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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 ..... f 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 alleged 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 decree-holder to take further steps. 1- 2-1963 - Process-fee filed. Judgment-debtor No. 1 appeared and prayed for time to file objections let him file his objections by 9-2-1963. 9- 2-1963 - Judgment debtor No. 1 filed objections under Section 47, C.P.C. challenging the maintainability of the execution petition On the ground of limitation. Objection numbered as Misc. Case No. 50 of 1963. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment-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 follows Rule 23 which may be quoted. "23. (1) Where the person to whom notice is issued under the last preceding rule does not appear or does not show cause to the satisfaction of the Court why the decree should not be executed, the Court shall order the decree to be executed. (2). Where such person offers any objection to the execution of the decree, the Court shall consider such objection and make such order as it thinks fit." Sub-rule (1) contemplates the non-appearance of a judgment-debtor while Sub-rule (2) deals with his appearance. Both Sub-rules (1) and (2) deal with the same stage of the proceeding. Sub-rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 such Court. x x x x x Explanation III. -- The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impli-edly, by the other. Explanation IV.-- Any matter which might and ought to have been made ground of defence or attack in such former suit, shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V. -- Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this Section, be deemed to have been refused. x x x x x" Although Section 11 does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 previous execution proceedings were barred by time. Although the High Court reversed the order, their Lordships of the Privy Council set aside the order of the High Court, and concurring with the view expressed by the Subordinate Judge overruled the objection of the judgment-debtor. This princinle was reiterated by the Judicial Committee in Shivraj Gopalji v. Ayissa Bi (AIR 1949 PC 302). Their Lordships opined : "Where in an earlier execution proceedings a decree-holder could have raised a plea that the judgment-debtor had an interest in certain property which could be attached under his decree but the plea was not rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 put in by the judgment-debtor under Sec. 47 of the Code to the validity of the execution proceedings. Although objections were raised, they were not decided and the objection petitions were all dismissed. The property having come to the possession of the purchaser, an action was brought claiming a declaration that there having been no sanction of the Commissioner, the sale to the purchaser was void. The High Court in holding that the point was res judicata by reason of Expl. 4 to 11 observed : "The argument that Expl. 4 to 11 does not apply to proceedings under Section 47, as I have alread ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 on the ground that the previous execution application being time barred, the present application was liable to be dimissed. 11. So far as our Court Is concerned, a Full Bench of this Court in Jagannath Ramanuj Raj Deb v. Sri. Lakshmi Narayan Tripathy (AIR 1960 Orissa 197 F. B.) held :-- "Section 11, C.P.C, is not exhaustive on the question of res judicata and its principle applies to execution proceedings also." "Thus, an objection as to jurisdiction of executing Court raised and finally decided in a prior execution would be barred by res judicata in subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt-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 been an express adjudication by the Court in the presence of parties, then the question must be considered to have been finally decided, no matter whether it is raised again at a subsequent stage of the same proceeding, or in a subsequent execution proceeding. (2) Where an objection is taken but is dismissed or struck off, even though not on the merits and the application for execution becomes fructuous, the judgment-debtor is debarred from raising the question of the invalidity of that application. (3) Where an objecton to execution is taken, but it no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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, he appeared in Court and contended that he had paid Rs. 601-13-3 in part satisfaction of the decree-holder's claim and that to that extent the execution should not proceed. The Collector directed the judgment-debtor to move the executing Court and when that was done, the decree-holder contended that the plea was not open to the judgment-debtor as he might and ought to have raised that contention before the order transferring the application to the Collector was made. The executing Court upheld the objection of the decree-holder while the District Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, the judgment-debtor filed another application repeating the same objections. The Subordinate Judge dismissed the objections taking the view that having made the allegations in the previous misc. case and then abandoning them, the judgment-debtor is precluded from raising the plea of jurisdiction to execute the decree on the principle of constructive res judicata. On appeal, the High Court in AIR 1950 Cal 287 (Benoy Krishna Mukerjee v. Mohanlal Goenka) held the view that the entertainment by the Assansol Court of the second execution case and passing of an order fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etail. 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 resisted the execution by filing an application under Section 47, C.P.C. on the ground that the decree cannot be executed in view of the provisions of the Bihar Land Reforms Act. That application was dismissed for default of the judgment-debtors on September 12, 1959. A second application raising the same ground was filed by the judgment-debtors on September 24. 1959 and was again dismissed for default. A third application raising the same ground of objection was filed by the judgment-debtors on September 12, 1960. After examining the contentions of the par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 respondent-decree-holders that the judgment-debtors were also precluded from agitating the question of limitation by the principle of res judicata. This contention found favour with their Lordships of the Supreme Court, and they stated in paragraph 18 of the judgment thus : "In the present case, there was stay of execution proceedings. On 13th May, 1950, the execution proceedings were revived. The judgment-debtors did not challenge the order dated 13, May, 1950. The judgment-debtors Impeached the sale only on a ground covered by the U. P. Encumbered Est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation, 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 matter which might and ought to have been made a ground of defence or attack in the former suit shall be deemed to have been a matter directly and substantially in issue in such suit, and therefore, decided against the defendant. AIR 1970 SC 1525 is a case which directly attracted the operation of Explanation IV because the plea of limitation which might and ought to have been raised in the execution proceedings in the Allahabad Court had not been raised there and consequently must be deemed to have been decided against the judgment-debtors with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, 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 accord with the view we have taken of the application of the princi ple of constructive res judicata to ex ecution proceedings, the observation in (1970) 1 Cut WR 255, (Sama Kishore Das v. Raj Kishore Das) (on which re liance is placed by the respondents) that the decision in 34 Cut LT 758 = (AIR 1968 Orissa 183) does not state the law properly and must be taken to have been impliedly overruled by the deci sion of the Supreme Court in AIR 1969 SC 971, does not appear to us to be correct. 19. Our conclusions, therefore, on the point of law involved in the refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. This provision is, therefore, imperative and casts a duty upon the Court to dismiss an application which has not been made within the period prescribed in the schedule and the duty of the Court is not dependent on an objection being raised by the opposite party. There is no reason to believe that the Court while passing the order on 24-1-1963 was not aware of the duty cast upon it by Section 3 of the Limitation Act and also by the provisions contained in Sub-rule (1) of Rule 23 of Order 21. Civil P. C. That obviously appears to be the reason why in spite of the absence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, 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 stage covered by Order 21, Rule 23. The order is as below. "24.1.1963-- Service return received. Service proved and accepted as sufficient. Ordered to be put up on 1-2-1963 when decree-holder to take further steps." It is self evident that in the context of the failure of the judgment-debtor to appear the expression "decree-holder to take further steps" standing by itself and without anything more would only refer to the subsequent steps in furtherance of the execution of the decree, namely, steps for "the issue of process for execution of the decree" as contemplated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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