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Sita Ram Vs. Devi Dayal - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtDelhi High Court
Decided On
Case NumberElection First Appeal No. 75D of 1962
Judge
Reported in4(1968)DLT266
ActsCode of Civil Procedure (CPC), 1908 - Sections 11
AppellantSita Ram
RespondentDevi Dayal
Advocates: Vijay Kishan and; S.L. Sethi, Advs
Cases Referredand Ambaram v. Tulsidas Madhavda
Excerpt:
.....also did nto appear, could nto on logical ground take the case out of operation of doctrine of rest judicata - - we have to see if the respondent's submissions is well-founded. so far as the lahore high court and this court are concerned it seems to be well settled that the rule of constructive rest judiea'a cannto be made applicable wh n an objection petition under s. ' no comment is needed to show that this case, concerned as it is with order 9 which applies to suits and nto to execution proceedings, has very little to do with the problem which concerns us and it clearly does nto exclude execution proceedings from the doctrine of constructive resjudicata when there is no statutory provision covering the point. are concerned and, when the first objection was only dismissed in..........grounds, including the plea that the order of dismissal dated 19th, august 1961 operated as rest judicata and the judgment-debtor was nto entieled to raise the objections contained in his petition dated 18th, december, 1961. this plea was taken up as a preliminary objection, and the exaouting court by an order dated 3rd, january, l962, repelled the prei minary objection holding that the doctrine of rest jujicata did nto deb^r the judgment-debtor from raising the objections in his petition dated j8th, december, 1961. it is this decision which falls for examination by us. (3) the executing court in support of its view relied on hanmantrao v. dhruvaraj, jagdish ram v. jagat ram and hazura singh v. jewon singh. the executing court observed in its order dated 3rd january, 1962 that as.....
Judgment:

I.D. Dua, C.J. and T.V.R. Tatachari, J.

(1) This appeal has been placed before us pursuarant to the ordar of reference dated 24th, April 1967 by Ismail J., because, according to the learned Judge, this appeal raises an important question of law.

(2) The decree in execution of' which the order appealed from was made had been passed on 28th, January, 1959 in term, of an award. In Marchl961thedecree-holderstarted proceedings lor execution of the decree and the Judgment debtor was given ntoice for settling the proclamation of sale. 22nd. April. 1961 was the date fixed for this purpose, but the judgment debtor did nto appear on the date. The executing court after recording the absence of the judgment-debtor directed that warrant for auction be issued and fixed 29th May, 1961 as the date for the auction. Srd. June. 1961 was fixed for the report to be put up before the court. On 2nd. May. 1961, the judgment debtor filed an application under order 21, Rules 2 and 23 read with section on 151 of the Code of Civil Procedure urging that the decree was nto executable and also setting forth some of her objections. Praver for setting aside the ex-parte order with respect to the sale of the house was also made and by way of interim relief stay of sale was claimed. It may be ntoed that on 22nd. April 1961, the judgment debtor had sent a medical certificate praying for adjournment, but the same was declined on the ground that the counsel of judgment-debtor could have appeared. On 19th. May. 1961, the decree-holder filed his reply to the objections of the judgment-debtor dated 2nd May, IS61. The matter came up for hearing on 19th. August 1961 on which date again the judgment-debtor was absent though the decree-bolder and his counsel were present. On that date, the court- dismissed the objections preferred by the judgment-debtor explaining his non-appearance, with the observations that those objections were frivolus. Warrants of auction were again directed to issue; the auction was fixed for 26th. September. 1961 and the report to the court to be made on 30th. September, 196l. the auction Same how did nto take place as directed and on l8th. December. 196! the judgment-debtor filed fresh objection petition praying for dismissal of the execution application. In this application, no relerence was made tithe order made by the executing court on 22nd. April. 1901. nor to the objections pre- sented by the judgment-debtor on 2nd. May. 1961, nto to the order of the executing court dismissing those objections in default on 13th, August. 1961. Admittedly, no application was made by the ludgment-debtor for restoration of his objection-petition dated 2nd. May, 1961, which was as just observed, dismissed in deiauit on 19th. August. 1961. The decree-holder contested the judgment-debtor's objections on various grounds, including the plea that the order of dismissal dated 19th, August 1961 operated as rest judicata and the judgment-debtor was nto entieled to raise the objections contained in his petition dated 18th, December, 1961. This plea was taken up as a preliminary objection, and the exaouting court by an order dated 3rd, January, l962, repelled the prei minary objection holding that the doctrine of rest jujicata did nto deb^r the judgment-debtor from raising the objections in his petition dated j8th, December, 1961. It is this decision which falls for examination by us.

(3) The executing court in support of its view relied on Hanmantrao v. Dhruvaraj, Jagdish Ram v. Jagat Ram and Hazura Singh v. Jewon Singh. The executing court observed in its order dated 3rd January, 1962 that as against the decisions of the Punjab High Court, mentioned above, the counsel forthe decree holder had nto been able to cite aiiv toher authority of that court holding to the contrary, and apparently feeling bound by those decisions the objections of the decree-holder wcie repelled.

(4) The short question which thus requires determination by us is whether a decision of the executing court- dismissing the objections of the judgmfnt debtor in default would be covered by the doctrine if constructive rest judicata.

(5) It may be pointed out that the learned counsel for the judgment debtor (respondent before us) has nto seriously contested the applicabi- lity of the doctrine of constructive rest judicata to execution procaedirigs. All that he says is that this doctrine can be invoked only if there is a decision on merits and nto if an order is merely made in default of pre- sence of the parties. In any event, adds the learned counsel, there mist be some order which is to operate as rest judicata taking within its fol'l constructively the points in regard to which the bar of resfUtW.a is pleaded. He has, it may be pointed out, also placed his si and ontha decision of the Punjab HighCoartin HazuraSinshscase^. We have to see if the respondent's submissions is well-founded. We may first examine the two Punjab decisions on which reliance was placed by th-; executing court. The learned single Judge (Gover J.) in Hazura Singit s case observed as follows:

'SO far as the Lahore High Court and this court are concerned it seems to be well settled that the rule of constructive rest judiea'a cannto be made applicable whn an objection petition under S. 47, C.P.C. has been dismissed for default. 'In Kftshna v. Sundef^ Bhid^ J. held that when the first objection petition h^d been dismissed in default, and nto on the merits, a second objection petition was mai- ntainable, Actually the view-is that when an application is dismissed for default a second application is barred nto under S. 11, Civil Procedure Code bat if any bar can operate that can be only under the provisions of 0. 9, R. 9, of the cede. Now 0 9, R. 9, does nto apply to execution proceedings thereforee the second objection petition cannto be held to be barred.'

We are required to consider the correctness of this appraoch and if any order dismissing in default the objections of a judgment-debtor preferred in execution proceedings does nto operate as constructive rest judicata. in regard to future objections by the same judgment-debtor in those proceedings, which objections he might and ought to have taken on the earlier occasion. In Jagdish Ram's case. Harnam Singh J., observed as follows;-

'IN case a suit is dismissed in default under R. 8 of O. 9 of the Code, it cannto be said to have been heard and finally decided on the merits and, thereforee, the judgment in that suit cannto operate as rest judicata. but the plaintiff is under the specific provisions of R. 9 precluded from bringing a fresh suit on the same cause of action. That being so, whatever the effect of the dismissal of the previous suit under K. 8 of O. 9 of the Code may be on the suit of Jagdish Ram the dismissal of that suit does nto affect the suit of Amru with respect to one half of the property in suit.'

No comment is needed to show that this case, concerned as it is with Order 9 which applies to suits and nto to execution proceedings, has very little to do with the problem which concerns us and it clearly does nto exclude execution proceedings from the doctrine of constructive resjudicata when there is no statutory provision covering the point. In Kishna v. Sunder, Bhide, J. in a very brief judgment observed as follows:-

'IN Situ Ram v. Pir Bux, it was held that a second objection is nto tenable in such circumstances. That ruling purports to follow the principal of Nank Chand Daulat Ram v. Buta Singh' In the later case, the first objection was however by a third party and nto by the judgment-debtor. In the case of an objection under O.21, R. 58'. Civil P.C., there is a clear statutory provisions that an order passed on the objection is conclusive ?nbjsct to the result of a suit (see O.21, R 63. Civil P.C.) There is no such provision so far as objections under S. 47, Civil P.C. are concerned and, when the first objection was only dismissed in default and nto on merits, there seems to be no good reason why a second petition should nto be entertainable. This view receives support from that taken by the Calcutta High Court in several cases : see Abhoy Kumar Kar v. Krishna Chandra.

This judgment obviously cannto be considered to be the last word on the point, for it does nto ntoice various relevant aspects requiring consideration. In Haribux v. Sharmswlder, Bhide J., while dealing with S. 292 of the Succession Act (1925) distinguished the Privy Council decision in Thakur Prashad v, Fakrullah, and observed as follows :-

'THE application under S 292 was really made in proceedings in the nature of execution. I do nto see that there was any bar to a fresh application being entertained in the exercise of inherent jurisdiction when the first application had been dismissed in default and nto on merits.'

This case is equally unhelpfal. In Mt. Ascharyl Bibi v. Swami Shesh, Sahai, Tek Chan J., while dealing with an application of a paradanashin judgment-debtor for setting aside a dismissal in default toher objection petition under Order 21, Rule 90, Civil Procedure Code, said:-

'IT is no doubt true that S.141, Civil P.C., does nto apply to proceedings in execution of decrees, and thereforee 0. 9, Rules 4 and 9, Civil P. C. are inapplicable, but as held in 2 Lah. 66, the court has inherent power under S. 151, Civil P. C. to restore an application in execution proceedings which has been dismissed in default, nto with standing the fact that the applicant had an alternative remedy open.'

This decision quite clearly deals with a different problem.

(6) We may now turn to the cases which seem to us to been a comparatively closer resemblance. In Bhagwn Singh v. Barkat Ram, (Tek Chand and Beckett JJ.) Tek Chand J., expressing the opinion of the court, spoke thus;-

'THE present application was made in 1933 and numerous objections to the proceedings taken on it were filed on toher grounds and it was in April 1939 that it was urged for the first time that the first application having been made on 27th April, 1933 more than three years after 28th November, 1927 when the High Court had passed the decree, it was time-barred, and thereforee the decree could no longer be executed. In the first place, the objection is nto purely one of law. It is mixed question of fact and law and cannto be allowed to be raised at this late stage. It appears from the record that after the passing of the decree, but before the presentation of the first execution application, the judgment debtor had made several payments to the decree holder. They had paid Rupees 15,030 on 19th March, 1923, Rs. 22,940 on 7th July, 1923, and Rs. 4,498 between 5th August, 1926 to 26th November, 1926. It is asserted by the appellant's learned counsel that these payments were accompanied by writings signed by the judgment-debtors which saved limitation under sections 19 and 20, Limitation Act, and it was for this reason that none of the judgment-debtors urged that at the time that the first application was time-barred. If the plea had been raised, the writings would have been produced. It is however nto necessary to go into this matter, for the objection is clearly bared by the rule of constructive judicata. As laid down by their Lordships in 8 Cal. 51 although the execution of a decree may have been actually barred by time at the date of the application made for its execution yet, if an order for such execution had been regularly made by a competent court having jurisdiction to try, whether it was barred by time or nto, such order although erroneous, must, if unreversed, be treated as valid. See also Prabhu Dayal v. Dewat Ram, and the cases cited therein. It is conceded that if the validity of the first application cannto be allowed to be challenged, the toher applications were within time. We hold that this objection, also, is without substance and has rightly been disallowed.'

Gauri v. Ude (Tek Chand. Bhide and Beckett JJ) is an authority for the view that even though section 11, Civil Procedure Code, is inapplicable to execution proceedings, the general principles of rest judicata including those of constructive rest judicuta embodied in Explanationn 4 to section 11 applied to them. Bhide J., said at page 168 of the report:-

'IF the judgment-debtor is duly served but fails to raise any objection to the proposed sale, I do nto see why he should nto be held to be debarred from raising the objection later on the principle contained in the observations of their Lordships of the Privy Council qutoed above. It has been repeatedly held that although section 11 Civil Procedure Code, does nto apply to execution proceedings the general principle of rest judicata applies to such proceedings including the principle of constructive rest judicata embodied in Expl.4 to S. 11, Civil Procedure Code In Mungal Pershad Divhit v. Grija Kant Lahiri, a judgment bebtor who had ntoice of a petition for execution failed to raise the objection that it was barred by limitation, with the result that execution was allowed to be taken out. In a subsequent petition for execution, objction was raised that the previous petition was barred by time, but it was held that the objection was barred by the principle of rest judicata. It will be observed that in this case there had been no express decision on the question of limitation in the previous execution petition and yet it was held that the objection was barred on the principle of rest judicata. There are several decisions of this court in which this principle of constructive rest judicata has been applied to execution proceedings and I see no good reasons why it should nto be applied in the present case, Prabhu Dayal v. Dewat Ram, Madan Lal v. Jaswant Rai and Umrao Singh v. Muhammad Abdullah.

In fact, Bhide J., had on an earlier occassion in Bibi Ved Kaur v. Bal kishan Dass Mehra, also expressed similar view in these words :-

'THE learned counsel for the respondent conceded that the principle of rest judicata applied to execution proceedings but he urged that no decision on any matter could be held to operate as rest judtcata for the purposes of execution proceedings unless it was actually heard and decided. He contended that the principle of Expl. 4 to S. 11, Civil P. C. did nto apply to execution proceedings. But the decision of their Lordships of the Privy Council in Raja of Ramanand v. Velusawi Tevar, seems to go against the contention. In that case the question of limitation had only been decided impliedly and yet the decision was held to operate as rest judicata. It has been held in Dip Prakash v. Dwarka Prashad, that even if a point is decided by necessary implication, it operates as rest judicata in the subsequent proceedings. A similar view was taken in Gadigappa Chandbasapa v. Shidappa Gurshidappa. The learned counsel for the respondent relied on Kalyan Singh v. Jagan Prasad, and Prithi Mahton v. Jamshed Khan, but the facts of the former case are distinguish able. In the former case there was only an error in the decretal amount claimed in a previous applications and there had been no occasion yet for giving a definite decision on that point in the previous proceedings. In the latter case it was held that the point raised before the learned Judge had nto been taken up before the District Judge and could nto be registered. The further remarks on the question of rest judicata appear thereforee to be in the nature of obiter dicta. Besides the view taken there in seems to be oppossed to the view expressed by their Lordships of the Privy Council in Raja of Ramanand, v. Velusami Tevar. In the present instance the previous application for execution could nto have been granted unless it was held that the decree was capable of execution. The respondent nto having raised the latter objection, it must be held to have been decided against him by necessary implication in view of the authorities cited lor the appellant.'

(7) In Kidar Nath v. Taj Mohammad Khan, Dalip Singh J' though with certain hesitation, expressed similar view by holding objections nto raised earlier in execution proceedings to be barred by the doctrine of constructive rest judicata. In Pirji Safdar Ali v. The Ideal Bank Ltd. a Full Bench of the East Punjab High Court, speaking through M. C. Mahajan J. (as be then was) affirmed the view taken by the Full Bench of the Punjab High Court in Gauri's case with the following observations :-

'AS regards the third aspect from which the applicability of the Punjab Debtors' Prtoection Act has to be viewed in this case the matter seems to me nto open to much controversy. It is true that the provisions of S. 11, Civil P.C , have no application to execution proceedings; but the rule of rest judicata on general principle governs the proceedings in execution and on the same principle the rule of constructive rest judicata has application to cases where a certain decision could nto have been given by the executing court if the matter sought to be raised earlier (later?) would have been raised at an earlier stage of the proceedings. In this case, as pointed out above, the order of sale could nto have been made by the executing court if in the first two sets of objections the objection raised on the third occasion had been agitated before the executing court and a decision invited on that question. The question of the saleability of this property in execution of the mortgage decree after hearing the objections of the judgment debtor was decided on 21st December 1944 by the executing court and a date was fixed for the sale of the prperty. That decision presupposes that there was no bar to the sale of this property in execution of the decree. In these circumstances, the judment debtor was bound to raise all questions that affected the saleability of the property before that order was made and if he failed to raise these questions he is barred by the rule of constructive rest judicata from reagitating them after that Order has been made. if no order for sale had been made in these proceedings, then the matter would have been quite different as the rule of constructive rest judicata cannto apply to cases where either partially or wholly the decfee has nto been satisfied after the rejection of the objections or there has been no actual decision on the point or no order directing the sale has been passed. Reference in this connection may be made to the Full Bench decision in Gauri v Ude. In that case, however, the property had been sold alter the order of sale had been made but that distinction doss nto affect the application of the rule of constructive rest judicata to the facts of this case.'

(8) Without multiplying authorities and there is certainly a long catena of them-it can safely be said that the view of the Lahora and Punjab High Courts is nto settled against the applicability of the principle of constructive rest judicata to execution proceedings and if on an earlier occasion an objection might and ought to have been raised by a judgment-debtor and it has nto been so raised, he would be debarred from raising the samp later under the principle of constructive rest judicata. In Sha Shivraj Gopalji v. Edappakath Ayissa Bi and tohers', the Privy Council has also had an occasion to deal with Explanationn Iv to section 10, Civil Procedure Code. The following head-ntoe embodies the decision of the Board :-

'WHERE in an earlier execution proceedings a decree holier could have raised a pela that the judgment-debtor had an interest in certain property which could be attached under his decree but the pleawas nto raised through his own default and the execution was dismissed, the dismissal operates as rest judicata in the subsequent execution proceedings and even apart from the provisions of S. 11, Civil P.C , it is contrary to the principle to allow the decree-holder in fresh proceedings to renew the same claim merely because he neglected at a proper stage in previous proceedings to support his claim by the argument of which he sub-sequently wishes to avail himself.'

(9) The Privy Council referred to an earlier decision of its own in Ram Kirpal Shukul v, Rup Kuari, and observed that apart from the previsions of section 11, Civil P. C., it would be contrary to principle to allow the decree holder in fresh proceedings to renew the same claim, viz., that the properties in question were properties of the respondents liable to attachment or, as be would now put it, that the respondents had severable interests in the properties which are liable to attachment, merely because be neglected at the proper stage in previous proceedings to support that claim by an argument of which he now wishes to avail himself. This principle, in our opinion, seems to go against the judgment-debtor, respondent in the case in hand.

(10) Apart from the Privy Council decisins, ntoiced and followed in the decided cases cited above, we find that the Supreme Court has also dealt with this point and has applied the principle of constructive res-judicata to execution proceedings. In Mohanlal Goenka v. Benoy Krishana Mukherjee the Supreme Court ntoiced the various decisions of the Privy Council as also the decisions of Indian High Courts and upheld the applicability of the principle of constructive res-judicata to execution proceedings Some of the decisions of the toher High Courts taking the view enunciated above are Bajnath Prasad Sah. v. Ramphal Shani and antoher, Tejwari Kaur and antoher v. The Central Bank of India and tohers', Ganchi Laxmi chand Ambaram v. Tulsidas Madhavda, (Bhagwati J.) and Gundicha Padhano and antoher v. Paravati Podhanuni.

(11) Dealing with the matter independantly of the decisions ntoiced above, it may be remembered that the doctrine of rest judicata is a. rule of reasonable conclusivness of orders and, thereforee, of convenience and rest. In fact, 'bis doctrine is inspired by the practical and judicious consideration that no man should be vexed twice by the same cause, and indeed this principle is dictated by a .sense of wisdom, in the normal human activities, which is founded on sound public policy and is of universal application. Once a rest becomas judicata; it is nto to be adjudged again. This is nto a technical doctrine confined within some artificial limits but is a fundamental principle of substantial Justice designed to end litigation and to save litigants from being vexed repeatedly. Broadly stated, it is directed to and btoh new decisions and new investigations to avoid continuous harassment in regard to the same controversy. In the background of this general principle, we may now advert to the facts of this case.

(12) It may be remembered that pursuant to the application of the decree-holder for execution of his decree, a ntoice was given to the judgment-debtor for 22nd April 1961 directing him to file particulars under Order 21, Rule 66 Civil Procedure Code, with respect to the house which was sought to be sold and had been charged with the decretal amount. The Judgment debtor did nto attend the court, but submitted a medical certificate. The court did nto grant the prayer for adjournment and directed the house to he sold, 29th May 1961 was fixed for the sale of the house by public auction. An application dated 2nd May 1961 was presented by the judgment-debtor in the executing court raising objections to the executability of the decree and also praying that the ex parie order of sale be set aside or at least stayed ti4 the decision of the said application. The decree holder filed his reply to this application pleading that the said application was fraivolus.It was also averred that the judgment-debtor was estopped from raising those objections. On 3rd June 1961, in the presence of the counsel for the parties, the case was adjourned to 19th August 1961 for arguments after taking on record the reply of the decree-holder aid also directing that the copies of the order and the decree in question be filed. On the next date, the decree holder and his counsel were present, but there was no representation on behalf of the judgment-debtor, the Court described the objections of the judgment debtor to be baseless (Fazul) and dismissed the same in default, at the same time directing the warrants for sale to issue. The aforsaid resume of the proceedings quite clearly shows that the order of the Court directing the sale to be held after describing the objections to be baseless and dismissing the same, though in default, fall within the recognised purview of the doctrine of constructiue rest judicata. Even if no objections had been raised by the judgment-debtor after an opportunity was granted to him to do so, it could have been argued that the judgment-debtor might and ought to have raised his objections against the sale and having nto done so, he was nto entitled later to urge them without showing legal justification turn his failure to do so on the earlier occassion. But in the present case, the judgment-debtor failed to do so on the first occassion, and later applied btoh to justify his absence on the earlier occasion and also to urge his grounds against sale of the property in execution of the decree. The decree-holder filed his reply to the judgment-debtor's objections and the Courts fixed a date for arguments. Merely because the judgment-debtor absented himself on the date of arguments and his counsel also did nto appear to argue the matter, cannto on any logical ground take the case out of the operation of the doctrine of constructive res-judicata. Btoh funda- mental principles of ending litigation and saving a litigant from repeated harassment would be fully attracted to this case, and merely because Judgment-debtor by his own voluntary action stood in the way of an order on the merits, would nto avail him against this doctrine. We are, thereforee, clearly of the opinion that the present case is fully covered by the principle of constructive res-judicata, and merely because on 19th August, 1961 the executing court did nto discuss the merits in detail and dismissed the objections as the Judgment-debtor did nto come to the court to preses them, the applicability of this rule cannto be excluded.

(13) Before concluding we cannto help observing that the cases like present impel us to point out ones again that the real difficulties of a decree-holder, here, start when he embarks on what is described as the thorny path of execution. The decree in the case in band was passed in January 1959 on the bases of an award and it is now nine years since it was made, and it has nto been executed because of the dilatory tactics on the part of the judgment-debtors.

(14) For the reasons foregoing, we allow this appeal and reversing the order of the executing Court hold that the objections of the Judgment-debtor are barred by the rule of constructive rest judicata and the property in question should be sold by the executing court on dates to be fixed by it again. The appellant is entitled to his costs btoh here and in the court below, The parties are directed to appear in the executing court on 27th February, 1968, when a short date would be given for further proceedings in accordance with law and in the light of the observations made above. The execuating court, we hope, would see that proceedings are nto unnecessarily delayed.


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