The main legal point established in the judgment is that a reminder petition in the execution of a decree is not time-barred and is not barred by res judicata.

Pakenham Walsh, J.

1. The respondent is a judgment-creditor who purchased in Court sale certain properties which he had brought to sale under his decree. His sale was confirmed on 30th August, 1921 and he got possession of some of the properties. On a delivery petition filed by him on 22nd September, 1921. Item 6, however, a house, was not delivered. On 23rd September, 1924, he put in another delivery petition stating that the house in question and the garden attached thereto could not be delivered to him in the previous delivery order as the said house was locked and the house and garden were in the possession of the judgment-debtors. The order passed on this was "Deliver 9-12-1924" and is dated 13th November, 1924.

2. On 11th March, 1926, he put in another petition wherein he stated that even though order for delivery was sent, he could not get possession from the defendants as the said house was under lock and key and was still under lock and key. This execution petition was dismissed as time-barred on the authority of Sree Rajah Vadrevu Viswasundara Rao v. Vannam Paidigadu (1925) 50 M.L.J. 72 which held that Article 180 of the Limitation Act applied to such a case and that the application being made more than three years after the date of sale was time-barred. The present application was filed on 3rd March, 1927. It was allowed by the learned District Munsif who relied on Kannan v. Avvulla Haji (1926) I.L.R. 50 Mad. 403 : 50 M.L.J. 1 and on Varadaraja Mudali v. Murugesam Pillai I.L.R.(1915) 39 Mad. 923 : (1915) 30 M.L.J. 460. The order was confirmed in appeal by the learned Subordinate Judge and against this the present appeal is filed by the legal representative of one of the judgment-debtors. Two questions arise for consideration:

(1) Is the present application per se barred by limitation?

(2) If it is not per se barred, is it barred on the principle of "res judicata" by the decision on the execution petition presented on 11th March, 1926?

3. I will deal with the latter point first. The learned Subordinate Judge held that it was not barred on the principle of res judicata because notice had not been sent to the judgment-debtors and also because the former order had proceeded on the view of the law that then existed as to procedure and that it is laid down in Varadaraja Mudali v. Murugesam Pillai I.L.R.(1915) 39 Mad. 923 : 30 M.L.J. 460 that a decision especially on procedure cannot be treated as res judicata when the law relating to procedure is held to be different.

4. For the first position he quotes no authority and it is clearly not sustainable. The want of notice to the judgment-debtors will not make the dismissal of the execution petition put in by the judgment-creditor any the less res judicata against the latter vide Vyapuri Goundan v. Chidambara Mudaliar I.L.R.(1912) 37 Mad. 314 : 24 Mad. 26 followed in Ramalinga Rowthan v. Sheik Ibrahim Sahib (1920) 12 L.W. 34 and Lalumia v. Hannissa 1926 M.W.N. 317. With regard to the second position Varadaraja Mudali v. Murugesam Pillai I.L.R.(1915) 39 Mad. 923 : (1915) 30 M.L.J. 460 has not been quoted accurately. What was laid down there was that a decision especially on procedure cannot be treated as res judicata when the procedure itself is changed by the Statute Law, It is not contended that there has been any change in the Statute Law here. The learned Subordinate Judge while he mentions that notice was not served on the judgment-debtor does not say that he relies on this and he rests his decision on the ground, which has also been taken before me, that the petitioner is entitled to ignore the petition of 11th March, 1926, as the original delivery petitions had not been disposed of.

5. The final order on the first petition of 22nd September, 1921, was simply "closed" and on the petition of 23rd September, 1924 "deliver 9-12-1924" after which there is no further order on it. There seems to be very little authority on the question as to what is the position of a decree-h