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Firm Birohichand Badri Vishal and ors. Vs. Firm Gangadhar Baijnath - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberEx. First Appeal No. 382 of 1964
Judge
Reported inAIR1970All43
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 - Order 21, Rules 10, 11, 11(2), 89, 89(2) and 89(3)
AppellantFirm Birohichand Badri Vishal and ors.
RespondentFirm Gangadhar Baijnath
Appellant AdvocateSideshwari Prasad, ;K.M. Dayal and ;Rajendra Prasad, Advs.
Respondent AdvocateM.P. Mehrotra, Adv.
DispositionAppeal dismissed
Excerpt:
civil - execution of application - order 21, rule 10 and 11 of code of civil procedure, 1908 - definite sum of money due to decree holder on the date of execution application but omission on the part of the decree holder to claim the same - question of future interest after the filling of the execution application - maintainability of second application for execution of amount due after first application - held, not to specify in the execution application that such interest should also be realized in the execution. subsequent application not barred by res judicata. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school.....a.k. kirty, j.1. this appeal by the judgment-debtors arises out of execution proceedings. the relevant facts lie within a narrow compass. suit no. 71 of 1954 was filed by the respondent against the appellants for the recovery of rupees 23,408/5/3 with pendente lite and future interest. it was decreed with costs by the 2nd civil judge, kanpur on 18-12-1959; pendente lite and future interest at the rate of 6% per annum was also awarded. the first application for execution of the decree was made on 18-10-1960, giving rise to execution case no. 49 of 1960 in the court of the 1st addl. civil judge, kanpur. it, however, appears that an application was in the first instance made on 17-9-1960 in the court of the 2nd civil judge, kanpur, which had passed the decree, and. as prayed by the.....
Judgment:

A.K. Kirty, J.

1. This appeal by the judgment-debtors arises out of execution proceedings. The relevant facts lie within a narrow compass. Suit No. 71 of 1954 was filed by the respondent against the appellants for the recovery of Rupees 23,408/5/3 with pendente lite and future interest. It was decreed with costs by the 2nd Civil Judge, Kanpur on 18-12-1959; pendente lite and future interest at the rate of 6% per annum was also awarded. The first application for execution of the decree was made on 18-10-1960, giving rise to execution case No. 49 of 1960 in the Court of the 1st Addl. Civil Judge, Kanpur. It, however, appears that an application was in the first instance made on 17-9-1960 in the Court of the 2nd Civil Judge, Kanpur, which had passed the decree, and. as prayed by the decree-holder, a certificate transferring the decree for execution was sent to the Court of the 1st Additional Civil Judge,Kanpur. In that Court an application in the prescribed form, was submitted by the decree-holder as required under Order 21, Rule 11 of the Code of Civil Procedure (hereinafter called the Code). The transfer certificate was for Rs. 35,077.49 p. which consisted of Rs. .23,408.33 p. on account of principal amount decreed, Rupees 2,692.25 p. on account of costs, Rupees 8965.16 p. on account of interest upto 15th September, 1960 and Rs. 11,75 p. on account of present costs of execution. In the Court of the 1st Addl. Civil Judge, Kanpur the total amount mentioned in column No. 7 of the application in the prescribed form was Rs. 35,194.53 p. including Rs. 117.04 on account of interest from 17-9-1960 to 18-10-1960. A sum of Rs. 18.30 p. was also claimed on account of further costs of execution. Thus, the total sum for which execution was sought amounted to Rs. 35,212.83 p. Execution was sought by attachment and sale of some immoveable properties. Ultimately, the properties against which execution had been sought were sold on 22-7-1963 for Rs. 42,000. The decree-holder was the auction purchaser. The sale price, after adjusting the amount claimed in the execution application and the incidental costs, left a surplus balance of Rupees 6855.82 p. After the sale, an application under Order 21, Rule 90 of the Code was filed by the judgment-debtors, which having been dismissed an appeal was preferred in this Court. That appeal, I am informed, is still pending and in it an order has been passed staying the confirmation of the sale. In execution case No. 49 of 1960, no final orders striking off the execution in full or part satisfaction have so far been passed. The decree-holder filed another application seeking recovery of Rs. 3862.38 p. on account of interest from 18-10-1960 to 22-7-1963 on the decretal sum of Rs. 23,408.33 p. This application was registered as execution case No. 4 of 1964. A number of objections against this application were raised by the judgment-debtors and those objections having been dismissed the present appeal has been filed in this Court.

2. The learned counsel for the appellants submitted that the second application for execution giving rise to execution case No. 4 of 1964 was not legally maintainable. Firstly, because the claim for further interest must be taken to have been waived or relinquished and secondly, because the application itself was barred by the principles of res judicata.

3. The first submission that In the circumstances of the case the claim for further interest subsequent to 18-10-1960 must be deemed to have been waived or relinquished by the decree-holder, was also supported by the contention that the decree being for money there could be no piecemeal execution. According to the learned counsel, from the facts and circumstances of the case, it was evident that there was a conscious omission on the the part of the decree-holder to claim, further interest. This submission was sought to be based on the fact that in column No. 7 of the execution application no claim or mention was made by the decree-holder about future interest after 18-10-1960. This omission, it was submitted by the learned counsel, must be deemed to be a conscious omission, because the decree-holder knew that it was entitled to future interest on the decretal sum upto the date of full recovery. The argument was also reinforced on the ground that the Code itself does not warrant the splitting up or piecemeal execution of a money decree.

4. In support of the aforesaid submission, strong reliance was placed by the learned counsel for the appellants on the decision of the Bombay High Court in Panaji Girdhar Lal v. Ratan Chand Hazari Mal, AIR 1933 Bom 364. In this case it was observed by Beaumont, C. J. that 'a judgment for principal and interest is a single money decree and cannot be said to give effect to different forms of relief.' Repelling the contention of the respondents in the case that there is nothing in the Code which prevents piecemeal execution, the learned Chief Justice, relying on Forster v. Baker, 1910-2 KB 636, held that 'there is no authority for the proposition that a single money decree (for sums immediately payable at the date of execution) (bracketing is mine) can be executed at different times ............... thecorrect rule, and certainly the rule of convenience, is that a party having a right to execute a decree for money (presently payable) (bracketing is mine) must enforce the whole decree at the same time.' The learned counsel for the appellants particularly relied on the following passage in the judgment of Beaumont, C. J. :

'I think that if a person having a right to recover a certain sum under a decree asks the Court to enforce that decree for a less sum, he must be taken to waive his right to levy execution for the balance.'

On the facts of the case with which Chief Justice Beaumont and Murphy, J. were concerned the second application for execution to realise interest was held' to be not maintainable. Admittedly in that case, however, on the date when the execution application was filed the amount which under the decree had already accrued due to the decree-holder on account of interest had not been claimed. The execution was only for the realisation of Rs. 1359 for which a decree had been passed plus the costs of the suit, although interest at the rate of Rs. 6% per annum had been awarded from the date of filingof the suit. Under Rule 11 of Order 21 of the Code a decree-holder applying for execution is required to give certain particulars, out of which the following is required under Clause (g) of Sub-rule (2) of Rule 11 which reads as under:--

'Order 21, Rule 11 (2) (g)--the amount with interest (if any) due upon the decree, or other relief granted thereby, together with particulars of any cross-decree, whether passed before or after the date of the decree sought to be executed;'

Now in the Instant case, the decree-holder had furnished all necessary particulars required by the law and which could be stated with precision and certainty. Originally when the application was made in the Court of the 2nd Civil Judge, Kanpur, for issuing a certificate of transfer to the Court of the 1st Additional Civil Judge, Kanpur, the decree holder had mentioned the sum due under the decree, the costs awarded in the suit, the amount of interest due on the decretal sum upto the date of application and the present costs of the execution. The decree-holder had, therefore, evidently furnished the particulars required by law and the amount which could be ascertained and claimed as a definite sum on the date of the application. When the transfer certificate was issued to the Court of the first Additional Civil Judge, the decree-holder was fully conscious of his own rights and also the requirements of the law. Therefore, in the application which he filed in the prescribed form, as required under Order 21. Rule 11 of the Code a further sum of Rs. 117-04 p. was specifically mentioned in column No. 7 being the interest which had accrued subsequent to 17-9-1960 till the date of application viz., 18-10-1960. No question of piecemeal execution or waiver to my mind, arises in the instant case. Waiver must be attributable to some act or omission on the part of the person concerned. In the instant case, there is no specific or covert act on the part of the decree-holder on the basis of which it could be held that the claim for interest subsequent to 18-10-1960 had been abandoned, nor was it so contended by the learned counsel for the appellants. The contention was that by necessary implication the decree-holder must be deemed to have made a conscious omission to claim future interest subsequent to 18-10-1960. I am unable to accept the contention of the learned counsel. Facts already mentioned above, clearly show that the decree-holder was very jealous and astute about his rights under the decree. This is clearly indicated by the fact that a further sum of Rs. 117.04 p. on account of interest had been specifically mentioned in column No. 7 of the execution application, besides Rs. 18.30 p. on account of further costs. It is inconceivable that ordinarily any decree-holder, whohas obtained a decree after being driven to the Court, will voluntarily or consciously waive or abandon any sum which he is entitled to realise under the decree.

5. In support of his contention of waiver and piecemeal execution, the learned counsel also relied on a number of other reported decisions. Of these mention may here be made of A.R.S. Subramanian Chettyar v. K. Moses, AIR 1929 Rang 182; Shyama Charan v. Protap Chandra : AIR1930Cal349 ; Ramdas Mukhopadhyay v. Uday Chand, AIR 1949 Cal 228; Anandi Pershad v. Jhaman Lal, AIR 1951 Aimer 48 and Govind Prasad v. Ramraskal Kamtaprasad, AIR 1956 Nag 91.

6. In AIR 1929 Rang 182 (supra) the decree-holder in the first execution application had mentioned a particular amount due on account of interest, but had scored it out himself. This was treated as a waiver on the part of the decree-holder. The judgment debtor, in fact, paid to the decree-holder the entire amount which was sought to be recovered against him. In the circumstances, it was held that it would be inequitable to allow the decree-holder to make another application asking for further sum. The decision therefore, rested purely on the peculiar facts of that case.

7. In : AIR1930Cal349 (supra) also the decree-holder in the execution application did not claim a portion of interest which had already accrued due. Under those circumstances, it was held that a second application for the recovery of the amount of interest which the decree-holder had failed to claim cannot be allowed. Although the decree-holder was held not to be entitled to the interest which had already accrued due and which he had failed to claim in his execution application, yet the learned Judges observed that there was no reason why he could not get interest for a subsequent period. This case, therefore, did not as a matter of law or universal rule lay down that a second application for recovery of a sum of money accrued due after the first execution application cannot be entertained. On the contrary, the observations made in the case show that under certain circumstances such an application would be competent.

8. In AIR 1949 Cal 228 (supra) it was held that a decree-holder cannot split up his claim into different portions and ask for separate execution proceedings to be started in regard to each particular portion of the claim, but there is nothing in law to prevent him from giving up part of his claim and executing his decree only for the remaining portion. There cannot be any quarrel with the aforesaid proposition, because if the decree-holder is permitted to split upthe decree into separate and distinct portions each being capable of separate execution, the result would be disastrous. The decree-holder then would be within his legal rights to split up a decree, say for Rs. 500 into, so to say, five hundred separate executable decrees for Re. 1 each. This the law never contemplated nor does the Code warrant it. What is required by the Code is that on the date of the filing of the execution application the amount which is realisable under the decree upto that date, must be claimed and stated as provided in Clause (g), Sub-rule (2) of Rule 11 of Order 21 and column No. 7 of the prescribed form. Since the law itself requires the decree-holder to do so, on the failure on his part to claim any sum which had already accrued due and was presently claimable on the date of the filing of the execution application, it may be held, as indeed it has been held that he must be deemed to have waived, abandoned or relinauished the claim to that amount. That, however, is not the same thing as saying that since the decree-holder has not mentioned in the execution application that further sum would accrue to him on account of interest after the presentation of the execution application, he must also be deemed to have waived or relinquished his right to seek recovery of such future interest.

9. In AIR 1951 Ajmer 48 (supra) which was decided by Oak, J. C. (now the Chief Justice of this Court) the facts were almost identical with those of the instant case. The decree-holder in that case applied for execution on 25-11-1942 for recovery of Rs. 1032. This amount was admitted to be due to him on the date of the execution application. Some property was sold in the course of the execution for Rs. 2000 out of which a sum of Rs. 1049, which included Rs. 17 as costs of execution, was paid to the decree-holder. On 21-2-1946 the decree-holder filed another application for execution claiming an additional sum of Rs. 165 towards future interest for the period 25-11-1942 to 2-1-1946. The previous execution application had been allowed by the decree-holder himself to be struck off in full satisfaction. It was held that the order striking off execution in full satisfaction implied full satisfaction of the whole money claimed under the decree and that no second application would be maintainable merely towards future interest. This conclusion was arrived at by placing reliance on the case of AIR 1933 Bom 364. If I may say so with utmost respect, the learned Judicial Commissioner failed to note that in the Bombay case itself the learned Chief Justice had specifically, and in my opinion purposely, used the expression 'immediately payable at the date of execution' and 'presently payable' which to my mind, furnish the key to theproblem. Besides unlike the present case, the decree-holder had allowed the execution to be struck off in full satisfaction of the decree.

10. I have already mentioned above that if a definite sum of money has accrued due to a decree-holder on the date of the execution application, but he omits or neglects to mention or claim the same, an inference by necessary implication may be drawn that there is a waiver or relinquishment on his part in regard to that sum. A decree-holder who makes an application for execution can only calculate the exact amount, which accrues due to him on the date of the execution application. He can never foresee when the execution proceedings will come to a close, Under the law it is always open to the judgment-debtor before the sale is held or even thereafter, as provided by law, to pay up the amount claimed by way of execution instead of allowing the execution to proceed. How is the decree-holder to know whether and if so when the judgment-debtor will pay or deposit the amount claimed in the execution application instead of allowing the sale to be held and confirmed. It is not, therefore, possible to mention any amount which may accrue due to a decree holder on account of future interest after the filing of the execution application. The law does not require him to make any reservation of his claim for such future interest nor to specify in the execution application that such future interest should also be realised in execution. There can, therefore, be no conscious omission to claim such future interest nor any waiver or relinquishment in respect thereof.

11. There are yet other difficulties in holding that, because the decree-holder has not mentioned that he is entitled to future interest subsequent to the date of the execution application, he has lost his right to such interest by waiver or relinquishment. Firstly, that right is reserved to the decree-holder under the decree itself if it has been provided therein that he will be entitled to future interest on the decretal sum till payment of the sum on which the future interest is payable. Secondly, the duty of issuing sale proclamation is that of executing Court. Under Order 21, Rule 66 (2) of the Code a sale proclamation must contain certain particulars, one of them being, vide Clause (d), the amount for the recovery of which the sale is ordered. It is not unknown indeed it is almost the usual practice of judgment-debtors that objections are raised against execution at every stage. Often, it takes a considerably long time even to reach the stage of issuing the sale proclamation under Order 21, Rule 66 of the Code. Even after the issue of the sale proclamation, the actual sale is notvery often allowed to be held on the date originally fixed. Therefore, in so far as the decree-holder is concerned, he really is not even in a position to ascertain and state the amount which will be due to him either on the date of the sale proclamation or on the date of sale itself. It cannot, therefore, be said that the decree-holder has failed or omitted to do something which is required of him by law either expressly or impliedly when he does not mention in the execution application that he would also be entitled to future interest after the date of execution application till full recovery of the whole sum realisable under the decree. Thirdly, satisfaction of a decree in full or in part, has to be according to the procedure and mode laid down in Order 21 of the Code. In a case where some amount recoverable under the decree remains unpaid, the judgment-debtor cannot disown his liability therefor unless he has taken necessary proceedings under Order 21, Rule 2, of the Code and has obtained an appropriate order thereunder. If, according to the judgment debtor, the decree in respect of future interest subsequent to the date of execution application has been satisfied or adjusted on account of waiver or relinquishment on the part of the decree-holder, the satisfaction or adjustment must be got certified under Order 21 Rule 2 of the Code. Besides, on the facts of the present case, I have no doubt in my mind that there is nothing on the part of the decree-holder from which even a remote inference can be drawn that it waived or relinquished the claim for interest which was to accrue subsequent to the date of the execution application viz. 18-10-1960. The submission of the learned counsel, therefore, must be rejected.

12. Before passing on to the second submission of the learned counsel for the appellants reference may be made to some authorities cited by the learned counsel for the decree-holder respondent. It was submitted by him that apart from authorities on principle also the decree-holder's right to future interest cannot be said to be lost or destroyed or legally barred due to waiver or relinquishment It was pointed out that the provisions of Order 2, Rule 2 of the Code have been held to be not applicable to execution proceedings and that this would clearly indicate that it was never the intention of the law to bar the realisation of interest accruing due to the decree-holder after the filing of the first application by means of a second execution application. The law is settled that the provisions of Order 2, Rule 2 do not apply to execution proceedings. It will be enough to mention in this connection the decision of the Privy Council in Thakur Persad v. Fakir Ullah, (1895) 22 Ind App 44 (PC).

13. Out of the many cases cited by the learned counsel for the respondents, notice need only be taken of a few. They are: Basant Kumar v. Baikunthanath, : AIR1932Cal555 ; Ibrahim v. Firm of Ghulam Husain, AIR 1921 Sind 13; Balasubramania Chetty v. Swarnammal, AIR 1915 Mad 811; Upendra Nath Bose v. K.P. Dutta, AIR 1926 Cal 1019 and Lakhinarasimham y. Suryanarayana, AIR 1948 Mad 246. Reliance was also placed on certain observations made in the case of : AIR1930Cal349 , which I have already discussed earlier in my judgment.

14. In : AIR1932Cal555 (supra) it was held that a decree-holder, holding a decree with interest is entitled to interest calculated upto the date of sale although he only mentions in his application for execution the amount of interest upto the date of the application and does not specifically claim future interest upto the date of sale. Although, not directly in point, the decision supports the decree-holder's right to receive future interest after 18-10-1960 in the instant case.

15. In AIR 1915 Mad 811 it was observed by two learned Judges that there was nothing in the Code to prevent a decree-holder from presenting (successive applications for realising portions of what he is entitled to under his decree. I am not prepared to accept the proposition so broadly put, because, as already mentioned, if the decree-holder is held to be entitled to split up the decree the result may be preposterous. That, however, does not mean that the decree holder would not be entitled to file a second or even, under certain circumstances, successive execution application to realise the amount or amounts accruing due to him after the previous application or applications.

16. In AIR 1921 Sind 13 (supra) the contention raised on behalf of the judgment-debtor against the maintainability of the second and separate application for execution for interest which had accrued due after the first execution application was repelled and it was held that neither the provisions of Order 2, Rule 2 were applicable nor could the decree-holder properly claim such interest in his first application under Order 21, Rule 11 of the Code.

17. In AIR 1926 Cal 1019 (supra) it was observed that the provisions of Order 2, Rule 2 of the Code are not applicable to execution proceedings and, therefore, there was nothing to prevent successive applications for execution of a portion of the decree from being made although the Court might refuse to execute a portion of the decree when such an application was made on a previous occasion. For the reasons already noted above, I am unable to subscribe to this view in toto. Besides, the point also did not directlyarise. The question for decision in thatcase was in regard to the applicability of Article 182 (5) of the Limitation Act, 1908.

18. Apart from the propositions propounded by the learned counsel for the parties and the case's cited by them, there is, to my mind, another strong reason why the contention of the learned counsel for the appellants cannot be accepted. This reason is furnished by the provisions of Order 21 of the Code itself. It has already been mentioned that a decree-holder seeking execution is required under Rule 11 ofOrder 21 to furnish certain particulars. A duty, however, is cast upon the Court, itself to draw up the sale proclamation under Rule 66 of Order 21 of the Code and under Clause (d) of Sub-rule (2) thereof to specify therein 'the amount for the recovery of which the sale is ordered.' The amount aforesaid ought to be, as held in : AIR1932Cal555 (supra) the amount as calculated upto the date of sale. Even after the sale has been held by or under the orders of the Court the judgment-debtor, if he so desires, can exercise the rights conferred on him under Order 21, Rule 89 of the Code. He can within the time allowed by law deposit in the Court a sum equal to 5% of the purchase money for payment to the purchaser and the amount specified in the proclamation of sale for the recovery of which the sale was ordered for payment to the decree-holder; Sub-rule (3) of Rule 89 of Order 21 of the Code, however, specifically provides that the deposit on the making of which the sale is set aside shall not relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale. The aforesaid Sub-rule (3) of Rule 89 of Order 21 makes it abundantly clear that the liability for interest accruing due after the sale proclamation will subsist even though the entire amount mentioned in the sale proclamation has been deposited for payment to the decree-holder. This, to my mind, clearly shows that the decree still subsists and remains enforceable in so far as further interest is concerned, and the decree-holder is entitled to file a separate execution application for the recovery of such interest. Order 21, Rule 89, in my opinion, also clearly negatives the contention that the decree-holder having filed an application for execution of the decree could not file the second application for execution to realise interest accruing due after the making of the original execution application. It also repeals the contention that the only remedy of the decree-holder would be to apply for the amendment of the original application to claim recovery of interest accruing due subsequently. Let us consider a case where the sale price of the property sold is just sufficient to cover the amount mentioned in the sale proclamation for the recovery of which the sale was ordered. In such a case there will be nothing left by way of surplus from which the decree-holder can recover further amount subsequently accruing due to him on account of interest and the right to recover such subsequent interest, therefore, can be enforced only by one of the modes prescribed in the Code itself for the execution of the decree. If this be so, it must necessarily be held that the subsequent execution application is neither prohibited by law nor can it be said to be barred by any principle of, waiver or relinquishment. I am, therefore, clearly of opinion that the decree-holder's right to claim further interest after the filing of the first execution application was not lost by waiver or relinquishment and that the second application for execution was legally maintainable.

19. The next point for consideration is as to whether the second application for execution was barred by principles of res judicata. Section 11 of the Code is not in terms applicable. This was also conceded by the learned counsel for the appellants. It was, however, contended by him that the principles of res judicata would be applicable and that it is now well settled that even in execution proceedings the principles of res judicata are applicable. The learned counsel for the decree-holder respondent also did not challenge the proposition that the principles of res judicata would in appropriate cases be applicable to execution proceedings as well. The question, however, is whether in the instant case, the second application can be said to be barred by the principles of res judicata.

20. In support of his submission that the second application for execution was barred by principles of res judicata, the learned counsel for the appellant referred to two applications made by the decree-holder in the proceedings arising out of first execution application and the orders passed on those applications. The first application (Paper No. 79-C) was filed on 31-7-1963 praying that Rs. 3873.87 p. be adjusted against the sale money and the decree-holder be permitted to deposit the balance of Rs. 1192.95p. This application was made by the decree-holder who happened to be the auction purchaser also. The sale price was Rs. 42,000/- whereas the amount for the recovery of which, as mentioned in the sale proclamation, the sale was held amounted to Rs. 35.244.18 p. Under the law an auction purchaser is required to deposit 25 per cent, of the purchase money immediately on being declared to be the purchaser and to deposit the balance within 15 days from the date of sale. An exception, however, has been provided when the decree-holder himself has purchased the property and the law has given him a right to set off under Order XXI, Rule 72 (as amended in U.P.) and the proviso to Rule 85 of the Code. In the instant case, the decree-holder wanted to set off the amount which had become due to it till the date of sale. It was mentioned in the application that on account of further interest from 19-10-1960 to 22-7-1963 a sum of Rs. 3873. 87 p. had become due to it. This application was dismissed by the executing court by the following Order:--

'Ex-Appln. shows that interest is claimed only upto date of application. No prayer for execution for interest is made and so no adjustment to that effect is allowed. Let the full amount of balance due be deposited within the statutory period.'

The decree-holder as required by the aforesaid order deposited the full amount after adjusting the sum of Rs. 35,244.13 p. Thereafter, the decree-holder filed another application (paper No. 81-C) on 29-8-1963 for amending the original execution application so as to include all future interest accruing after the date of the execution application. This application was also dismissed by the executing Court on 29-8-1963 by the following order:--

'This is a very old execution. Amendment is refused'.

21. The contention of the learned counsel is that in view of the orders of the executing Court on the two aforesaid applications, the second application for execution subsequently filed by the decree-holder must be held to be barred by the principles of res judicata. I am unable to accept the contention of the learned counsel. Both these applications were summarily rejected. The two applications, in question, did not give rise to any issue between the decree-holder and the judgment-debtor, nor was any issue finally decided. The executing Court by accepting or disallowing the claim of the decree-holder to set off cannot destroy any rights accruing to the decree-holder under the decree. I am of opinion that such an order cannot operate as res judicata when a regular application for execution is subsequently filed if the making of such an application is not otherwise legally prohibited. It has already been mentioned that in so far as the express provisions of Order 21 of the Code are concerned, there is no bar to the making of further application or applications for execution for the recovery of the amount or amounts accruing due after the making of the first application. The rejection of the application (paper No. 79-C) in my opinion, did not involve the decision on any question of the executiability of the decree for further interesteither directly or constructively. Therefore, the argument that the order passed on the application (paper No. 79-C) operates as res judicata cannot be accepted.

22. In regard to the order passed on the application (paper No. 81-C) dated 29-8-1963 also I am of opinion that U legally the second execution application was not prohibited then the order dated 29-8-1963 cannot be treated as res judicata. This application also did not give rise to any issue between the decree-holder and the judgment-debtors. Whether the execution application originally filed should or should not have been permitted to be amended might be a matter of judicial discretion of the executing Court but the rejection of the application, to my mind, cannot be accepted as destroying or barring the right which the decree-holder had under the decree itself. It has already been mentioned that under Order 21, Rule 11 of the Code the decree-holder is required to furnish only those particulars as are mentioned therein. It has also been mentioned that it is settled law now that Order II, Rule 2 of the Code does not apply to execution proceedings. That being so, the subsequent application for execution cannot be held to be barred by res judicata because of the rejection of the application (paper No. 81-C).

23. In support of his contention that the subsequent application is barred by res judicata the learned counsel for the appellants referred to a number of decisions of the Supreme Court. In Mohan Lal v. Benoy Krishna : [1953]4SCR377 , it was held that the principle of constructive res judicata is applicable to execution proceedings and that the question was no longer debatable. In that case the judgment-debtor himself did not raise certain objections which he could have legally raised in the course of execution proceedings before the sale was held, After the sale, the judgment-debtor in his objections under Order 21, Rule 90 of the Code raised those objections. It was held that the objections were barred by the principles of res judicata. This decision, to my mind, is not applicable to the instant case at all. There the judgment-debtor himself did not raise, certain objections which he was legally entitled to raise and could have raised before the sale. It was, therefore, held that since the judgment-debtor himself had permitted the sale to be held without raising certain objections it must be deemed that those objections were barred by principles of constructive res judicata.

24. In Sailendra Narayan v. State of Orissa. : [1956]1SCR72 , it was held that a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the Court exercises its mind on a contested case. Thisdecision has no bearing on question raised in the instant case.

25. In Moran Mar Basselios Catholicos v. Thukalan Paulo, AIR 1959 SC 31 the point for decision was as to whether in a representative suit filed under Order 1, Rule 8 of the Code by the trustees of a Church, the matter involved was barred by res judicata because of a previous decision in an inter-pleader suit in which the same question was directly and substantially in issue. This question was decided in the affirmative. In my opinion, this case also does not support the contention of the learned counsel. I have already mentioned that the application which had been filed and which was summarily dismissed did not directly or even constructively involve any dispute or any issue as such between the decree-holder and the judgment-debtor. The orders passed on the application cannot, therefore, be said to be even constructively a decision on any dispute or issue between the parties. I am therefore, clearly of opinion that the second contention of the learned counsel must also be rejected.

26. The learned counsel for the respondent also referred to a number of Supreme Court decisions, but in none of those cases the question involved in the present case was considered either directly or even by necessary implication. Further, since I have already come to the conclusion that the second submission of the learned counsel for the appellant founded on res judicata is without force, I do not think it will serve any useful purpose to refer to and discuss these cases.

27. The appeal, therefore, is dismissed. In the circumstances of the case, however, I direct the parties to bear their own costs of the appeal in this Court.


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