1. The plaintiff obtained a decree on a mortgage against the defendants. The decree directed a certain amount to be paid with future interest on the principal at 18 per cent, per annum. Various payments were made by the defendants from time to time. There have in all been fourteen applications by the plaintiff for execution. In the first twelve applications, he appropriated the payments in a certain way which it is unnecessary to describe. In the 13th application, that is, the one immediately preceding the present one, he made his calculation of the amount due to him in quite a different way with the result that the amount was shown to be much larger than what would be due according to the method of calculation adopted in the previous applications. The Court held without issuing notice to defendants that the plaintiff was not entitled to the larger amount and returned his application with the direction that he should amend the amount due to him in accordance with the mode of calculation previously adopted by him. He never appealed against this order nor did he obey the direction to amend his petition. It was accordingly rejected. He put in the present application after the period allowed for amendment had elapsed but before the previous application was rejected. He made his claim in the present application on the same basis as in the 13th application. The District Munsif held that he could not do so. On appeal, the District Judge held that the plaintiff was not bound to adopt the mode of calculation previously adopted erroneously in the Judge's opinion. We are of opinion that the order of the Munsif on the 13th application, holding that the plaintiff was not entitled to claim a larger amount on a new basis, must be held to bar the contention that he is entitled to do so. The order was a judicial adjudication that the plaintiff was not entitled to calculate the amount due to him on a certain basis. The plaintiff was certainly entitled to appeal against it, if so advised, and he failed to do so. The ground on which the District Judge has held the contrary view is that the order was passed without notice to the defendants and could not, therefore be regarded as a decision between the two parties. In our opinion, this view is wrong. The plaintiff's petition for execution was a proceeding between him and the defendants and the order decided the question of the plaintiff's right as against them. The fact that the defendants were not called upon to appear and answer the plaintiff's claim is immaterial. Suppose a suit is dismissed as barred by limitation without notice to the defendant on the ground that the plaintiff's own allegation shows that the suit is barred. It would be impossible to hold that the plaintiff could sue again on the same cause of action if any such order is against the defendant and further proceedings in execution are subsequently dropped and afterwards commenced again, the previous order against the defendant would not bar him from setting up any defence that may have been adjudicated on without notice to him.
2. This is not on the ground that the former order was not one passed between the parties, but because an ex parte order cannot bind a party against whom it is passed without his having an opportunity to make his defence.
3. But the bar of former adjudication cannot be avoided by a party who had such opportunity. The learned vakil for the respondent has relied on three cases in support of his contention that the former order is not conclusive against his client. Hira Lal Bose…Decree-Holder, v. Dwija Charan Bose…Judgment-Debtor, .(1), Bholanath Das v. Profulla Nath Kundu Chowdhry(2), Delhi and London Bank, Ltd. v. Orchard(3); but none of these is in point. In Bholanath Das v. Projulla Nath Kundu Chowdhry the judgment-debtor put in a counter-petition stating that the plaintiff's application for execution was barred. Both parties failed to appear on the date fixed for the hearing and the Court dismissed for default both the petition for execution and the counter-petition. When the plaintiff again applied for execution, the defendant again set up the plea of limitation and the Court held that the former order did not bar his plea as the dismissal of the counter-petition was not based on the merits of the plea. In Hira Lal Bose…Decree-Holder, v. Dwija Charan Bose…Judgment-Debtor, . also, the previous application for execution was struck off without any judicial determination of the question of limitation which was set up in the subsequent application. In Delhi and London Bank, Ltd. v. Orchard, the head-note of which in the report is inaccurate, all that their Lordships of the Privy Council held was that an order sending an application for execution to the record room on the ground of the non-receipt of the Commissioner's sanction, which was required under the law, was not a judicial determination of any question between the parties. There was no decision on the question of limitation at all: see the case explained in Manjunath Bhadrabhat v. Venkatesh Govind Shanbhog(4).
4. We reverse the order of the lower appellate Court. The plaintiff may amend his petition by substituting the amount due to him in accordance with his former calculation. He must pay the appellant's costs here and in lower appellate Court.
5. The case is remanded to the District Munsif's Court for fresh disposal according to law.
S.N/R.K
6. Case remanded.