Judgement Appeal from a judgment and decree of the High Court (March 7, 1918) affirming a judgment of the Subordinate Judge of Ramnad. The judgment of the Subordinate Judge dismissed an application made on March 2, 1916, by the appellant, the assignee of a partially executed decree dated September 26, 1907, for the attachment of certain properties of the respondents, the judgment debtors. The Subordinate Judge held that execution of the decree was barred by art, 182 of Sched. I. of the Indian Limitation Act, 1908. The facts appear from the judgment of their Lordships. Oldfield and Bakewell JJ., who heard the appeal to the High Court, said in their judgment "In that 41 Law. Rep. 48 Ind. App. 45 ( 1920- 1921) Raja of Ramnad V. Velusami Tevar 142 order (namely, the order of December 13, 1915) the lower Court no doubt said, The transfer of the decree in favour of petitioner is recognised and petitioner is allowed to execute the decree. But we agree with the lower Court that the last eight words cannot be read as an adjudication on all respondents objections to his doing so, including that regarding limitation which they had undoubtedly made. First, these words are used in connection with the reference to recognition and there is nothing regarding limitation either before or after them, although the argument on it deserved at least mention. Secondly, the conclusion of the order is not the grant of execu tion as prayed, but a statement that petitioner may put in a fresh petition ; and there is no valid reason for assuming that only the identity of the property to be attached as assets of the deceased judgment-debtor was to be considered when he did so.....It does not purport to decide anything regarding limitation and we cannot hold that it does so by implication." 1920. Nov. 15. De Gruyther K.C. and Kenworthy Brown for the appellant. The question of limitation was a res judicata having regard to the order of December 13, 1915. Nov. 15. De Gruyther K.C. and Kenworthy Brown for the appellant. The question of limitation was a res judicata having regard to the order of December 13, 1915. [Reference was made to Code of Civil Procedure, 1908, s. 11; Mungul Pershad Dichit v. Grija Chit Lahiri (( 1881) L. R. 8 I. A. 123.) ; Krishna Behari Roy v. Brojeshwari (( 1875) L. R. 2 I. A. 283.) ; Ram Kirpal Shukul v. Rup Kuari (( 1883) L. R. 11 I. A. 37.) ; Mulidhar Sukul v. Nursingh Das (( 1911) 17 Cal. W. N. 113.) ; Indian Limitation Act, 1908, s. 5.] The respondents did not appear. Dec. 13. The judgment of their Lordships was delivered by LORD MOULTON. In this appeal the appellant is the assignee of a decree against the defendants (some of whom are minors and are represented by their guardian) which was passed on September 26, 1907. The amount of the decree was Rs. 35,063 and interest. The decree was in favour of the plaintiffs in the suit and went on to order that the plaintiffs should at once draw out the money in Court which was a sum of about Rs. 3000, and that the first and second defen dants should repay the balance within three months with interest and costs, and in default of such payment that the plaintiffs should recover the same by the sale of the entire cowle right possessed by them including the interest if any of the third defendant also, and if the sale proceeds were not sufficient for the purpose the plaintiff should recover the , deficiency from the first and second defendants. The judgment debtors made no payment and accordingly in January, 1909, the decree holder put in his application for execution by sale and realized Rs. 27,000, and in December, 1909, the sale was confirmed and possession delivered. An appeal was brought by the judgment debtors to the High Court, but this was dismissed on April 8, 1911. By the actual sale of the village, the further amount recoverable from the first and second defendants under the decree became definitely ascertained, and on March 9, 1914, the then plaintiffs proceeded with the execution of the decree. An appeal was brought by the judgment debtors to the High Court, but this was dismissed on April 8, 1911. By the actual sale of the village, the further amount recoverable from the first and second defendants under the decree became definitely ascertained, and on March 9, 1914, the then plaintiffs proceeded with the execution of the decree. While these proceedings were in progress, the present appellant purchased the decree from the then plaintiffs, and on November 20, 1914, made his application to be brought on to the record as assignee of the decree, and to have the decree executed. This was resisted by the present respondents or their predecessors in title on several grounds. They put the present appellant to the proof of his assignment, they alleged that the right to execute the decree was barred by limitation, and they raised questions as to the liability of certain of the properties to attachment. 41 Law. Rep. 48 Ind. App. 45 ( 1920- 1921) Raja of Ramnad V. Velusami Tevar 143 The matter came on for hearing before the Subordinate Judge, who delivered judgment thereon on December 13, 1915. The material portion of his judgment reads as follows "The transfer of the decree in favour of the petitioner is recognized and petitioner allowed to execute the decree . . . petitioner may file a fresh application for attachment." One of the defendants applied for a review of this decision on the ground that the application was barred by limitation. On August 24, 1916, judgment was given dismissing this petition. The actual ground of dismissal was that it was out of time, but the order made by the Court is of importance in that the learned judge points out that the order of December 13, 1915, above referred to, does not reserve any question of limitation for future determination. It is clear, therefore, not only that the issue of the execution of the decree being barred by limitation was in fact before the Court (as is shown also by the pleadings) on that occasion, but that the judge at the time was aware of it, and that his decision included (as legally must have been the case) the rejection of this plea. The present appellant proceeded to obtain the attachment of such properties of the respondents as were available to him in execution, and during the year 1916 various claims to the properties were put forward and adjudicated upon by the Subordinate Judge, and finally the matter came before the Subordinate Judge and he dealt with it by an order on March 31, 1917. In these final proceedings he permitted the defendants to raise again the plea that the above order of December, 1915, did not preclude the defendants from raising the plea that the defendants were barred by limitation. Their Lordships are of opinion that it was not open to the learned judge to admit this plea. The order of December 13, 1915, is a positive order that the present respondent should be allowed to execute the decree. To that order the plea of limitation, if pleaded, would according to the respondents case have been a complete answer, and therefore it must be taken that a decision was given against the respondents on the plea. No appeal was brought against that order, and therefore it stands as binding between the parties. Their Lordships are of opinion that it is not necessary for them to decide whether or not the plea would have succeeded. 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, and moreover it was in fact brought forward and decided upon. No appeal was brought from the order then made, and therefore it was not competent for the Subordinate Judge to admit the plea on subsequent proceedings, or to consider it in his order of March 31, 1917, and the same remark applies to the judgment of the High Court on March 7, 1918, from which this appeal is brought. No appeal was brought from the order then made, and therefore it was not competent for the Subordinate Judge to admit the plea on subsequent proceedings, or to consider it in his order of March 31, 1917, and the same remark applies to the judgment of the High Court on March 7, 1918, from which this appeal is brought. Their Lordships are therefore of opinion that the order of the Subordinate Judge of March 31, 1917, and of the High Court of March 7, 1918, should be set aside, and that the prayer of the appellant for the recovery of the decree amount by attachment and sale of the defendants immovable properties referred to in the application should be granted, and that the appellant should receive from the respondents his costs in the Court below and of this appeal, and they will humbly advise His Majesty accordingly.