A positive order allowing the execution of a decree, where a plea of limitation was raised, constitutes a binding decision on that plea. If not appealed, the issue of limitation is decided and cannot be reopened in subsequent proceedings.

Judgement

Appeal from a judgment and decree of the High Court (March 7, 1918) affirming a judgment of the Subordinate Judge of Ramnad.

The judgment of the Subordinate Judge dismissed an application made on March 2, 1916, by the appellant, the assignee of a partially executed decree dated September 26, 1907, for the attachment of certain properties of the respondents, the judgment debtors. The Subordinate Judge held that execution of the decree was barred by art, 182 of Sched. I. of the Indian Limitation Act, 1908 .

The facts appear from the judgment of their Lordships.

Oldfield and Bakewell JJ., who heard the appeal to the High Court, said in their judgment "In that

41 Law. Rep. 48 Ind. App. 45 ( 1920- 1921)

Raja of Ramnad V. Velusami Tevar 142

order (namely, the order of December 13, 1915) the lower Court no doubt said, The transfer of the decree in favour of petitioner is recognised and petitioner is allowed to execute the decree.

But we agree with the lower Court that the last eight words cannot be read as an adjudication on all respondents objections to his doing so, including that regarding limitation which they had undoubtedly made. First, these words are used in connection with the reference to recognition and there is nothing regarding limitation either before or after them, although the argument on it deserved at least mention. Secondly, the conclusion of the order is not the grant of execu tion as prayed, but a statement that petitioner may put in a fresh petition ; and there is no valid reason for assuming that only the identity of the property to be attached as assets of the deceased judgment-debtor was to be considered when he did so.....It does not purport to decide anything regarding limitation and we cannot hold that it does so by implication."

1920. Nov. 15. De Gruyther K.C. and Kenworthy Brown for the appellant. The question of limitation was a res judicata having regard to the order of December 13, 1915. [Reference was made to Code of Civil Procedure, 1908, s. 11; Mungul Pershad Dichit v. Grija Chit Lahiri (( 1881) L. R. 8 I. A. 123.) ; Krishna Behari Roy v. Brojeshwari (( 1875) L. R. 2 I. A. 283.) ; Ram Kirpal Shukul v. Rup Kuari (( 1883) L. R. 11 I. A. 37.) ; Mulidhar Sukul v. Nursingh Das (( 1911) 17 Cal. W. N. 113.) ; Indian Limitation Act, 1908 , s. 5.]

The respondents did not appear.

Dec. 13. The judgment of their Lordships was delivered by

LORD MOULTON. In this appeal the appellant is the assignee of a decree against the defendants (some of whom are minors and are represented by their guardian) which was passed on September 26, 1907. The amount of the decree was Rs. 35,063 and interest. The decree was in favour of the plaintiffs in the suit and went on to order that the plaintiffs should at once draw out the money in Court which was a sum of about Rs. 3000, and that the first and second defen dants should repay the balance within three months with interest and costs, and in default of such payment that the plaintiffs should recover the same by the sale of the entire cowle right possessed by them including the interest if any of the third defendant also, and if the sale proceeds were not sufficient for the purpose the plaintiff should recover the , deficiency from the first and second defendants.

The judgment debtors made no payment and accordingly in January, 1909, the decree holder put in his application for execution by sale and realized Rs. 27,000, and in December, 1909, the sale was confirmed and possession delivered. An appeal was brought by the judgment debtors to the High Court, but this was dismissed on April 8, 1911.

By the actual sale of the village, the further amount recoverable from the first and second defendants under the decree became definitely ascertained, and on March 9, 1914, the then plaintiffs proceeded with the execution of the decree.

While these proceedings were in progress, the present appellant purchased the decree from the then plaintiffs, and on November 20, 1914, made hi