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Santokh Singh Vs. Kuldip Raj and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberLetters Patent Appeal No. 60 of 1949
Judge
Reported inAIR1952P& H300
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 - Order 34, Rule 6
AppellantSantokh Singh
RespondentKuldip Raj and ors.
Advocates:Roop Chand
DispositionAppeal dismissed
Excerpt:
.....& a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed 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. .....decree for mortgage was passed which was made final on the 8th july 1940. evidently no separate personal decree as required under order xxxiv, rule 6, civil p. c. was passed. in spite of that an execution was taken out by the decree-holder. the judgment-debtor raised objections where he stated that no personal decree had been passed against him, and, therefore, his person and other property could not be held liable. the executing court overruled these objections holding that the judgment showed that he was personally liable for the payment of any amount which remained unpaid after the sale of the mortgaged property. no appeal was taken against this order and it therefore became final.3. when execution against the judgment-debtor's person and ether property was taken out, he again took.....
Judgment:

Kapur, J.

1. This is a Letters Patent Appeal against a judgment of Khosla, J. in which the learned Judge held that the objections raised by the judgment-debtor were barred on the principle of 'res judicata'.

2. On the 14th February 1940, a preliminary decree for mortgage was passed which was made final on the 8th July 1940. Evidently no separate personal decree as required under Order XXXIV, rule 6, Civil P. C. was passed. In spite of that an execution was taken out by the decree-holder. The judgment-debtor raised objections where he stated that no personal decree had been passed against him, and, therefore, his person and other property could not be held liable. The executing Court overruled these objections holding that the judgment showed that he was personally liable for the payment of any amount which remained unpaid after the sale of the mortgaged property. No appeal was taken against this order and it therefore became final.

3. When execution against the judgment-debtor's person and ether property was taken out, he again took the same objections which have been held by Khosla, J. to be barred by the rule of 'res judicata'. He has relied on a judgment of Bhide, J. in 'JOGINDRA SINGH v. SHIB NARAIN SINGH', AIR 1941 Lah 171, the facts of which case are almost identical with the present case. It has been held more than once, and particularly in 'PRABHU DAYAL v. DEWAT RAM', 15 Lah 869, that the principle of constructive 'res judicata' applies to execution proceedings. Mr. Roop Chand for the appellant does not seem to deny that the principle of 'res judicata' applies to execution, but he submits that as there was no decree in existence, the executing Court could not execute anything against the person and property of the judgment-debtor. He has relied on a judgment of mine in 'MT. MONGI v MAHA-BIR PEHSHAD'. AIR 1951 Punjab 132, but there the facts were different. The decree-holder had applied for execution to which he attached a copy of the decree. No objection was taken and a proclamation of sale was issued. But before the sale the judgment-debtor filed objections saying 'inter alia' that there was no proper decree ordering sale. After the sale the objections were dismissed and the judgment-debtor came up in appeal against tbat order to this Court. There was no finding, constructive or otherwise, holding that the decree was executable nor was there an order of the Court for sale. That case, in my opinion, was wholly different because no question of 'res judirata' arose.

4. In the present case there has already been a finding that execution could proceed against the person and other property of the judgment-debtor, and that, in my opinion, is 'res judicata'.

5. I would therefore dismiss this appeal, but as there is no appearance for the respondents, there will be no order as to costs in this Court.

Falshaw, J.

6. I agree.


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