jurisdiction to continue the proceedings in execution whereas the reason given by the learned District Judge is that the Srivilliputtur Munsiff’s Court ceases to exist. Even if we are wrong in the above view we are prepared to get over the difficulty sought to be raised on the question of jurisdiction by transferring the execution petition 389 of 1909 from the Srivilliputtur Munsiff’s Court for disposal to the file of the additional District Munsiff of Tinnevelly a similar expedient having been resorted to by the learned Judges who decided the case in Alagappa Mudaliar v. Thiagaraja (1910) M.W.N. 477.

9. The next point sought to be argued by the appellant was whether the execution application of 1909 was barred by limitation. The question of limitation depends upon certain facts alleged by the judgment-debtor the truth of which facts has not been gone into by the lower appellate Court as it was contended by the decree-holder that those facts cannot be gone into and the 2nd defendant being bound by the exparte order of August 1909 allowing execution of the decree in the respondent’s favour. On the other hand the appellant’s contention is that the order of August 1909 being an exparte order is not legally binding on him and has not the legal effect of estopping him from questioning its validity at later stages of the execution proceedings if he proves that he had no notice of the date fixed for the hearing of the execution petition of 1909. The respondent’s rejoinder to this is that till the appellant has that order of August 1909 set aside by proceedings under Section 108 C.P.C. (New Order IX Rule 13) or by proceedings in appeal, it is binding on the appellant and estops him from denying the respondent’s right to execute the decree, Now the order of August 1909 was no doubt an exparte order but it was passed after notice was issued to the 2nd defendant (appellant) to show cause why such an order should not be passed and after the court had satisfied itself on the affidavit and the return of the process-server that the notice had been duly served though by affixture to the outer door of 2nd defendant’s house. An exparte order passed after issue of notice and after the court had held that the service of the notice was duly effected is, it seems to us on general principles binding as res judicata on the defendant just as much as a contested order or decree. It has now been settled, See Hara Chandra Bairagi v. Bepin Behari Das (1910) 13 C.L.J. 38 that an exparte decree does operate as resjudicata. See also Rajah Kumara Venkata Perumal Rajah Bahadur v. Thatha Ramaswami Chetti (1911) I.L.R. 35 M. pp. 84. 85 where Benson and Sundara Aiyar JJ. express the view that an exparte decree does estop the parties to the suit from disputing its validity in law. This effect of an exparte decree or order passed after notice (declared to be duly served on) the respondent does not rest merely upon the provisions of the Civil Procedure Code Section 11 but upon general principles of jurisprudence. Though as pointed out by the Privy Council in Thakur Prasad v. Fakeer Ulla (1894) I.L.R. 17 A. 106 the special provisions of the Civil Procedure Code like the old Sections 43 or 373 or 103 which preclude a litigant from bringing a fresh suit in respect of certain claims though they had not been actually heard and decided in the first suit could not apply to execution proceedings the general principles of jurisprudence which govern the courts as regards res judicata or estoppel by record do apply to execution proceedings and have been so applied following the well-known case of Mungal Pershad v. Grija Lahari (1881) I.L.R. 8 C. 51 by all the Indian courts.

10. There is again no hardship in treating an order passed exparte in execution proceedings as binding on the judgment-debtor provided that notice had been issued to him and had been declared duly affected by the court. For, if he was really ignorant of the notice, he is entitled under Section 108 C.P.C. (Order IX Rule 13 of the new code) to have the exparte order set aside by putting in his application within one month of his knowledge of the order under Article 164 of the Limitation Act. It is contended by the appellant’s learned Vakil, Mr. L.A. Govindaraghava Aiyar that Order IX Rule 13 C.P.C. does not apply to exparte orders passed in execution but only to exparte decrees in suits. We think that that argument cannot be accepted. Orders in execution which come under Section 47 C. P. C, are decrees as defined in Section 2 of the Code and hence exparte orders passed in execution are exparte decrees and Order IX Rule 13 provides generally for the setting aside of exparte decrees and not only for the setting aside of those classes of exparte decrees which are not also orders passed under Section 47 in execution proceedings. We are fortified in this view by the decision in Krishna Chandra Pal v. Protap Chandra Pal (1906) 3 C.L.J. 276.

11. As regards the obiter dictum of Mookerjee J. in Asim Mandal v. Raj Mohan Das (1912) 15 C.L.J. 532, that the whole of the rules in Order IX do not apply to execution proceedings we need only say that the learned Judge was not directing the attention to every one of the 14 rules in Order IX when he pronounced that dictum but was generally considering the question whether the bar of fresh proceedings in suits enacted in Rules 9,12 and so on will apply to execution proceedings. There is no allusion in the learned Judge’s decision to the case in Krishna Chandra Pal v. Protap Chandra Pal (1906) 3 C.L.J. 276 which directly held that Section 108 (Order IX Rule 13) applied to execution proceedings. The arguments of the appellant’s learned vakil based on the fact that in Article 164 of the Limitation Act the general expression “Summons” is used instead of ” Summons or notice ” does not convince us that Article 164 was intended to apply to decrees strictly so-called and not to orders in execution which come under the definition of decrees in the Civil Procedure Code. Besides the remedy under Section 108, the defendant could also have sought the remedy by way of appeal against the exparte order. We are therefore reasonably clear that the exparte order of August 1909 allowing execution in favour of the respondent cannot be questioned in the further stages of the execution proceedings by the appellant. The learned District Judge was therefore right in refusing to go into the question whether the respondent was barred by limitation or any other cause from prosecuting the execution petition 389 of 1909.

12. It is next contended that the unstamped objection statement dated 27th July 1911 put in by the 2nd defendant might be treated as an application (under Order IX Rule 13) to set aside the expert order passed in August 1909 in the respondent’s favour and that an opportunity should be given to the appellant to prove as such applicant that he was not duly served with notice of the execution petition before that order of August 1902 was passed and that he had no knowledge of the passing of that order till within one month of his filing this statement in July 1911. No doubt in the case in Mochai Mandal v. Mesuruddin Mollah (1910) 13 C.L.J. 26 an objection by the judgment-debtor that no notice had been really served upon him and that he had no knowledge of an order passed against him allowing execution of the decree was treated as of the same effect as an application to set aside the exparte order allowing execution and on its being not denied by the decree-holder that the judgment-debtor had not been duly served and did not have knowledge of the previous order allowing execution till 8 days before the judgment-debtor preferred his objections that order was treated as not binding upon him. But we think in the present case the objection statement of July 1911 cannot be treated as an objection to set aside the exparte order of August 1909 (a) as it is not stamped as an application (6) as there is no prayer in that statement to set aside the order of August 1909 and (c) as it does not appear from it when the 2nd defendant had notice of the order of 2nd December 1909 that is whether he had notice only within one month of the filing of the Memorandum of objections, and whether, if the objection statement be treated as an application to set aside the order of August 1909 such an application is not barred by limitation. If 2nd defendant had knowledge as seems probable from the other proceedings in the case of the order of August 1909 more than, a month before the, filing of the statement of objections in July 1911 he was barred from applying to set aside the exparte order of 1909.

13. In the result we dismiss the appeal with costs.


Leave a Reply

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

68 queries in 1.698 seconds.