The main legal point established in the judgment is the applicability of the principle of res judicata in execution proceedings, highlighting that the judgment-debtor is not debarred from raising the question of limitation later if no objection is taken and the application for execution does not fructify.

Patanjali Sastri, J.

1. This is an appeal from an order of the District Court of Anantapur overruling certain objections raised by the appellants to the execution of a decree obtained by the respondents and allowing execution to proceed.

2. The appellants are members of a Hindu undivided family, the third appellant being the father and the appellants 1 and 2 his minor sons. The decree passed against them directed delivery of possession of certain Immovable properties and payment of a certain sum as mesne profits. The Immovable properties have been delivered and the present execution proceedings relate to the recovery of the mesne profits. Under the decree, these were recoverable from the third appellant personally and from the family properties of all the appellants. There have been numerous applications to execute the decree but none of them has so far proved fruitful owing mainly to the laches of the respondents themselves in the conduct of those proceedings. It is unnecessary, however, to set out all those proceedings for the purposes of this appeal and it is sufficient to refer to one of them, E. P. No. 5 of 1930, instituted against the third appellant alone on 27th January, 1930. It is not now disputed that this petition was barred by time but though notice to show cause why the decree should not be executed was duly served on the third appellant, he did not appear and oppose the application, and the Court ordered the issue of a warrant for his arrest on 22nd February, 1930. The respondents, however, failed to pay the requisite fee for the issue of the process and the petition was dismissed on 10th March, 1930. There was another application for execution put in 1933 within three years of the previous one and this also having been dismissed for default, the present petition E. P. No. 86 of 1936 out of which these proceedings have arisen was filed on 7th October, 1936. It may be mentioned here that though the appellants 1 and 2 have also been made parties to this petition, it is not disputed that it is barred so far as they are concerned as they were not made parties to the earlier proceedings and indeed the respondents have given up their claim to execute the decree directly against their shares of the family properties. But in answer to the third appellants plea of limitation, based upon E. P. No. 5 of 1930 having itself been filed beyond time, the respondents urge that arrest of the third appellant having been ordered on that petition, he is precluded by the principle of res judicata from raising the plea, and the first question for determination is whether this contention is correct.

3. Now, it is well-settled that the principle of res judicata is applicable to execution proceedings, though Section 11 of the Code of Civil Procedure does not in terms apply (see Ram Kirpal v. Rup Kuari (1883) I L.R. 6 All. 269 : L.R. 11 IndAp 37 . But in view of the practice of the Courts, whenever an impediment arises to execution, to dismiss the application allowing the decree-holder to apply again, the question frequently arises as to how far orders passed on previous execution petitions which have been eventually dismissed can be held to preclude parties from raising in subsequent proceedings matters which were not expressly determined by the prior order. After an elaborate consideration of this question, Sulaiman, C.J., laid down in Ganga Lal v. Hasari Lal I.L.R.(1935)All. 313 , certain propositions the last of which is relevant to the present case and has been strongly pressed upon us by learned Counsel for the appellants:

Where no objection is taken, but the application for execution does not fructify, the judgment-debtor is not debarred by the principle of res judicata from raising the question of limitation later.

4. The learned Chief Justice based this conclusion, apart from certain analogies derived from the application of the principle to findings in favour of defendants in suits which are eventually dismissed, upon the pro