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TMI Blog1971 (12) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... re spondents dismissed by the High Court. 28- 2-1958 - Second Execution Case No. 72 of 1958 filed. 5- 4-1958 - Execution Case (No. 72/58) dismissed. 25-12-1960 - Judgment debtor No. 7 on his behalf and on behalf of all judgment debtors is al leged to have paid Rs. 5/- to the decree-holder towards the decree. 14- 8-1962 - Third Execution Case No, 195 of 1962 filed 27- 9-1962 - Execution Case (No. 195/62) dismissed. 18-12-1962 - The present Execution Case No. 339 of 1962 filed by the decree holder. The Court directed the same to be put up on 2-1-63 with office note. 2- 1-1963 - Authentication fee paid by the decree-holder. Case admitted. Notice under Order 21, Rule 22, C.P.C. issued fixing 24-1-63 for return. 24- 1-1963 - Service return received. Service proved and accepted as sufficient. Ordered to be put upon 1-2-1963 when de cree-holder to take further steps. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se for consideration In this appeal are the following :-- (1) What Is the exact Import of the order dated 24-1-1963 passed by the executing Court and whether it amounts to an implied adjudication that the decree is executable and the execution application is not barred by limitation. (2) Assuming that it is so, whether it is open to the judgment-debtors at a subsequent stage of the execution proceeding to contend that the execution application is barred by limitation. In other words, whether the principle of constructive res judicata can be invoked by the decree-holders to bar adiudica-tion of the objections raised by the judgment-debtors. 4. Order 21 of the Code relates to the execution of decrees and orders. An application for execution of the decree, unless it is an oral application made in the circumstances mentioned in Clause (1) of Rule 11, is required to be in writing and is to contain particulars as mentioned in Clause (2) of Rule 11. Rule 22 provides that notice of the execution application should be issued to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him. Then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objection, and as required by Sub-rule (1) of Rule 23, the Court passes an order that the decree be executed, the order so passed by the Court is more or less automatic, and there is no adjudication of anything, and consequently the principles of constructive res judicata are not attracted to such a case and the judgment-debtor is entitled at a later stage of the proceedings to put forth his objections to the executability of the decree. For the purpose of examining the validity of this contention, we are assuming for the present, that the import of the order dated 24-1-1963 passed in this case is that the Court has ordered that the decree be executed. 5. Section 11 of the Code dealing with res judicata, in so far as is material, may be quoted : 11. No Court shall try any suit or Issue in which the matter directly and substantially in issue has been directly; and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btor did not appear in Court in response to notice, and in due course, sale proclamation of properties attached was issued. At that stage the judgment-debtor appeared in Court and filed an application to stop the sale for three months, admitting the debt. Sale was stopped and the execution application was allowed to be dismissed on 25th of January, 1875. The next and the seventh application for execution was presented on 22nd September, 1877, and the judgment-debtor appeared in Court and contended that the sixth execution application presented on 5th September, 1874 was barred by limitation, and consequently the seventh execution application should not be allowed to proceed. The Court of first instance held that although it was open to the executing Court to dismiss the sixth execution application as being barred by time although the judgment-debtor did not appear and file any such objection, yet he not having done so and having allowed the execution to proceed, his order, though erroneous, was valid because it had not been reversed, and it is, therefore, not open to the judgment-debtor to contend in the proceeding arising under the seventh execution application that the previou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised. That High Court, however, in AIR 1962 Cal. 272 (Bishwanath Kundu v. Sm. Subala Dassi) held that a dismissal for default of an objection made under Section 47, which involves no decision on the merits, either expressly or impliedly. that is. by necessary implication, cannot be held to bar a subsequent objection, either similar or different. No reference in this case was made to the previous Bench decision of that Court in 38 Cal. WN 141 = (AIR 1934 Cal 472). The decision of AIR 1962 Cal. 272, however, can be distinguished on the ground that it did not involve an application of Explanation 4 to Section-11 but it was a case where the judgment-debtor appeared and filed objec-tions but the objections were later on dismissed for default of his appearance. 8. In the Patna High Court, one of the earliest cases where this point was taken up for consideration is AIR 1938 Pat. 427 (Mahadeo Prasad Bhagat v. Bhagwat Narain Singh). In execution of a money decree, certain properties were sold in execution. Such a sale being alienation within the meaning of Section 12-A of the Chota Nagpur Encumbered Estates Act required the sanction of the Commissioner. Objections on two occasions were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tructive res judicata in regard to the contentions which might and ought to have been urged against the execution of the decree in opposition to the notice under Order XXI, Rule 22. Equally must the order under Order XXI, Rule 23 operate as constructive res judicata if the person against whom the decree is sought to be executed did not appear in answer to the notice under Order XXI, Rule 22 and the order directing the decree to be executed was, therefore, made by the Court. In such a case all contentions which might and ought to have been urged by such person showing cause why the decree should not be executed would be barred by the principle of constructive res judicata and it would not be open to such person to raise those contentions at any subsequent stage of the execution, proceedings. 10. In AIR 1951 Assam 75 (Ail-muddin v. Budheswar Sarma), a Bench of Assam High Court held that where the judgment-debtor fails to appear in response to a notice under Order 21. Rule 22 and the executing Court orders execution to proceed, the judgment-debtor appearing in response to a notice for settlement of the terms of the sale of the property cannot object to the execution of the decree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment-debtor did not attend Court on that day. and as prayed for by the decree-holders, a warrant of arrest was issued against the judgment-debtor who was arrested and produced in Court on 23rd March. 1933. On that day he made an objection on the ground that he had not made any payment of Rs. 50/- on llth November, 1930 and therefore the execution application was barred by limitation. The lower Court dismissed the obi-ection as barred by res judicata. The Full Bench, however, held with reference to the facts of that case that the mere fact that the judgment-debtor did not appear in response to the notice under Order 21, Rule 22, C.P.C. did not imply that he admitted that the application was in time, when on the face of it it was barred by limitation. The application was barred by time and the Court ought not to have Issued any notice at all. In those circumstances, therefore, the Full Bench held that there was nothing in law to prevent the executing Court entertaining the judgment-debtor's plea of limitation at any time during pendency of the application for execution. Sulaiman, C. J. with whom Bennet, J. agreed summarised his conclusions thus :-- (1) Where there has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecognised that if there was an adjudication implied in an order which considered with the surrounding circumstances should be taken to imply a conscious determination of the question of executability of the decree, the judgment-debtor would be precluded on the principle of res judicata from raising that plea at a subsequent stage of proceeding. It is only because in that case the execution application was on the face of it barred by limitation and as such the executing Court ought not to have issued any notice at all, that the High Court held that in allowing the execution case to proceed in the absence of any objection by the judgment-debtor, there was no conscious adjudication on the question of limitation and therefore that order would not operate as res judicata. 13. In AIR 1943 Bombay 252 (M. H. Kakkalmali v. G. H. Kulkarni), the facts were these : There was a mortgage decree for Rs. 1750/- and it was put in execution for sale of the mortgaged property. In response to notice under Order 21, Rule 22, C.P.C. the judgment-debtor did not appear in Court and the executing Court transferred the proceedings to the Collector. When the Collector issued notice to the judgment-debtor, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was dismissed for default. Neither the copy of the decree nor any covering letter as required by the Rules of the High Court was sent along with the certificate. Thereafter the decree-holder filed a second application for execution of the decree in the Assansol Court praying for sale of the Sripur Colliery belonging to the judgment-debtor. Notice under Order 21, Rule 22, Civil P. C. was duly served and the executing Court ordered issue of sale proclamation. It is unncessary to refer to the details of the proceedings. It is enough to state that during the pendency of the execution proceedings several objections were filed on behalf of the judgment-debtor to the effect that after the Assansol Court had sent to the High Court a certificate under Section 41. C. P. C. stating that the execution case was dismissed for default, the decree was never again transferred to the Assansol Court for execution and consequently the latter Court had no jurisdiction to entertain the second execution application filed by the decree-holder. These objections were, however, not pressed on the earlier occasions with the result that the execution proceeded and the property was also sold. After the sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Supreme Court has been brought to our notice where their Lordships have dissented from their earlier decision in AIR 1953 SC 65. But it is contended by Mr. B. Mohapatra on behalf of the respondents that in view of the decision of the Supreme Court in AIR 1969 SC 971 (Shivashankar Prasad Shah v. Bai-kunth Nath Singh), the law laid down in the earlier decision in AIR 1953 SC 65 can no longer be deemed to be correct. To understand the context in which their Lordships rendered the decision in AIR 1969 SC 971, it is necessary to state the facts in some detail. The ap-pellants in that case obtained a preliminary mortgage decree on June 26, 1947. The property mortgaged was an estate and included both bakasht lands as well as other lands. The Bihar Land Reforms Act came into force sometime after the preliminary decree. The decree-holders filed petition for passing a final decree on September 19, 1955. The estate mortgaged vested in the State of Bihar on January 1, 1956. On October, 1, 1956, a final decree was passed in the mortgage suit. On June, 18. 1968, the decree-holders filed an execution petition to execute the mortgage decree against the Bakasht lands. The judgment-debtors res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old. But the sale was later on set aside on 31st May, 1955, pursuant to the objections by the judgment-debtors that the mill could not be sold because of the provisions of the U. P. Encumbered Estates Act, 1934. Thereafter, the decree-holders made an application and obtained an order from the Arrah Court for the transfer of the decree to the Madras High Court, On 13th August, 1956, the decree-holders filed in the Madras High Court an application for attaching the properties of the judgment-debtors situate in Madras. The judgment-debtors pleaded that as the decree is dated 20-7-1938, the execution filed on 13th August, 1956 was barred by limitation. The decree-holders contended, on the other hand, that the execution of the decree which commenced on 2nd June, 1941 before the Civil Judge Allahabad was stayed till the end of 1949 and was revived on 13th May, 1950 and finally disposed of on 31st May, 1955 and, therefore, the execution petition filed on 13th August, 1956 was within time. On merits, the Madras High Court held that the execution application was not barred by limitation. When the matter came up in appeal before the Supreme Court, it was contended inter alia by the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and determined by the Court, nor was any reference made therein to the still earlier decision of the Supreme Court in AIR 1953 SC 65. But the law laid down by their Lordships in AIR 1969 SC 971 is in accord with the one stated in AIR 1953 SC 65. 16. Explanation IV to Section 11 of the Code says that any matter which might and ought to have been made a ground of defence or attack in a former suit of the nature (referred to in the body of the section) shall be deemed to have been a matter directly and substantially in issue in such suit. This Explanation, therefore, refers to pleas which ought to have been taken in the former suit, but not actually taken. In the nature of things, therefore, such pleas, which are not actually taken but which ought to have been taken, can never be heard and much less decided. If to attract the operation of the principle of res judicata it is always insisted upon that a plea must have been actually heard and determined by the Court, then Explanation IV, in my opinion, would lose all its meaning, because there may not be any occasion to press Explanation IV into service. It, therefore, appears to me that the true import of Explanation IV is that any m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a decision cannot operate as res judicata between the same parties. It is said that this decision considerably shakes the authority of the law laid down in AIR 1953 SC 65, because in that case, the Court had held that if the judgment-debtor at an earlier stage does not put forth the plea that the executing Court had no jurisdiction, he cannot raise such a plea at a later stage of the execution proceedings. Apart from the fact that the decision in AIR 1953 SC 65 does not appear to have been brought to the notice of their Lordships deciding AIR 1971 SC 2355, we are not, in the present case, concerned with the question of jurisdiction. That apart, the principle underlying the decision in AIR 1953 SC 65, notwithstanding the particular plea taken in that case, appears to be that if a plea which might and ought to have been taken at an earlier stage of the execution proceedings is not taken by the judgment-debtor, it must be deemed that it was decided against him. It is on this principle that the decision proceeded and the decree-holders in this case rightly want to draw support from that principle. 18. As the decision of this Court in 34 Cut LT 758 = (AIR 1968 Orissa 183) is in ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 21, Civil P. C. that the decree be executed. Instead, he directed the decree-holder to take further steps. As already indicated, the third execution case No. 195 of 1962 was filed more than three years after the second execution case No. 72 of 1958 was dismissed. Prima facie it was barred by limitation. It does not appear from the records that notice of the third execution case was served on the judgment-debtor with the result that he had no opportunity to contest about the maintainability of the execution, case. and that execution case was dismissed on 27-9-1962. The present execution case (Ex. C.339/62) was filed on 18-12-1962 and it is mentioned therein that a sum of Rs. 5/- had been paid by the judgment-debtors to the decree-holder towards the decretal dues on 25-12-1960. If this payment is true and binds the judgment-debtors, then undoubtedly the third execution application and also the present execution application would be in time. The onus to prove such payment was admittedly on the decree-holder. Section 3 of the Limitation Act provides that every application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed with me on the second aspect of the problems are somewhat different, 26. There is little doubt that Sub-rules (1) and (2) of Rule 23 relate to the same stage in the execution proceeding. This is of importance because this stage has to be kept distinct from the stage commencing with the steps in pursuance of Order 21, Rule 24. It may be in form that this latter proceeding may be a continuation of the previous proceeding. But it cannot be doubted that in substance this latter proceeding in Rule 24 was an independent and subsequent proceeding in relation to the proceedings covered by Order 21, Rule 23, C. P. C. 27. It is not very material in construing the relevant order either that Section 3 of the Limitation Act casts a duty on the Court to take notice of the question of limitation suo rnotu, or that the judgment-debtor has in fact subsequently filed his objections. So far as the former is concerned the bar of res judicata would operate notwithstanding the provisions of Section 3. As regards the latter, the only pertinent question is at what stage the objections have been taken. 28. In other words, the question is if the relevant order had the effect of concluding the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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