JUDGMENT 1. This Appeal is directed against an order by which the Court below has dismissed an application for execution of a decree on the ground that it is barred by limitation. The decree now under execution was made on the 7th August 1899 in affordance of the decree of the original Court passed on the 10th September 1897. The first three applications for execution were made within the time allowed by law, on the 18th April 1901, 13th February and 5th August 1904, respectively. The fourth application for execution was presented on the 5th October 1907. The present application for execution was presented on the 6th August 1908. There is no question that the application for execution now before us was made within the time allowed by law after the date of the previous application for execution. But it has been argued that the previous application itself had been made beyond time and that consequently the present application is barred by limitation. In answer to this argument it has been contended on behalf of the decree-holder that there was an adjudication by the executing Court, that the previous application was not barred by limitation and that consequently in the present proceeding it is no longer open to the judgment-debtor to urge that the execution of the decree is barred by limitation. The question in controversy between the partres therefore is as to the effect of the order which was made in the previous execution proceeding. Now, we find that on the 5th October 1907 an order was made by the Court for the issue of notice upon the judgment-debtor under sec. 248, C. P. C. On the 29th November following there was an order for the issue of fresh notice upon the application of the decree-holder. On the 20th December 1907, it was reported that the notice had been served and that the service was proved. The judgment-debtor appeared and prayed for time to enable him to put in his objection to the execution. Thereupon the case was adjourned to the 4th January 1908. On that date the judgment-debtor did not enter any appearance. Thereupon the Court recorded the following order: " Decree-holder is to take further steps on or before the 7th January 1908." On the latter day the application for execution was dismissed for default. Thereupon the case was adjourned to the 4th January 1908. On that date the judgment-debtor did not enter any appearance. Thereupon the Court recorded the following order: " Decree-holder is to take further steps on or before the 7th January 1908." On the latter day the application for execution was dismissed for default. On behalf of the decree-holder it has been argued that the order of the 4th January 1908 implies a determination by the Court that the decree at that time was capable of execution and that consequently no question can be raised in the present proceeding that the application is barred by limitation. On behalf of the judgment-debtor it has been contended that there was no adjudication directly or by implication on the 4th January 1908 that the decree was capable of execution and as the subsequent application for execution was dismissed for default, the matter is still open for consideration. In our opinion the contention of the decree holder is manifestly well-founded and must prevail. 2. The principle applicable of cases of this description has been laid down by the Judicial Committee in the case of Mungal Proshad Dichit v. Girija Kanta Lahiri L.L.R.8 Cal. 51 (1881) and has been thus explained by Mr. Justice West in the case of Sheikh Budan v. Ram Chandra I. L. K. 11 Bom. 637 (1887) : " The judgment-debtor though called on to dispute, if he wished or if he could, a certain proposition of right and consequential demand of relief or action by the judgment-creditor, either failed in his contention or at any rate allowed the judgment to go by default. If this contingency happens it is not open to the judgment-debtor in a subsequent proceeding to ignore the adjudication that has been made and to have the whole matter re-opened for consideration." In the case before us, the judgment-debtor was entitled to a notice under sec. 248 of the Code of 1882. That notice was duly served upon him. He entered appearance and asked for time to enable him to prefer his objections to the execution proceedings. Time was granted to him but he subsequently failed to appear on the day fixed for the trial. The result was that the Court made an order under sec. 248 of the Code of 1882. That notice was duly served upon him. He entered appearance and asked for time to enable him to prefer his objections to the execution proceedings. Time was granted to him but he subsequently failed to appear on the day fixed for the trial. The result was that the Court made an order under sec. 249 of the Code, which provides as follows: "If the person to whom notice is issued under the last preceding section does not appear or does not show cause to the satisfaction of the Court why the decree should not be executed the Court shall order the decree to be executed." When on the 4th January 1908 the judgment-debtor did not appear and did not show cause why the decree should not be executed, it was the duty of the Court to direct execution of the decree. The Court accordingly directed the decree-holder to take further steps on or before the 7th January 1908. This order necessarily implies an adjudication that the decree at the time was capable of execution. But it has been suggested by the learned Vakil for the judgment-debtor that inasmuch as the application for execution was subsequently dismissed for default, the rule laid down by the Judicial Committee in the case of Mungal Proshad Dichit v. Girija Kanta Lahiri 1. L. R. 8 Cal. 51 (1881 has no application. In support of this view he has placed reliance upon the case of Bhagwan v. Dhondi I. L. R. 22 Bom. 83 (1896). That case, however, is clearly distinguishable. In that case after service of notice under sec. 248, the application for execution was dismissed for default. There is nothing to show that any intermediate order was made of the description now before us. Consequently that case cannot be treated as any authority for the broad proposition that the mere circumstance that the application for execution has been dismissed for default takes away the effect of any previous order which might have been made. On the other hand, the decision of this Court in the case of Kamini Debi v. Aghore Nath 11 C. L. J. 91 (1909). On the other hand, the decision of this Court in the case of Kamini Debi v. Aghore Nath 11 C. L. J. 91 (1909). shows that if an order has been made which directly or by implication determines the rights of the parties to the execution proceeding, the fact that the decree-holder does not choose to proceed with execution and the case is struck off does not entitle either party to re-open the question upon which there has been a previous adjudication. No doubt as pointed out in the judgment of this Court in the case of Monmohan Katmokar v. Dwarka Nath Karmokai 12 C. L. J. 312 at p. 316 1,1910. the principle in question has no application when it is proved that there was no adjudication by reason of the failure of the decree-holder to prosecute the execution proceedings with due diligence. That is so because there is no judicial determination of the objection by reason of the default of the decree-holder. The same consequence follows if there is no determination of the objection by reason of the defective notice served upon the judgment-debtor or by reason of fraudulent suppression of notice issued upon him. The principle which underlies cases of this description is that the previous order cannot rightly be held to operate as an effective bar to an enquiry into the merits of the case, on the occasion of the subsequent application for execution, because no opportunity has been afforded to the judgment-debtor to have his objections determined by the execution Court. This view is in accord with that taken by this Court in the cases of Khosal Chandra Roy v. Ukiladdi 14 C. W. N. 114 (1909 and Mochai Mandal v. Meseruddin Molla 13 C. L. J. 26 (1910). The learned Vakil for the Respondent has also suggested that in order to make the principle of the decision in Mungal Proshad v. Girija Kanta I. L. R. 8 Cal. 51 (l88l applicable, it is essential that there should be an order for attachment. In our opinion the principle of the decision is applicable whenever there is an adjudication by the Court upon the rights of the parties to the execution proceedings; it is not essential that there should be an order for attachment. Maazzam Hossain v. Sarat Coomari Debi 11 C. L. J. 357 (1909). In our opinion the principle of the decision is applicable whenever there is an adjudication by the Court upon the rights of the parties to the execution proceedings; it is not essential that there should be an order for attachment. Maazzam Hossain v. Sarat Coomari Debi 11 C. L. J. 357 (1909). Our attention was however drawn to the decision of the Allahabad High Court in Tileswar Rai v. Parbati I. L. R. 15. All 198 (1898) but that decision has been subsequently dissented from in Sheoraj Singh.v meswar Nath ILR 24 All. 282 (1902) and is clearly opposed to the decision of the Judicial Committee in the case of Mungal Proshad v. Gifrija Kanta ILR 8 Cal. 51 (1881). The result, therefore, is that the order made by the Court below cannot be supported. The Appeal is allowed and execution is directed to proceed. The Appellant is entitled to his costs both here and in the Court below. We assess the hearing-fee in this Court at 2 gold mohurs.