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Dewan Syed Aley Rasul Vs. Seth Balkishan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1937All446
AppellantDewan Syed Aley Rasul
RespondentSeth Balkishan and ors.
Excerpt:
.....chand died on 8th october 1924, before the mortgage decree could be satisfied. 3. an appeal by aley rasul to the district judge was unsuccessful. the view of this court has 'been clearly expressed in genda lal hazari lal air1936all21 in which it has been laid down that: the test which has been laid down by the full bench seems to be that if on an application for execution the decree-holder, obtains some relief by way of part satisfaction of the decree the judgment-debtor should be deemed to have taken but unsuccessfully all objections, which if successful, would have prevented the decree-holder from obtaining satisfaction in part of the decree. where however the decree-holder failed to obtain any relief and his application became abortive, the judgment-debtor was not debarred from..........of the original parties to the execution proceedings. sharfuddin was in the meantime succeeded by aley rasul as 'dewan' and 'sajjada-nashin'. he put forward a number of objections, one of which was that he was not the-legal representative of the deceased sharfuddin and that the mortgaged properties-were not transferable and could not, therefore, be sold in execution of the decree. the subordinate judge and the-additional district judge took different views on the questions raised by the objections. eventually the judicial commissioner held, by an order, dated 23rd april 1930, that the important question to consider was whether the mortgaged' properties in dispute were alienable. accordingly he reversed the orders of the subordinate courts and remanded the case-to the court of first.....
Judgment:
ORDER

1. This is a reference under Section 17 of the Ajmer Regulation 1 of 1877. Before we state the precise question referred to this Court, the previous history of the case which has given rise to it should be stated. By a deed, dated 22nd January 1912, Dewan Immamuddin, a former 'sajjadanashin' of the Ajmer Dargah, hypothecated a number of properties, including a 'jagir', income from the shrine, a 'haveli' and a 'nohra', also called a 'bagh', to secure the advance of a certain sum of money. The original mortgagor died, and was succeeded by Dewan Sharfuddin, against whom a suit for sale of the mortgaged properties was brought by the mortgagee. A preliminary decree was passed in the usual terms. On 28th September 1920, the Court recorded an order directing the preparation of a final decree. It is common ground that no-final decree is traceable. It may be that no such decree was ever prepared through an oversight on the part of the office or that one was prepared but has been lost. Sharfuddin died on 2nd December 1922, and the mortgagee Amir Chand died on 8th October 1924, before the mortgage decree could be satisfied.

2. An application for execution had been made in the lifetime of the original par. ties on 1st October 1920; but, on the application of Sharfuddin to the Government for a certain loan, the execution proceedings were in abeyance. The Government finally refused the loan applied for by an order, dated 16th October 1924. The legal representative of the mortgagee made an application on 17th March 1925, asking for the revival of the execution proceedings and also for substitution of names for those of the original parties to the execution proceedings. Sharfuddin was in the meantime succeeded by Aley Rasul as 'dewan' and 'sajjada-nashin'. He put forward a number of objections, one of which was that he was not the-legal representative of the deceased Sharfuddin and that the mortgaged properties-were not transferable and could not, therefore, be sold in execution of the decree. The Subordinate Judge and the-Additional District Judge took different views on the questions raised by the objections. Eventually the Judicial Commissioner held, by an order, dated 23rd April 1930, that the important question to consider was whether the mortgaged' properties in dispute were alienable. Accordingly he reversed the orders of the subordinate Courts and remanded the case-to the Court of first instance for determination of the question indicated by him. The Subordinate Judge held after remand, by an order, dated 15th March 1933, that none of the mortgaged properties, except the 'haveli' and the 'nohra' also called the 'bagh', was in its nature transferable. He also held that Aley Rasul was the legal representative of Sharfuddin qua these two properties. Accordingly he directed execution to issue in respect of these two properties.

3. An appeal by Aley Rasul to the District Judge was unsuccessful. On the sale proclamation being prepared, Aley Rasul put forward a number of objections mostly directed against alleged defects in the preparation of the sale proclamation. Some of the objections, however, are construed in these proceedings as raising a question of title. These objections were dismissed by the Court of first instance on 28th November 1933. The appellate Court upheld the order of the Court of first instance by an order, dated 26th July 1934. For reasons, which do not appear from the record and which it is not necessary to mention, no sale took place in pursuance of the sale proclamation to which reference has been made, and a fresh sale proclamation was subsequently prepared when Aley Rasul took a fresh set of objections on 11th August 1934. The first of this was that, as no final decree had been prepared, there was no decree capable of execution before the Court, the preliminary decree not being one which the Court could execute. The second was that no substitution of names for those of the deceased parties having been made under Order 22, Civil P.C., within the limitation allowed by law, the suit had abated long before the application for execution was made. Lastly, it was pleaded that the mortgage money, mentioned in the preliminary decree, was charged on all the properties detailed in the mortgage deed and that only two of the properties, namely, the 'haveli' and the 'nohra' or 'bagh' could not be sold in satisfaction of the entire mortgage money. These are the objections which the Court has to decide.

4. It was urged on behalf of the legal representatives of the mortgagee, decree, holder that the earlier decisions of the Court, passed on the objections of Aley Rasul, operated as res judicata as regards the objections, dated 11th August 1934 This plea found favour with the Court of first instance, who also disposed of the objections on the merits. Aley Rasul made an application, under Section 17, Regn. 1 of 1877, asking for a reference to this Court for decision on the question whether the earlier decision operated as res judicata on the questions raised by hire by his objection, dated 11th August 1934 The Court refused to make the reference The case went in second appeal, to the Judicial Commissioner of Ajmer, who sent it back to the Court of first instance with the direction that the reference, asked for by Aley Rasul, be made. Accordingly, the Subordinate Judge referred the following question to this Court:

Whether the consideration of the new objections-raised by the judgment-debtor and referred to by the Subordinate Judge in his order of 3rd September 1934 was in the circumstances of the present case, barred by the principle of res judicata?

5. The case was heard by a Division Bench of this Court, and one of the questions raised before it was whether the reference under the Regulation above referred to was competent. The Division Bench referred the question to a Full Bench which has since ruled that in the circumstances of this case the reference should be taken to be competent. The case is now before this Bench for decision of the question under reference. Learned Counsel on both sides have taken us through the objections made and the orders passed on previous occasions. The only one to which a detailed reference is necessary is the order of the Court, dated 28th November 1933, which will also show the nature of the objections that had been preferred by the judgment-debtor on that occasion. We may say at once that Aley Rasul did not on that occasion raise the question which he is now raising, namely, that no final decree having been prepared the Court had no decree capable of execution before it, nor did he plead that proceedings for substitution of names not having been taken under Order 22, Civil P.C., the suit itself abated. It is true he had contended that substitution of names not having taken place in place of the deceased decree. holder and the deceased judgment-debtor the application for execution of the decree abated - an objection which was shortly disposed of by the Court with reference to Order 22, Rule 12, Civil P.C., which makes it clear that the provisions contained in that order are not applicable to execution proceedings. It should be noticed that the present objection raises the question whether the suit itself abated. His case seems to be that as no final decree was prepared the suit should be deemed to be pending and as the plaintiff and the defendant both died during the pendency of the suit and their legal representatives have not been brought on the record the suit should be deemed to have abated. This question, as already Stated, was not raised by Aley Rasul's objections, dated 11th August 1933. It could not be and was not decided by the Court's order, dated 28th November 1933. Out of the three questions raised by Aley Rasul the first two are founded on the assumption that a final decree not having been prepared the suit should be deemed to be pending. There can be no doubt that these objections are not barred by any express decision of the Court. It is, however, argued on behalf of the decree-holder that they might and ought to have been taken on the previous occasion and not having been then taken they should be deemed to have been constructively decided against Aley Rasul by the order of the first Court, dated 28th November 1933, and by that of the appellate Court, dated 26th July 1934. It is not disputed that Section 11, Civil P.C., does not in terms apply. It is also common ground that the principle of the rule of res judicata does apply. How far the rule of constructive res judicata embodied in Expln. 4, Section 11, Civil P.C., is applicable to orders passed in execution proceedings has been the subject of numerous judicial decisions some of which are not easily reconcilable. The view of this Court has 'been clearly expressed in Genda Lal Hazari Lal : AIR1936All21 in which it has been laid down that:

(1) Where there has been an express adjudication by the execution Court in the presence of the 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 name 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, but (3) Where an objection to execution is taken but it is not dismissed on the merits or is dismissed for default, and the application for execution does not become fructuous, the judgment-debtor is not debarred from subsequently raising the question that that application was not within limitation. Lastly (4) Where no objection to the execution is taken but the application becomes partly or wholly fruotuous 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.

6. In the Full Bench case the question was whether the judgment-debtor was competent to take the plea of limitation on a second application for execution if he had omitted to take it when an application for execution was first made and process of execution was issued though no satisfaction was obtained. The test which has been laid down by the Full Bench seems to be that if on an application for execution the decree-holder, obtains some relief by way of part satisfaction of the decree the judgment-debtor should be deemed to have taken but unsuccessfully all objections, which if successful, would have prevented the decree-holder from obtaining satisfaction in part of the decree. Where however the decree-holder failed to obtain any relief and his application became abortive, the judgment-debtor was not debarred from taking any plea which if successful would defeat a second application for execution. The case before us is one in which only one application for execution was made and is still pending. The judgment-debtors successively objected not on successive applications 'for execution being made but on various occasions arising in the course of the same proceedings. The proceedings started by the application for execution dated 1st October 1920 are still pending. Strictly speaking, the Pull Bench case is not applicable to the present case, but the ratio decidendi deducible from it can be safely applied to this case which is stronger than the one which the Fall Bench had to deal with. Learned advocate for the decree-holder has strenuously contended before us that the order of the Court dated 28th November 1933, dismissing the judgment-debtor's objection and directing the execution to issue should be taken to have impliedly decided all such objections as would be fatal to the execution of the decree if they were upheld by the Court. We do not think that the principle of res judicata can be extended so far. In the absence of express adjudication, and during the pendency of the same execution proceeding, there is nothing to prevent the judgment-debtor from taking any objection which might have been taken on the earlier occasion but was not taken. We have not been referred to any rule of law which makes it incumbent upon the judgment-debtor to raise all possible objections, under Section 47, Civil P.C., at a given time. While the Court possesses ample powers to prevent the abuse of its process it must decide all objections under Section 47, Civil P.C., when they are raised if they are not barred by any rule of law Accordingly we hold that the first two objections already mentioned are not barred by the principle of res judicata. For similar reasons we declare that the third question is also not barred. We answer the question under reference in the negative. The costs incurred by the parties in this Court shall follow the ultimate result of the proceedings in the Court executing the decree.


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