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Sori Dibya Vs. Kanhucharan Rath and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 73 of 1958
Judge
Reported inAIR1961Ori86
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 and 47
AppellantSori Dibya
RespondentKanhucharan Rath and anr.
Appellant AdvocateN. Kr. Das, Adv.
Respondent AdvocateU.N. Rath and ;J. Rath, Advs.
DispositionAppeal allowed
Cases ReferredGenda Lal v. Hazari Lal
Excerpt:
.....ought to have been taken, and no relief prayed for in the execution application, was granted, nor a partial satisfaction of the decree was obtained by the decree-holder......petition under section 47 was dismissed for default on 16th july 1956 in the presence of the decree-holder. thereafter the judgment-debtors filed a petition for restoration of misc. case no. 100/1956. it was ordered by the executing court that the original miscellaneous case was to be restored on payment of costs by the judgment-debtors and the costs not having been paid the petition for restoration also was rejected. thereafter the judgment-debtors filed another objection petition under section 47 on self same ground which has bean numbered as misc. case no. 211 of 1957.the present appeal arises out of that miscellaneous case no. 211 of 1957. the executing court rejected the objection raised by the judgment-debtors on the ground that it is barred by the principle of res judicata.....
Judgment:

S.P. Mohapatra, J.

1. The decree-holder is the appellant in this miscellaneous appeal arising out of proceedings under section 47, C. P. C. against the reversing judgment of the lower appellate Court accepting the objection raised by the judgment-debtors. The decree, under execution, is one for maintenance and was passed on 5th December 1956. Execution case was started in the year 1955 for arrears of maintenance of past three years prior to the institution of the execution petition. The judgment-debtors filed a petition under Section 47, C. P. C. which was numbered as Misc. Case No. 100 of 1956 wherein the judgment-debtors took the objection that the decree was barred by limitation and further execution could not proceed as the decree had been fully satisfied.

This petition under Section 47 was dismissed for default on 16th July 1956 in the presence of the decree-holder. Thereafter the judgment-debtors filed a petition for restoration of Misc. Case No. 100/1956. It was ordered by the executing court that the original miscellaneous case was to be restored on payment of costs by the judgment-debtors and the costs not having been paid the petition for restoration also was rejected. Thereafter the judgment-debtors filed another objection petition under Section 47 on self same ground which has bean numbered as Misc. Case No. 211 of 1957.

The present appeal arises out of that miscellaneous case No. 211 of 1957. The executing court rejected the objection raised by the judgment-debtors on the ground that it is barred by the principle of res judicata on account of the previous case having been dismissed for default in the presence of the decree-holder and the restoration petition also having been rejected. The lower appellate Court, however, has allowed the objection raised by the judgment-debtors that the execution case is barred by limitation and found that the objection raised by the judgment-debtors is not hit by the mischief of res judicata. So the present miscellaneous second appeal by the decree-holder.

2. The position is indisputable that the principle of res judicata including constructive res judicata applies to execution proceedings also. In my view, the present miscellaneous case No. 211 of 1957 based on a fresh objection petition filed by the judgment-debtors on the self same ground is barred by the principle of res judicata as the previous miscellaneous case No. 100 of 1956 was dismissed for default in the presence of the decree-holder and the restoration petition filed by the judgment-debtors was also rejected. To hold otherwise will be to frustrate the very fundamental basis of the provisions of res judicata as there will be no finality to any proceeding at all.

The judgment-debtors raised the same objection in the previous miscellaneous case; even though full opportunities were given to them they were not in a position to press the objection and as such it was dismissed in the presence of the decree-holder. Thereafter the judgment-debtors made an attempt for restoration and continuance of the previous Misc. case; but they failed in that attempt for their own difficulty as they did not pay the costs. Now again to allow them to raise the same objection in another miscellaneous case in the same execution case would simply mean to ignore all the previous stages of the execution proceedings which will amount to abuse of the process of the Court.

It will encourage not only negligence and want of vigilance on the part of the litigants but also to have no finality and sanctity to the pro ceedings in Court. When the objection petition filed in the first instance, was concluded by the orders of the competent court, the orders having been passed in accordance with law and full opportunities having been given to the parties before passing the orders, the orders must be taken to be conclusive and binding for all purposes as between the parties. The decree-holder, in my view, is fully competent to rely upon the basic principle of res judicata to urge that the subsequent petition is not maintainable.

3. There is a direct Bench decision of the Patna High Court on the point reported in Ramnarain Singh v. Basudeo Singh, AIR 1947 Pat 298. There also an objection petition filed by the judgment-debtor in an execution case was dismissed for default and the restoration petition was also rejected. Their Lordships held that the second miscellaneous case was barred. The lower appellate court, however, has relied on a subsequent decision o the Patna High Court reported in Bhagawati Prasad v. Radha Kishun, AIR 1950 Pat 354.

Indeed their Lordships in similar circumstances held that when the previous objection petition had been dismissed for default of the judgment-debtor, a subsequent petition during die same execution proceedings would be considered as a continuance of the previous one and was not hit by the principle of res judicata. But the previous Bench decision of the same Court was not noticed. It may be noted that the previous decision in AIR 1947 Pat 298 was a full discussion and review of several decisions on the point. With great respect I am unable to accept that the second petition should be taken as a continuance of the first particularly in the circumstances as they appear in the present case.

4. Mr. Rath, appearing on behalf of the judgment-debtor-respondents, has however relied upon a Full Bench decision of the Allahabad High Court reported in Genda Lal v. Hazari Lal, AIR 1936 All 21 wherein their Lordships on a review of several decisions have laid down certain dicta governing principles of res judicata as applicable to execution proceedings. They observed:

'A judgment-debtor is not precluded by the principle of res judicata from raising the plea of limitation in an execution unless (i) there was an express adjudication on the question of limitation against a judgment-debtor in an earlier execution proceeding or at an earlier stage of the same execution proceeding; (ii) or if there was adjudication implied in an order which, taken with surrounding circumstances, should be taken to imply a conscious determination of the question of limitation adversely to the judgment-debtor; and (iii) if the judgment-debtor did not fail to take the plea of limitation when it might and ought to have been taken, and no relief prayed for in the execution application, was granted, nor a partial satisfaction of the decree was obtained by the decree-holder.'

In the case before their Lordships, the facts and circumstances were widely different. It was not a case where the previous objection petition was dismissed for default of the judgment-debtor in the presence of the decree-holder and further the restoration petition filed by the judgment-debtor was also rejected on account of his non-compliance with the condition laid down. Moreover here in the present case the objection was in fact taken and was not pursued and pressed. It is to be taken that the matter was ordered to be concluded.

5. In these circumstances, therefore, I am definitely of the view that the subsequent objection petition filed by the judgment-debtors is not maintainable and as such it is not necessary to determine on the merits whether the execution case is barred by limitation. In conclusion, the appeal is allowed and the judgment passed by the lower appellate Court is set aside and the execution case is to proceed. The decree-holder is entitled to costs of this Court and of the lower appellate Court.


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