1. This is a judgment-debtor's miscellaneous appeal against an order dated 27-9-1951 of Sri R. C. Misra, Agency Subordinate Judge of Jeypore, passed under Section 47, Civil P. C., in Exn. Case No. 14 of 1951. The aggregate amount of the decree in execution is Rs. 3254-2-11 and the suit costs amount to Rs. 419-4-0. Previous to this execution case the decree-holder had brought Execution Case No. 1Z4/45 wherein some riaddy of the judgment-debtor was attached and the bailiff reported that -it was 14 garces 5 putties and 18 manas which was attached and kept in custody of decree-holder 1. The decree-holder filed an affidavit stating that it was only 1 garce 5 putties and 18 manas which was attached and not 14 garces and odd as the bailiff reported. Thereafter the Agency Subordinate Judge directed the Munsiff of Gunpur to make an inquiry and to report as to the actual measure of paddy attached. The Munsiff, however, reported supporting the contention of the decree-holder.
The judgment-debtor on 24-4-47 filed an affidavit with a prayer for enquiring into the matter that in fact 14 garces 5 putties and 18 manas of paddy was attached by the bailiff. This affidavit of the judgment-debtor was treated as a petition under Section 47, Civil P. C., and the Court ordered it to be registered as a miscellaneous case -- the order being 'Registered the petition received on 24-4-47 as Misc. Case under Section 47, Civil P. C.' Accordingly it was registered as Misc. Case No. 5/48 on 26-7-1948. The case was fixed for hearing on 7-2-1948. The judgment-debtor on 7-2-1948 applied for time which was rejected by the Executing Court as frivolous, and the judgment-debtor was asked to get ready immediately; but as he defaulted, the Court passed the following order:
'Misc. Case No. 5/48
The applicant is absent on calls. The opposite party is present with his pleader. The learned pleader for the opposite party does not admit any part of the case of the applicant. The application is dismissed for default in presence of the opposite party, Rs. 5-0-0 is allowed as pleader's fee.'
2. On 11-2-1948, the Court called upon the decree-holder to prove that the price of the said 1 garce 5 putties and 18 kunchams was Rs. 250-0-0. On 16-2-1948, the judgment-debtor filed three petitions one for sale of paddy under attachment of the measure of 14 garces 5 putties and 18 kunchams, the second for scaling down the decree under the provisions of Orissa Money-lender's Act and the third for withholding attachment of other movables. The Court does not seem to have passed any order on the first petition, but the decree was scaled down and the petition for withholding attachment was rejected.
Thereafter the execution case was dismissed on 8-4-1948 without costs on part satisfaction of Rs. 250/-. In the present execution case the judgment-debtor has put in his objection under Section 47, C. P. C. on the allegation that in fact what was attached in the previous, case was 14 garces and odd and not 1 garce and odd as alleged by the decree-holder. He prayed for an enquiry into the matter on the ground that there has been no enquiry to his objection in the previous case. This petition has been rejected by the Executing Court on the ground of res judicata that this very point was raised in the previous execution case which was the subject matter of Misc. Case No. 9/48 which was dismissed for default of the judgment-debtor in presence of the decree-holder.
3. Mr. A. L. J. Rao, appearing on behalf of the judgment-debtor-appellant, takes up his first plea that in the previous execution case this objection 'as to the measure of the paddy actually attached was initiated by the decree-holder and the judgment-debtor merely filed a counter-affidavit to the said objection of the decree-holder on 24-4-47, and as the judgment-debtor had not put in a petition of objection under Section 47, die Executing Court had no jurisdiction to register the affidavit as a Misc. Case under Section 47. The dismissal for default of such a proceeding therefore is no res judicata for the judgment-debtor when the point was never decided but was left open by the Executing Court in the previous execution case.
We have perused the affidavit filed by the judgment-debtor on 24-4-47. The significant feature about it is that after alleging that in fact 14 garces 5 putties and 18 kunchams of paddy was attached, the judgment-debtor prayed, in the last paragraph of his affidavit, that he might be given an opportunity to be heard and that the Hon'ble Court may be pleased to pass an order on the subject according to law. This affidavit containing all the relevant allegations and the prayer for investigation by the Court is manifestly a petition with reference to a question of execution, satisfaction and discharge of the decree. The Executing Court, therefore, in our opinion, was perfectly justified in starting Misc. Case No. 5/48 on the basis of this petition. It further appears that the judgment-debtor also on 7-2-48 applied for time to be granted for adducing evidence in the miscellaneous Case. The Executing Court of course treated the ground for adjournment as frivolous.
4. The main question, therefore, that arises for determination in the present case is the legal effect of the order passed on 7-2-48, that is, whether it can serve as a res judicata against the judgment-debtor's raising the same plea once again in the present execution case. The main contention of Mr. Rao is that the decree-holder cannot bring in his aid the principles of constructive res judicata inasmuch as the judgment-debtor had in fact raised the objection in the previous case, and further the principle of res judicata is not applicable, because the point still remains undecided, and, as such, is not hit by the principles underlying any of the provisions of Section 11, Civil P. C. His contention is that when the petition was dismissed for default, there is no decision of the Court as contemplated under Section 11.
5. There is a direct authority on the point of their Lordships of the Patna High Court in the case of -- 'Ram Narayan Singh v. Basudeo Singh'. AIR 1947 Pat 298 (A). In that case before their Lordships the objection put forth by the judgment-debtor under Section 47 was dismissed for default in the presence of the decree-holder on 6-5-44. The judgment-debtor again applied under Order 47, Rule 1 and Section 47, Civil P. C. to set aside the order of dismissal for default; but the petition was rejected. Thereafter in the subsequent execution case when the judgment-debtor put in the self-same objection and prayed for enquiry into the matter on the allegation that the point still remained undecided as the Court had never applied his mind to the question on any occasion, their Lordships held that the judgment-debtor was hit by the principles of res judicata to raise the objection once again when his previous objection was dismissed for default in the presence of the decree-holder.
Their Lordships relied upon several decisions of the same Court laying down the same principle. A line of distinction was drawn between the two sets of cases where the Misc. Case under Section 47 was dismissed for default of both parties, and where it was dismissed for default of the judgment-debtor in the presence of the decree-holder. Reviewing quite a number of decisions of the same Court, their Lordships observed that where the Misc. Case was dismissed for default of both parties, the penalty is not so severe and the principles of res judicata would not apply but it would apply when the decree-holder was present and the case was dismissed for default only of the judgment-debtor.
One of the cases relied upon by their Lordships in this case was the decision of Wort and Agarwalla JJ. in the case of -- 'Mahadeo Prasad v. Bhagwat Narain', AIR 1938 Pat 427 (B). In that case in order to apply the principle of res judicata in a case where the objection of the judgment-debtor was dismissed for his default in the presence of the decree-holder their Lordships relied upon the principles underlying Section 11, Expln. V, Civil P. C., that is to say where a prayer is raised but not granted ft must be deemed, to have been rejected.
In our opinion, the principles underlying Expln. V rightly apply to such cases where the case is dismissed for default of one party only. In the present case we find the judgment-debtor came with a prayer that 14 garces and odd of paddy which was actually attached and kept by the decree-holder was to be credited towards the decree and even though every opportunity was given to him to adduce evidence he did not avail of it and the decree-holder's pleader being present at the time of the hearing of the petition did not admit any part of the case of the applicant. Exactly the same view also was taken in the judgment of Sir Dawson Miller C, J. sitting with Kulwant Sahay J. in the case of -- 'Jago Mahton v. Khirodhar Ram', AIR 1924 Pat 122 (C).
6. Mr. Rao wants however to place strongreliance upon another Bench decision of the sameCourt reported in --'Nageshwar Pd. v. Jai Bahadur',AIR 1932 Pat 357 (D), where their Lordshipsnegatived the plea of res judicata in a case wherethe miscellaneous case under Section 47, Civil P. C. wasdismissed for default. It is one of the array ofcases where the Misc. Case is dismissed for defaultof both parties. Even in this judgment their Lordships had recognised the distinction between theabove two sets of cases. Their Lordships observed:
'Besides there ought to be some distinction between those cases where there is negligence onthe part of both the parties and those whereonly one of the parties is at fault.'
Their Lordships again observed :
'It is clear that the principle upon which the'provisions of Order 9, Rules 3 and 4 are based isthat a party is not to be precluded from bringing a fresh suit where there was no occasion forthe Court to apply its mind to the points raisedin the suit and where there were laches on thepart of both the plaintiff and the defendant. Insuch a case 'the penalty to be imposed on theplaintiff cannot be so severe as in those wherethere is default on his part only. It was on thisprinciple I think that it was conceded in 'JagoMahaton v. Khirodhar Ram (C)', that where bothparties do not appear different considerationswould arise'.
7. The case of -- 'Akhoy Kumar v. Krishna Chandra', AIR 1932 Cal 569 (E), was cited on behalf of the appellant where their Lordships negatived the contention of res judicata there being no decision on the objection raised by the judgment-debtor as the previous case was dismissed for default. It does not, however, appear from the judgment whether the case was dismissed for default of both parties or for the negligence of the judgment-debtor alone. The case therefore is not of any help for our decision in the present case.
8. Mr. Rao however lastly relies upon a. decision of the Patna High Court reported in -- 'Bhagwati Pd. v. Radha Kidhun', AIR 1950 Pat 354 (F), where one of the points that arose for decision of their Lordships is that where the previous objection petition is dismissed for default of the judgment-debtor whether it will serve as res judicata when the judgment-debtor raised the same question once again. Their Lordships indeed negatived the plea of res judicata on the ground that there was no adjudication of the objection raised by the judgment-debtor. Here again it does not appear clearly whether the previous objection petition was dismissed for default of both parties or in the presence of the decree-holder. We are not inclined to follow this decision, particularly for the reason that none of the previous decisions as we have discussed in our judgment, was placed before their Lordships or discussed by them.
9. In conclusion, therefore, we are of the view that where an objection petition under Section 47, Civil P. C., of the judgment-debtor is dismissed for his default in the presence of the decree-holder a subsequent petition on the self-same ground is barred by the principle of res judicata underlying the provisions of Section 11, Expln. V, Civil P. C.
10. The appeal therefore fails and is dismissed with costs.
11. I agree.