JUDGMENT : The appellant Jagannath says that he is nephew of the original decree-holder Heeralal who obtained a decree No. 46 of 1986 dated 27-6-1930. This decree was against the property of the respondents and against whatever property the deceased Moujilal (father of respondents Takhat Singh and Kishen Singh) might have left. The first application for execution was filed by Heeralal himself on 23-8-1930 (Ex. File No. 75 of 1987). There was no service on the respondents and the application for execution was dismissed on 25-6-1931 on the ground that according to the decree-holder's Vakil the respondents were agriculturists and execution proceedings against agriculturists were stayed. 2. The second application for execution was filed on 25-8-1935 (No. 125 of 1991) by Jagannath appellant who stated that the original decree-holder was dead and he was his nephew. Jagannath further stated that Shrichand is the son of the original decree-holder but he and Shrichand belonged to a joint family and that in partition of the family property this decree came to Jagannath's share. So Jagannath prayed that execution of the decree may be ordered. This execution application apparently was barred by time. But the Court issued notices to the respondents. Respondents Shyamlal and Takhat Singh were served but Kishen Singh could not be found. They did not appear. Then the decree was transferred to Paragana Kolaras on 30-8-1935. 3. The third application (No. 1040 of 1995 was instituted on 12-6-1939. Notice on Kishen Singh was again not served. Execution was dismissed in default on 2-8-1939. This application was also time barred. 4. The fourth application (No. 575 of 1998) was instituted on 31-1-1942. On 15-6-1942 warrants of attachment of cattle were issued. Notices on Kishen Singh and Takhat Singh were served. On Shyamlal the notice remained unserved. On 13-7-42 execution was dismissed in default. 5. The fifth application for execution (No. 131 of 2000) was filed on 10-8-1943. The file was transferred to Suba Shivpuri for sale of Zamindari property (Pile No. 23 of 2002). Notices on Kishen Singh and Takhat Singh were served. On Shyamlal the notice remained unserved. On 13-7-42 execution was dismissed in default. 5. The fifth application for execution (No. 131 of 2000) was filed on 10-8-1943. The file was transferred to Suba Shivpuri for sale of Zamindari property (Pile No. 23 of 2002). Notices were served on respondents Takhat Singh and Shyamlal, The proceedings were going on in Subat Court Shivpuri when after the attachment of the property the respondents filed an application in Sub-Judge's Court Shivpuri on 7-6-1947 alleging that the execution is beyond limitation according to both the 3 years and the 12 years rule; and that Jagannath is not the legal representative of the original decree-holder as the latter's son Shrichand is alive. The learned Sub-Judge after recording the evidence overruled the objections. An appeal was taken to the Court of the District Judge who allowed the appeal, upheld the objections and dismissed the execution petition. 6. Against this order, this appeal has been filed by Jagannath, and an important argument has been advanced by his learned counsel, Mr. Motilal Gupta, to the effect that both the objections of the respondents ought to have been overruled on the principle of constructive 'res judicata' as the objections were filed nearly twelve years after Jagannath's first application for execution. He places reliance on 'Bishen Singh v. Jaishi Ram', AIR (27) 1940 Lah 161; 'Promotha Nath v. Habumia', AIR (32) 1945 Cal 335 and on Note 23 to S. 11 in Chitaley's commentary on the Code of Civil Procedure. Learned counsel for the respondents, Mr. He places reliance on 'Bishen Singh v. Jaishi Ram', AIR (27) 1940 Lah 161; 'Promotha Nath v. Habumia', AIR (32) 1945 Cal 335 and on Note 23 to S. 11 in Chitaley's commentary on the Code of Civil Procedure. Learned counsel for the respondents, Mr. P. N. Bhargava, on the other hand, has cited, Genda Lal v. Hazari Lal, AIR (23) 1936 All 21; 'Aley Rasul v. Balkishan', AIR (24) 1937 All 446, 'Ganga Ram Trust Society Lahore v. Sundar Lal', AIR (27) 1940 Lah 27, 'Sham Sundar Singh v. Dhirendra Nath', AIR (37) 1950 Pat 465; 'Karali Prasad Roy v. Probodh Chandra', AIR (37) 1950 Cal 513; 'Mannu Lal v. Hanuman Singh', AIR (38) 1951 All 398 and 'Jagadeo Nawasji v. Co-operative Society Mahalungi', No. 2, AIR (38) 1951 Nag 210 in support of the propositions (1) that a judgment-debtor even after notice, is not precluded from raising the point of limitation or other points in subsequent execution proceedings unless there was an adjudication implied in an order which taken with surrounding circumstances should be taken to imply a conscious determination of the question raised or unless the decree-holder obtained some relief by way of part satisfaction of the decree; (2) that a mere attachment of the property is not a fructification of the decree and (3) that there is no estoppel against the statute. 7. I have considered the above rulings and I find that there is conflict of judicial opinion on the point of constructive res judicata. I would prefer the Allahabad view AIR (23) 1936 All 21 (FB) so far as the objection of limitation under Article 182 is concerned. As regards the 12 years rule (laid down in S. 48 of the Code of Civil Procedure) I am definite the judgment-debtor can raise this objection at any time till it is expressly adjudicated upon by the Court. If this point is not raised by the judgment-debtor after notice having been served in the 13th year after passing of the decree, it does not mean that the execution of the decree would continue for 50 or 100 years more at the sweet will of the decree-holder. If this point is not raised by the judgment-debtor after notice having been served in the 13th year after passing of the decree, it does not mean that the execution of the decree would continue for 50 or 100 years more at the sweet will of the decree-holder. I think that this particular objection cannot be hit by the principle of constructive res judicata, but as the judgments of the two Courts below on the question whether the judgment-debtors were agriculturists or not, are based not on evidence but on only superficial considerations I would like to send the case back for recording of the evidence and then for determining the question whether the judgment-debtors were agriculturists and whether the period during which execution proceedings against agriculturists were stayed should be excluded or not in this case. 8. The more important question however in this case was whether the application for execution by the appellant Jagannath, as it was, could be allowed to proceed. In my opinion, the case had been dragging on for years in the execution Court with extreme carelessness and with reckless disregard of the provisions of the law. The proviso to R. 16 of O. 21 (S. 240 of the Gwalior Civil P. C.) may be referred here which lays down that "Where the decree has been transferred by assignment, notice in writing of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objections (if any) to such execution". Mr. Motilal Gupta's contention that the decree was transferred by operation of law is fallacious. The decree was obtained by Heeralal in his personal capacity and there was no joint decree-holder. The legal representative of Heeralal is his adopted son Shrichand. According to his deposition recorded on 25-11-47 both he and Jagannath came in adoption from another family and remained joint till Samvat 1889. When there was a partition and the decree was allocated to the appellant Jagannath. This was all an oral transaction. The legal representative of Heeralal is his adopted son Shrichand. According to his deposition recorded on 25-11-47 both he and Jagannath came in adoption from another family and remained joint till Samvat 1889. When there was a partition and the decree was allocated to the appellant Jagannath. This was all an oral transaction. The law is well settled that if a decree obtained by one of the members of a Hindu family is allocated, at a family partition, to another coparcener, the person to whom it is allocated cannot be treated as an assignee of the decree by operation of law and he cannot, by reason of such allocation alone, execute the decree unless he was so empowered by an instrument in writing. A Division Bench of the Madras High Court (Sundara Aiyar and Sadasiva Aiyar, JJ.) further held in this case viz. 'Ramanathan Chettyar v. Ragavendra Rao', 16 Ind Cas 807 (Mad) that an oral transferee of a decree is not entitled to execute it and that under O. 21, R. 16 an assignee of a decree can apply to execute it only when the assignment is in writing and that an application of oral assignee cannot be said to be an application to take a step in aid of execution in accordance with law. 9. In another case 'Periakhatha Nadar v. Mahalingam', AIR (23) 1936 Mad 543 a Division Bench held that the words 'operation of law' cannot apply to a case where a person has become the owner of a decree by some transaction 'inter vivos', and that the term applies to these cases where the decree has been transferred from one to another by way of succession or where there is bankruptcy or any similar event which has the effect in law of bringing about such a transfer. It was further held in this case that what is required by law is not particular form of writing but an assignment in substance which is in writing. 10. The assignee of a decree under an oral assignment thus has no locus standi at all to apply for execution of a decree 'Parvathi v. Digambar', 15 Bom 307; 'Ramnathan Chettiar v. Sokkanatha', 13 Ind Cas 78; and 'Jatindra Nath v. Peyer Deye Debi', AIR (3) 1916 PC 147. 11. 10. The assignee of a decree under an oral assignment thus has no locus standi at all to apply for execution of a decree 'Parvathi v. Digambar', 15 Bom 307; 'Ramnathan Chettiar v. Sokkanatha', 13 Ind Cas 78; and 'Jatindra Nath v. Peyer Deye Debi', AIR (3) 1916 PC 147. 11. It will thus be seen that the decree was dead in July 1933 and according to the dictum of their Lordships of the Privy Council in 'Jatindra Nath v. Peyer Deye Debi', AIR (3) 1916 PC 147 it was not in the appellant's power to make it alive. There could have been no execution of a decree that was not alive when the application was made. The application for execution could not have been entertained and if entertained there was lack of inherent jurisdiction and the proceedings being 'coram non judice' no amount of waiver on the part of the judgment-debtors could have validated the proceedings. It will be clear that under these circumstances the principle of constructive res judicata cannot be made applicable here. 12. It is also important to note that in every application for execution appellant Jagannath continued to reiterate that the original decree-holder was dead and the decree came to his share in the partition. This was virtually an application for substitution of his name in place of the original decree-holder. The Court ought to have passed order recognising the assignment, if it was of opinion that the appellant was an assignee within the terms of R. 16 of O. 21. No such order was passed on any application, and no notice in writing of the applications was given to the transferor or the judgment-debtor. The provisions of O. 21 R. 16 are of a mandatory character and giving of notice of the applications to the transferor and the judgment-debtors in an indispensable condition of jurisdiction, and non-compliance with this renders all proceedings in execution void, 'Notan Das v. Lachhman Singh', 2 Lah 230; 'Sreenath Das v. Achutananda Mahanti', 6 Ind Cas 262 (Cal), 'Uma Moyee Dasya v. Jatan Bewa', AIR (14) 1927 Cal 781; 'Partap Singh v. Gurditta Mal', AIR (4) 1917 Lah 195; 'Sarifa Khatun v. Asimannessa Bibi', AIR (25) 1938 Cal 734; Rameshwar Singh v. Harihar Jha', AIR (8) 1921 Pat 76(2) and 'Jamuna Das v. Baijnath Prasad', AIR (21) 1934 Pat 9. 13. 13. I would therefore hold that the application for execution of the decree by Jagannath could not be held to be competent and deserved to be dismissed. 14. For these reasons, the appeal fails and is dismissed with costs.