Notice of execution of judgment debtor.

The appellants are the judgment-debtors in O.S.No.276 of 1936 on the file of the District Munsif’s Court, Repalle, and this appeal arises out of the execution proceedings taken out by the plaintiff decree-holder. The main point for determination in this appeal is as to whether the execution petition is barred by limitation. The decree was passed on 8th March, 1939. The first execution petition was on 2nd March, 1942, which was dismissed on 21st March, 1942, as not pressed. The second execution was taken out in E.P.No.72 of 1946 filed on 31st January, 1946, admittedly more than three years after the disposal of the prior execution. In E.P.No.72 of 1946 the decree-holder alleged a payment of Rs.25 said to have been made by the judgment-debtors on 6th February, 1944 and relied on that payment as an acknowledgment saving the proceeding from the bar of limitation. That petition was returned from time to time for information as to the fact and mode of the payment of Rs.25 and eventually on 28th February, 1946, the court ordered notice under Order 21, rule 22, Civil Procedure Code and the endorsement on the petition, on that date, was as follows:

“The previous E.P. was rejected on 21st March, 1942, as it was not pressed. This E. P. is filed on 31st January, 1946, after the lapse of the three years from the date of last order and as such the decree is barred by limitation. But the petitioner relies on an uncertified payment of Rs.25 on 6th February, 1944, which is shown in col. 7 of this E.P. He further represents that mere showing of a payment on an execution petition amounts to certifying the payment. Authority is not cited in support of this contention.

Notices subject to questions of limitation 28th March, 1946.”

On 18th April, 1946, arrest was ordered. The present execution petition out of which this appeal arises is E.P.No.37 of 1947 presented on 3rd February, 1947. Objection was taken on behalf of the appellants that in fact no payment of Rs.25. or any other sum was made, as urged by the plaintiff, that the earlier E.P.No.72 of 1946 was barred by limitation and the present Execution Petition was equally barred and that, in any event, the payment relied upon could not save the bar of limitation, not having been certified by court and not having been evidenced in writing. The objection of the appellants was upheld by the learned District Munsif, and, in appeal, the learned Subordinate Judge, Tenali, while holding in favour of the appellants that the payment relied upon in E.P.No.72 of 1946 was not true and that, even if it was true, it would not save limitation, as there was no evidence in writing, however, allowed the appeal and remanded the petition holding that the order, dated 18th April, 1946, in E.P.No.72 of 1946 operates as res judicata and the judgment-debtors are barred in the present Execution Petition from raising the question that E.P.No.72 of 1946 was barred by limitation.

It is contended on behalf of the appellants that the notice under Order 21, rule 22, Civil Procedure Code, did not mention that the question as to whether the execution application was in time was to be decided, that is, that the question of limitation was raised and remained to be adjudicated upon though the notice that was directed to the appellants was subject to the question of limitation, the court intending thereby that the appellants should be given notice that a question of limitation had been raised and would be decided and the appellants had to show cause why it should not be decided against them and execution issued, and that unless the notice did in express terms inform the judgment-debtors of the point to be decided, any order allowing execution to proceed expressly or impliedly deciding the question in favour of the decree-holder would not be res judicata in subsequent proceedings. Reliance is placed in support of this proposition on the following decisions, viz., Adaikappa v. Natesan1, Subramania Ayyar v. Raja Rajeswara Dorai2,