Ray, J.:— This is a judgment-debtor's second appeal against the order of the 1st Additional Subordinate Judge of Saran, dated the 10th August, 1944, reversing that of the Munsif and directing that the execution case be restored to file and be disposed of according to law.

Put shortly, the facts are that the plaintiff-decree-holder filed a representative suit against the appellant-judgment-debtor, for removal of obstructions, from a village public path, created by erection of a chabutra. The land concerned did belong to the judgment-debtor but it was subject to an encumbrance of right of way enuring to the benefit of the villagers. The plaintiff obtained a decree on the 22nd of November, 1928. The decree of the Court was based upon two awards given by arbitrators, to whom the subject-matter of the suit had been referred, with leave of the Court. The awards were, dated 20th of August, 1928, and 27th of September, 1928, with which I shall deal in a little more detail presently.

The suit as originally framed involved a prayer for issue of a permanent injunction as against the defendants in the following terms

“that on passing a decree in respect of the above facts, it may be held by the Court that the said pathways which are shown by letters A, B, C, and D in the map annexed to the plaint are from time immemorial existing, that the survey entry contrary to this is wrong, that the plaintiff or other persons are not bound thereby, that the conveyance of the plaintiff and others, namely, bullock-carts, elephants, and horses have passed along the same and that the plaintiff and others have acquired right of easement also in the said pathways, that on the determination of the above reliefs defendant no. 1 may be ordered to remove all the obstructions from the said pathways which he has caused thereupon just north and west of the verandah of his old dalan and he may be restrained by means of permanent injunction from making new obstructions on the said pathways so that the grievance of the plaintiff and others may be redressed”.

The arbitrators, however, in framing their awards did not conform to the nature of reliefs as cast in the plaint, and accordingly the decree that followed did not in clear and express words purport to grant a permanent injunction restraining the defendant-judgment-debtors from committing nuisance of obstructing the alleged pathways. It is clear, however, that the plaintiff's relief of having the obstruction” offered by the defendant's chabutra removed, was not granted. The arbitrators, however, expressly declared that the plaintiffs (in other words, the village public) had a right of way on lands adjoining the chabutra, on its three sides and a continuous pathway from east to west to their respective houses on the west.

The present execution has been levied by an application, dated the 14th September, 1943, which admittedly is more than 12 years from the decree which, as already stated, was passed on the 22nd of November, 1928. The obvious objection, therefore, is that the decree has lapsed and is incapable of execution being contrary to the provisions of section 48 of the Civil Procedure Code. To this objection of the judgment-debtor, the decree-holder's reply is that the decree under execution being one for a permanent injunction, the 12 years' rule of limitation does not apply, and that the decree was finally amended on the 1st of December, 1941, in accordance with the orders of the High Court, and as such, the execution, is not time-barred being within three years of the amended decree.

The judgment-debtor, besides the plea of limitation, also advanced further pleas, namely, of res judicata or estoppel by judgment.

To bring the contentions advanced by the respective parties to relief, a short narration of events that have happened between the date of the decree and the date of this execution has to be set out.

The earliest execution that was launched was on the 20th of September, 1929, and the mode in which the Court's assistance was sought for enforcing the decree was to get the pathway demarcated and possession thereof delivered. This execution case was filed in Court of the 3rd Munsif of Chapra. The decree-holder made an application for amendment of the decree in the 1st Munsifs Court, Chapra, which was in the long run disallowed on the 10th June, 1930. The aforesaid execution case was dismissed, for default on the 30th of January, 1930. No further steps were taken for executing the decree till 1940 when Execution Case no. 623 of 1940 was again filed for demarcating the pathway and delivery of its possession. This execution was resisted by the judgment-debtor on the ground that it was barred by limitation. The judgment-debtor's plea found favour with the executing court who dismissed the same on 2nd of July, 1940. An appeal was taken to the Court of the District Judge, from this order of the Munsif dismissing the execution case, and the learned District Judge also agreed with the Munsif and dismissed the appeal on the 19th of February, 1940. No appeal was taken to this Court as against the aforesaid appellate order dismissing the execution case as barred by limitation.

During the pendency of this execution case, there was another application for amendment of the decree on the 21st of March, 1940, and the amendment was allowed by the Munsif on the 26th of February, 1941. Against this order of amendment petition for revision was filed in this Court and by the Court's order passed by Manohar Lall, J., on the 12th of September, 1941, the order of the Munsif was set aside. His Lordship, however, ordered that such portion of the plaint, as may be thought necessary, may be incorporated in the decree, but, in other respects, the decree must stand as it stood on the 22nd of November, 1928. This order was presumably complied with by incorporating a part of the plaint as directed on the 1st of December, 1941.

This was followed by another Execution Case no. 526 of 1941 filed in the 1st Munsif's Court, Chapra. In this proceeding too the decree-holder sought the relief of executing the decree by demarcating the pathways and delivering possession thereof. The learned Munsif dismissed the execution case on the 8th April, 1942, on the ground that it was barred by limitation. Then followed another execution case by the decree-holder in the 3rd Munsif's Court, Chapra, no. 38 of 1943 instituted on the 2nd of March, 1943. The mode of execution sought was also the same as on previous occasions and this too shared the same fate being dismissed as time-barred on the 7th of September, 1943. The decree-holder preferred two appeals against the orders mentioned above, and they were heard analogously by the appellate court who dismissed both the appeals upholding the orders of both the Munsifs to the effect that the execution cases had been barred by limitation. The date assigned to the appellate court's order is the 26th of June, 1944. The decree-holder filed an application for review of the appellate court's order which was also dismissed on the 18th of November, 1944.

During the pendency of the above appeals, another Execution Case no. 1115 of 1943 was filed on the 14th of September, 1943, in the 1st Munsif's Court, Chapra. In this execution petition the decree-holder sought the aid of the Court to enforce the decree so far as it related to removal of obstruction caused to the pathways sometime in January, 1942. In this respect the execution petition presented a different feature. The learned Munsif dismissed the execution case on grounds that the decree not being one granting an injunction (1) it was barred by the provisions of section 48, the amendment of the 1st December, 1941, notwithstanding, (2) and that it was barred by res judicata on account of the previous Execution Case no. 526 of 1941 having been dismissed as barred by limitation. From this order an appeal was preferred and the same was disposed of by the 1st Additional Subordinate Judge, Saran, who by his order under appeal held in effect that the obstruction caused in January, 1942, gave rise to a fresh cause of action, and that it has to be decided on merits whether the alleged cause of action is real, and, if so, the execution should proceed as, according to him, it was not barred by three years' rule of limitation, nor by the provisions of section 48 of the Civil Procedure Code. He rests his judgment on a reasoning which appears from the passage quoted below:—

“Since the matter was referred to arbitration the arbitrators did not in clear and unequivocal language permanently injunct the defendant. Nevertheless there can be little doubt that the purport of the award was an injunction. The award reads thus After a due consideration of all the circumstances we are of opinion that, the land belongs to the defendant Babu Ram Prasad, but the public and carts used to pass over it from a long time. Hence we allow the existing chabutra already built by Babu Ram Prasad to stand, but just contiguous to chabutra towards north, east and west of it there will be ten feet wide land left for the passage of the public and bullock carts and conveyances without any obstruction by Babu Ram Prasad and to the north of the said left ten feet Babu Ram Prasad will have his land up to the verandah of Ramsarup Lal defendant in the case, and the plaintiff and other members of the public will be entitled to go to their respective houses and to take their conveyances, bullock carts, etc., from east to west passing over this ten feet road running by the east, north and west side of the said chabutra; and the public going to the well on the north of the said chabutra will also have a right of way over the said ten feet land. Thus it will be seen that there is no clear and unequivocal language of injunction against the defendant in the award. Nevertheless their injunction is implied in it since the arbitrators held that the land belonged to defendant but gave some of it namely the portion on which the chabutra had already been constructed by defendant to the defendant and gave the plaintiffs and the public the right of use of 10 feet width of land on the contiguous east, north and west of the said chabutra. There was no meaning in making an award of this sort if the said award could be disobeyed safely more than, 12 years later because of the barrier of limitation. If that was so, then of what use was such an award because once 12 years from the date of the decree had expired the defendant could ignore it as the plaintiff would not be able to put such a decree into execution because of the 12 years period of limitation.”

Out of the complex of facts set forth above, the following questions emerge for consideration, viz., (1) what is the effect of the amendment made in the decree on the 1st of December, 1941, on the operation of section 48 of the Civil Procedure Code as a bar to its execution; (2) whether the decree is one to which section 48 of the Civil Procedure Code is applicable; (3) whether the execution is barred by limitation; and (4) whether the issue of limitation is barred by res judicata.

The first question as propounded above admits of a ready answer. According to section 48, the question of amendment is of no relevance. The section itself is a self-contained one and provides for all such contingencies as may operate to postpone the starting point of the period of 12 years. Amongst the contingencies so enumerated in clause (b) of sub-section (1) and clauses (a) and (b) of sub-section (2) of the section, an amendment subsequent to the date of the decree does not find place. Therefore, unless the decree either in its original form or in its amended form is construed to be a decree granting an injunction, section 48 is certainly a bar to the execution of the decree irrespective of its having undergone a change by its amendment. I am reinforced in the view of mine by the decisions in the cases of Paladugu Veer a Ramchandra Rao v. Paladugu Parasuramayya(1) and Faquir Chand v. Kundan Singh(2).

I shall now proceed to determine the nature of the decree in order to find out if it is one to which section 48 of the Civil Procedure Code is applicable. For this, a close examination of facts relevant to the question is required.

To start with the plaintiff's case as set out in the plaint was that there was a pathway bearing survey no. 343 of the earlier survey which passed from east to west on the north of a verandah attached to defendant no. 1's old dalan and on its west it passed in a southerly direction passing by the western side of the plaintiff's house and joined a road going to the station, and the said pathway was joined at a place just to the north of the aforesaid verandah by another pathway running - north to south on the east of the house of defendant no. 3. The junction of the two pathways used to serve the purpose of a public open and also a courtyard for the houses of defendants 1 to 3 all of which opened to the said courtyard. According to the plaintiff, the defendant no. 1 got certain fraudulent entries to be made in respect of the junction of the aforesaid pathways as a result of which the pathways, proceeding from the said junction one to the north and the other to the west for some distance and then to the south, closed according to the recent survey map. The obstructions complained of as having been caused to the said pathways by the defendants were (1) construction of a chabutra (platform) together with steps about 9×7 cubits, (2) projection of the thatched frame of the, verandah of the old dalan upon the pathway to the extent of 2 cubits, (3) heaping a pile of bricks on the pathway to the west of the defendant no. 1's old dalan leaving only 2 to 3 feet, of the pathway and (4) digging of ditches at a place in the junction of the pathways to the east of the house of defendant no. 3 and south of the verandah of defendant no. 1 as deep as a man's height. The cause of action as stated in the plaint was persistent refusal on the part of the defendants to remove these obstructions which in consequence paralysed transport of men and conveyances of the villagers to their houses. The relief sought was to have a declaration that these pathways existed immemorially and the village public had a right to pass over them with conveyances, such as bullock-carts, elephants and horses. To this declaratory relief was added two consequential reliefs, namely, (1) removal of the obstructions alleged in the plaint and (2) permanently restraining the defendants from making new obstructions on the said pathways. The rest of the reliefs prayed for are not material for the purpose of this case.

As already indicated, the subject-matter of the suit was submitted to arbitration by reference from Court and the arbitrators submitted their first award on the 20th of August, 1928. The scope of the reference will appear from the award itself and we have not got either the order of reference or the petition of the parties defining this scope. The award starts with the following words:—

“This is a suit for declaration of public right of way over the disputed land. The defendant claims the land in front of his house as part of his homestead land. We held local inspection in presence of the parties and pleaders and read the evidence already recorded in Court and went through documents filed by both sides and heard arguments advanced by both sides”.

The decision of the arbitrators in the first award is to the effect:—

(1) That the land belonged to the defendant, Babu Ram Prasad, (2) that the public and their conveyances used to pass over it from a long time, (3) that the existing chabutra already built on the, land by Babu Ram Prasad should stand, (4) that there would be left 10 feet wide land just contiguous to the chabutra on its north, east and west for the passage, (5) that the village public, their carts and other conveyances will be allowed to pass and repass without any obstruction by Babu Ram Prasad, (6) that the plaintiff and other members of the public would be entitled to go to their respective houses and to take their conveyances, bullock-carts, etc., from east to west passing over this 10 feet road running by the east, north and west, of the said chabutra, (7) that to the north of the said 10 feet of land left for ‘public passage Babu Ram Prasad will have his land up to the verandah of Ram Savup, defendant no. 2 (which is to the further north beyond the public road), and (8) that the public going to the well on the north of the said, chabutra will also have a right of way over the said 10 feet land.

After this award was received in Court, it was remitted to the arbitrators for clarification of certain points which were found to have been left in some ambiguity. The arbitrators thereupon sent a supplementary award on the 10th of July, 1929, and this was confined to defining the road leading to the well on the north. This award on remand was to the effect that a path 3 feet broad along the eastern wall of the house of Mababal, defendant no. 2 (more correctly defendant no. 3) and contiguous to the wall running from south to north up to the southern mouth of the galli leading to the well lying to the north of the galli will be left (free), and that this passage shall not be over and above the cart passage (track) but shall be a part and parcel of the same wherever it will run.

The next incident that I wish to notice for completing the narration relevant to the issue is the amendment of the decree that was allowed by the Munsif but reversed by this Court. The amendment was to the effect

(a) that the portion of the cadastral survey no. 343 (which is the survey number as given in the plaint of the village path starting from the east of the chabutra to the houses of the plaintiffs on the south-west) lying west to the chabutra and between the plaintiffs' houses and the said chabutra of defendant no. 1 was also within the scope of the confirmed award so as to make its terms operative: (b) that the revisional survey map showing no way in revisional survey no. 398 and a narrow way between revisional survey nos: 400 and 401 had been rebutted and made inoperative in face of the confirmed award, and that the cadastral survey map recording the whole pathway under survey plot no. 343 had been found to be correct and made operative so as to make the terms of the award enforceable; (c) was for permanent injunction not to obstruct this public way: and (d) that the scope of the award was to give a right of way up to the plaintiff's house on revisional survey plot no. 397 to the public.

This amendment was cancelled by this Court and amendment of the decree by incorporating so much of the plaint as is necessary to interpret it was allowed. Keeping all this in view, it is plain to me that the decree prohibits the defendants from putting any obstruction in the village path as claimed in the plaint. In my judgment, therefore, this is not one of the kind of decrees governed by section 48 of the Civil Procedure Code. This decree cannot be said to have been spent up after expiry of 12 years from the date it was passed. This is a decree granting permanent injunction.

The next question that I shall proceed to deal with is if execution of the decree, in its true interpretation as stated above, irrespective of its form, is barred by limitation.

The decree, so far as it prohibits the defendants from obstructing the village path is not capable of execution, on the date it is passed, or, in other words, until an obstruction is caused there is nothing to execute. In such circumstances, its execution may not be necessary till after the 12 years of the date of its passing. As soon as any obstruction is caused and the Court's order in that behalf is breached, a cause of action for enforcement of the decree arises. It is shocking to common sense to hold that by the time the cause of action arises for the very first time, the decree should have had already become dead.

In the case of Maharaja of Darbhanga v. Homeshwar Singh their Lordships of the Judicial Committee held that where the decree is not enforceable as soon as it is passed without something further coming to happen, the Article 182 of the Limitation Act does not apply and in such cases Article 181 applies. According to Article 181 limitation of three years begins to run from “when the right to apply accrues”. In the present case only when the obstruction is caused the decree-holder's right to apply accrues. From the very nature of the decree that it is one permanently restraining the judgment-debtors from obstructing the village pathway leading from the east down to the west and south till it reaches the houses of the plaintiffs and other villagers in whose favour the decree was passed, it is beyond the reach of the bar provided in section 48 of the Civil Procedure Code.

Ram Saran v. Chdtar Singh and Bhagwan Das v. Sukhdeo are also in point. In similar cases of breach of Court's order, Order XXI, rule 32, applies.

The only other matter that remains to be considered is the plea of res judicata raised by the judgment-debtor. The contention is that in the previous execution cases it has been held that the decree under execution is not one granting a permanent injunction, and is, therefore, incapable of execution in view of the provisions of section 48 of the Civil Procedure Code, and that the execution is also barred by limitation in accordance with the provisions of Article 182 of the First Schedule to the Limitation Act.

The point raised is not at all free from difficulty. As it is a question of some interest, I propose to deal with it in some detail. The earliest decision dealing with the applicability of the principles of res judicata to decisions in execution proceedings was that of Mangal Prashad Dichit v. Grija Kant Lahiri(3). What happened in that case was that the decree which was barred by limitation was sought to be executed in the year 1874 and the Subordinate Judge upon the petition, of the 8th of October, 1874, made an order that the attachment process do issue. This order was passed after notice was served on the judgment-debtor on the 23rd of September, 1874, to show cause why the decree should not be executed against him. No appeal was preferred against it; it was acted upon, and the property sought to be sold under it was attached and remained under attachment until the application for the sale now under consideration was made. The High Court in appeal held: “A decree once dead no proceeding by means of an application out of time could revive it”. Their Lordships of the Privy Council in reversing the judgment of the High Court said: “As already observed, the Subordinate Judge had jurisdiction upon the petition of the 8th October 1874 to determine whether the decree was barred on the 8th October 1871, and he made an order that an attachment should issue. He, whether right or wrong, must be considered to have determined that it was not barred……. The present application, having been made within, three years after the order of the 8th October, 1874, is as valid as if it had been made immediately after the expiration of the three months”. (The period for which a stay of proceeding was granted to the judgment-debtor.)

In the case of Ram Kirpal v. Rup Kuari their Lordships of the Judicial Committee observed: “Mr. Probyn had jurisdiction to execute that decree, and it was consequently within his jurisdiction and it was his duty to put a construction upon it. He had as much jurisdiction, upon examining the terms of the decree, to decide that it did award mesne profits as he would have had to decide that it did not. The High Court assumed jurisdiction to decide that the decree did not award mesne profits, but, whether their construction was right or wrong, they erred in deciding that it did not, because the parties were bound by the decision of Mr. Probyn, who, whether right or wrong, had decided that it did; a decision which, not having been appealed, was final and binding upon the parties and those claiming under them. This case has been very strongly relied upon by the learned Counsel for the appellant.

In the case of Beni Ram v. Nanhu Mal what happened was that in course of a proceeding for execution of a decree the Court construed the decree to award interest at a certain rate till payment and made an order as to its execution. The question of construction of the decree came to a rise in a subsequent execution proceeding. Their Lordships in holding that the order passed in the previous execution case relating to the construction of the decree was binding between the parties, observed: “The High Court took no notice of the ground upon which the Subordinate Judge decided,—that the question had been concluded by his order of the 25th of January, 1879, and their Lordships think it should be remarked, in justice to the High Court, that this may be accounted for by the fact that not long before this the Full Bench of that Court had held that the law, which they call the law of res judicata, was not applicable to execution proceedings. The question now for their Lordships' decision is, whether the order of the 25th January, 1879, was not conclusive between these parties? It was an order made in the execution proceedings in this very suit; and the decision of this Board in Ram Kirpal v. Rup Kuari is exactly in point”.

In the case of Hook v. Administrator-General of Bengal their Lordships of the Privy Council re-affirmed the principles laid down in the case of Ram Kirpal v. Rup Kuari. Lord Buckmaster who delivered the judgment of the Board, observed at page 507: “The appellate Court, however, took a different view, and regarding the question as still open decided it against the appellant, but the error in their judgment is due to the fact that they regarded the question as completely governed by section 11 of the Code of Civil Procedure. That section prevents the retrial of issues that have been directly and substantially in issue in a former suit between the same parties, and this question obviously arises in the same and not in a former suit, but it does not appear that the learned Judge's attention was called to the decision of this Board in Ram Kirpal v. Rup Kuari, which clearly shows, that the plea of res judicata still remains, apart from the limited provisions of the Code, and it is that plea which the respondents have to meet in the present case. In the words of Sir Barnes Peacock: ‘The binding force of such a judgment in such a case as the present depends not upon section 13 of Act X of 1877’ (now replaced by section 11 of the Code of Civil Procedure, 1908), ‘but upon general principles of law. If it were not binding, there would be no end to litigation’”.

In the case of Dip Prakash v. Bohra Dwarka Prasad their Lordships of the Allahabad High Court, relying upon the decisions above referred to and also on the case of Raja of Ramnad v. Velusami, held at page 205: “It is true that section 11 of the Code of Civil Procedure or any of its explanations, cannot in terms apply to an execution proceeding because the question arises in the same suit and not in a second suit. But, as observed by their Lordships of the Privy Council in the case of Ram Kirpal v. Rup Kuari ‘an order in execution may be as binding between the parties and those claiming under them as an interlocutory judgment in a suit is binding upon the parties in every proceeding in that suit, or as a final judgment in a suit is binding upon them in carrying the judgment into execution. The binding force of such a judgment does not depend upon section 13, Act X of 1877, but upon genera] principles of law. If it were not binding there would be no end to litigation’. See also the Privy Council case of Mangul Prashad Dichit v. Grija Kant Lahiri(4). Where, therefore, a point has once been expressly decided in the execution department, there can be no doubt whatsoever that decision binds the parties in all subsequent proceedings. In cases where a point has not been directly decided but is such as must be deemed to have been necessarily decided before an order of execution was passed, the decision has also been held to have a similar binding force. For instance, objections that the application is not in accordance with the law, or that it is barred by time or that the decree is not capable of execution or that the court has no jurisdiction to entertain the application or that the person applying for execution has not the right to do so are objections, which if not raised before the execution is ordered, have been held in several cases to have been decided adversely to the objectors by the execution order. Reference may be made tot the recent case of Raja of Ramnad v. Velusami decided by their Lordships of the Privy Council. At page 48 Lord Moulton observed: ‘It was not only competent to the present respondents to bring the plea forward on that occasion, but it was incumbent on them to do so if they proposed to rely on it’, though in that case such a plea was in fact brought forward and decided upon. See also the case of Dwarka Das v. Muhammad Ashfaq-ullah and the cases cited therein”.

There are various other authorities to the same effect. I do not, however, propose to refer to them. The effect of the authorities above referred to is that although section 11 of the Civil Procedure Code does not, in terms, extend to execution proceedings, and other proceedings of like nature, the general principles of the rule of res judicata including the rules of constructive res judicata, too, do apply to orders and decisions passed in execution cases. Like the statutory rule of res judicata these rules are also subject to certain factors that limit their application, that is to say, the subject-matter of the proceeding in which any particular decision is given must be the same as in a subsequent proceeding in order to make the former decision res judicata between the parties. Similarly the issue decided in the previous decision must have directly and substantially arisen for decision.

It will not be out of place to refer to certain decisions of this Court in which it has been observed, that the special rules laid down in the explanation to section 11 of the Civil Procedure Code which go beyond the ordinary doctrine of res judicata ought not to be applied generally in execution cases. In the case of Prithi Mahton v. Jamshad Khan it was held: “although the doctrine laid down in section 11 of the Civil Procedure Code relating to res judicata may be applied and rightly applied in certain proceedings in execution arising out of the same judgment so as to put an end to litigation and may possibly be applied in certain cases where separate suits have Been brought raising points which have already been decided in execution cases fought between the same parties, still I do not think that the special rules laid down in the explanation to that section which go beyond the ordinary doctrine of res judicata ought to be applied generally in execution cases”.

In this view of the law, it remains to consider whether the point of limitation that arises in the execution proceeding out of which the present appeal arises did in fact arise, and has in fact been decided conclusively as between the parties in previous execution cases. It would, be profitable here to refer to the case of Kali Das Saha Choudhry v. Prosunno Kumar Das where it was said: “It was decided by the Judicial Committee in Ram Kripal v. Rup Kuari and Beni Ram v. Nahumal that a decision, in the course of execution proceedings, of a question which properly arises for consideration is final and binding between the parties”. As I have already shown, in the execution cases which were dismissed as barred by limitation the reliefs sought were to demarcate the suit pathway and to deliver possession thereof to the decree-holder. On examination of the reliefs sought in the plaint and those granted by the arbitrators in their award both of which were incorporated in the decree, the decree-holders were not entitled to get possession of the lands on which the pathway existed. The reliefs prayed in the execution cases, therefore, were not the proper reliefs which could be granted by putting the decree into execution. All questions of limitation or any other question that would legitimately arise in such execution cases would refer to that part of the decree which dealt with those reliefs. The executing court and the appellate court were perfectly right in deciding that the decree relating the pathways to which the relief in those execution cases was considered was merely a declaratory one, because as it would appear from the decree, it only gave a declaration that the villagers were entitled to have the pathway from the east of the chabutra to the west and then to the south down to the houses of the plaintiffs and other villagers. The decree, so far as it relates to this part of the relief, cannot be said to be a decree granting a permanent injunction and as such exempt from the operation of section 48. Even if the decree granted the relief claimed, namely, the relief of having the pathway demarcated and getting delivery of possession thereof, yet it should be clearly barred by limitation both on account of the three years' rule, under Article 182 of Schedule I of the Limitation Act and of the 12 years' rule of section 48 of the Civil Procedure Code. The point to be considered is whether those execution cases at all related to removal of, an obstruction that had been caused by the judgment-debtor in the pathway concerned in January, 1942, and whether the question of limitation, and for that purpose, determination of the nature of the decree, which no doubt had given the villagers the right to free passage and had imposed an obligation upon the judgment-debtor not to obstruct the same, did arise. It is clear on the very face of it that these questions were quite foreign to those execution proceedings. The decree in effect amounts to an order of the Court prohibiting the defendant-judgment-debtor from obstructing the pathway. If and when the judgment-debtor does obstruct it in defiance of the Court's order, he is guilty of disobedience of the Court's order which amounts to contempt. The question arises, has it at all been considered in the decisions which are sought to operate as a bar of res judicata or did the Court consider either directly of incidentally the identical point which has arisen for our decision in the present execution case. The answer obviously is in the negative. Therefore, it is difficult to hold that those decisions will operate as res judicata.

Their Lordships of the Privy Council have also taken a similar view with regard to the application of the rule of res judicata to execution cases in the case of Ashfaq Husain v. Gauri Sahai. In that case a mortgage decree was passed on the 25th of August, 1900, against A and B. This decree was made absolute on the 21st of December, 1901, B got the decree, against her, set aside on the ground of non-service of summons, and the suit was retried as against her. In the retrial, a preliminary decree against B was passed on the 15th August, 1902. B's appeal against this decree was dismissed by the High Court on the 16th of November; 1904. The plaintiff applied to make the decree of the 15th August, 1902, absolute against both A and B. The Court made it absolute against B only and said that the decree against A, dated the 15th August, 1900, and 21st December, 1901, had become extinct being barred by limitation. This order was passed on the 27th of November, 1905. On the 21st of December, 1905, the plaintiff filed an application for execution basing the same on decrees of the 25th August, 1900, 15th August, 1902, 16th November, 1904, 21st December, 1901 and the 27th November, 1905. The judgment-debtor raised a point of limitation and pleaded that the point was concluded by the order of the 27th of November, 1905, which order was res judicata. Their Lordships of the Privy Council held that the execution case was not barred by limitation. With regard to the point of res judicata their Lordships said “With regard to the second point—that the plaintiff was estopped in the present proceedings by the judgment given against him on the 27th of November, 1905, upon his application of the 15th February, 1905, it is sufficient to say that the present application is different from the application then before the Court”. Their Lordships pointed out that the present application was based on all the different decrees, above referred to, while the application of the 15th of February, 1905, was based only upon the decree of the 15th August, 1902.

In the case of Aitamma v. Naraina Bhatta the plaintiff obtained a decree in 1876 directing the defendant to pay Rs. 110 per month as maintenance from the date of the plaint until her death. The application for recovery of maintenance was held to be barred by limitation by an order no. 134 of 1884 and this order was “upheld” in appeal. Then subsequently, there was another application for recovery of arrears of maintenance and the previous decision on the point of limitation was pleaded as res judicata. It was held by their Lordships of the Madras High Court: “As an erroneous decision on a point of law, it does not in our opinion operate as res judicata, so as to bar applications to recover arrears of maintenance which have since accrued”. To the same effect is the decision in the case of Kuppu Ammal v. Saminatha Ayyar.

The decree prohibiting the judgment-debtor from obstructing the pathway, the prohibition being conveyed by the words—

“the passage will be left for the passage of the public, etc. without any obstruction by Babu Ram Prasad and the public will be entitled to go to their houses and take their conveyances”.

is not capable of execution until the Court's order is breached.

In such a case neither the period of limitation under Article 182 nor the period of limitation provided by section 48 of the Civil Procedure Code would, if free of authority I would venture to suggest, commence to run until the decree-holder's right to apply arises. I may cite an illustration; suppose a decree is passed for recovery of possession of a certain property from the judgment-debtor after happening of certain incident and the said incident happens more than 12 years after the passing of the decree. Can it be urged with any amount of reasonableness that by the time the right to execute the decree accrues to the judgment-debtor the decree stands dead and extinct. In my view, therefore, the plea of res judicata fails. “It may be noted that the present execution case is based not on the decree as it stood but the decree in its amended form. This makes the case parallel to the case—Ashfaq Husain. The cause of action and the nature of the relief arising therefrom are different. If the Courts in the previous execution cases expressed any view on the nature of this part of the decree, we are concerned with, such expressions are merely expressions of opinion or obiter and hence not operative as res judicata.

In the result I would uphold the order of the learned Subordinate Judge and dismiss this appeal with costs.

Meredith, J.:— I entirely agree. In my opinion the extraordinary persistence of the decree-holder in this case is due to the fact that he has a real grievance with regard to the interpretation by the Courts of his decree; a grievance which Court after Court has failed to redress.

Appeal dismissed.

K.D