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Hazura Singh Vs. Jewon Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 736 of 1957
Judge
Reported inAIR1958P& H339
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 and 47 - Order 9, Rule 9
AppellantHazura Singh
RespondentJewon Singh and ors.
Appellant Advocate Dalip Chand, Adv.
Respondent Advocate R.K.D. Bhandari, Adv.
DispositionAppeal allowed
Cases ReferredBhagwati Prasad v. Radha Kish
Excerpt:
.....in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 2. it seems that the learned district judge has been largely affected by the fact that there has been a good deal of delay in the execution of the decree. 3. so far as the lahore high court and this court are concerned, it seems to be well settled that the rule of constructive res judicata cannot be made applicable when an objection petition under section 47, c. i have examined the patna decision and i find that it was quite clearly stated that the objection petition had been dismissed in the presence of the decree-holder and owing to the absence of..........of constructive res judicata owing to the dismissal of the previous objections on 18-10-1955 in default. the decree was passed as far back as 9-12-1949 in the sum of rs. 787/- with costs.the application for execution was made in april, 1952 to which objections were taken in august 1955, but owing to the absence of the judgment-debtor these were dismissed on 18-10-1955. the explanation given for the absence is that there were unprecedented floods at that time of the year and even a circular had been issued by the erstwhile pepsu high court on 5-10-1955 that cases should not be dismissed in default.an appeal was taken against the order of dismissal, but the same was rejected on 22-3-1956 on the ground that the order was not appealable. on 13-7-1956 the present objections were filed......
Judgment:

A.N. Grover, J.

1. The only point which requires determination in this appeal is whether the objections filed by the judgment-debtor in July, 1956 in execution proceedings are barred by operation of the rule of constructive res judicata owing to the dismissal of the previous objections on 18-10-1955 in default. The decree was passed as far back as 9-12-1949 in the sum of Rs. 787/- with costs.

The application for execution was made in April, 1952 to which objections were taken in August 1955, but owing to the absence of the judgment-debtor these were dismissed on 18-10-1955. The explanation given for the absence is that there were unprecedented floods at that time of the year and even a circular had been issued by the erstwhile Pepsu High Court on 5-10-1955 that cases should not be dismissed in default.

An appeal was taken against the order of dismissal, but the same was rejected on 22-3-1956 on the ground that the order was not appealable. On 13-7-1956 the present objections were filed. Both the Courts below have dismissed the objections on the ground that they are barred by the principle of res judicata.

2. It seems that the learned District Judge has been largely affected by the fact that there has been a good deal of delay in the execution of the decree. He has referred to certain observations of the Privy Council that the difficulties of a litigant in India begin after obtaining the decree, but this can be no ground for giving an erroneous decision.

3. So far as the Lahore High Court and this Court are concerned, it seems to be well settled that the rule of constructive res judicata cannot be made applicable when an objection petition under Section 47, C. P. C. has been dismissed for default. In Kishna v. Sundar, AIR 1932 Lah 64:3 (1) (A), Bhide J. held that when the first objection petition had been dismissed in default, and not on the merits, a second objection petition was maintainable.

Actually the view is that when an application is dismissed for default a second applica-tion is barred not under Section 11, C. P. C, but if any bar can operate that can be only under the provisions of O, 9, R, 9, of the Code. Now O. 9, R. 9, does not apply to execution proceedings. Therefore the second objection petition cannot be held to be barred. See in this connection Haribux v. Shamsundar, AIR 1935 Lah 145 (1) (B), Mt. Acharji Bibi v. Shesh Sahai, AIR 1939 Lah 223 (C) and Jagadish Ram v. Jagat Ram, AIR 1952 Punjab 123 (D).

4. On behalf of the decree-holder reliance has been placed on certain Patna decisions, and, in particular, reference is invited to Ram Narain Singh v. Basudeo Singh, AIR 1947 Pat 298 (E). This case lays down that where the decree-holder files his execution petition against the sons after the death of the father, the original judgment-debtor, and the sons file an objection under Section 47 claiming that the decree was incapable of execution as against them but the objection is dismissed for default in presence of the decree-holder, a subsequent objection petition by them is barred by the principles of res judicata. My attention has also been invited to Simhadri Sahu v. Balaji Padhi, (S) AIR 1955 Orissa 81 (F), where the same view was followed.

In this case another decision of the Patna High Court in Bhagwati Prasad v. Radha Kish-un. AIR 1950 Pat 354 (G) was not followed on the ground that it did not appear in that case whether the previous objection petition had been dismissed for default of both parties or for the default of the judgment-debtor only. I have examined the Patna decision and I find that it was quite clearly stated that the objection petition had been dismissed in the presence of the decree-holder and owing to the absence of the judgment-debtor. With all respect, I am unable to agree with the Orissa decision and the decision of the Patna High Court in AIR 1947 Pat 298 (E).

5. In the result, I hold that the present objection petition is not barred by the rule of constructive res judicata or any other provision of the Code. The appeal will, therefore, be allowed, but the parties will be left to bear their own costs in this Court. The case will now be remitted to the executing Court for decision of the objections in accordance with law. The parties have been directed to appear in that Court on 10-3-1958.


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