1. The appellants obtained a preliminary decree for foreclosure on 18th April 1901. On 13th May 1908 a final decree for foreclosure was passed. It is now stated that this was passed at the instance of their pleader without the knowledge of the appellants. The respondents claim to have paid off the whole mortgage debt but the appellants admit that a very large portion of it has been so paid off. On 27th January 1911, the appellants put in an application for the decree being made absolute and possession being given to them. The Court passed an order dismissing the application on the ground that the decree has been already made absolute. On 17th April 1913 the present application for execution of the decree absolute dated 13th May 1908 was made. On 5th July 1913 an ex parte order for the issue of warrant of possession was passed. Possession was delivered on 8th September 1913 and the judgment debtors applied to the Court on 20th September 1913 pleading repayments and further pleading that the application for execution was barred by time. The first Court disallowed the objection. The lower appellate Court has allowed the objection of the judgment-debtors holding that the application for possession was barred by limitation. The first question for decision is whether the application date 27th January 1911 was an application for execution of the decree in accordance with law. If this is held in favour of the appellants then the later application would be obviously in time. Now the Judge before whom the application was presented held it to be an application for passing a decree absolute which had been already passed and it is Somewhat significant although the defendants were ignorant of the decree absolute in their favour passed in 1908. They took no steps whatever for another two years to move in the matter.
2. The appellants contend that their application was also one for possession but they asked for possession as subsidiary to the passing of decree absolute and was so treated.
3. Can this be regarded as an application in accordance with law? The application only gives the number of the suit, the names of parties and the date of the preliminary decree. It is perfectly clear that the preliminary decree could not be executed by delivering possession to the appellants. None of the particulars required by O. 21, R. 11, sub-Cl. 2 are given in the application. The very date of the decree which was to he executed, that is the decree absolute, is not mentioned in the application. The appellant's pleader relies upon Ramayya v. Kadir Bacha Sahib (1908) 31 Mad 68. But in that case the application was accompanied by a certified copy of the decree which gave the necessary particulars and although it was defective in the matter of verification, it was still held to be an application in accordance with law.
4. In the present case I do not attach much importance to the absence of verification but I think the Court was certainly not asked to execute the decree absolute but only to pass a decree absolute and thereafter give possession. It is difficult to see how this can be regarded as an application which substantially complies with the provisions of O. 21, R. 11(2). I hold that the appellants are not entitled to have the benefit of this application as saving limitation. It is urged that the order passed on 5th July 1913 was an adjudication and that it could only be questioned in appeal or on review. It is also agreed that the review having been refused by the first Court no appeal lay to the District Judge. Numerous cases have been cited before me, which deal with the effect of an order passed on a previous application for execution and the finality which should be attached to such an order. The only case which is in favour of the appellants is the case of Ramrai v. Dayalsing (1894) 16 All 390. In the case before me there was no express adjudication. Apparently the Judge ordered warrant of possession to issue under O. 21, R. 23 without advertence to the question of limitation. The application was no doubt returned for amendment to show, how it was within time, but the amendment made relied only upon an alleged application dated 16th December 1912 as saving time. On the face of the amended application which made no reference to the application dated 27th January 1911, it was barred by time, for more than three years had elapsed when the application of December 1912 was made.
5. If is difficult for me to hold that the Judge applied his mind to the question of limitation when the amended petition was put in. The order was passed as a matter of course under O. 21, Rr. 8 and 23. Does such an order operate as final adjudication which even during the pendency of that application can only be questioned on review? I think not. In my opinion the doctrine of a finality of an implied adjudication has been carried too far in the Allahabad case above mentioned. But the learned Judges in that case held that an application objecting to the attachment of property was an application for review. Reference to the dates given in the judgment makes it difficult to follow how the review there was admitted with reference to the period of limitation prescribed for a review. If the word “review” is used in its strict sense then it is difficult to reconcile the actual decision with reference to the various dates given. I think it is competent to a Court to recall an order which is not an express adjudication at any time during the pendency of that application. This is in a loose sense a review but not in the sense in which it is used in the Code of Civil Procedure and the Limitation Act. I have not been referred to any other case in which a similar view has been accepted. I may mention that even the learned Judges expressed no opinion whether the exparte order of attachment amounted to an adjudication which would operate by way of res judicata. All that they apparently held was that if such an order operated as an adjudication it could be recalled on a later application made at the instance of judgment-debtor. This disposes of all the grounds of appeal urged before me as the objection was one under Section 47 of the CPC, an appeal lay to the District Judge. The order of 5th July 1913 did not become final and could be recalled on the application made on 27th September 1913. The appeal is dismissed with costs.
P.N/R.K
6. Appeal dismissed.