1. This appeal arises out of execution proceedings. The respondents is the original plaintiff and the appellant is the original defendants. The respondent filed against the appellant a civil suit to recover a sum of Rs. 3,5000. Decree was passed in that suit for a sum of Rs. 2,500. the decretal amount was ordered to bear further interest and was made payable by instalments. The appellant committed defaults in payment of certain decretal instalments. Therefore the respondent filed Execution Application No. 166 of 1965 against the appellant to recover from him the balance of the entire decretal amount which had remained unpaid. In that execution application the appellant contended that he was an agriculturist and that therefore his houses were not liable to be attached and sold in execution of the decree passed against him. He also contended that the agricultural lands belonging to him had been fragments and that therefore. they also could not be attached and sold in execution of the said decree. At the hearing of those objections the respondents was absent. The executing Court however, took evidence which the appellant produced and made an ex parte order by which it upheld the objection of the appellant. Having done so it dismissed on 24th February 1966 that execution application
2. Thereafter the respondent filed the present execution application for recovery of the said decretal amount and prayed for attachment of those very properties of the appellant in respect of which the order had been recorded in favour of the appellant in the earlier execution application. The appellant contended that the present execution application was barred by res judicata because the mater in controversy between the parties had already been decided in the earlier execution application. The executing Court upheld that contention of the appellant and dismissed the execution application. The respondent appealed to the District Court against that order. The learned District Judge set aside the finding recovered by the executing Court had help that the present execution application was not barred by the res judicata. He therefore set aside the order of dismissal recorded by the Executing Court and directed the execution application to proceed further according to law.
3.. It is that appellant order which is challenged by the appellant in this Second Appeal.
4. It has been contended by Mr. Vyas that the order recorded on merits by the executing Court in the earlier Darkhast operates as res judicata in the present Darkhast. He has further argued that no other order could have been passed by the executing Court in the earlier Darkhast.
5.. Mr. Shah in reply has contended that the executing Court ought to have dismissed the earlier Darkhast for default and that no other order could have been passed in the circumstance because the judgment-creditor was absent at the hearing of that execution application. In support of the contention Mr. Vyas has argued that Order 9, rule 8 of the Civil Procedure Code which provides for dismissal of a suit for default of appearance on the part of the plaintiff has no application to the execution proceedings. He has relied upon the decision of the Calcutta High Court in Sarat Chandra Haldar v. Mitra Mukerhee & Co., : AIR1927Cal420 . It has been down by the Division Bench of the Calcutta High Court that Order 9 in not applicable to case where execution proceedings have been dismissed for default. It was a case where execution application was dismissed for default and the question which arose for the consideration of the Calcutta High Court was whether it could be respondent under Order 9, rule 9 C. P. C. In that decision no direct question could as to whether an execution application could be dismissed for default of appearance of the judgment creditor arose.
6. In Shivashankar Prasad v. Baikunth Nath Singh. : 3SCR908 , a question arose as to under what circumstance a plea can be said be barred by res judicata in execution proceedings. The question which arose before the Supreme Court did not relate to the jurisdiction of the court to dismiss the execution application for default of appearance of the judgment-creditor. It appears from the decision of the judgment-creditor. It appears for the decision of the Supreme Court that it was assumed in that case that an execution application can be dismissed for default of appearance of a judgment-creditor. There is no reason for me to believe that the assumption made by the Supreme Court in that decision was not a correct assumption. Assuming that Order 9, Rule 8. C. P. C. does not apply to execution proceedings it is within the inherent jurisdiction of the execution Court under Section 151, C. P. C. to dismiss an execution application for default of appearance of a judgment-creditor. I am therefore of the opinion that in the appearance of a judgment-creditor. I am therefore of the opinion that in the absence of a judgment-creditor an executing Court can dismiss an execution application for default of appearance. Such an order if passed by an execution Court. will be a perfectly valid order.
7. Mr. Vyas has next contended before me that under Order 21, Rule 23 of the Civil Procedure Code an execution Court is bound to consider and decide the objection offered by a judgment-debtor. Sub-rule (1) of Rule 23 has no application to the instant case; sub-rule (2) no which Mr. Vyas has placed reliance provides as follows:
'Where such person offers any objection to the execution of the decree, the Court shall consider such objections and made such order as it thinks fit.'
Relying upon sub-rule (2) of Rule 23 Mr. Vyas has argued that wherever a judgment-debtor offers objection to an executing application the Court is bound to consider and decide them. According to him the applicability of sub-rule (2) does not depend upon the presence of absence of the judgment-creditor. The only condition precedent to the applicability of sub-rule (2). contends Mr. Vyas is that the judgment-debtor must have offered objections. Sub-rule (2) indeed apparently has been worded in a very wide language. In my opinion, sub-rule (2) of Rule 23 applies to those cases where the execution proceedings are proceed with at the instance of the judgment-creditor. If the judgment-creditor does not want his execution application to be proceeded with or if he remains absent indicating thereby that he does not want to proceed with at the instance of the judgment-creditor. If the judgment-debtor does not want his executing application to be proceeded with or if he does not remains absent indicating thereby that he does not want to proceed with the execution application, sub-rule (2) has no application. In my opinion, since in the instant case the absence of judgment-creditor indicated that he did not want to proceed with his earlier execution application. sub-rule (2) of Rule 23 did not come into play. The alternative which was open to the executing Court was to dismiss the execution application for default of appearance by the judgment-creditor under Section 151 of the Civil Procedure Code.
8. Mr. Vyas has contended that if there are two alternative course open to the executing Court-one of dismissing the execution application for default of appearance on the part of the judgment-creditor and another deciding the objections offered by the judgment-debtor on merits,. the order passed by the executing Court deciding the objections of the judgment-debtor ex parte must operate as res judicata within the meaning of Section 11 of the Civil Procedure Code. for the reasons which I have stated above. I am of the opinion that it was not within the jurisdiction of the executing Court to proceed to decide the objection of the judgment-debtor on merits when the judgment-creditor did not want to prosecute his execution application. For the reasons stated above I am unable to uphold the contention raised by Mr. Vyas.
9. Mr. Vyas has cited before me certain decisions which show that the principles of res judicata apply to execution proceedings. The proposition which he has raised before me is in controvertible. It has been laid down by the Supreme Court in Mohanlal Goenka v. Benoy Krishan Mukherjee. : 4SCR377 that the principle of constructive res judicata applies to execution proceedings. If the principle of constructive res judicata applies to execution proceedings. the principle of actual or express res judicata applies to them with much greater force. Since in the instant case I have held that the order made by the executing Court in the earlier execution. proceedings was without jurisdiction. it does not operate as res judicata in the present execution application.
10. Mr. Vyas has raised two more contentions before me. His first contention is that the judgment-debtor was held to be an agriculturist in the earlier execution proceedings in 1966. Such a finding in any case cannot operate as res judicata because between 1966 when the order was recorded in the earlier execution proceedings and 1970 when the present execution application was filed he could have as well ceased to be an agriculturist. The contention which he has raised is that the order made by the executing Court in the earlier execution proceedings directed that the agricultural lands belonging to the judgment-debtor should not be sold so as to leave fragments. According to him they could be attached and sold of no fragments were left in the process. Mr. Shah has advance these two contention in order to show that even if the contention raised by Mr. Vyas succeeds the present execution application can proceed further. It is not necessary for me to examine the validity or otherwise of these two contentions in view of my finding that the present execution application is not bared by res judicata.
11. In the result. I find no substance in the contentions raised by Mr. Vyas. They fail and are rejected.
12. The Second Appeal therefore fails and is dismissed with costs.
13. Appeal dismissed.