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Bankim Bihari Roy Vs. Halima Bibi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 40 of 1960
Judge
Reported inAIR1962Ori54
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 and 145 - Order 21, Rule 22; Contract Act - Sections 133 to 139
AppellantBankim Bihari Roy
RespondentHalima Bibi and anr.
Appellant AdvocateM.S. Rao, ;M.K.C. Rao and ;A.K. Rao, Advs.
Respondent AdvocateL.K. Dasgupta and ;G.N. Sengupta, Advs.
DispositionAppeal dismissed
Cases Referred and Mahadeo Prasad v. Bhagwat Narain Singh
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....g.c. das, j.1. the two principal questions to be decided in this appeal are (1) the applicability of section 135 of the indian contract act (act ix of 1872) to a case of surety within the meaning of section 145 of the code of civil procedure; and (2) whether the subsequent objection in the same misc. case is hit by the principles of res judicata on the ground that the second objection was not included in the 1st objection.2. they arise under the following circumstances; respondent 1 halima bibi, grand-mother of respondent 2 md. yusuf ahamad who was the original defendant in title suit no. 52/50 stood surety for the performance of any decree that may eventually be passed in the aforesaid suit. the plaintiff, bankim bihari roy filed the aforementioned suit for ejectment and damage in lieu.....
Judgment:

G.C. Das, J.

1. The two principal questions to be decided in this appeal are (1) The applicability of Section 135 of the Indian Contract Act (Act IX of 1872) to a case of surety within the meaning of Section 145 of the Code of Civil Procedure; and (2) Whether the subsequent objection in the same Misc. case is hit by the principles of res judicata on the ground that the second objection was not included in the 1st objection.

2. They arise under the following circumstances; Respondent 1 Halima Bibi, grand-mother of respondent 2 Md. Yusuf Ahamad who was the original defendant in Title Suit No. 52/50 stood surety for the performance of any decree that may eventually be passed in the aforesaid suit. The plaintiff, Bankim Bihari Roy filed the aforementioned suit for ejectment and damage in lieu of shop rent. In the said suit, the plaintiff filed an application for attachment before judgment of movables belonging to the defendant under Order 38, Rule 5 of the Code of Civil Procedure. Respondent No. 1 in that proceeding furnished security to the extent of Rs. 2000/- for the satisfaction of the decree that might be passed in the suit. Accordingly Halim Bibi executed a registered security-bond (Ex. A) in favour of the Court for a sum of Rs. 2000/- on 21st February, 1951. Subsequently on 19th February 1952, the suit was compromised between the plaintiff and the defendant without any notice to the Surety (Halim Bibi). In the compromise the defendant agreed to pay the entire decretal dues and was granted time for one year. He did not pay. The decree-holder consequently started execution of the decree against the properties of the surety (Ex. Case No. 225 of 1953) in the Court of the second Munsif of Cuttack.

The surety filed a petition under Section 47 of the Code of Civil Procedure on 25-7-57 first on the ground that she did not execute the document, and accordingly she was not liable. A Misc. case was registered being Misc. Case No. 215 of 1957. In the same Misc. Case another set of objections were taken on 28-1-58 on the ground that she was released of the liability under the surety bond on account of the compromise entered into between the plaintiff and the defendant under which one year's time was allowed to the defendant to pay up the decretal dues without her consent and without any notice to her. Both the Courts below negatived the first objection and upheld the second objection. While coming to these conclusions, both the Courts below relied upon a decision of this Court reported in Nanagaram v. Nirmal Prasad, ILR (1957) Cut 152. It is against this decision that the present appeal is directed. I heard this appeal at the first instance and referred the matter for decision by a Division Bench of this Court by order No. 9 dated 16-1-61 and that is how the matter has come up before this Bench.

3. The self-same contentions as raised before the Courts below and as noticed at the beginning of this judgment were raised by Mr. M. S. Rao before this Court. His contention, in essence, wasthat Section 135 of the Contract Act does not apply to the surety-bond and the second objection raised by the surety on 28-1-58 is barred by the principles of constructive res judicata. He further contended that althpough section 135 of the Contract Act does not apply to the facts of the present case, he is entitled to enforce the decree under Section 145 of the Code of Civil Procedure. Section 145 lays down thatWhere any person has become liable as surety (a) for the purpose of any decree or any part thereof, or (b) for the restitution of any property taken in eiceCution of a decree, or (c) for the payment of any moffey, or for the fulfilment of any condition imposed on any person, under an order of the Court in any suit or in any proceeding consequent thereon, the decree or order may be executed against huik to the extent to which he has rendered himself personally liable in the manner provided for execution of the decree and such person shall, for the purpose of appeal, be deemed to be a party within the meaning of Section 47, provided that such notice as the Court may in each case think sufficient has, been given to the surety. The liability of the surety under this section depends upon the terras of the bond.

The terms of the bond, in the present case are that, the surety will be liable for the sum of Rs. 2000/- for, the amount that may be found due by the Court and will be realised from the properties given security hereunder. There are cases to show where under a surety-bond the surety agreed that if the decision was given against the defendant, he would pay whatever amount was found due and the surety would stand discharged if the suit was compromised. Thus, the obligation which a surety incurs under a bond which he gives to Court under Section 145 of the Code of Civil Procedura is deemed to be discharged of the liability if he suffers some injury by virtue of the suit having been compromised.

Both the Courts appear to have taken the view that Section 135 of the Contract Act applies to the facts of the present case and accordingly the surety stands discharged when the creditor and the principal debtor entered into a composition; the former promising, to give the latter time for performance of the decree. Thus, the surety stands discharged unless ha assents to such a contract. For this purpose,both the Courts below as stated earlier, had relied upon a decision of this Court in ILR (1957) Cut ,152, to which I will advert sometime later.

4. There was some controversy with regard to the application of Section 135 of the Contract Act to a case of surety. Divergent views were expressed by different High Courts. The law appears to have been well settled now that Ss. 133 to 141 of the Contract Act as such do not apply to a surety. But the equitable principles underlying those sections are applicable to a case of a surety as contemplated under Section 145 of the Code of Civil Procedure. TheHigh Courts of Bombay, Madras, Calcutta and Lahore took the above view, whereas the Patna High Court still holds the other view that is, Section 135 applies to cases of surety (vide Narsingh Mahton v. Nirpat Singh, AIR 1932 Pat 313? The grounds on which these courts held Section 135 not to be applicable in terms are that (1) The Court is nota juridical person and hence cannot be a contracting party; and (2) the contract of 'Guarantee, and 'Surety', as defined in Section 126 of the Contract Act does not apply in terms to the 'surety' as contemplated under Section 145 of the Code of Civil Procedure.

5. Mr. Kao in support of his first contention relied upon three decisions of the Madras, Nagpur and Allahabad High Courts reported in Appunhi Nair v.Isaak Mackadam, AIR 1920 Mad 355; Madanlal Motilal v. Radhakisan Laxminarain, AIR 1935, Nag 258 and Mt. Radha Kunwar v. Ram Narain, AIR 1952 All 587. In the Allahabad case the learned Judges were concerned with Section 137 of the Contract Act which enjoins that creditor's forbearance to sue does not discharge the surety whereas the Madras High Court took the view that Section 136 of the Contract Act does not apply and the Nagpur High Court expressed the opinion that Section 133 to Section 139 of the Contract Act are not applicable to cases of surety.

6. The Allahabad High Court in the case of AIR 1952 All 587 was of opinion that the idea underlying Section 135 is that where a creditor does something behind the back of the surety and does it to his prejudice by advancing facilities to the principal debtor, which are likely to harm the surety, the surety is no more to be bound by his undertaking. The facts in that case were that the decree-holder transferred the decree and all rights thereunder to another person. Simultaneously a third person executed a surety-bond in favour of the transferee undertaking to indemnify him for such loss or damage as he might offer in consequence of acquiring the rights of the original decree-holder. Thus, the transferee agreed not to continue the execution proceedings against the principal debtor for the time being and allowed him opportunity to raise money to discharge the debt. This, the learned Judges held to be an act of forbearance within the meaning of Section 137 and not an instance of giving time under a contract within the meaning of Section 135 to discharge the surety.

7. The facts in the Madras case AIR 1920 Mad 355 were that a person executed a surety-bond undertaking to produce the defendant in a suit at the time and place ordered by the Court and that on his failure? to do so he and his property would be liable for the amount payable to the plaintiff. While the defendant was in Court conducting his case the surety asked to be relieved from his obligation, but as the defendant was unwilling to surrender the application was disallowed. Thereafter the plaintiff and the defendant agreed to a consent decree which was put into execution against the surety. On appeal the District Judge discharged the surety from his obligation. Before the High Court it was contended that the principle underlying Section 135 of the Contract Act is applicable. Since the first defendant entered into a compromise with the plaintiff without the assent of the surely, the latter is discharged from the obligation under the security-bond. A Division Bench of that Court held that the provision of Section 135 of the Contract Act is not applicable.

8. In the case of AIR 1935 Nag 258 the two Judicial Commissioners took the view that theobligation which a surety incurs under the bond which he gives to the Court excluded from the definition of a 'contract of guarantee' as contained in Section 126 of the Contract Act. Under the Act a contract of guarantee is a tripartite agreement between the 'surety', the 'principal debtor' and the 'creditor'. The Court cannot be called a 'creditor' in whose favour the surety executes the bond Incurring the obligation which the Court is empowered to enforce summarily by way of execution under Section 145 of the Code of Civil Procedure. Consequently, the provisions of Section 133 of the Contract Act cannot be made applicable to the bond given by the surety to the Court.

9. Some reliance was sought to be placed on the case of Harburg India Rubber Comb Co. v. Martin, (1902) 1 KB 778. The facts in that case were that the defendant who was a director of and had a large interest as a share-holder in a Company which he had also financed orally promising the plaintiffs who were the judgment-debtors of the Company and who had delivered to the Sheriff a writ of fi fa which they had issued upon their judgment on which the Sheriff had failed to levy because he could not effect an entry, that he the defendant would endorse the bill for the amount of debt. On appeal from a decision of Mathew, J. the Court of appeal held that this promise was not a contract of indemnity but was a 'promise to answer for the debt of another' within Section 4 of the Statute of Frauds and that as it was not in writing an action for the breach of it could not be maintained. It was also held that the case was not ex-oepted from Section 4 by reason of the interest which the defendant had as a share holder and otherwise in freeing the goods of the Company from the execution he having no legal interest in the goods. I do not see how this case can be of any avail to the contention of Mr. Rao.

10. Before dealing with the other cases, I would first like to refer to the decision of the Court reported in ILR (1957) Cut 152. In that case Rao J. held that the compromise between the plaintiff decree-holder and the defendant-judgment-debtor by which the decretal dues became payable by instalments in an agreement supported by consideration, and consequently a contract coming within Section 135 of the Indian Contract Act. Forbearance under Section 137 means forbearance not resting upon or in consequence of such a promise to give time to or not to sue the principal debtor as as the s.ubject of Section 135. In Section 137, mere forbearance on the part of the creditor to sue the principal debtor does not discharge the surety only if that, forbearance is not the result of a contract between the parties but is only a unilateral act on the part of the creditor not taking any proceeding against the principal debtor. It does not contemplate any agreement between the creditor and the principal debtor. Mr. Rao challenged this decision with great vehemence. It appears that the only aspect that was argued in that case was whether Section 135 or Section 137 of the Contract Act applies to the facts and circumstances of that case. The aspect which is being argued before this Bench was not presented to my learned brother, Rao, J. Hence that decision neither helps the contention ofMr. Rao, nor militates against it. What was decided by Rao, J. was that mere forbearance on the part of the creditor to sue the principal debtor does not discharge the surety when the torbearance is not the result of the contract between the parties but is only a unilateral act on the part of the creditor not talcing any proceeding against the principal debtor.

11. Let us examine the contrary view expressed by the Patna High Court in the case of AIR 1932 Pat 313. The contract of suretyship: in that case was, if the suit is decided against the defendants and a decree for mesne profits is passed in favour of the plaintiffs, the plaintiffs would realise the amount of decree of mesne profits from the property mentioned in this deed. The suit with regard to claim of possession was decided against the defendants and the plaintiffs and the defendants compromised their dispute as to the mesne profits and agreed upon a definite sum exceeding the amount for which surety was given and a certain time was given to defendants within which to make the payment. Courtney Terrell, C.J. and Fazl Ali J. held in that case that both by the making of the compromise and the granting of time the surety was discharged under Section 135 of the Contract Act, 1872. They held that Section 135 is quite specific in its character and lays down that if a suit is compromised that is to say, if a compromise is entered into between the principal debtor and. the creditor or if tune is given to the principal debtor then the surety is discharged and if that section is applied to the case, the surety is most certainly discharged for not only has, a compromise been entered into but time has by the compromise been given to the principal debtor. In this connection the learned Judges referred to the celebrated decision of Lord Boughborough in the case of Rees v. Berrington (1795) 2 Ves 540. What was decided by Lord Boughborough was quoted in that case in the following terms:

'It is the clearest and most evident equity not to carry on any transaction without the privity of him who must necessarily have a concern in any transaction with the principal debtor. You cannot keep him bound and transact his affairs (for they are as much his as your own) without consulting him'.

From the above quotation it appears that although Courtney Terrell C. J. held that Section 135 of the Contract Act is applicable in effect it followed the English equitable principles.

12. The Madras decision as quoted above in the case of AIR 1920 Mad 355 does not appear to have been followed by the Madras High Court in its subseauent decisions. The law iff that merely entering into a compromise does not affect prejudicially the interests of the surety, but the granting of time without his consent doubtless acts to his prejudice. In the case of Annadana Jadaya Goundar v. Konammal, ILR 56 Mad 625: (AIR 1933 Mad 309) it was held by a Division Bench of that Court that the consent order gave time to the plaintiff to pay the balance of the amount fixed for mesne profits without any reservation of the defendant's right to proceed against the surety in the meantime; and that therefore, the surety was discharged.

Venkata Subba Rao, J. further held that whether the compromise as such is or is not excluded by the terms of surety-bond is a question of fact in each case. In that case the compromise was not excluded by the terms of the surety-bond and the surety was bound by the order based on the compromise although the compromise had been entered into without his knowledge. Consequently, the learned Judges held that Section 135 of the Contract Act does not apply, and the principles of Sections 133, 134 and 135 of the Contract Act and some of the following sections embodying the equitable principles which have long been established in England and the surety is entitled to claim protection of those principles in such proceedings are applicable to India. The learned Judges relied upon the case of (1795) 2 Ves 540 as quoted above.

In a subsequent decision of the Madras HighCourt in the case of T.N. and Q. Bank v. Official Assignee Madras, AIR, 1944 Mad 396 the above principle was reiterated. A Division Bench of the Madras High Court in that case considered the Nagpur decision in AIR 1935 Nag 258 and reiterated the view taken in ILR 56 Mad 625: (AIR 1933 Mad 309). The Division Bench thus held that to a security-bond in favour of Court guaranteeing performance of a decree that may be passed against the debtor Sections 133 to 139 of the Contract Act as such do not apply, but the principles thereof do apply, the creditor compounding and granting time to debtor without surety's consent. The surety is relieved of the liability because of the grant of time by the Court. The opinion in ILR 56 Mad 625: (AIR 1933 Mad 309} was shared by the Bombay High Court in the case of Parvatibai v. Vinayak Balwant, ILR (1938) Bom 794: (AIR 1939 Bom 23). Their Lordships observed:

'It is a fundamental rule of law that a surety is relieved from liability if the creditor compounds or gives time to the principal debtor without his consent'.

With regard to the decision in the case of Parvati-bai, ILR (1938) Bom 794: (AIR 1939 Bom 23) the learned Judges observed:

'We may add that our reference to ILR 1938 Bom 794: (AIR 1939 Bom 23) does not imply thatwe are in agreement with all that was said there. In one respect the judgment goes further than we are prepared to go'.

In that case certain execution proceedings had been adjourned from time to time by orders of the Court pending an appeal. The adjournments extended over a period of six years. The learned Judges considered that this amounted to giving time to the debtor and the fact that the Court was itself responsible for this, made no difference. An order which has the effect of giving time to the debtor may be passed by the Court in spite of opposition on the part of the creditors. In such circumstances is he to lose the benefit of the surety? Surely the principles underlying the sections in the Contract Act do not go to this length.

13. The Madras decisions referred to above and the two decisions of the Bombay High Court in Mahomedalli v. Lakshmibai, ILR 54 Bom 118: (AIR 1930 Bom 122) and the case of Parvatibai,ILR, (1938) Bom 791: (AIR 1939 Bom 23) referred to above and another decision of the Allahabad High Court reported in Ram Prasad v. Gordhan, AIR 1934 All 616 met with approval of the Lahore High Court in the case of Pirthi Singh v. Ram Charan, AIR 1944 Lah 428. In that case Harries, C.J., and Abdur Rahman J. held that the principle underlying Sections 133 to 141 applies to surety-bonds executed in favour of Courts under the Civil Procedure Code although the sections are not themselves applicable. The surety-bond in favour of a Court may not literally fall within the definition of a contract of guarantee but the existence of a contract is not sine qua non for the application of the principles of equity on which Sections 133 to 141, Contract Act, were themselves based. Although a bond is given to a Court under Section 145, Civil Procedure Code, it is really for the benefit of the party for whose protection or whose interest it is given and the Court can only enforce it either by execution or by assigning it in certain cases for the benefit of that party. It follows as a matter of course that that party has no right to act in a manner as may be detrimental to a surety, impair his rights to any extent without his consent or hold him liable for a contract which is different from the one that he had stood a guarantor. And if that party does so act, the surety must be held to be discharged. Consequently, where in a suit by the creditor against the debtor the surety executes a bond in favour of the Court under Order 38, Rule 5, Civil Procedure Code, any arrangement between the creditor and the principal debtor without the surety's knowledge and consent which has the effect of granting time for payment or impairs the surety's remedies against the principal debtor which he could have been entitled to pursue on discharging Ms obligations converts the contract between the creditor and debtor into, a different one from what the surety had stood a guarantee for, would entitle the surety to be relieved of his engagement and operate as a discharge.

14. The Calcutta High Court in the case of Kanailal Mookerji v. K.M. Chatterjee, AIR 1957 Cal 645 did not prefer to follow the decisions of the Nagpur High Court as also the earlier Madras decision in AIR 1920 Mad 355 on the greund that that decision of the Madras High Court was not followed in the later two or three decisions of the same High Court. Section R. Dasgupta J. in that case held that the principles underlying Sections 133 to 141 of the Contract Act applied to bonds in favour of Courts although the sections may not by themselves be applicable. Some of the above decisions refer to the Old English decision in Tatum v. Evans, (1885) 54 LT 336. The facts in that case were that the defendants, Evans Digby and Simson, executed a joint and several bond for 150 in order to comply with an order of a Judge at Chambers under Order XIV, directing the defendant Evans, in an action of Tatum v. Evans, (1885) 54 LT 336 to find security as a condition for leave to defend, the condition of the bond being that it should be void if Evans should pay to the plaintiff the sum of 75 or such sum, not exceeding that amount, as the court should think fit to award. When thecase came on for trial, Evans consented to judgment being directed for 750 to include costs, payable as to the first 400 by instalments of 25 per month, the remainder to be paid by instalments of 50 per month, the first instalment to be payable on the 1st March 1885, the plaintiff to be at liberty to issue execution for any balance of 750, upon default in payment of any instalments, the defendant, to reconvey all his interest in the premises to the plaintiff forthwith. It was further provided that the first payment by the defendant was to be taken in discharge of sureties pro tanto, but sureties not to be fully discharged until payment of 75. It was found as a fact that the defendant Digby consented to the terms of the judgment, but the defendant Simson did not consent. It is in these circumstances, it was held that the defendant Simson was discharged from liability under the bond. Thus, there is no doubt that the principles underlying Section 135 of the Contract Act apply to the cases of security-bonds though the section in terms does not apply. The equitable principles being applied, there is not much of a substance in the first contention of Mr. Rao.

15. Coming now to his second contention regarding the application of the principles of constructive res judicata, I must state it clearly that the decree-holder did not challenge the first objection as raised on 25-7-57 regarding the factual aspect of the case, that is, with regard to the non-execution of the security-bond itself. The only objection taken was with regard to the legal objection which was taken on a subsequent date that is, on 28-1-58. Mr. Rao's whole contention was that a decision was taken in the Misc. case before filing of the second objection and hence the second objection is hit by the principles of constructive res judicata. He referred to certain orders passed by the executing court. The decree-holder filed requisites for issue of notice under Order 21, Rule 22 of the Code of Civil Procedure on the surety. The Executing Court by its order No. 58 dated 11-4-57 issued notice giving 26-4-57 for return. On 24-4-57 the notice was returned after service.

The executing court fixed it to 3-5-57 for the decree-holder to prove service. On the adjourned date, that is, on 3-5-57, service was found to be sufficient and the proceeding was adjourned to 20-6-57 when the decree-holder was to take further steps. On 20-6-57, the decree-holder filed requisites for issue of sale proclamation and the case was adjourned to 3-7-57 for orders. On 3-7-57 the surety, Halima Bibi appeared through her lawyer and filed a petition for a month's time to file her objections. On that date, it was adjourned to 16-7-57 within which time the surety was to serve a copy of the petition on the opposite party. Certain petitions in the meantime were filed and Were rejected by the executing court when finally on 25-7-57 the surety filed objection which was numbered as Misc, Case No. 216 of 1957. Thus, it appears from the order sheet that the objector-surety had appeared in the execution proceedings before any order was passed by the executing court for the issuance, of the sale-proclamation.

The second objection, as I have stated earlier was filed on 25-1-58 challenging her liability under the bond. Mr. Rao contends that this objection is hit by the principles of constructive res judicata. He relied upon a number of decisions which are really not applicable to the present case. The principle has been well-settled by the Privy Council in the well-known Mangal Dixit's case reported in Mungalpershad Dichit v. Grija Kant Lahiri, ILR 8 Cal 51. The principle is that when a decision is made and an objection is taken thereafter, the second objection is hit by the principles of constructive res judicata. The notice under Order 21, Rule 22 to show cause why the decree should not be executed was served on the surety as it appears from the various orders quoted above. What is significant is that before any order was passed by the Court the surety appeared and showed cause.

Mr. Rao sought to rely upon a decision of this Court in the case of Narsingha Chandra Panda v. Maheswar Panda, 24 Cut LT 451. In that case a , learned single judge of this Court took the view that the question which could and should have been raised at the stage of the execution proceeding is barred by the principles of constructive res judicata which applies to execution and other proceedings also even though Section 11 of the Code of Civil Procedure in terms does not apply. In that case the liability of the receiver was determined before the sale was made. Hence that case has no application to the facts of the present case.

16. In the case of Haris Chandra v. Dinesh Chandra, AIR 1946 Cal 375, it was held by B.K. Mookherjee, J. that if the notice under Order 21, Rule 22 is actually served upon the judgment-debtor and he is apprised of the fact that the decree-holder has started proceedings for execution of the decree by delivery of possession of the property and if in spite of the notice he remains silent, he cannot at a subsequent stage of the proceeding raise the question of limitation which must be deemed to have been decided against him when the Court made the order for execution. It appears from this decision that an order was passed after the notice under Order 21, Rule 22 was duly served. In the instant case the surety appeared after service of the notice under Order 21, Rule 22. Before any actual order was passed by the Court, she filed her objection.

17. A Full Bench of the Lahore High Court in the case of Gauri v. Ude, AIR 1942 Lah 153, relying upon Mangal Prasad Dixit's case, ILR 8 Cal 51 (PC) held that Section 11 of the Code of Civil Procedure does not apply to execution proceedings; the general principle of res judicata, however, applies to such proceedings including the principle of constructive res judicata embodied in Explanation 4 to Section 11. In that case there was an attachment under Order 21, Rule 54 and the property in dispute was sold. Subsequently an objection under Order 21, Rule 90 and Section 60 of the Code of Civil Procedure was raised challenging the saleability of the property. The learned Judges held that under Order 21, Rule 90 a sale can be set aside only on the ground of material irregularity or fraud in conducting the sale and it is not that the property in question was not liable to be sold under Section 60 of the Code. The word 'conducting' has been used with reference to the proceedings of the officer conducting the saleand cannot be construed so widely as to cover positions relating to the saleability of property. Hence this case can be of no avail to the contentions of Mr. Rao.

18. The Patna High Court in the case of Sitla Sahai v. Gouri Nath, AIR 1942 Pat 477 clearly held that a judgment-debtor is not entitled to raise at a latex stage of the execution proceedings a plea in bar which was open to him at an earlier stage and which he had an opportunity of raising, or which, having been raised has been overruled. Their Lordships in coming to the conclusion had also relied, upon the well-known Mangal Dixit's case ILR 8. Cal 51. (PC) decided by the Privy Council and on the previous decisions of their own Court reported in Brajlal v. R.N. Atkinson, 5 Pat LJ 639 : (AIR 1920 Pat 146) and Mahadeo Prasad v. Bhagwat Narain Singh, AIR 1938 Pat 427. In that case, it may be remembered that the execution was directed to proceed and later on an objection on the question, of limitation was raised.

That was a case where the decree was passed by the Civil Judge of Lucknow in 1922 and the decree was transferred to the Patna Court for execution. On receipt of the notice under Order 21, Rule 22, the judgment-debtor appeared and objected to the execution of the decree on two grounds, namely, that the decree was not capable of being transferred and the application was barred by limitation. The latter objection was not pressed and the first objection was over-ruled and the execution was directed to proceed; in due course the sale-proclamation was issued and then the judgment-debtor filed another petition objecting to the execution of the decree on the ground that probate of the will had not been obtained and that the application was barred by limitation. Their Lordships of the Patna High Court held that the second objection is hit by the principles of constructive res judicata. In the case of 5 Pat LJ 639 : (AIR 1920 Pat 146) the judgment-debtor failed to object to the execution on the ground of non-service of notice of transfer of the decree under Order 21, Rule 16. At a later stage the validity of the execution proceeding was challenged on that ground. Applying the principles as laid, down by the Privy Council in Mangal Prasad Dixit's case, ILR 8 Cal 51 (PC) the Patna High Court took the view that it was not open to the judgment-debtor to raise the question at the stage when it was raised. In the case of AIR 1938 Pat 427, the judgment-debtor objected to an execution proceeding in which it was sought to sell a property to which Section 12A of Chhotanagpur Encumbered Estates Act applied on the ground that the sanction for the sale was not obtained from the Commissioner. But the objection was not decided. Subsequently the purchaser was sued for possession and a declaration that the sale was invalid by reason of the Commissioner not having accorded his sanction. Wort J. who delivered the judgment in that case held that the matter was res judicata although the question whether the sale was valid for want of sanction from the Commissioner had not been decided at the earlier stage. He pointed out that if objection to the execution could be taken piece-meal one after the other, there would be no end to the execution proceedings. Agarwalla, J. held that when the plea was not taken at an earlierstage, the judgment-debtor was not entitled tochallenge the validity of the proceedings on thatground.

19. Again reliance was placed in this connection in the case decided by Rao J. reported in ILR (1957) Cut 152. The view that Rao, J. took in that case, was that the principle of res judicata would apply if the earlier objection was validly rejected. Hence even that decision does not help Mr. Rao.

20. From the above discussion, it appears fairly clear that once an order is passed in the execution proceeding the judgment-debtor or the surety, as in this case, would not be allowed to] raise a second objection in the same proceeding; the principle being that the objection which might and ought to have been raised at the first instance, not having been raised, is deemed, in the eye of law, to have been decided by the Court. In the present case, two objections one regarding the factual aspect of the case and the other regarding the legal aspect were raised at two different times in the same miscellaneous case. Hence, none of the decisions cited above is to the point and does support the contentions as raised by Mr. Rao. .

21. In the result, there does not appear to be any spirit at all in this appeal and accordingly the appeal is dismissed with costs throughout.

Misra, J.

22. I agree.


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