Sir John Edge, C.J and Banerji, J.:— This is a second appeal arising out of proceedings in execution of a decree for money. The decree-holder made an application for execution of the decree, and thereupon the Court issued notice, under s. 248 of the Code of Civil Procedure, requiring the judgment-debtors to show cause on the 18th of December 1889, why the decree should not be executed against them. The judgment-debtors did not appear on the 18th of December 1889. The case was called on and the Court ordered that the fee for attachment should be deposited on the 21st of January 1890. On the 21st of January 1890, the Court, apparently without any further notice to the judgment-debtors, ordered certain property to be attached in execution of the decree. On the 7th of February 1890, the property was attached. On 21st of March 1890, the judgment-debtors filed an objection alleging that the execution of the decree was barred by limitation. There appears to have been several adjournments, and, on the 20th of November 1890, the objection was dismissed for default of appearance. On the 19th of December 1890, the judgment-debtors presented an application asking to have their petition of objections restored under s. 99 of Act No. XIV of 1882. On the 22nd of September 1892, the Court dismissed that application, holding that by reason of Act [392] No. VI of 1892, s. 99 of Act No. XIV of 1882 was inapplicable to proceedings in execution of decree. On the same day, viz., on the 22nd of September 1892, the judgment-debtors filed a petition objecting to the executing of the decree on the ground of limitation. That objection was disallowed in the first Court and an appeal from that dismissal was dismissed in the Court of first appeal. From the decree of the Court of first appeal this appeal has been brought.
It has been contended here by Mr. E.A Howard for the judgment-debtors, objectors, that the Court was bound under s. 4 of Act No. XV of 1877 to consider whether or not the, application for execution was barred by limitation, and that it was bound to do so whether or not the objection that the execution was barred by limitation had been taken by the judgment-debtors. He also contended that the dismissal on the 22nd of September 1892, of the application made on the 19th of December 1890, did not under the circumstances bar the application in question in this appeal. He further contended that the application which was made on the 22nd of September 1892, ought to have been regarded by the Court as an application to the Court to exercise its jurisdiction under s. 623 of Act No. XIV of 1882. On the other hand, Mr. Abdul Majid for the decree-holder contended that the Court was not bound to consider any question of limitation, as the judgment-debtor had not appeared to show cause as required by the notice under s. 248 of Act No. XIV of 1882, and he relied upon s. 249 of that Code. He also contended that the dismissal on the 22nd of September 1892, of the application of the 19th of December 1890, barred the present application, and that the order which was passed on the 18th of December 1889, coupled with the order of the 21st of January 1890, operated as res judicata on the question of limitation. He further contended that the present application could not be considered as an application under s. 623 of Act No. XIV of 1882.
The following cases were cited to us in the course of the argument:—Mungul Pershad Dichit v. Grija Kant Lahiri Ghowdhry(1), [393] Nanda Rai v. Baghunandan Singh(2), Sher Singh v. Daya Ram(3), Maharaja Radha Parshad Singh v. Lal Sahab Rai(4), and Hdridas Nandi v. Jadunath Dutt(5), but in the view which we take of this case we do not think it necessary to refer to any of these cases.
It appears to us that s. 4 of Act No. XV of 1877 makes it obligatory on the Court to which an application for the execution of a decree is presented to consider and decide, so far as it can do so, whether the application is within time or is barred by limitation. In our opinion it is particularly necessary that a Court should be careful to ascertain for itself, so far as the record enables it, whether or not an application for execution of a decree is in time or is time-barred. On many of such applications the Court can make an order for the execution of the decree without issuing any notice under s. 248 of Act XIV of 1882. There are many cases to which that section does not apply, and where that section does not apply the Court makes the order ex parte and without notice to the judgment-debtor. An application for execution of a decree ought, if it truly sets out the particulars required by s. 235 of Act No. XIV of 1882, to enable the Court reasonably to satisfy itself whether or not the application is time-barred. There are possibly some few cases to which Art. 179 of Sch ii of Act No. XV of 1877 does not apply, and in which it is possible that the particulars noted in s. 235 of Act No. XIV of 1882, or even the record of the case, might not afford the information to enable the Court to decide whether the application for execution of the decree would or would not be time-barred. In our opinion a Court, if it has not got before it the information necessary to decide the question of limitation, ought to compel the applicant for execution of a decree to furnish that information. What we have said in our opinion applies to the duty of a Court to which an application to execute a decree is made. We have now to consider what are the courses open to a judgment-debtor where an order has been made for execution of the decree, either upon notice to him under s. 248 or without notice to him of [394] the application in cases to which s. 248 does not apply. The principle of the judgment of the Full Bench of this Court in Dhonkal Singh v. Phakkar Singh shows that neither s. 99 nor s. 158 of Act No. XIV of 1882 can be applied to execution-proceedings. It appears to us that there are only two courses open to a judgment-debtor who desires, after an order for execution has been made after notice and in his absence, or without notice to him, to raise a question of limitation. One course is that of appeal. We do not think, however, that he is limited to an appeal. Wo think that, certainly where the question to be raised is one of limitation, and most probably in all other cases, such a judgment-debtor might take the course of applying under s. 623 of Act No. XIV of 1882 for a review of the order for execution. If the record showed that the execution of the decree was time-barred, the order for execution would be an order which was erroneous on the face of the record, and in any case if the Court had not considered the question of limitation the fact would be “sufficient reason” for the presentation of the application under s. 623. Again, if an order for execution was passed without any notice to the judgment-debtor, he could not have produced any evidence at the time when the order was made to show why the order should not be made. We further think chat in execution-proceedings the Court should look to the substance of such an application as that in the present case rather than to the form in which the application was made. Now the application or petition of the 22nd of September 1892 which raised the question of limitation was certainly not in form an application for review of the order for execution of the decree; but the only object of such petition or application was to obtain redress, and that could only be granted by the Court by review of its order for execution. Consequently, we think that the Court in the present case should have treated the petition or application of the 22nd of September 1892, as a petition asking for redress which could only be granted by the Court reviewing its order. The order which it was asked to review was the order for attachment and sale. In the view which we take of the petition of the 22nd of September 1892, it is not [395] necessary to decide whether the order of the 18th of December 1889, and that of 21st of January 1890, would operate by way of res judicata if those orders, or the operative one of them, were not successfully assailed in appeal or review. As to the dismissal on the 22nd of September 1892 of the application of the 19th of December 1890, we do not think that it affects the question. The application of the 19th of December 1890 was dismissed not for want of merits, but because Act No. VI of 1892 deprived the Court of the machinery by which effect might otherwise have been given to the petition of the 19th of December 1890.
We set aside the decree under appeal and remand this case under s. 562 of the Code of Civil Procedure, as the application of the 22nd of September 1892 was dismissed on a preliminary point. Costs in this Court and hitherto will abide the result.
Cause remanded.