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Mittasaheb Hirama Kakkalmali Vs. Gurunath Hanmant Kulkarni - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 598 of 1941
Judge
Reported inAIR1943Bom252; (1943)45BOMLR519
AppellantMittasaheb Hirama Kakkalmali
RespondentGurunath Hanmant Kulkarni
DispositionAppeal dismissed
Excerpt:
.....debtor under order xxi, rule 22 'of the code-non-appearance of judgment-debtor-transfer of execution proceedings to collector-judgment-debtor's contention before executing court as to part satisfaction of decree-applicability of rule of constructive res judicata.;the failure of the judgment-debtor to dispute the amount of claim made in an applications for execution on a notice under order xxi, rule 22, of the civil procedure code, 1908, does not operate as a bar in the nature of res judicata to his raising the dispute at a subsequent stage of the same execution proceedings.;where, therefore, a judgment-debtor omits to appear in response to a notice under order xxi, rule 22, of the code, he is not precluded from contending, at a subsequent stage of the execution proceedings, that..........it,' and that generally speaking the mere fact that an objection has not been raised at one stage of execution proceedings is not a sufficient ground for holding that the objection is barred at another stage.it was pointed out that although there was no real authority for the proposition that the principle of constructive res judicata referred to in expln. iv of section 11 cannot be applied to execution proceedings, the authorities laid down that caution was needed in applying it.6. it seems to me that the authorities cited on behalf of the parties by their learned advocates in support of the two extreme views can be distinguished on the facts. in bapanna v. vengayya : air1937mad511 there was an assignment of the decree and the assignment deed expressly referred to a payment made.....
Judgment:

Wassoodew, J.

1. This is a second appeal from a decision of the learned District Judge of Bijapur in proceedings in execution of a decree dated August 9, 1934 for sale on a mortgage passed under the Dekkhan Agriculturists' Relief Act. The mortgage debt was found to be Rs. 1,750, and it was made payable by four instalments. There was also a default clause provided by the decree. The only question raised in this appeal is whether the failure of the judgment-debtor to dispute the amount of the claim made in the application for execution after he had received a notice under Order XXI, Rule 22, of the Civil Procedure Code, operates as a bar to his raising the dispute at another stage of the same execution proceedings, after the executing Court had made an order transmitting the application for execution to the Collector, on the principle of res judicata.

2. The material facts may be shortly stated. The decree-holder alleged in his application for execution that as the judgment-debtor had not made any payment the mortgaged property was liable to be sold under the provisions of the Dekkhan Agriculturists' Relief Act. Upon that application made on August 7, 1937, notice was given to the judgment-debtor under Order XXI, Rule 22, of the Civil Procedure Code on September 1, 1937. That notice required the judgment-debtor to show cause why the decree should not be executed against him. The judgment-debtor did not appear in response to that notice, and the executing Court transferred the proceedings to the Collector on October 8, 1937. Thereupon the Collector issued a notice to the judgment-debtor on November 11, 1937. It appears that the judgment-debtor contended before the Collector that he had paid Rs. 601-13-3 in part satisfaction of the decree-holder's claim, and that to that extent execution should not proceed. The Collector directed the judgment-debtor to move the executing Court further in the matter. In that Court the judgment-debtor filed an application objecting to the amount claimed in the application for execution by the decree-holder on the grounds referred to. He pleaded that execution should proceed only in respect to the balance. The decree-holder contended that that plea was not open to him, as he might and ought to have raised that contention before the order transferring the application to the Collector was made in those proceedings. The Courts below were divided on the point. The learned Judge of the executing Court thought that the contention of the judgment-debtor was barred, for, if he had raised it successfully, it would have resulted in modification of the orders of the Court, and that the omission to do so operated constructively as res judicata. The learned District Judge in the appeal by the judgment-debtor took a contrary view. He held that the principle of res judicata could not be applied to the facts of this case because the judgment-debtor had no notice of the point which was likely to be decided against him and therefore had no opportunity of putting forward his contentions. He has referred to the' ruling in, Alluri Bapanna v. Inugonti Vengayya A.I.R. [1937] Mad. 511 for the view that the order directing execution to proceed could only imply that the Courtconsidered the questions as to whether the decree-holder had a right to execute the decree, whether the judgment-debtor was liable to satisfy the decree, whether the decree was executable, and whether the claim was not barred by limitation. He held that the question of part satisfaction was not decided nor required to be decided at that stage. He therefore directed that the question of part satisfaction should be raised and decided by the executing Court upon the contentions of the judgment-debtor. Against that decree the decree-holder has filed this second appeal.

3. The numerous authorities cited at the Bar on the question whether the principle of constructive res judicata enunciated in Section 11, expln. IV, of the Civil Procedure Code applies to proceedings in execution do not all yield any intelligent principle. For the appellant it was contended that all questions which, if raised and decided, would' result in giving some relief to the judgment-debtor, should be treated as being decided by necessary implication, and that on that principle the judgment-debtor's plea should be held as barred. On the other hand, it has been urged that the principle of constructive res judicata should be applied with care and caution and that it should never be applied in a case where the judgment-debtor had no opportunity to raise and did not raise) the question for obtaining a decision. There can be no doubt upon authority that the provisions of Section 11 of the Civil Procedure Code which, though in terms do not apply to execution proceedings have been applied on general principles to such proceedings [see Ram Kirpal Shukul v. Mussumat Rup Kuari ]. (1883) L.R. 11 IndAp 37 In that case a decision was given in the former execution proceedings, and it was held that it operated as res judicata in subsequent proceedings in execution. Their Lordships remarked that (pp. 411-43):

the binding force of such a judgment depends not upon sect, 13, Act X of 1877, (s. 11 of the present Code), but upon general principles of law. If it were not binding there would be no end to litigation. The parties were bound by the decision of Mr. Probyn, who, whether right or wrong, had decided that it did (that is, that the. decree awarded future mesne profits); a decision which, not having been appealed, was final and binding upon the parties and those claiming under them.

4. There are numerous authorities of the Indian Courts which show that a finding given on a question of limitation or a decision as to which persons are liable in execution or as to whether the decree is capable of execution or whether the claim for mesne profits could properly be made, is binding on the parties on the principle of res judicata in subsequent proceedings in execution between the same parties-(see cases such as Desaippa v. Dundappa I.L.R. (1919) 44 Bom. 227 Dambar Singh v. Kalian Singh I.L.R. (1922) All. 350 and Shamrao v. Malkarjun : (1931)33BOMLR797 .

5. The important question is whether the principle underlying expln. IV of Section 11 of the Civil Procedure Code could be properly extended to the present case on the ground that the question as to part satisfaction might and ought to have been raised, and not having been raised, was by necessary implication decided against the judgment-debtor. There is no direct authority on the point whether the judgment-debtor, who has omitted to appear in response to a notice under Order XXI, Rule 22, of the Code, can be precluded from contending that there has been a partial adjustment of the decree. That could only be done if the rule of constructive res judicata could be so extended as to penalize the judgment-debtor for his omission. In Mahadeo v. Trimbakbhat (1918) 21 Bom. L.R. 344 a decree was) passed in 1910, and in 1914 an application to execute it was dismissed as barred by time. A second application to execute the decree was made in 1915 and it was pleaded that it was within time in consequence of certain earlier applications and acknowledgments. The question arose as to whether the adjudication in the earlier darkhast operated as res judicata. Mr. Justice Shah sitting singly held that in the earlier darkhast the adjudication was not that the execution of the decree was barred, but only that the application was not shown to be in time, and that to that extent only the adjudication was binding on the parties. He says (p. 347):-

The rule of res judicata applicable to execution) proceedings makes all decisions binding upon the parties in subsequent proceedings but it does not necessarily involve the result that any point which is not heard and decided but which might and ought to have been raised must be treated as necessarily decided as under s, 11 of the Code .... I do not think that the application of the doctrine of res judicata to execution proceedings would involve the result that it should be taken to have been decided. At least, as I read the decisions bearing on this point, I do not understand the rule to go so far.

That view was followed in Ramchandra v. Shriniwas I.L.R. (1921) 46 Bom. 467 by a division bench of which Mr. Justice Shah was a member. There the applicant obtained a decree in 1913 which he sought to execute first in 1915 and again in 1919. The second application to execute the decree was rejected as barred by limitation. The applicant relied on an acknowledgment, dated June 19, 1917, and applied on June 19, 1920, to execute the decree. The executing Court dismissed the application on the ground that the decision in the darkhast of 1919 operated as res judicata. In appeal Macleod C.J. observed as follows (p. 469):

It does not seem to me that the doctrine of res judicata can be extended to that length. I agree with what was said by my brother Shah in the case of Mahadev v. Trimbakbhat, which was cited, that in the earlier Darkhast there was no adjudication that the execution of the decree was barred but only that the application was not shown to be in time.

In the later case of Gadigappa v. Shidappa I.L.R. (1924) 48 Bom. 638 the authorities were reviewed by Sir Lallubhai Shah, Acting Chief Justice, and Mr. Justice Fawcett. The Acting Chief Justice remarked (p. 645):

What is binding upon the parties is the point actually decided. The principle of Explanation IV of Section 11, Civil Procedure Code, has no direct application; but in determining the exact effect of the point decided on the subsequent proceedings the principle cannot be altogether ignored.

That shows a modification of the view as to the applicability of the provisions of expln. IV of Section 11 expressed in the two earlier decisions. Mr. Justice Fawcett examined the case law on the point and thought that the following deduction was permissible from those cases (p. 654):-

On the other hand I quite agree with the rulings already referred to that great caution should be used in applying it,' and that generally speaking the mere fact that an objection has not been raised at one stage of execution proceedings is not a sufficient ground for holding that the objection is barred at another stage.

It was pointed out that although there was no real authority for the proposition that the principle of constructive res judicata referred to in expln. IV of Section 11 cannot be applied to execution proceedings, the authorities laid down that caution was needed in applying it.

6. It seems to me that the authorities cited on behalf of the parties by their learned advocates in support of the two extreme views can be distinguished on the facts. In Bapanna v. Vengayya : AIR1937Mad511 there was an assignment of the decree and the assignment deed expressly referred to a payment made towards the decree, which payment was not certified, and the assignment deed conferred on the assignee the right to execute the decree only for such sum as was due after making the deductions mentioned in the deed. When the assignee made an application for execution for the full amount of the decree, the judgment-debtor did not raise any objection and his failure was not regarded as a bar to his raising the same contention at a subsequent stage of the execution proceedings. The reasoning underlying that decision was not that the rule of constructive res judicata did not apply without qualification to execution proceedings, but that the transfer deed containing the admission by the decree-holder that a payment though uncertified was received was in itself sufficient for recording the payment of that amount, and there was no necessity for the judgment-debtor to object to the claim in the application. Reference was made with approval to the decision in Kalyan Singh v. Jagan Prasad I.L.R. (1915) All. 589 which held that where execution is taken out for an amount greater than that mentioned in the decree, failure to object by the judgment-debtor would not debar him from raising the objection at a later stage. The reasoning in that ca;se and similar cases such as Sheo Mangal v. Musammat Hulsa I.L.R. (1921) All. 159 as also Ulganatha v. Alagappa : AIR1929Mad903 proceeds entirely on a different basis. The reasoning adopted in those cases was that the judgment-debtor could not assume that the decree-holder would make an application for execution for a sum which was not decreed against him, and that if the executing Court permitted it, it would be tacitly varying and superseding the decree itself, a fact which could not be permitted to be done in execution; unless the question was considered and decided. In Subramania Ayyar v. Raja Rajeswara Dorai I.L.R. (1916) Mad. 1016 the reasoning for holding that an order passed in the absence of a party at one stage of the execution proceedings could not operate as res judicata at any further stage, though not quite convincing was this : that it was open to a decree-holder to proceed piecemeal with his execution, and as the decree-holder was not bound to proceed against all the properties comprised in the decree at once, the principle underlying the general rule of res judicata could not be applied to such proceedings. The Court observed that (p. 1026) 'the party who is sought to be affected 'by the bar of res judicata should have notice of the point which is likely to be decided against him and should have an opportunity of putting forward his contentions against such a decision.'

7. No direct authority has been cited on the point as to whether the failure to raise the contention as to part satisfaction at an earlier stage of the execution proceedings would preclude by the operation of the rule of constructive res judicata underlying expln. IV, of Section 11, the judgment-debtor from raising the same question at a subsequent stage of the execution proceedings. It seems to me that the rule of constructive res judicata must be applied with great caution against a party to the execution proceedings who had no direct notice of the point and therefore no opportunity to raise it. When proceedings were taken under the Dekkhan Agriculturists' Relief Act, if the judgment-debtor thought that the ultimate proceedings would be conducted before the Collector and that he would have an opportunity of raising his contentions there, he cannot be precluded, by reason of his failure to raise them at an earlier stage in the executing Court, from raising them at a later stage, I think the decision of the learned District Judge was correct and must be upheld. Accordingly, I would confirm the decree of the lower appellate Court and dismiss this appeal with costs.

Broomfield, J.

8. I agree.


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