TMI Blog2000 (7) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfaction of the decree and the said proceedings ended on 6.8.1960. The present execution application for the recovery of remainder sum was filed on 30th January, 1971. The notice of the application was issued to all the appellants and another son who was reported to be dead by the process server. The appellant No. 1 accepted service on behalf of appellants No. 2 3, who were then minors. The notice was served on 20.4.72 for hearing on 3.6.72. An appearance was filed by the counsel on 3.6.72 who sought time to file objections which was granted and the proceedings were adjourned to 5.8.72. On 5.8.72, again adjournment was sought which was granted and the case was adjourned to 12.8.72. On 12.8.72 also, the proceedings could not proceed further because the learned Presiding Judge was on leave and the case was adjourned to 16.9.72. On 16.9.72, the Court finding that no objections have been filed till then by the judgment-debtor, the decree holder was directed to file expenses for carrying out attachment within five days on the submission of which the warrants of attachment could be issued and the proceedings were adjourned to 21.9.72. The attachment warrant was not issued prior to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise of jurisdiction. If the proceedings are not instituted within jurisdiction, the court has no jurisdiction to proceed in the matter and all proceedings are void at the inception. He placed reliance on the decision of the Supreme Court in Andhra Industrial Words vs. Chief Controller, Imports (1), wherein the Court was considering the cases which can be considered giving rise to breach of fundamental rights entitling a petitioner to invoke the jurisdiction of the Supreme Court under Article 32 of the Constitution. The Court said : Such violation, actual or potential, may arise in variety of ways, and it is not possible to give exhaustive classification. But on the analogy of Ujjam Bai's case (1963) 1 SCR 788 instances, most usual in relation to laws regulating the citizen's right to carry on trade or business may be catalogued as under:- (a) xxx (b) Where the statute concerned is ultra vires (intra vires?) but the impugned action is without jurisdiction on account of a basic defect in the constitution of the authority or tribunal or owing to the absence of a preliminary jurisdiction fact i.e. a condition precedent to the exercise of jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decree can be treated as a nullity and ignored in subsequent litigation. If the suit was barred by time and yet, the court decreed it, the court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a court having jurisdiction over the subject matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject-matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often been said, courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities ....If it fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the Civil Procedure Code. If the party aggrieved does not take appropriat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made to the question of limitation nor the Court reserved any question of limitation for future determination. In pursuance of the said order, the transferee of the decree proceeded to obtain the attachment of such properties of the respondents as were available to him in execution. In the proceedings to obtain attachment in furtherance of the application, in which order was made on 13th Dec., 1915, allowing the transferees to proceed with the execution of the decree, the executing Court entertained the petition as to plea of limitation and accepted the same and dismissed the execution application as barred by time. The order of the executing Court was upheld by the High Court in Appeal. The Board found that though no reference has been made to the plea of limitation in the order dated 13th Dec., 1915 yet it operated as res judicata, the Board opined:- Their Lordships are of the opinion that it was not open to the learned Judge to admit this plea, the order of the 13th December, is a positive order that the present appellant should be allowed to execute the decree. To that order the plea of limitation if pleaded, would according to the respondent's case have been a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applies to execution proceedings also, the constructive res judicata pre supposes that in fact there is no determination of the issue but it is impliedly deemed to have been decided between the parties which arose in the circumstances where a plea which ought to have been raised in the earlier proceedings by the parties and if the party now seeking to raise has an opportunity to raise it but has failed to raise it at the earlier occasion, he is precluded from raising the same in the subsequent proceedings on the principle of constructive res judicata. Therefore, the question that there has to be an order deciding the issue only then the principle of res judicata can apply, does not take into consideration the basic premise on which the constructive res judicata operates. (15). Reliance in this connection was placed by the learned counsel for the appellants on Sheodan Singh vs. Daryao Kunwar (5). (16). We find no support for this contention in the aforesaid decision. A close reading of the decision reveals that there were four civil suits raised between the parties namely 37 of 1950, 42 of 1950, 77 of 91 and 91 of 1950 for different reliefs. However, the common qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ata. (18). The question had arisen earlier in Satyadhyan vs. Smt. Deorajin Debi (6). The Court made the following observations which bring out the cases in which the principle of res judicata applies in two stages of the same litigation and an interlocutory order falling in that category where principle of res judicata applies. The Court said: The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having an earlier stage decided a matter in one way will not allow the parties to re agitate the matter again at a subsequent stage of the same proceedings. (19). When the Court has decided a matter, it is certainly final as regard that Court. However, in future litigation by way of appeal, the Court opined that an interlocutory order, which has not been appealed either because no appeal lay or even though an appeal lay an appeal was not taken, can be challenged in an appeal from a final decree or order, and such decision at earlier stage of the proceedings shall not bind the appellate Court in appeal from the final order in a proceeding, during the course o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is contained in Sec. 11 but is of more general application. Again, res judicata could be as much applicable to different stages of the same suit as to findings on issues in different suits.....Where the principle of res judicata is invoked in the case of the different stages of proceedings in the same suit, the nature of the proceedings, the scope of the enquiry which the adjectival law provides the decision being reached, as well as the specific provisions made on the material and relevant factors to be considered before the principle is held applicable. (23). As the matter related to an order passed under Order IX Rule 7, the Court found that it was an order to which principle of res judicata does not apply. (24). These two decisions fairly establish that the principle of res judicata applies not only between two separate proceedings but general principle of res judicata applies at the subsequent stage of the same proceedings also and the same court is precluded from going into that question again which has been decided or deemed to have been decided by it at earlier stage. If an appeal lay against that order and against the final order that may be passed in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been attached finality unless they are set aside by way of appeal before the higher forum else they bind the parties at the subsequent stage of the execution proceedings so that the smooth progress of execution are not jeopardised and the stage which reached the finality by dint of various orders of the Order XXI operates as res judicata for the subsequent stage of the proceedings. Since the order passed at different stage itself operates as decree and appealable as such, the same cannot be challenged in appeal against subsequent orders also, because appeal against an order passed under O.21 R.22 does not fall as appeal against order at initial stage but amounts to a decree finally determining the question. That is why no appeal against orders made under O.21 have been provided under O.43. In this background where a judgment-debtor has an opportunity to raise 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 objecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question being mortgage debt and the suit decree was for enforcement of a mortgage in execution of such decree, there is no requirement of attaching the property because the property is already subject to charge and attachment is wholly unnecessary. No notice can be taken to entail its consequences on subsequent proceedings. Reliance was placed on the case of A. Choudhary Co. vs. A.I. Syndicate (11). (29). Having given our careful consideration, we find no substance in it, Order 21 Rule 54 which provides for attachment of Immovable property, requires making of an order prohibiting the judgment-debtor from transferring or charging the property in any way and prohibits all persons from taking any benefit from such transfer or charge. Thus, the attachment of property acts as an injunction against the owner of such property from exercising his right to alienate the property at all, whereas the effect of creation of mortgage is to create the charge which is in favour of mortgagee as a security for repayment of loan for which the property stands as security. The effect of the mortgage by the owner of the property nowhere affects his right to alienate the property. The effect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... securing a decree or very same decree can be put to execution, is not the question that arise in this case. We make no comment on it. However, assuming that such a charge itself becomes part of an executable decree, there is no escape from the conclusion that such a decree for enforcement of charge has to be executed through the same process as any other decree for enforcement of such charge can be executed. No separate mode of execution of such decree has been provided. If a decree passed in mortgage suit has to be executed by having response to O.21 R.23 by attaching the mortgage property, a decree creating charge will also has to be executed in same manner. There is no provision that once a declaration by a decree is made that property is subject to charge or mortgage, it stands automatically attached. On this premise, we are clearly of the opinion that whenever immovable property of the judgment-debtor is to be subjected to sale by the Court in an execution of a decree, attachment of the same is required to be made under Order 21 Rule 24 to put the interest of the judgment-debtor on the sale for satisfaction of the decree whether such interest of the judgment-debtor is of absol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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