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Smt. Pushpa Vs. Ganpatsingh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberEx. Second Appeal No. 3 of 1977
Judge
Reported inAIR1977Raj216; 1977()WLN248
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 and 47
AppellantSmt. Pushpa
RespondentGanpatsingh and ors.
Appellant Advocate J.R. Tatia, Adv.
Respondent Advocate Govind Mal Mehta, Adv.
DispositionAppeal dismissed
Cases ReferredShiv Shanker v. Baikunth
Excerpt:
.....execution being not duly stamped at the time of the auction sale, the auction sale was invalid.;appeal dismissed - - magsingh, however, failed to pay the amount agreed to under the said decree. in that case an execution application was taken out and a notice was served upon the judgment-debtor in the applications for setting aside two sales but no objection was raised by the .judgment-debtor to execution being proceeded with on the ground that the executing court had no jurisdiction to execute the decree, it was held that the failure to raise such an objection which goes at the root of matter precludes the judgment-debtor from raising a plea of jurisdiction on the principle of constructive res judicata after the property had been sold to the auction-purchaser. the failure to raise..........is accepted there will be no finality in the execution proceedings and the same may be dragged lor indefinite time at the sweetwill of the judgment-debtor. the principle of constructive res judicata is a salutory principle based on public policy that there must be a finality in the litigation.14. in view of the foregoing discussion i have no hesitation to hold that the judgment-debtor's objection against the executability of the decree and the invalidity of the auction sale is barred on the principle of constructive res judicata and the same has therefore, to be overruled. the preliminary objection raised on behalf of the respondents nos. 1 to 3 is therefore upheld.15. in view of my decision on the preliminary point i do not think it necessary to deal the case on merits.16. in the.....
Judgment:

M.L. Joshi, J.

1. This is an appeal by Smt. Pushpa widow of Shri Magsingh under Section 100 read with Section 47, C.P.C. against the judgment and decree of Additional District Judge No. 1, Jodhpur, dismissing the objection of the judgment-debtor under Section 47, C.P.C.

2. The material facts giving rise to this appeal briefly stated are as follows:--

Respondents Nos. 1 to 3 filed a suit for partition against one Magsingh, the husband of the appellant in the court of Civil Judge, Jodhpur. A preliminary decree for partition was passed by the learned Additional Civil Judge on 30th of March, 1966. During the proceedings for final decree the matter was compromised whereunder Magsingh was allowed to keep the entire house, the price of which was determined at Rs. 7,750 and Magsingh agreed to pay half of the amount of Rs. 7,750 towards the share of the respondents Nos. 1 to 3 in the joint property. Magsingh, however, failed to pay the amount agreed to under the said decree. The respondents Nos. 1 to 3 therefore took out execution and got the house of Magsingh attached in July 1969. Magsingh thereupon filed objection under Section 47, C.P.C. on 19-9-69 inter alia alleging that the decree in question being a money decree could not have been passed in a partition suit and was therefore not executable. This objection was dismissed by the executing court by its order dated 2nd of April, 1970. Magsingh went in appeal against the order of dismissal of his objection but the appeal too was dismissed by the District Judge, Jodhpur, on 28th of August, 1971. Thereafter second appeal was taken by Magsingh reiterating his objection taken under Section 47, C.P.C. This appeal was dismissed in limine by Gattani J. who held that the decree being a money decree was capable of execution. Consequenly, the property was ordered to be auctioned and notices under Order 21, Rule 66, C.P.C. were issued to the judgment-debtor. Magsingh thereupon again filed objection on 15-10-73 on the ground that no amount is due under the decree and so the decree was not executable. This objection of the judgment-debtor Magsingh too was dismissed on 5-1-73 (sic) (5-11-73?). It appears that Magsingh died thereafter and his widow Smt. Pushpa who is the present appellant before me and the other legal representatives, namely, res-pondents Nos. 4 and 5 were brought on the record in place of deceased M.ag-singh. It was now the turn of Smt. Pushpa who filed objection under Order 21, Rule 66, C. P. C. on 16-1-73 (sic) (16-11-73?) inter alia contending that money decree in question could not have been passed in a partition suit and so it was not executable. This objection was turned down by the executing court on 16-12-73. No appeal was taken against this order and so the same became final. Smt. Pushpa did not remain content and so she again preferred objection under Section 47, C.P.C. on 22nd of February, 1974 inter alia on the ground that the decree was not executable as no money was due under the decree and further that the house in question was not liable to attachment. This objection petition was also dismissed by the executing court on 12-7-74. Thereafter Smt. Pushpa again filed objection under Section 47, C.P.C. on 27th of August, 1974 on the ground that the decree under execution being a partition decree and it having not been engrossed on a stamp paper as required by Article 45 of the Stamp Act could not be executed. This objection was also rejected by the executing court holding that the decree was not a partition decree but a simple money decree and that the same did not require to be stamped. Being aggrieved Smt. Pushpa filed appeal before the learned District Judge which too was dismissed by him by his judgment dated August 8, 1975. Pushpa therefore filed second appeal before this Court. The appeal came up before Modi J. During the pendency of appeal the decree-holder submitted stamp papers on 20th of February, 1976 whereupon the appeal was withdrawn and the same was dismissed as withdrawn. Meanwhile the house of the judgment-debtor was put to auction and the auction was knocked down in favour of the decree-holder-respondents on 30th of January, 1976 and the case was posted for the confirmation of the sale. In the mean time Smt. Pushpa filed another objection wherein she contended that as the stamp papers were submitted on 20th February, 1976 therefore the decree which was in essence a decree for partition could not have been executed and the auction of house in pursuant to such a decree was without jurisdiction. The objection was turned down by the executing court. This order of the executing court was challenged by way of appeal which was dismissed by the learned Additional Dis-trict Judge No. 1, Jodbpur on 31st of January, 1977. It is against this judgment and decree of the learned Additional District Judge No. 1, Jodhpur that Smt. Pushpa has come up in second appeal to this Court.

3. Mr. Tatia learned counsel for the appellant-judgment-debtor contends that the decree under execution being a partition decree and it having not been engrossed on a stamp paper, auction sale made in pursuant to such a decree was without jurisdiction, illegal and void and therefore the auction sale should be set aside. He relies upon Gopimal v. Vidya-wanti, AIR 1942 Lah 260 (FB).

4. In reply, Mr. Govind Mal Mehta on behalf of the decree-holder-respondents Nos. 1 to 3 raises a preliminary objection that the present objection of the judgment-debtor as to the non-execut-ability of the decree is barred by principle of res judicata as previously four objections of the judgment-debtor against the executability of the decree had been dismissed and the execution was allowed to be proceeded with. On merits Mr. Mehta contends that at any rate the requisite stamps were submitted in appeal before Modi J. and so proceedings taken in execution prior to submission of stamp cannot be said to be without jurisdiction. His submission is that by the supply of the requisite stamp the validity of a partition decree dates-back to the date of the decree and the validity of execution proceedings under that decree taken prior to the supply of the requisite stamp can hardly be questioned. According to him the payment of the stamp duty in such a case validates not only the decree but also the proceedings taken therein. He relies upon Ganesh Prasad v. Mst. Makhna, AIR 1948 All 375.

5. Before dealing with Mr. Tatia's objection on merits, it would be proper to first deal with the preliminary objection of Mr. Mehta based on the ground of the principle of res judicata. In this connection I may deal with some of the important cases bearing on the point The first leading case on the point is Mungul Prashad Dichit v. Grija Kant Lahiri, (1881) ILR 8 Cal 51 (PC). In that case an execution application was filed and notice issued to the judgment-debtor but judgment-debtor did not object to the execution being taken out. Later on in a subsequent execution application the judgment-debtor took the objectionthat the first execution application was barred by time. Their Lordships overruling the objection held that the Court having proceeded to execute the decree in the first execution application without dismissing it as time barred, it should be presumed that the application was held to be within time. In Mohan Lal v. Benoy Krishna, AIR 1952 SC 65 the Supreme Court after relying upon the decisions rendered in AIR 1934 Cal 472 and AIR 1938 Pat 427 ruled that the principle of constructive res judicata is applicable to execution proceedings. In that case an execution application was taken out and a notice was served upon the judgment-debtor in the applications for setting aside two sales but no objection was raised by the .judgment-debtor to execution being proceeded with on the ground that the executing court had no jurisdiction to execute the decree, it was held that the failure to raise such an objection which goes at the root of matter precludes the judgment-debtor from raising a plea of jurisdiction on the principle of constructive res judicata after the property had been sold to the auction-purchaser. It will be useful here to quote the observations of Gulam Hasan J. as under (at p. 71):

'The foregoing narrative of the various stages through which the execution proceedings passed from time to time will show that neither at the time when the execution application was made and a notice served upon the judgment-debtor, nor in the application for setting aside the two sales made by him did the judgment-debtor raise any objection to execution being proceeded with on the ground that the execution court ha^ no jurisdiction to execute the decree. The failure to raise such an objection which went to the root of the matter precludes him from raising the plea of jurisdiction on the principle of constructive res judicata after the property has been sold to the auction-purchaser.'

5-A. In Krishna Mohan v. Khandu Moyee Dasi, AIR 1954 Cal 295 it has been held that if the judgment-debtor fails to raise the objection to the executability of decree in spite of service upon him of the notice under Order 21, Rule 22 of the Code and the court orders the execution to proceed--that order attains finality in law and the subsequent objection on the ground of limitation becomes barred by constructive res judicata just as if such objection is taken and overruled and ifthat decision is not challenged, the rule of actual res judicata precludes the judgment-debtor from raising the question of limitation.

6. It will be apt here to refer to the decision of Chagla C. J. reported as Usha Devi v. Devidas, AIR 1955 Bom 239. In that case there was a compromise decree between the landlord and the (petitioner, the tenant. Under the compromise decree the petitioner-tenant agreed to vacate the suit (premises on or before 31st of January, 1952. The judgment-debtor, however, failed to do so, so the decree-holder applied for execution on 1-2-52 and the executing court ordered the possession. The petitioner contended that the compromise decree had created a fresh tenancy and the tenancy was protected by the Rent Act. That contention was repelled by the executing court. Against that decision the petitioner appealed to the District Court The District Court dismissed the appeal. The petitioner, therefore, went in revision and the revision application too was dismissed and the High Court directed the executing court to give effect to the warrant of possession which it had already issued. As the warrant of possession had expired a fresh warrant of possession was issued by the executing court and at that stage the petitioner contended that the decree was a nullity as the court that passed the decree had no jurisdiction. This contention was rejected. The petitioner thereupon appealed to the District Court which appeal was also dismissed. The petitioner thereafter went in revision before the High Court. The petitioner however had previously not raised the objection to the decree being a nullity but she had only put forward the contention that the decree had created a new tenancy. The contention of the petitioner-tenant was overruled. It will be apt to extract here the observations of Chagla C. J. as under (at page 239):--

'Now it is well settled that Section 11, C. P. C. is not exhaustive and the principle of res judicata applies to proceedings other than suits referred to in Section 11. It is equally well settled that the principle of res judicata applies to execution proceedings. The principle underlying res judicata is that there must be a finality to litigation and the finality is arrived at not only by the court actually deciding the issue but also by the law taking the view that the court has con-structively decided the issue. The law does not only not permit a party to raise a contention which has already been decided but it also prevents a party from raising a contention which he could have raised and has failed to raise.'

Chagla C. J. further observed as follows (at p. 240):--

'The principle of finality at least in this country should have greater weight in execution proceedings than even in a trial of a suit It is notorious how long and wearily execution proceedings are dragged on and if the court refuses to give effect to the principle of res judicata it would be open to a judgment-debtor to raise the issue of jurisdiction at any stage of execution proceedings realising that the other objections that he has taken have failed.'

7. In Kameshwar Singh v. Krishna-nand Singh, AIR 1955 Pat 423 Patna High Court held that where a judgment-debtor fails to raise all his objections to the execution which he might and ought to have raised and the execution is ordered to proceed, all such objections will be deemed to have been impliedly decided against him and he will be precluded from raising the same objection at a later stage of the same execution proceedings.

8. In Amersingh v. Gulabchand, AIR 1960 Raj 280 (281) the Division Bench of this Court observed that execution proceedings against A the legal representative of deceased-judgment-debtor were taken out and notice under Order 21, Rule 22, C.P.C. was served upon the legal representative of the deceased-judgment-debtor. In reply to the notice no objection was raised by the alleged legal representative that he was not the legal representative of the deceased-judgment-debtor. It was held that failure to raise objection on the part of A that he is not the legal representative debars him from raising such objections in subsequent execution case even though the first execution application was dismissed in default. In that case the Division Bench discussed the case law elaborately and followed the view taken in AIR 1941 Mad 440 (FB), AIR 1944 Mad 193, AIR 1951 Mad 844, AIR 1950 Pat 465 and AIR 1953 Pat 242. The Division Bench however did not follow the view taken in AIR 1936 All 21 and AIR 1954 Mad 1. I am in respectful agreement with the view taken in the Division Bench case.

9. Reference may also usefully be made here to the recent decision of theSupreme Court reported as Premlata v. Lakshman Prasad, AIR 1970 SC 1525. In that case there was stay of execution proceedings. On 13th May, '50 the execution proceedings were revived. The judgment-debtors impeached sale only on a ground covered by the U. P. Encumbered Estates Act, 1934, The judgment-debtor, however, in that case did not challenge the order of the Civil Judge at Allahabad reviving the execution pro-ceedings attaching the Jhusi Sugar Mills and directing the sale of the sugar mill as barred by limitation. It was held by the Supreme Court that the principle of res judicata applies to execution proceedings and as the judgment-debtor in that case did not raise any objection as to revival of the execution proceedings before the Civil Judge Allahabad the judgment-debtors are barred by principle of res judicata from questioning directly or indirectly the order reviving the execution proceedings.

10. Mr. Tatia learned counsel for the appellant, however, contends that the question of unexecutability of the decree on the ground of want of stamps was never heard and decided and so failure to raise objection in that behalf will not operate as bar m res judicata. He relied upon Shiv Shanker v. Baikunth, AIR 1969 SC 971. In that case it has been of course held that unless the question is heard and decided by the court, the principle of res judicata does not apply to it. In that case objections under Section 47 of the judgment-debtor were dismissed in default. The court relying upon the catena of decisions of the Indian High Courts held that where the execution application or objection petition is dismissed in default the decision is not a final decision of the court after hearing the parties and therefore could not operate as res judicata and in such a case the judgment-debtor can raise that objection in a subsequent application filed by him. This case deals with a limited point that if the application under Section 47, C.P.C. is dismissed in default such decision would not operate as res judicata, It is well to remember here that decision is only an authority for what it actual-ly decides. What is of the essence in a decision is its ratio and not observations found therein nor what logically follows from the various observations made in it

11. The decision in Shiv Shanker v. Baikunth (AIR 1969 SC 971) is clearlydistinguishable. In that case objection was never decided on merits as has happened in the case before me. The point of constructive res judicata has not at all involved and could not have arisen as the objection petition was dismissed in default without hearing it on merits.

12. Prom the foregoing discussion of the case law, the position of law which emerges is that the judgment-debtor if he so desires must raise all objections to the executability of the decree which are available to him at one and the same tune at appropriate stage and if he does not do so he is precluded from raising fresh objection in a piece-meal manner at a subsequent stage even in the same execution proceedings.

13. Having discussed the position of law I now turn back to the facts of the present case. In the present case previ-ously in the first objection deceased judgment-debtor Magsingh had contended that the decree under execution being a money decree could not have been passed in a partition suit. This objection was dismissed and the order of dismissal was upheld by Gattani J. in second appeal who held that the decree being a money decree was executable, in that case no objection as to the executability of the decree on the ground of its not being engrossed on the stamp paper was ever taken. That order of Gattani J, will itself operate as constructive res judicata as other objections which ought to have been raised will be deemed to have been taken and impliedly decided, in the second and third objections filed on behalf of the judgment-debtor no objection in respect of decree being not duly stamped wag ever taken and those objections were also dismissed. In the fourth objection petition it was contended on behalf of the judgment-debtor that the decree under execution being a partition decree and being not duly stamped was not executable. The objection was overruled by the executing court and the appeal against the order of dismissal was also dismissed. The matter was thereafter taken by way of second appeal before the High Court. During the pendency of the appeal the decree-holder submitted stamp paper on 20th of February, 1976 whereupon the appeal was withdrawn by the judgment-debtor and the same was dismissed as having been withdrawn. When the appeal was withdrawn by the judgment-debtor it is very difficult tounderstand how the judgment-debtor could be allowed to raise the same objection to the executability of the decree of its being not duly stamped. Despite that the judgment-debtor in the last and the fifth objection again took objection that the auction sale was void as when it took place it was not duly stamped as the stamps were submitted at a late stage during the pendency of the second appeal. Once the decree-holder had withdrawn the appeal the order has again become final and it is too late in day to allow the judgment-debtor to raise objection to the exeeutability ot the decree. Be that as it may the judgment-debtor having not taken abjection at the earliest in his first objection petition he is precluded from taking such objection on the principle of constructive res judi-cata inasmuch as it was incumbent upon him to raise all the objections which were available to him when the first objection was filed. It is therefore now too late in the day to permit the judgment-debtor to raise the objection to the exeeutability of the decree on the ground that the decree under execution being not duly stamped at the time of the auction sale, the auction sale was invalid. If such a contention is accepted there will be no finality in the execution proceedings and the same may be dragged lor indefinite time at the sweetwill of the judgment-debtor. The principle of constructive res judicata is a salutory principle based on public policy that there must be a finality in the litigation.

14. In view of the foregoing discussion I have no hesitation to hold that the judgment-debtor's objection against the executability of the decree and the invalidity of the auction sale is barred on the principle of constructive res judicata and the same has therefore, to be overruled. The preliminary objection raised on behalf of the respondents Nos. 1 to 3 is therefore upheld.

15. In view of my decision on the preliminary point I do not think it necessary to deal the case on merits.

16. In the result I dismiss the appeal. However, I keep the costs easy.


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