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Mian Ajmer Singh Vs. Mukandi Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberLetters Patent Appeal No. 279 of 1958
Judge
Reported inAIR1959P& H521
ActsDebt Law; Punjab Debtors Protection Act, 1936 - Sections 11; Code of Civil Procedure (CPC) , 1908 - Sections 11; Evidence Act, 1872 - Sections 115
AppellantMian Ajmer Singh
RespondentMukandi Lal
Appellant Advocate Roop Chand, Adv.
Respondent Advocate H.S. Doabia, Adv.
DispositionAppeal allowed
Cases ReferredNand Ram Shah v. Kabul Shah
Excerpt:
.....cannot be heard which is, of course, impossible to sustain, it is said that there was a previous occasion when the judgment-debtor ought to have raised that objection which suggestion ignores the plain fact that the judgment-debtor was not aware of his rights till he was advised to object to the pending execution application on the basis of section 11 of the punjab debtors' protection act. it would, in my opinion, be disastrous if we were to hold that a clear direction of law, such as is contained in section 11 of the punjab debtors' protection act, can be ignored merely, because a debtor may have failed to notice this at the earliest possible opportunity and for that reason deprived for ever from availing of it, and i am not aware of any authority which may have taken such a view......mian ajmer singh alias mian gulah singh who is admittedly an agriculturist. section 11 of the punjab debtors'' protection act, 1936, enacted a rule in these words:'notwithstanding anything to the contrary contained in any other enactment for the time being in force, where an application has been made to execute a decree passed after the commencement of this act against a debtor as defined in sub-sec. (2) of section 7 of the punjab relief of indebtedness act, 1934, find not being a decree granting an injunction, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of six years from - (a) the date of the decree sought to be executed, or (b) *****' it is admitted that mian ajmer singh is a debtor within the meaning of.....
Judgment:

Dulat, J.

1. On 18-11-1942 Mukandi Lal obtained a money decree for Rs. 5,500/- against Mian Ajmer Singh alias Mian Gulah Singh who is admittedly an agriculturist. Section 11 of the Punjab Debtors'' Protection Act, 1936, enacted a rule in these words:

'Notwithstanding anything to the contrary contained in any other enactment for the time being in force, where an application has been made to execute a decree passed after the commencement of this Act against a debtor as defined in sub-sec. (2) of Section 7 of the Punjab Relief of Indebtedness Act, 1934, find not being a decree granting an injunction, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of six years from -

(a) the date of the decree sought to be executed, or

(b) *****'

It is admitted that Mian Ajmer Singh is a debtor within the meaning of Section 11 of the Act.

2. Mukandi Lal filed an application to execute this decree on the 16th March 1945 for the first time, but this was dismissed on 21-5-1945. There were two more applications -- one in 1946 and the other later -- and then a fourth application was made on the 17th October, 1949. This was beyond the period of six years mentioned by Section 11 of the Punjab Debtors' Protection Act, but no objection on the ground, of limitation was taken. The application was dismissed on the 19th June, 1950. Then came the last application filed on 15-11-1954. Some land of the judgment-debtor was attached and the judgment-debtor filed objections on the ground that the land in question was not attachable and saleable in execution.

While these objections were pending, the judgment-debtor on 17-12-1955 filed another set of objections and in this objection petition he raised the question of limitation basing himself on the protection contained in Section 11 of the Punjab Debtors' Protection Act. Against this the defence on behalf of the decree-holder was that the period of limitation for execution in the case was twelve years as contained in Section 48 of the Civil Procedure Code, and not six years as mentioned in Section 11 of the Punjab Debtors' Protection Act, and further that the debtor's objection was incompetent as he had not raised such an objection in the previous proceedings. The executing Court framed two issues-

(1) Whether there is a limitation of twelve years for this execution application?

(2) Has the objector waived this objection and cannot take the plea of limitation? On the first issue the executing Court found that Section 11 of the Punjab Debtors' Protection Act applied and the period of limitation was six years. On the second issue, however, the Court held that the judgment-debtor having failed to raise this particular objection on the previous occasions, when he could have done it, his later objection was barred, and on this view the executing Court rejected the plea set up by the judgment-debtor. Mian Ajmer Singh appealed but a leavned Single Judge of this Court, affirmed the conclusion of the executing Court and held that the rule of constructive res judicata, which applied to execution proceedings, was a bar to the objection concerning limitation as raised by the judgment-debtor. The learned Judge, there-fore, dismissed the appeal with costs. Mian Ajmer Singh has now filed an appeal under Clause 10 of the Letters Patent.

3. The direction of law contained in Section 11 of the Punjab Debtors' Protection Act is clear and it forbids a Court from making any order on any execution application presented after the expiration of six years from the date of the decree, and since it is admitted that otherwise the appellant's case is covered by Section 11, it is difficult to understand how the execution proceedings against him can go on in the application made by the decree-holder on the 15th November, 1954. As I understand it, the principle of res judicata is this that a matter in dispute between the parties, if once settled by a competent Court, cannot be allowed to be reopened.

Of course, a party is bound to raise all the pleas open to him once a dispute is raised, and, if he fails to raise any plea on that occasion, he is not allowed to raise it on a subsequent occasion, There is however, no rule that a party cannot be allowed to agitate a matter regarding which he has a right to obtain an adjudication, merely because in point of time he could have agitated it earlier, provided, of course, that when he actually raises it the matter is properly before the Court. Mr. Doabia on behalf of the respondent contends that since it was open to the judgment-debtor to take this particular objection on the previous application made in October 1949 and he did not do so, and, similarly, because it was open to him to raise this objection as soon as the present application was filed on 15-11-1954 and he did not do so, he is now debarred from raising that objection.

The argument virtually comes to this that a delayed objection, however well-founded, cannot be heard which is, of course, impossible to sustain, It is said that there was a previous occasion when the judgment-debtor ought to have raised that objection which suggestion ignores the plain fact that the judgment-debtor was not aware of his rights till he was advised to object to the pending execution application on the basis of Section 11 of the Punjab Debtors' Protection Act. It would, in my opinion, be disastrous if we were to hold that a clear direction of law, such as is contained in Section 11 of the Punjab Debtors' Protection Act, can be ignored merely, because a debtor may have failed to notice this at the earliest possible opportunity and for that reason deprived for ever from availing of it, and I am not aware of any authority which may have taken such a view.

The learned Single Judge has relied largely on a decision of the Privy Council in Shivraj Gopalji v. Ayyissa Bi, AIR 1949 P. C. 302 but in that case the facts were entirely different. Certain properties were attached in execution of a decree. Certain members of the judgment-debtor's family, thereupon made an application for raising the attachment on the ground that the judgment-debtor had no saleable interest in the attached properties. These objectors were referred to regular suit and they actually brought a suit claiming that the properties in question were not liable to be attached and sold in execution of the decree.

This suit succeeded and it was held that the properties were not liable. The decree itself was then assigned to another person and he made an application for its execution and asked for the attachment of the rents and profits of the same properties. Objection was naturally taken that the execution application was barred by the judgment in the suit. The executing Court agreed. An appeal against this order was taken to the Madras High Court, and there for the first time it was contended that by virtue of a special Act the respondents' interests in the properties were separate. The High Court declined to go into the new matter raised for the first time in that Court and dismissed the appeal.

The decree-holder subsequently filed another execution application for the attachment of the same rights all over again, and this time relied on the provisions of the special Act. It was, thereupon, held that the decree-holder's application was barred by the rule of res judicata. It is quite clear, therefore, that in that particular case there had been a proper adjudication of the matter in a regular suit and, of course, all the relevant pleas ought to have been taken in that suit and could not possibly be allowed to be raised in subsequent proceedings. The present case is entirely different, for here the bar of Section 11 of the Punjab Debtors' Protection Act was for the first time raised by the judgment-debtor on 17-12-1955. The execution application, to which he had objected, was still pending in Court and the Court was bound to take notice of the objection and settle it A Division Bench of the Patna High Court, when faced with a similar situation, in Kesho Prasad v. Harbans Lal, AIR 1920 Pat 570, dealt with the matter thus -

'So long as an application for execution is pending the judgment-debtor can at any time show that the application is barred and the Court has no option but to dismiss it under Section 3. It is only when the point of limitation is concluded by proceedings in a previous execution that the judgment-debtor is not allowed to take an objection on the score of limitation in a subsequent execution of the decree.'

I find myself in respectful agreement with this view, and in my opinion, a contrary view would virtually nullify the effect of Section 11 of the Punjab Debtors' Protection Act. The judgment of the learned Single Judge refers to another decision as Haridani Lal v. Ram Nath, 160 Ind Gas 448: (AJR 1936 Pesh 91 but the actual case printed at page 448 of the report is Nand Ram Shah v. Kabul Shah, which does deal with such a matter and I take it that the intention was to refer to that case. It is a decision by the Judicial Commissioner, Peshawar, and is hardly authority for this Court to follow. Mr. Doabia sought to contend that the judgment-debtor in this case should, as a matter of fact, be held to have waived his objection.

I, however, find it impossible to impute any intention to the judgment-debtor that he meant to give up his right in this respect and there is nothing in the present case to suggest that he ever meant to do so. In these circumstances, I am unable to accept the conclusion of the learned Single Judge that the plea raised by the judgment-debtor was not open to him. It is conceded that otherwise the present execution application is barred and no order can now be made in the proceedings. This appeal, therefore, must be allowed and the orders of the learned Single fudge and the executing Court set aside and the decree-holder's application dismissed as time-barred and I would so order but, in the circumstances, leave the parties to their own costs.

G.D. Khosla, C.J.

4. I agree.


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