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Dip Prakash and ors. Vs. Dwarka Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1926All71; 90Ind.Cas.83
AppellantDip Prakash and ors.
RespondentDwarka Prasad and anr.
Excerpt:
.....constructions complained of, the amin went to the spot and carried out the order. but where the decree-holders expressly applied to get the disputed payment removed and the judgment-debtors had full notice that they had so applied and failed to raise any objections and the court then ordered execution to issue and through its officer, the amin, got its order carried into effect, it must be deemed by necessary implication that the question of the pavement having been constructed in defiance of the injunction was decided adversely to the objectors; hulsa air 1922 all 413. in the present case the judgment debtors were clearly bound, if they alleged that the construction of the so-called pavement was not inconsistent with the decree, to take this objection when the judgment-debtors asked..........j.1. this is an appeal by the judgment-debtors arising out of an execution matter. the plaintiffs, decree-holders, obtained a decree from the appellate court on the 15th december 1920 ordering the defendants to remove the walls and sheds which they had constructed on the disputed land, and for an injunction 'not to erect any building on the land.' the claim of the plaintiff's for other reliefs like joint possession was dismissed. on 30th april 1923 the decree-holders put in an application for execution of the said decree complaining that the defendants in spite of the aforesaid injunction had constructed a pucca pavement and several walls and had put a tin shed on the latter. in this application they expressly asked to execute the decree by demolition of the walls, the tin shed and the.....
Judgment:

Sulaiman, J.

1. This is an appeal by the judgment-debtors arising out of an execution matter. The plaintiffs, decree-holders, obtained a decree from the appellate Court on the 15th December 1920 ordering the defendants to remove the walls and sheds which they had constructed on the disputed land, and for an injunction 'not to erect any building on the land.' The claim of the plaintiff's for other reliefs like joint possession was dismissed. On 30th April 1923 the decree-holders put in an application for execution of the said decree complaining that the defendants in spite of the aforesaid injunction had constructed a pucca pavement and several walls and had put a tin shed on the latter. In this application they expressly asked to execute the decree by demolition of the walls, the tin shed and the newly constructed pavement. Upon this, notice was issued to the judgment-debtors fixing the 30th of July 1923. On this last mentioned date the judgment-debtors appeared and put in a written objection that the decree was not executable on the ground that the parties had compromised their dispute and the construction had been made in pursuance of that compromise. In the objection there was no suggestion that any of the constructions complained of were not in defiance of the injunction. On the 18th of August 1923 the execution Court after hearing the evidence of the parties held that no compromise had been proved and accordingly dismissed the objection. No further objections were filed by the judgment-debtors, and on the 27th of August 1923 the Court ordered that inasmuch as the judgment-debtors' objections had been dismissed, process should be issued to the amin to carry out the order of execution and report. Before however the order could be fully carried out, an order staying further proceedings was passed on the 29th of August 1923 because a declaratory suit was instituted by the sons of the judgment-debtors. The last mentioned suit was dismissed on the 17th of December 1923. On the 18th of December 1923 on receipt of a report that the civil suit had been dismissed, the Court ordered that the previous order dated the 27th of August 1923 should be carried out and the papers be sent to the amin for compliance. In obedience to this order the amin got the walls, the tin shed and the pavement removed from the land.

2. After this the judgment debtors filed a set of objections complaining that the decree-holders had fraudulently and without any right got the pavement removed causing a loss of Rs. 5,100 to them. They therefore prayed that the decree-holders might be ordered to get the pavement which they had got demolished rebuilt or to pay Rs. 5,100 on account of the cost of its construction to the objectors. The decree-holders replied that the construction of the pavement was contrary to the terms of the decree and further that the objectors had no right to raise this objection which was barred by the principle of res judicata and estoppel. They also disputed the amount of the alleged loss.

3. The execution Court held that there was no bar of res judicata. It further held that the pavement was not a building within the meaning of the decree and that therefore the decree-holders had no right to get it removed. It accordingly ordered that the decree-holders should rebuild the pavement within four months otherwise they would be liable to pay Rs. 3,490-5-4 to the objectors. On appeal the learned Additional Subordinate Judge agreed with the first Court that the objection was neither barred by res judicata nor by estoppel. He however held that the brick pavement of the floor was a building within the meaning of the term used in the decree. He accordingly allowed the appeal and dismissed the objection.

4. On appeal by the judgment-debtors to this Court it has been strongly urged before us that the pavement which is practically level with the ground, is not a building the construction of which was prohibited by the injunction. If the pavement stands by itself and is not covered by any other construction we would be inclined to accept the contention of the learned advocate for the appellants that its construction was not intended to be prohibited. The object of the injunction was to keep the courtyard free from obstruction so that the utility of the shops abutting it should not be diminished. This object is in no way defeated by making the floor of the courtyard pucca. On the other hand if this pavement is a part of the entire construction and is surrounded by walls on which a tin roof has been put on, then it must be taken along with the entire construction of which it would obviously form a part. The decree-holders then would be entitled to get removed the entire construction as it stands. It is however unnecessary to go any more into the facts because I and of opinion that this appeal should fail on legal grounds. When notice was issued to the judgment debtors to show cause why execution should not proceed and the judgment-debtors appeared before the Court they had full notice of the decree-holders' prayer for the removal of the disputed pavement. They had ample opportunity to object and urge that the construction of the pavement was not in contravention of the injunction. This objection they failed to raise. The objection which they did raise was disallowed and 27th August 1923 execution was ordered. Subsequently the proceedings were stayed because of another pending suit, but when that suit was dismissed execution was ordered afresh. Process was issued to the amin with specific instructions to demolish the pavement along with the other constructions complained of, The amin went to the spot and carried out the order. All this time the objectors were sleeping. It was their duty to raise the objection, before it was too late, that the pavement should not be removed. The order directing execution by removal of the pavement was based on the assumption that the pavement was a building within the meaning of that term as used in the decree. Had the execution Court been invited to consider and had it concluded that the pavement was not a building it would never have ordered its removal. It must therefore be assumed that the question that this pavement was liable to be removed in execution of the decree was by necessary implication decided by the Court against the judgment-debtors. They are therefore not entitled to come to Court and ask for damages for the loss which they have suffered on account of such execution. It is true that Section 11, Civil P.C. or any of its explanations, cannot in terms apply to an execution proceedings because the question arises in the same suit and not in a second suit. But as observed by their Lordships of the Privy Council in the case of Bam Kripal v. Rup Kunwari (1884) 6 All 269, an order in execution may be as binding between the parties and those claiming under them as an interlocutory judgment in a suit is binding upon the parties and in every proceeding in that suit or as a final judgment in a suit is binding upon them in carrying the judgment into execution. The binding force of such a judgment does not depend upon Section 13, Act 10 of 1877 but upon general principles of law. If it were not binding there would be no end to litigation: see also the Privy Council case of Mungul Pershad Dichit v. Grija Kant Lahiri (1882) 8 Cal 1. Whore therefore a point has once been expressly decided in the execution department there can be no doubt whatsoever that decision binds the parties in all subsequent proceedings. In cases where a point has not been directly decided but is such as must be deemed to have been necessarily decided before an order of execution was passed, the decision has also been held to have a similar binding force. For instance, objections that the application is not in accordance with the law, or that it is barred by time or that the decree is not capable of execution, or that the Court has no jurisdiction to entertain the application, or that the person applying for execution has not the right to do so, are objections, which if not raised before the execution is ordered, have been held in several cases to have been decided adversely to the objectors by the execution order. Reference may be made to the recent case of Raja of Ramnad v. Veluswami Tevar AIR 1921 PC 23 decided by their Lordships of the Privy Council. At p. 48 Lord Moulton observed: 'It was not only competent to the present respondents to bring the plea forward on that occasion, but it was incumbent on them to do so if they proposed to rely on it,' though in that case such a plea was in fact brought forward and decided upon: see also the case of Dwarka Das v. Ashfaqullah : AIR1925All117 and the cases cited therein.

5. On the other hand, in cases where the decretal amount is in dispute, it has been held that a mere order directing execution does not imply a decision that the amount entered in the application for execution is necessarily correct and it has been held that there is nothing to prevent the Court at a subsequent stage from correcting the amount which the decree-holder is entitled to recover. In the case of Kalyan Singh v. Jagan Prasad AIR 1915 All 105 which was affirmed by a judgment in Letters Patent Appeal reported in Kalyan Singh v. Jagan Prasad AIR 1915 All 344 it was held that if a judgment-debtor does not take exception to the amount erroneously set forth in an application for the execution of the decree as being the sum due, he is not prevented from doing so on a subsequent application for the execution of the same decree. Similarly in the case of Sheo Mangal v. Mt. Hulsa AIR 1922 All 413 the vendee decree-holder, who was at least entitled to execute his decree for costs, had included a sum of Rs. 380-15 0 in his application. An order issuing process was made; but before the order could be executed the vendee gave up his claim for Rs. 380-15-0 and applied to be allowed to retain the property. It was held that the order issuing process passed in favour of the decree-holders did not preclude them from saying that they were not entitled to recover the sum of Rs. 380-15-0 by way of execution, but that they were entitled to the property itself. It was pointed out that there was some amount recoverable by execution, namely, the amount of costs, and therefore the execution Court had jurisdiction to order execution. The mere fact that a larger amount was included in the application of the decree-holders did not necessarily imply that the Court had decided that the whole of that amount was due and recoverable only by execution.

6. The learned advocate for the appellants has contended before us that the present case is analogous to cases where property is delivered to a decree-holder in excess of the decree, in which contingency the execution Court always allows restitution. Had the decree-holders in the present case merely asked for execution of their decree by demolition of constructions made in contravention of it, without specifying what constructions they particularly wanted to be demolished, it might have been open to the judgment-debtors to come to the Court if constructions which had not been forbidden were also removed. But where the decree-holders expressly applied to get the disputed payment removed and the judgment-debtors had full notice that they had so applied and failed to raise any objections and the Court then ordered execution to issue and through its officer, the amin, got its order carried into effect, it must be deemed by necessary implication that the question of the pavement having been constructed in defiance of the injunction was decided adversely to the objectors; for without deciding this matter execution could not possibly have been ordered. I am therefore of opinion that the objectors are prevented from now asking the Court to reconsider the question and holding that the buildings ought not to have been demolished, to award them damages. I would therefore dismiss the appeal.

Daniels, J.

7. I concur both in the order dismissing the appeal and in the reasons given by my learned brother for doing so. The rulings on the subject of res judicata as applied to execution proceedings, are not altogether consistent, and it is, in my opinion, unnecessary to express any opinion as to the decisions in Kalyan Singh v. Jagan Prasad AIR 1915 All 344 or Sheo Mangal v. Mt. Hulsa AIR 1922 All 413. In the present case the judgment debtors were clearly bound, if they alleged that the construction of the so-called pavement was not inconsistent with the decree, to take this objection when the judgment-debtors asked for its demolition. It would be contrary to all principles of justice to allow them deliberately to stand aside while the pavement was demolished by order of the Court, and then, after the work was completed, to come forward and claim, as they now do, that it should be restored and they should be awarded damages.

8. The appeal is dismissed with costs including fees on the higher scale.


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