Fazl Ali, J.It appears that a money decree was obtained by the Kayasth Bank of Gorakpur against Mt. Basmati and Indrawati in the year 1918. The decree was assigned to the appellant who proceeded to execute it and filed the first execution petition on 25th September 1929. It is said on behalf of the appellant that the respondent who is the son of one of the judgment-debtors appeared and raised certain objections to the execution but the objections were dismissed on 9th November 1929 in the absence of both the judgment-debtor and the decree-holder.

2. The execution case was also struck off on 7th January 1930. On 30th January 1930 another appication for execution was filed on behalf of the appellant and was duly registered. On 23rd June 1930 the respondent appeared and objected to the execution. It may be noted here that the appellants case is that the objections raised on this occasion were identical with the objections raised in the previous execution case. The learned Munsif in whose Court the execution proceedings were pending held that the respondent was debarred from raising the same objections on the principle of res judicata and he directed the execution to proceed.

3. Then there was an appeal to the District Judge who held that the principle of res judicata did not apply in the circumstances of the case because in the first place the order sheet of the execution proceedings did not show who was the objector and what the nature of the objections was in the previous execution case, and, secondly, because on the date on which the objections were dismissed for default neither the decree-holder nor the objector was present and when the decree-holder was not present there was no necessity for the objector to press his objections. From this decision an appeal has been preferred to this Court and it is argued on behalf of the decree-holder that the learned Judge was wrong in holding that the matter was not res judicata and that the Court was competent to entertain the objections raised by the respondent.

4. Reliance is placed in this connexion on Jago Mahton v. Khirodhar Ram AIR 1924 Pat. 122 in which it was held by a Division Bench of this Court on the authority of the decision of the Judicial Committee in Mungal Parshad Dichit v. Girja Kant Lahiri [1882] 8 Cal. 51 that where a judgment-debtor objects to the execution of a decree on the ground that the application is barred by limitation, and the objection is dismissed for default of the judgment-debtor, the latter is not entitled, when a subsequent application for execution is made, to object that the previous application was time barred. It appears however that before the Bench which decided that case reference was made to a decision of the Calcutta High Court in Bholanath Dass v. Prafulla Nath Kundu Chowdhury [1901] 28 Cal. 122 which was distinguished by the learned Judges in the following manner:

In that case after several adjournments granted at the instance of the decree-holder neither party having appeared at the date of the hearing the Court by its order refused an application for execution and at the same time disallowed the objection of the judgment-debtor. On a subsequent application by the decree-holder the judgment-debtor again objected to the execution alleging that inasmuch as the previous application was barred by limitation the subsequent application was also barred. It was held in such circumstances that the judgment-debtor was not precluded from raising the objection that the previous application was birred by limitation. It appears to me that that was an entirely different case from the present and one in which entirely different considerations arose because no decision of any sort was come to in that case by the Court in the previous execution case. An execution case was started no doubt and certain objections were taken by the judgment-debtor but nobody after that appeared and the Court came to no decision upon any question. All that the Court did was to dismiss the execution case and at the same time dismissed the objections.

5. It seems to me that the facts of the present case bear a closer resemblance to the case decided by the Calcutta High Court than to the case of Jago Mahton v. Khirodhar Ram AIR 1924 Pat. 122 . As the learned District Judge has pointed out and as is also clear from the order sheets, neither the judgment-debtor nor the decree-holder was present on the day the objections were dismissed and in these circumstances there was no occasion for the executing Court to apply its mind to, and decide, the merits of the objections. Besides there ought to be some distinction between those cases where there is negligence on the part of both the parties and those where only one of the parties is at fault. In this connexion the learned advocate for the respondent refers us to certain provisions of Order 9, Civil P.C. and especially to Order 9, Rules. 3 and 8. It is pointed out by him that when a suit is dismissed under Order 9, Rule 3 in the absence of both the parties it is clearly provided under Order 9, Rule 4 that the plaintiff is not debarred from bringing a fresh suit, whereas it would not be open to him to bring a fresh suit if the suit is dismissed under Order 9, Rule 8, that is to say, where the defendant appears and the plaintiff does not appear.

6. In reply to this argument Mr. Mitter very rightly points out that the provisions of Order 9 do not apply to execution proceedings. At the same time Section 11, Civil P.C., on which the appellant relies is also not directly applicable to execution proceedings but it is not disputed that the principle underlying that section does apply and has been frequently applied by the Courts in this country to execution proceedings. It is clear that the principle upon which the provisions of Order 9, Rules 3 and 4 are based is that a party is not to be precluded from bringing a fresh suit where there was no occasion for the Court to apply its mind to the points raised in the suit and where there was laches on the part of both the plaintiff and the defendant. In such a case the penalty to be imposed on the plaintiff cannot be so severe as in those where there is default on his part only. It was on this principle, I think, that it was conceded in Jago Mahton v. Khirodhar Ram AIR 1924 Pat. 122 that where both parties do not appear different considerations would arise.

7. Mr. Mitter distinguishes the present case from the case of Bholanath Dass v. Profulla, Nath Kundu Chowdhury [1901] 28 Cal. 122 on the ground that in the latter case both the execution proceedings and the objections of the judgment-debtor were dismissed for default on the same day whereas in the present case the execution proceeding was dismissed some days later. There is no doubt that this is so, but it appears to me that merely because the execution case was dismissed a few days later in the present case, one cannot overlook the fact that on the day the objections of the judgment-debtor were dismissed neither the judgment-debtor nor the decree-holder was present in Court. (The judgment after upholding the other findings of the lower Court concluded.) The appeal accordingly fails and must be dismissed with costs.

Courtney-Terrell, C.J.

8. I agree.