JUDGMENT John Edge, Kt., C.J. and Banerji, J.
1. This is an appeal in execution proceedings. The decree-holder obtained a decree from the Court of the Subordinate Judge of Cawnpore. His opponents appealed to the High Court. The decree of the Subordinate Judge was confirmed by the High Court with costs. The-decree-holder subsequently applied for execution of the decree of the Court of First Instance. An order for execution was made and execution proceeded. This is a subsequent application to further execute the same decree, by the assignees, of the decree-holder. The judgment-debtor objects that the decree which could be executed was not the decree of the Subordinate Judge, but the decree of the High Court. It is perfectly true that the decree of the Subordinate Judge did merge in the decree of the High Court, but this point is not open to the judgment-debtor now. It was a point which the judgment-debtor could have taken in the previous application. It was not taken by her, and the principle of res judicata applies, and she is not now entitled to say that the decree of the Subordinate Judge is not the decree which can be executed. Mr. Becha Rami contended that the principle of res judicata did not apply because his client did not think it convenient to raise that objection on the previous application. The principle of res judicata does not depend upon the convenience, interest-or motive of the litigant. It depends upon whether it was open to the litigant to raise the point on the previous occasion, and this point not having been raised by her then she cannot open it now.
2. In execution of the decree the judgment-creditors, the present decree-holders, asked the Court to put its process in execution by sale of property included in a security bond given for the performance of the decree which the High Court might pass in appeal. It is contended by Mr. Becha Ram that Section 99 of the Transfer of Property Act, 1882, limits the rights of these decree-holders, so far as the security bond is concerned, to a suit, and that Section 253 of the Code of Civil Procedure does not apply to the case. Section 99 of the Transfer of Property Act has, in our opinion, no application to the enforcement, by a process of the Court, of a security bond given to the Court for the performance of its decree. We are also of opinion that a security bond given to an appellate Court can be enforced in the same way as a security bond can be enforced under Section 253 of the Code of Civil Procedure. We are supposed in that opinion by the judgment of the High Court of Madras in Thirumalai v. Ramayyar I.L.R. 13 Mad. 1, by judgment of the High Court of Bombay in Venkapa Naik v. Baslingapa I.L.R. 12 Bom. 411, and by the judgment of the majority of the Full Bench in this Court in Bans Bahadur Singh v. Mughla Began I.L.R. 2 All. 604. It appears to us that when an appellate Court is given by law power to require a security bond to be given for the performance of its decree, as for instance under Section 545 of the Code of Civil Procedure, 1882, it was not the intention of the Legislature that the bond should be given by one party to the other, or that the bond given to the Court should not be enforced by ordinary process, similar to that under Section 253 in the case of a security bond given in the suit; and it could not have been the intention that the Court should sue upon the bond, or that it should be necessary for the Court to assign the bond for some other person to sue upon it. In our opinion ea. 582 and 583 of the Code of Civil Procedure made applicable in the case of a security bond given to an appellate Court Section 253 of the same Code. The provision in Section 363 of the Code that "in the case of a surety such security may be realised in manner provided by Section 253" was necessary, as Section 363 applies to circumstances arising subsequent to the decree of the first Court and is not in they chapters relating to the powers of appellate Courts. Our attention has been drawn to the case of Kali Charun Singh v. Balgobind Singh I.L.R. 15 Cal. 497, subsequently followed in the case of Tokhan Singh v. Udwant Singh I.L.R. 22 Cal. 25. In our opinion the view of law as stated in the cases in Madras and Bombay and by the majority of the Full Bench of this Court is right. The other objections were purely technical, and even from a technical point of view there was no substance in them. We dismiss this appeal with costs.