JUDGMENT

Radha Krishna, J - This is a decree-holder's appeal arising out of an execution case. The facts are that the decree-holder obtained a decree for money on 28th August 1928, under Order 34, Rule 6, Civil P.C. There were several execution applications by the decree-holder. One of these applications was consigned to records on 1st August 1932. The next application for execution was made by the decree-holder on 2nd August 1935, and it is apparent that it was beyond limitation by one day. Notice was issued to the judgment-debtor under Order 21, Rule 22, Civil P.C., for 22nd August 1935. On this date the judgment-debtor, although served with the notice, did not appear. The decree-holder expressed a desire that his application be consigned to records and thereupon the execution Court passed the following order:

Let the case be consigned to records as desired by the decree-holder's agent. The decree-holder shall get costs of the application. Balance is Rs. 439-13-0.

2. The present application for execution was made on 11th January 1937. The munsarim reported that the present application, although it was within three years of the order on the previous application was time-barred because the previous application itself had been filed beyond time. The two Courts below have held that the present application is beyond limitation, and the decree-holder has come up in appeal to this Court. The learned Counsel for the appellant has argued that as the Court in consigning his previous application for execution to records allowed him costs for execution and laid down in the order the balance due to him, therefore it must be held that the Court impliedly decided that his application was within time. That the judgment-debtor had been served with a notice to appear and to show cause why the decree should not be executed, and had failed to appear. Now he is debarred by the provisions of Section 11 from raising that question at the time of the present application. The question that an ex parte order passed by an execution Court allowing the execution to proceed is as much binding upon the judgment-debtor as an order on contest, is not open to dispute. The real question for decision is whether the order dated 22nd August 1935, can be said to have impliedly decided against the judgment-debtor that the application was within time and that the execution was to proceed. It is contended that the execution Court could not award costs to the decree-holder and strike the balance due on that date unless it had impliedly decided that the application for execution was within time. In my opinion, the answer to the question whether in a particular case there has been implied adjudication of the question of limitation depends upon the circumstances of each case. If the execution Court had passed any effective order for further execution to the detriment of the judgment-debtor it might safely be inferred that there had been an implied adjudication of the question of limitation. In my opinion awarding costs of execution to the decree-holder and noting the balance due, under the decree are mere formal matters and of a ministerial character and do not involve any adjudication of the question whether the application is capable of being proceeded with or not.

3. The learned Counsel for the appellant has cited several cases in support of his contention, amongst which I may mention Gauri Shankar v. Mt. Lachhmin Kunwar (1916) 3 AIR Oudh 278, and Raghubar Singh v. Gokaran (1926) 13 AIR Oudh 291. These cases, in my opinion, support the view that I have expressed above. In the former case, Gauri Shankar v. Mt. Lachhmin Kunwar (1916) 3 AIR Oudh 278. Mr. Stuart (later Sir Louis Stuart, Chief Judge of this Court) laid down as follows:

In order to enable a decree to be executed in spite of the fact that execution is time-barred it is necessary to establish that notice requiring the judgment-debtor to show cause why the decree should not be executed against him has been ser