Fazl Ali, J.:— This is an appeal from a decision of the Subordinate Judge of Gaya dismissing the appellants' petition for the execution of a decree on the ground that it is barred by limitation. The decree in question was obtained by Mr. Lal in a mortgage suit on 8th December 1917 and was made final on 2nd December 1918. No less than five applications have been made for the execution of the decree since the first being made by Mr. Lal himself (vide order sheet of Execution Case No. 103 of 1919) on 11th March 1919. Shortly after this application Mr. Lal assigned the decree to one Sheo Prasad Singh for a sum of Rs. 23,200 out of which a sum of Rs. 17,000 was paid by Sheo Prasad and Rs. 6,200 remained due. On 18th June 1919 the execution was struck off and on 3rd September 1919 Sheo Prasad, the assignee, made an application for executing the decree, but that application also was struok off on 18th November 1919.
2. The third execution was taken out on 10th March 1922 by Sheo Prasad giving rise to Mortgage Execution Case No. 192 of 1922. Mr. Lal objected to this execution on the ground that the full consideration money not having been paid to him by Sheo Prasad the latter was not competent to execute the decree.
3. This objection ultimately prevailed and the execution proceeding was struck off. On 21st March 1925 Mr. Lal himself applied for the execution of the decree (vide order sheet of Execution Case No. 46 of 1925) and notices were issued under O. 21, R. 22 upon the various judgment-debtor. On 26th June 1925 the Court being satisfied that the notices had been served, issued notices under O. 21, R. 66 making them returnable by 15th July 1925. Ultimately on 20th December 1926 this execution was also dismissed. As Mr. Lal died on 18th January 1927 his interest passed to his wife Mrs. Lal and his daughter Miss Lal, and on 19th January 1929 they applied for the execution of the decree (vide order sheet of Case No. 3 of 1929) and the Court issued notices under O. 21, R. 22 upon the judgment, debtors. It is not disputed that these notices were duly served and on 10th March the Court issued notices under O. 21, R. 66. On 7th August 1930 the Court valued the properties. On 26th February 1931 judgment-debtors 5 and 6 appeared and preferred certain objections one of which was that the decree was time-barred. Now, it is to be noticed that in the execution proceedings which were instituted in the year 1925 none of the judgment-debtors objected to the execution of the decree on the ground that it was time-barred and one of the questions raised before us is whether the respondents cannot be precluded from raising the question of limitation in the present execution proceedings. There is no doubt that notices under O. 21, R. 22 were issued upon all the judgment-debtors in Execution Case No. 46 of 1925 but, one of the points on which the parties were seriously at issue in the Court below was whether these notices were served upon the present objectors. It will therefore be necessary to examine in detail the evidence adduced by the parties on this point.
4. The objector Rajkishore is a minor and it is not disputed that both he and his guardian Dulhin Sham Sundar Kuer live in the town of Gaya. The other objector Babu Govind Prasad is a resident of village Parwezabad in the district of Gaya. So far as Govind Prasad is concerned there can be no doubt that the notice under O. 21, R. 22 was served upon him as the evidence on this point is entirely one Bided. The decree-holder has examined his servant Govind Lal who states on oath that he was present when the notice was served upon Govind Prasad. The report of a peon named Zahoor Ahmed Khan to whom the notice was made over for service has also been proved by the evidence of this witness. Zahoor Ahmad Khan was not examined as he was said to be away on leave and the whereabouts of. Ghansham who is said to have identified Gobind Prasad not being known he was also not examined. Only two comments are made on the evidence of Govind Lal by Mr. Manohar Lal, counsel for the respondents, and they are: (1) that his name is not to be found in the report of the peon, and (2) that he says in cross-examination that Gobind Prasad used to live in the town of Gaya, whereas the notice purports to have been served on him at Parwezabad in the District of Gaya. The answer to the first criticism is that the mere absence of Govind Lal's name from the peon's report does not conclusively show that Govind Lal was not present at the time of the service of the notice and is not sufficient to warrant the rejection of his sworn testimony. Then again the statement that Govind Prasad Singh used to live in Morarpur does not necessarily show that he was not in Parwezabad at the time of the service of the notice.
5. The judgment-debtor Govind Prasad did not go into the witness box to prove that he did not receive the notice and in the present state of evidence it is impossible to hold that the notice was not served on him. As to Rajkishore the appellants have proved the service of notice upon him by producing the report (Ex. C) of Chedi Ram, peon. Chedi Ram himself is dead, but the report submitted by him has been proved by another Court peon (P.W 3). According to this report the peon Chedi had been to the house occupied by the minor and his guardian Sham Sundar Kuer on 14th June 1925 and handed over the notice to Krishna Kumar the Manager of Dulhin Sham Sundar Kuer and her Dewan Hari Singh; but as they refused to grant him a receipt and directed him to paste a copy of the notice on the house he did so. It was contended by Mr. Manohar Lal that the report of the peon is not admissible in evidence, but in my opinion it is admissible both under Section 32, Clause (2) and Section 35 of the Evidence Act. Mr. Manohar Lal further asked us to hold that no notice was served on the spot inasmuch as neither the name of the identifier nor the names of the persons who witnessed the service of the notice are mentioned in the report and it stated that the witnesses had refused to affix their signatures to the report. There seems however to be no good ground for accepting this suggestion.
6. It is admitted that the minor Rajkishore Prasad as well as his guardian Mt. Sham Sundar Kuer live in the town of Gaya and there could have been no possible difficulty in effecting service of the notice upon them nor was there any motive on the part of the decree-holder to suppress the service of the notice upon the minor. The judgment-debtors have examined only one witness Durga Prasad who does not deny that in 1925, when the notice is alleged to have been served, the persons mentioned in the report were respectively the manager and Dewan of Dulhin Sham Sundar Kuer Ali that he says is that Munsbi Gobardhan Lal is her Dewan and Hari Singh and Krishna Kumar are not her Dewan and manager respectively. He also asserts that “no notice was served on the minor or his guardian,” but he does not say that he was in the service of either Rajkishore or his guardian at the time of the alleged service, nor is there anything in this evidence to lead us to suppose that the notice could not have been served without the fact of its service being brought to his knowledge. In my opinion the evidence of this witness is entirely worthless and there can be no reason to doubt the correctness of the affidavit made by the peon Chedi Ram which was apparently accepted by the Court of execution at the time as sufficient proof of the service of the notice. I have thus no hesitation in holding that the notice under O. 21, R. 22, was served both on Raj Kishore and Govind Prasad.
7. In the order sheet of Execution Case No. 46, of 1925, there is a note made by the Court on 26th June 1925 to the following effect: “Service proved. Verified petition filed. Issue notice under O. 21, R. 66, fixing 15th July 1925 for return.” Mr. Manohar Lal contends that the expression “service proved” does not refer to the service of the notice under O. 21, R. 22, but to the service of other processes; but this view is not borne out by our examination of the various orders noted in the order sheet as well as the record of the case. As was held in Bindu Bashini v. Keshab Lal (1), an entry in the order sheet that notice has been served does not constitute conclusive evidence of the factum of service, but there is no presumption that the entries are false and it is for the judgment-debtor if he so asserts to prove that the notice stated in the order sheet of a previous execution proceeding to have been served on him was in fact not served. In this case the appellants have proved by producing the report of the peons concerned that the notice under O. 21, R. 66, was also served and therefore it may be taken to have been fully established that not only the notice under O. 21, R. 22, but also the notice under O. 21, R. 66, was served. Notwithstanding the service of these notices however none of the judgment-debtors took any objection to the proceedings of 1925 on the ground that the decree was time-barred and the question to be decided is what would be the effect of such conduct.
8. Sir Sultan Ahmed who appears for the appellants contends that the issuing of a notice under O. 21, R. 66, by the Courts amounts in substance to a determination that the decree on the date of the order was alive and capable of execution and the question of limitation not having been raised by the judgment-debtors in the execution proceeding of 1925 cannot be raised now in the present proceeding. In support of his contention he relies on the well-known case of Mungul Pershad Dichit v. Girja Kant Lahiri (2), and a number of other decisions, such as Jago Mahto v. Khirodhar Ram (3), Gour Chandra v. Janardan Prasad(4), Bindu Bashini v. Keshab Lal , Subiah Naicker v. Ramanathan Chettiar (5) and Lakshman Chetty v. Palaniappa Chetty (6). On the other hand learned counsel for the respondent contends that the rule of constructive res judicata should not be pushed too far and has cited certain decisions in which the case of Pershad Dichit has been distinguished and explained. Broadly speaking they are either those cases where the judgment-debtor having appeared at a comparatively late stage of an execution proceeding had been allowed to attack the execution proceeding on the ground that the decree is incapable of execution or those where the judgment-debtor had taken an objection on the ground of limitation, but both the objection of the judgment-debtor and the execution proceedings had been dismissed for default.
9. The more important decisions relied on by learned counsel for the respondents are Nalinakshya Ghosal v. Mafakshar Hossain (7), Nageswar Prasad v. Jai Bahadur Singh (8), Atul Krishna v. Brindaban Naik (9), Chatterput Singh v. Day a Chand (10). M. Kesho Prasad Singh v. Harbans Lall (11), Hari Ganesh v. Yamunabai (12) and Vithoba Kondiba v. Tejiram Bhavani Ram (13). It may be stated that in the last mentioned case there was no reference made at all to the Privy Council decision in Mungul Pershad Dichtt's case . Learned counsel has also cited some cases to show that the rule laid down in Mungul Pershad Dichtt's case will not apply unless the Court has after the service of the notice under O. 21, R. 22 taken some such effective step that the judgment-debtor, if he wished to thwart the execution, would feel compelled to appear and prefer objection. Briefly speaking the line of reasoning adopted by learned counsel for the respondents is as follows:
The judgment-debtor is under no obligation to appear and object to an execution proceeding unless he finds that his person or property is in jeopardy. He may appear, for example, when the warrant for his arrest is in contemplation or his property is actually attached or when a sale proclamation is issued, but he is not bound to appear merely when a routine order such as one directing the issuing of a notice under O. 21, R. 66 is passed. It is open to him to appear at any stage of the execution proceeding however late and take the objection that the decree is incapable of execution. That being so, when the execution proceeding is dismissed for the default of the decree-holder no effective step having been taken by the Court towards the execution of the decree he may also appear in a subsequent execution proceeding and take an objection that at the time the earlier proceedings were taken the decree was already incapable of execution. This is certainly an ingenious line of reasoning but the conclusion arrived at by Mr. Manohar Lal can neither be supported on principle nor by authorities. I am not prepared to hold that it is a mere matter of routine to issue a notice under O. 21, R. 66 or such a notice is issued without the Court being alive to the necessity of taking a forward step towards the execution of a decree. In Hook v. Administrator-General of Bengal (14) and Ramkirpal v. Rupkuari (15), the Privy Council went so far as to hold that matters which are decided at one stage of the proceeding might become final and binding between the parties not under Section 13 or Section 11 of the CPC, but on general principles of law.
10. It is true that in Atul Krishna Ghosh v. Brindaban Naik* this Court has not applied this principle in all its rigour, but the facts of those cases are quite distinguishable and in the special circumstances of those cases the learned Judges who decided them very rightly emphasised that they could not hold that; the question of limitation had been decided by implication. The significance of the notice Under O. 21, R. 22 however should not be minimised. Its object is to give an opportunity to the judgment-debtor where the decree is more than one year old to appear before the Court and show, if necessary, that the decree is incapable of execution. If notwithstanding the service of this notice the judgment-debtor does not appear and object to the execution, he cannot in all cases escape the consequences of his laches. If he appears in the same execution proceeding soon after the date of the service of the notice and even after the date on which the cause is to be shown, there may be circumstances in which the Court may find that though he wanted to take an objection he was prevented by sufficient cause from taking it earlier. But when the judgment-debtor appears at no stage whatsoever of a protracted execution proceeding in which steps have been taken against him one after another to his knowledge and where a Court has proceeded all along on the footing that the decree is alive and capable of execution, he cannot complain of either hardship or injustice to himself, if he is precluded from raising an objection in a subsequent proceeding that the whole of the previous proceeding was bad because the decree had already be come barred by limitation. In my opinion therefore the learned Subordinate Judge was entirely wrong in not applying the principle of res judicata against the respondent.
11. There is another aspect of the case which also appears to have escaped his notice. It appears to me to be somewhat difficult on the facts of this case to hold that when execution was taken out in 1925 the decree had become barred by limitation. Learned counsel for the respondents wishes us to hold it to be so on the ground that Sheo Prasad had no right to execute the decree because he had not paid the full consideration for the assignment. Reliance is placed in this connexion upon a decision of this Court which was given in the course of that proceeding and which was to the effect that Sheo Prasad could not be allowed to execute the decree so long as he did not pay the balance of the consideration money to the original decree-holder. This view was based on the fact found on the evidence adduced in that case that the intention of the parties was that title should not pass until the entire amount of the consideration money had been paid. Learned counsel for the appellants explains the decision by drawing a distinction between the case where there is total want of title and the case where title is imperfect and made to depend on the performance of a condition and wishes us to apply to the present case the principle laid down in K. Rajitagiripathy v. Bhavani Sankaram .
12. However that may be, there can be no doubt on reading the order-sheet of the execution case that on 15th May 1922 the Court issued a combined notice under O. 21, R. 22 and 16, upon the judgment-debtor and it appears to me that the is suing of this notice was sufficient under the law to save limitation. Both parties are agreed that in determining the question whether the decree was time barred on 21st March 1925 when Execution Case No. 46 was started we will have to read Article 182 as it then stood, that is to say, as it stood previous to the amendment of 1928. Cl. (6) of this article provides that limitation will run from the date of the issue of a notice to the person against whom execution is applied for to show cause why the decree should not be executed against him when the issue of such notice is required by she Code of Civil Procedure, 1908. In my opinion as notices under O. 21, R. 16 and 22 were issued on 15th May 1922 and Execution Case No. 46 of 1925 was started within three years of this date, no question of limitation can arise. It will appear that both the notices under O. 21, R. 16 and 22 are notices which are required by the Code of Civil Procedure and both these notices are meant to enable the judgment-debtor to show cause why the decree should not be executed against him. Mr. Manohar Lal contends in the first place that there is no proof that the notices either under O. 21, R. 22 or O. 21, R. 66 were in fact issued but a perusal of the order sheet is sufficient to resolve any doubt that may be otherwise entertained on the point. Mr. Manohar Lal next contends that no notice under O. 21, R. 22 could have been issued until objections had been heard and decided under O. 21, R. 16. There is nothing however in the Code of Civil Procedure to prevent a Court from issuing a notice under O. 21, R. 22 simultaneously with a notice under O. 21, R. 16 when the Court which happens to pass the decree has also to execute it, and Mr. Manohar Lal concedes that her is not able to cite any authority to the contrary. In my opinion therefore the issuing of the notice under O. 21, Rr. 22 and 16 would furnish a fresh starting point for the period of limitation and the decree could not therefore have been barred on 21st March 1925. There is one more point which was raised on behalf of the respondent and which may be briefly dealt with. It was contended that the order sheets of the previous execution cases were not formally tendered in evidence in the lower Court and were not marked as exhibits and so they cannot be used as evidence in the present case. It appears however from the order sheet of the Court below in the present case that the records of the previous execution case were sent for at the instance of the decree-holder, and a mere perusal of the judgment of the lower Court will show that the order sheets of those cases were freely used by both the parties as well as by the Subordinate Judge. Order sheets being public documents require no formal proof and each successive execution proceeding being a continuation of the previous one, the learned Subordinate Judge may not have considered it necessary to mark them formally as exhibits. In any case the respondents were furnished with typewritten copies of these order-sheets by the appellants long before the hearing of this appeal and they cannot say that they have been taken by surprise. I do not think that in these circumstances the objection raised by the respondents has any force. As in my opinion the decree sought to be executed is not time-barred, I would allow these appeals with costs, sat aside the order of the Court below and direct the Court below to proceed with the execution according to law.
Rowland, J.:— The ground on which the learned Subordinate Judge held that the execution was barred by limitation is that the previous execution, No. 46 of 1925, was time birred, being beyond three years from the proceedings taken in execution in 1919. He rejected the contentions of the decree-holder that the proceedings taken in 1922, within three years of the proceedings of 1919, were available as a fresh starting point for limitation; and that the question of the execution of 1925 being time-barred was concluded against the judgment-debtors by the constructive application of the principle of res judicata in consequence of the judgment-debtors having been served with notices under O. 21, R. 22 in 1925, and not having appeared to show cause why the decree should not be executed.
13. In dealing with the question whether the proceedings taken in 1922 could give a new start to limitation the Subordinate Judge held that steps taken by an assignee whose title was incomplete would not avail as “steps in aid” of execution for the purposes of Cl. 5, Article 182 Lim. Act. He has not considered the effect of Cl. 6, Article 182 which at the time relevant to these proceedings was so worded as to give the decree-holder a fresh start for limitation from “the issue of a notice” under O. 21, R. 22 of the CPC. The record shows that notices both under O. 21, R. 16 and under O. 21, R. 22 were issued on the application of Sheo Prasad Singh on 15th May 1922. That being the case, when notice has once issued, time runs any and it is immaterial that it was issued on an application for execution which was defective or invalid. The contrary contention was summarily rejected by a Full Bench of the Allahabad High Court in Dhonkal Singh v. Phakkar Singh (17), the Chief Justice observing
“that order whether or not it ought to have been made or issued was in fact an order under S. 248 of the Code (now O. 21, R. 22) and kept the decree alive for purposes of execution.”
14. There are decisions of the Patna High Court directly in point in Goberdhan Das v. Satish Chandra (18) and in Jogendra Prasad Narayan Sinha…Defendant v. Mangal Prasad Sahu…Plaintiff . (19). In both these cases it was held that the issue of notice would give a fresh start to limitation even though it had been issued on application that was defective or not in accordance with law. In Aditya Prasad Singh v. Ram Narayan Das (20), decided by a Special Bench of the Patna High Court, the Chief Justice observed:
“I perhaps ought to mention that it is no longer contended that notice if required by the Code is bad merely on the ground that the seventh execution petition was not in accordance with law.”
15. Clearly that objection was abandoned as being indefensible. If I am correct in this, the whole case is thereby concluded against the respondents. But the contention that Sheo Prasad's application was not an application in accordance with law should also in my view be rejected, on the authority of Rajitagiri Pathy v. Bhavani Sankaram (16). I respectfully agree with the whole of my learned brother's reasoning and findings on the question of service of notices in the 1925 execution and as to the effect of such service. I do not propose to discuss these matters in detail because after reading my learned brother's judgment it seems to me there is really nothing more to be said.
K.S
16. Appeal allowed.