1. These two companion appeals raise a short point as to whether objection to the execution taken by the respondent - judgment - debtor on the ground of limitation is barred by constructive res judicata.
2. Although the decree - holders in these two cases are different, the Respondent - Judgment - debtor is common to both. The facts on which the above question arises are almost similar. It would be enough therefore, if the facts in the case in which Second Appeal NO. 147 of 1962 arises are stated. They are as follows :-
3. A money decree was obtained by the appellants against the respondent on 31-7-1939. The decree made the decretal amount payable by annual instalments and it contained a default clause to the effect that in default of payment of any two instalments, the entire balance due under the decree would be payable at once. The judgment - debtor having committed default in payment of the very first two instalments, the decree - holder filed an application for execution within three years from the date of default to realise the entire decretal amount. That darkhast was infructuous and was disposed of on 12-10-1943. A second darkhast which was filed by the decree - holder on 13-10-1944 also came to be disposed of on 6-4-1945 without any success. In the other case the first darkhast which was filed on 24-1-1952 (sic) by the decree - holder was disposed of on 27-3-1945 as being infructuous. In the meantime the Bombay Agricultural Debtors Relief Act having come into force on 1-5-1945, the decree - holders made an application on 31-10-1945 to the Special Court established under that Act for adjustment of the decretal debt, provided the judgment - debtor was found to be an agriculturist within the meaning of that Act. In both the cases that application was disposed of on 27-2-1954 on the ground that the judgment - debtor was not an agriculturist. Thereafter the decree - holder filed a fresh darkhast on 6-9-1956 in the Civil Judge's Court at Kurandwad for realisation of the decretal debt by arrest and detention of the judgment - debtor in civil prison. It may be mentioned here that under Section 52 of the B. A. D. R. Act, the period during which a proceeding under that Act was pending, has to be excluded in computing the period of limitation prescribed for any suit or proceeding. Excluding, therefore, the period from 31-10-1945 to 27-2-1954 (inclusive of both days) during which the B. A. D. R. proceeding was pending, obviously this darkhast was filed beyond three years from 6-4-1945 on which date the last darkhast was disposed of by the Civil Court and was, therefore, barred by limitation under Article 182 of the Limitation Act, 1908.
4. A notice under O. 21, R. 37, Civil Procedure Code was issued to the judgment - debtor in this darkhast to show cause against his detention in civil prison. He raised certain contentions such as that his ordinary place of residence was within the jurisdiction of the Civil Court at Ichalkaranji, and hence the Kurandwad Court had no jurisdiction to execute the decree against him. It may, however, be mentioned here that contention that this darkhast was barred by limitation was not raised by the judgment - debtor. After hearing both sides, the executing court ultimately made an order to issue warrant of arrest against the respondent. It, however, appears that thereafter the decree - holder having informed the court that he did not wish to prosecute the darkhast further, it came to be disposed of on 26-11-1957.
5. The decree - holder thereafter got the decree transferred for execution to the Court of Civil Judge (Junior Division) at Ichalkaranji and on 3-4-1958 filed a fresh darkhast which has given rise to this appeal seeking to realise the decretal amount by attachment and sale of the property of the Judgment - debtor.
6. The Judgment - debtor in response to the notice under Order XXI, Rule 22, Code of Civil Procedure, inter alia, contended that the execution was barred by limitation. In this respect his specific contention was that the previous darkhast which was filed after the disposal of the B. A. D. R. proceeding, having been filed beyond three years after the date of the disposal of the darkhast filed prior to the initiation of the B. A. D. R. proceeding, the first mentioned execution application was barred by limitation, and consequently, it could not be treated as a step - in - aid of execution and therefore, the present darkhast was also barred by limitation.
7. On behalf of the decree - holder, it was contended that this contention not having been raised in the previous darkhast, the same was barred by construction res judicata in the present darkhast proceeding.
8. Both the courts below having upheld the contention of the judgment - debtor, the decree - holder in each case has preferred these second appeal.
9. It was urged on behalf of the appellants that both the Courts below were in error in holding that the judgment - debtor's plea on the point of limitation was not barred by constructive res judicata. The only question that, therefore, arises in this appeal is whether the objection to execution raised by the judgment - debtor on the ground that the previous darkhast application which was file immediately before the filing of the present execution application is barred by constructive res judicata.
10. Section 11 along with its explanations embodies the doctrine of res judicata. It provides that no court shall try any suit or issue in which the matter directly and substantially in issue had 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. Out of the six different explanations which have been appended to this section, only explanation IV is material. Under that explanation any matter which might and ought to have been made a 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. In other words, under this explanation, even is a particular matter was not raised in the pleadings by the parties in the former suit, still it would operate as res judicata in the subsequent suit provided such matter ought to have been made ground of defence or attack in such former suit.
11. From the language of the above provision, it cannot be disputed that this section and its explanations do not in terms, apply to execution proceedings. It is however, well settled that the general principles of res judicata as embodies in this section are applicable to execution proceedings as well. In Ram Kirpal v. Rupkuari ILR (1884) All 269 , it was pointed out that Section 11 of the Civil Procedure Code is not exhaustive and that the principle of res judi cats still remains apart from the limited provision of the Code. Prior to that decision courts in India generally held that Section 13 of the Code of 1882 (Corresponding with the present section) was not applicable to execution proceedings. The Judicial Committee, however, in the above decision held that though the section in terms did not apply to execution proceedings, the principle of res judicata did apply to such proceedings. Subsequently, the Supreme Court has also in 'Mohanlal Goenka v. Benoy Krishna Mukherjee, : 4SCR377 held that the principle of constructive res juridicals is applicable to execution proceedings as well. In view of these decisions, Mr. Shrikhande, the learned Advocate for the respondent - Judgment - debtor conceded this position, and he also conceded that the doctrine of constructive res juridicals would even extend to a question of limitation. He, however, argued that this principle of constructive res judicata cannot be extended to a case where under the provisions of law an obligation is cast on the Court to dismiss a proceeding which is instituted before it after the prescribed period of limitation even though limitation has not been set up as a defence by the other side. In this connection Mr. Shrikhande referred to Section 3 of the Limitation Act, 1908, which governs to the present case inasmuch as this proceeding was started when that Act was in force. That section provides that subject to the provisions contained in Section 4 to 25 (inclusive) every suit instituted, appeal preferred and application made, after the period of limitation prescribed therefore by the first schedule shall be dismissed although limitation has not been set up as a defence. According to Mr. Shrikhande, even though the judgment - debtor did not plead bar of limitation in the previous darkhast, the executing Court, before which that darkhast was filed, was bound to examine whether the darkhast was filed beyond the period of limitation prescribed under Article 182 of the Limitation Act, and if on examination it was found that it was filed beyond three years from the date on which the previous darkhast application was disposed of the Court was bound to dismiss it. It was, therefore, submitted by Mr. Shrikhande that in this case even if the judgment - debtor did not raise the plea of limitation, the previous execution application having been on the face of it filed after the expiry of three years from the date of disposal of the execution application filed next before it could not be treated as a step - in - aid. Admittedly, in the previous darkhast application, notice was issued to the judgment - debtor before any order was passed in the proceedings. In response to that notice, the judgment - debtor appeared and did file his contentions and did raise certain contentions. He, however, did not plead bar of limitation. Now, even if under Section 3 of the Limitation Act it was for the court to dismiss the darkhast if it found that it was filed beyond the period of limitation, still if this defect had escaped the notice of the court or its officials it was for the judgment - debtor to point it out to the Court, and if he did not do so, the judgment - debtor must thank himself. Since the court did not detect this defect, it must be said that impliedly the court held that the darkhast application was within limitation. The Court has jurisdiction to decide rightly as well as wrongly and if on the question of law, it gave a wrong finding, none - the - less it would operate as res judicata. It would not be open to the executing court to entertain the contention in the subsequent application and to go behind the order passed in the previous darkhast application and examine whether the previous darkhast was barred by limitation under Article 182, Clause 5. Column 3 of the Limitation Act, 1908. When a darkhast is filed before a Court what the Court would be required to see is whether the darkhast before it had been filed within three years from the date of the final order passed on an application made in accordance with law for execution previously. It need not go into the question as to whether the application next before it was made in time. It, therefore, follows that when the present darkhast was filed, all that the executing out was required to do was to see whether the present darkhast was filed within three years from the final order passed in the previous darkhast. It is the judgment - debtor who wants to raise this question. But since he had not raised that question in the previous darkhast, as already pointed out, it follows that impliedly it must be held the executing Court in that darkhast held that that darkhast was not barred by limitation, and, therefore, that finding which was impliedly given by the Court would be binding on the judgment - debtor.
12. The lower Courts appear to have relied on the Full Bench ruling of the Allahabad High Court in :Gendalal v. Hazarilal : AIR1936All21 , but on a careful reading of the entire report of the case, it appears to me that the ratio of this Full Bench decision has not been properly understood by the lower Courts. In that case a money - decree was passed against the applicant before the High Court on the 12th of March 1928. Thereafter the judgment - creditor made an application to the Court under Order XXI, Rule 2 to certify payment of Rs. 50/- by the Judgment - debtor under the decree, which was said to have been made on 11th November 1930. That payment was certified on 29th November 1932 without notice to the judgment - debtor. Thereafter an application for execution of the decree was made on 15th February 1933. This application was obviously barred by limitation, but for the fact that the judgment - debtor was said to have made a payment of Rs. 50/- as stated above. A notice was issued to the judgment - debtor in this execution proceeding under Order XXI, Rule 22, Civil Procedure Code, but the Process - server returned to the notice reporting that the judgment - debtor had refused to take it. A not was, therefore, made on the proceeding that the judgment - debtor was duly served and as he did not raise any objection on the score of limitation, the application be deemed to be within time, and registered and put up subsequently before the Court for proper orders. As the relief claimed by the decree - holder was for execution of the decree by arrest of the judgment - debtor, warrant of arrest was ordered to issue and the judgment - debtor was brought under arrest. It was then that he pleaded that the execution application was barred by limitation. His objection was rejected on the ground that he had not taken it after notice under Rule 22 of the civil Procedure Code was served on him. The he was committed to prison, but was released within a week on non -payment of the subsistence allowance by the decree - holder. The judgment - debtor then filed petition of objections to the executing court, protesting against the execution proceedings on the ground of limitation. This objection having been rejected, the judgment - debtor went in revision to the High Court in which the Full Bench gave the above decision, it was held that the objection raised by the judgment - debtor on the ground of limitation was maintainable even though he has failed to raise it in reply to notice under Order XXI, Rule 22, Civil Procedure Code, Sulaiman, C. J., who delivered the main Judgment formulated five propositions of which fourth proposition is material for our purpose. That proposition was :-
(4) 'Where no objection to the execution is taken but the application becomes partly or wholly fructuous and such fructification necessarily involves the assumption that the application was made within limitation, then after such fructification the judgment - debtor is debarred by the principle of res judicata from raising the question that that application was not within limitation.'
This proposition clearly shows that where a judgment - debtor fails to raise any objection to the execution of the decree and the Court proceeds to issue process for execution of the decree and the application for execution partly or wholly fructifies, the judgment - debtor is precluded from raising the question that the application was barred by limitation, because the very fact that the court orders process to issue on the execution application implies that it came to the conclusion on merits that the application was within limitation.
13. Now, Mr. Shrikhande contended that in order that an application for execution can be said to have become partly or wholly fructuous, the decree - holder must realise the fruits of the decree either in part or in whole. According to Mr. Shrikhande, where after the court grants the relief prayed for by the decree - holder, and orders process to issue, if the decree - holder drops execution proceedings without actually realising the fruits of the decree either partly or wholly, the execution application must be deemed to be infructuous and , therefore, this proposition set out above, would not be applicable and the judgment - debtor would not be precluded from raising a plea of limitation. It is difficult to accept this argument. Application for execution is fructuous when the court grants relief asked for by the judgment - creditor no matter actually the decree - holder succeeds in realising the fruits of the decree. In the present case, admittedly in previous darkhast relief claimed by the decree - holder was arrest and detention of the judgment - debtor in civil prison. The executing court granted that relief and ordered process to issue for arrest and detention of the judgment - debtor. It was at that stage that the judgment - creditor, for some reason or the other, thought of dropping the proceeding for the time being. It, therefore, cannot be said that the previous darkhast application was infructuous. As a matter of fact, it was infructuous although the judgment - debtor was not actually put in civil prison.
14. The above argument advanced on behalf of the judgment - debtor appears to have appealed to the lower Courts and they have come to the conclusion that since actually the judgment - debtor was not put in prison in execution of the decree, the previous darkhast was infructuous, and therefore, the judgment - debtor's plea on the point of limitation was not barred by constructive res judicata.
15. This view taken by the lower Court is obviously incorrect. It must, therefore, be held that the plea raised by the judgment - debtor in the present proceeding that the previous darkhast was barred by limitation, and consequently it could not be taken as a step - in - aid of execution, and hence the present darkhast also is barred by constructive res judicata.
16. Mr. Shrikhande lastly submitted that the judgment - debtors should not be saddled with costs. But, in my opinion, since the decree - holders have succeeded, they are entitled to their costs throughout. Had it not been for the fact that the judgment - debtor took this untenable plea, the decree - holders would not have been required to come to this court for getting the relief to which they were entitled.
17. Both the appeals are, therefore, allowed. Orders passed by the lower Court are set aside and the execution proceedings are sent back to the executing court for proceeding further according to law. The respondent in both these appeals to pay the costs of the appellants throghout.
18. Appeal allowed.