2000 (7) TMI 993 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the execution proceedings were barred by limitation.
2. Whether the objections to the execution proceedings were barred by principles of constructive res judicata.
3. Whether the attachment of the property in execution of a mortgage decree was necessary.

Detailed Analysis:

1. Whether the execution proceedings were barred by limitation:
The appellants contended that the execution proceedings were barred by time, arguing that the court must examine the question of limitation even if no objection is raised. They relied on the Supreme Court's decision in Andhra Industrial Works vs. Chief Controller, Imports, which discussed jurisdictional defects and conditions precedent to the exercise of jurisdiction. However, the court found this reliance misplaced, stating that the issue was whether a plea of limitation affects the proceedings so fundamentally that it renders the exercise of jurisdiction a nullity from the inception. The court referred to the Supreme Court's decision in Ittyavira Mathai vs. Varkey Varkey, which held that a decree passed by a court with jurisdiction over the subject matter and parties cannot be treated as a nullity even if the suit is barred by time. The court concluded that an erroneous decision on the question of limitation does not render the order void but must be corrected through appeal or revision.

2. Whether the objections to the execution proceedings were barred by principles of constructive res judicata:
The court held that the principle of constructive res judicata applies to execution proceedings. The court cited several precedents, including Raja of Ramnad vs. Velusami Tevar and Mohanlal Goenka vs. Benoy Kishna Mukherjee & Ors., which established that a decision on the question of limitation, even if erroneous, operates as res judicata in subsequent proceedings. The court emphasized that once the preliminary stage under Order XXI Rule 22 is concluded without objections, the judgment-debtor cannot raise objections at a later stage unless the order is appealed against and set aside. The court also dismissed the appellants' contention that interlocutory orders do not operate as res judicata, citing Satyadhyan vs. Smt. Deorajin Debi and Arjun Singh vs. Mohindra Kumar, which clarified that res judicata applies to different stages of the same suit and interlocutory orders that decide matters in issue.

3. Whether the attachment of the property in execution of a mortgage decree was necessary:
The appellants argued that in the execution of a mortgage decree, attachment of the property was unnecessary because the property was already subject to a charge. The court rejected this argument, stating that attachment under Order XXI Rule 54 acts as an injunction against the owner from alienating the property, whereas a mortgage only creates a charge as security for repayment. The court found no provision in the Civil Procedure Code that excludes the requirement of attachment before the sale of the property in execution of a decree. The court also disagreed with the Tripura High Court's decision in A. Choudhary & Co. vs. A.I. Syndicate, which suggested that a charge created by a court decree does not require attachment. The court concluded that the attachment of the property is necessary to prevent the owner from meddling with the property before the sale.

Conclusion:
The appeal was dismissed, with the court holding that the objections to the execution proceedings were barred by principles of constructive res judicata and that the attachment of the property was necessary in the execution of a mortgage decree. The court emphasized the importance of the principle of res judicata in ensuring the smooth progress of execution proceedings and preventing the re-agitation of issues that have already been decided.