Law: Civil Procedure Code (V of 1908)

Section: 11, 47

Civil Procedure Code (V of 1908), Ss. I1 & 47 and O. XXI, r. 10 read with Limitation Act (IX of 1908), Art. 181(S) Execution proceedings ---Limitation ----Res judicata--- Previous execution application dismissed for default-No adjudication as to limitation made by execution Court-Question of limitation can be raised on subsequent execution application being filed -----Res judicata-Principle applicable only if there was express or implied determination of question in previous proceeding. A notice under Order XXI, rule 22 has served on the judg ment-debtor who appeared and prayed for time for filing objection to the execution. When the case was taken up on the adjourned date to enable the Judgment-debtor to file the objection he did not appear. The Court did not give any direction to the decrees bolder to take further steps. In the absence of any such direction it cannot be said that the executing Court impliedly determined the question of limitation. A decree-holder is entitled to ask for execution within three years from date of the decree or where an application for execu tion is filed the limitation would run from the date of the final order passed thereon. But the application contemplated in clause (5) of Art. 182, Limitation Act is an application giving rise to mortgage Execution Case instituted previously which was filed admittedly beyond three years It is, therefore, of paramount importance to examine and hold if in that petition the question of limitation was impliedly adjudicated upon. There must be some order which may be construed to hold that there was an implied adjudication of the decree being execut able. There was no order in the execution case showing that there was an implied decision relating to executability of the decree. Mungul Pershad Dichit and another v. Grija Kant Lahirl Chowdhury 8 I A 123; Murlidhar Suku v. Nursingh Das 17 C W N 113; Lalit Mohan Roy and others v. Sarat Chandra Saha A I R 1933 Cal. 855; Promoth Nath Daw v. Habu Mia and another A I R 1945 Cal. 335 ; Aswani Kumar Das Gupta and others v. Karamat All Khan A I R 1948 Cal. 165 and Krishna Mohan Samanta and another v. Khanda Moyee Dasi A I R 1954 Cal. 295 distinguished.…