TMI Blog2008 (2) TMI 920X X X X Extracts X X X X X X X X Extracts X X X X ..... legal representatives of the decree holder Badrinarain and the appellants are the legal representatives of the judgment-debtor Abdul Ghani. The said Badrinarain obtained a decree against Abdul Ghani in a mortgage suit on 11.5.1952 in which an amount of ₹ 11,194.25/- was determined as payable by the said Abdul Ghani from the date of final decree. Successive execution applications were filed for recovering the said sum. First application for execution was filed on 7.10.1952 in which proceedings the decree was partially satisfied. The proceedings ended on 21.12.1956. The second execration resulted in further partial satisfaction. The said execution terminated on 25.9.1957. The third execution application which was filed on 20th May 1958 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing inter alia that the execution proceedings were barred by time and that amount for which the execution was sought was also not correctly stated. The executing Court found that since after completing preliminaries of issuing notice and finding that no objection has been filed in spite of the service under Order XXI Rule 22 of the Code of Civil Procedure, 1908 (in short CPC ) and the Court had proceeded to next stage of execution for attaching the property under Order XXI Rules 23 and 24 of C.P.C., any objection raised subsequent thereto cannot be entertained being barred by principles of constructive res judicata. Against the dismissal of the objections dated 16.11.1972 by order dated 13.7.1974, an appeal was, preferred before the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) operates when no objection is filed. Then the Court proceeds and clears the way for going to the next stage of the proceedings namely attachment of the property and if the Court finds objections on record then it decides the objections in the first instance and thereafter clears the way for taking up the matter for attachment of the property if the objections have been overruled. Whether the order is made under sub rule (1) or sub rule (2), it has the effect of determining the preliminary stage before the attachment process is set in motion. In this background, the order of the Court to proceed with attachment on finding that no objection has been raised also operates as an order deciding the preliminary stage of the execution proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst orders made under Order XXI has been provided under Order 43. In this background, where a judgment-debtor has an opportunity to raise an objection which he could have raised but failed to take and allowed the preliminary stage to come to an end for taking up the matter to the next stage for attachment of property and sale of the property under Order XXI Rule 23 which fell within the above principle, the judgment-debtor thereafter cannot raise such objections subsequently and revert back to earlier stage of proceedings unless the order resulting in termination of preliminary stage which amounts to a decree is appealed against and order is set aside or modified. 8. The principles of res judicata not only apply in respect of separate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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