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Janki Vallabh Vs. Moolchand and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberEx. Second Appeal No. 29 of 1972
Judge
Reported inAIR1974Raj168; 1973()WLN38
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 and 51
AppellantJanki Vallabh
RespondentMoolchand and ors.
Appellant Advocate N.M. Kasliwal, Adv.
Respondent Advocate K.N. Joshi, Adv.
DispositionAppeal dismissed
Cases ReferredBangalore v. K. Shamanna
Excerpt:
.....the judgment-debtor who might and ought to have raised a plea about the legality of sale without attachment, if failed to do so at the first sale held in the month of march, 1971, then he cannot be allowed to raise this plea over again if for one reason or the other the previous sale is set aside and the property is put for the second time to auction sale in the same execution proceedings. shamanna, air 1972 mys 321. this view is further fortified by the provisions of section 51 of the code of civil procedure wherein it has been provided that the decree can be satisfied by attachment and sale or by sale without attachment of any property. in this view of the matter, i fail to understand the logic in the arguments advanced by mr......about the competence of the court to put the properties belonging to the judgment-debtor to auction sale with-out proper attachment. 5. the supreme court in arjunsingh v. mohindra kumar, air 1964sc 993 has clearly laid down that thescope of the principle of res judicata isnot confined to what is contained in section 11 but is of more general application. according to this judgment, resjudicata could be as much applicable todifferent stages of the same suit as tofindings on issues in different suits. theirlordships have held that where the principle of res judicata is invoked in thecase of the different stages of proceedings in the same suit, the nature of theproceedings, the scope of the enquirywhich the adjectival law provides for thedecision being reached, as well as thespecific.....
Judgment:

V.P. Tyagi, J.

1. Learned counsel for the appellant has raised only one question to be decided by this Court in this execution second appeal, and it is whether the sale of a property which was not attached in execution but was put to sale and if no objection to such a sale was taken by the judgment-debtor at a previous stage of execution, would it constitute a constructive res judicata and preclude the judgment-debtor from raising a question about the validity of sale without attachment at a subsequent stage of the execution.

2. In the present case, the decree-holder obtained a decree in the year 1959, but during the pendency of the suit the houses belonging to the defendant judgment-debtor were got attached under Order 38, Rule 5 of the Code of Civil Procedure. After the decree was passed, execution proceedings were taken on 7-2-1962 but that execution petition was dismissed for default on 14-4-1962. The second execution proceeding was initiated on 21-2-1970 against Janki Vallabh who was the legal representative of Shyamsunder Dass, the original defendant in the suit. Notices under Order 21, Rule 64 were issued to the appellant judgment-debtor and the property which was got attached before judgment during the pendency of the suit was put to auction and the sale was knocked down on 17-3-1971. The judgment-debtor did not raise any objection about the validity of the sale that it could not take place because the property of the judgment-debtor was not attached after the first execution proceeding was dismissed. An objection under Order 21, Rule 58 of the Code of Civil Procedure was, however, filed by one Kaluram in which judgment-debtor Janki Vallabh was also a party but in that proceeding Janki Vallabh did not raise a plea that the sale was illegal because the property was not properly attached under Order 21 of the Code of Civil Procedure. It so appears that the auction-purchaser could not deposit the balance of the sale price within time and, therefore, the sale which had taken place on 17-3-1971 was set aside by the Court.

The decree-holder then applied to the executing Court to sell the properties of the judgment-debtor once again. 4th, 5th and 6th October, 1971 were fixed for sale, but because of the failure of the decree-holder to deposit the fees for conducting the auction, proceedings for auction could not take place on the aforesaid dates. On 13th of November. 1971, Janki Vallabh, however, preferred objection that the property belonging to him could not be put to auction on the grounds, namely, (i) that the execution proceedings were barred by limitation; (2), that the property sought to be auctioned was a temple property; and (3) that the first execution having been dismissed for default on 14-4-1962, the properties could not be sold without getting them attached under the law. The executing Court dismissed all these objections of the judgment-debtor on the ground that he failed to raise such objections at the time when the property was put to auction in March, 1971 and the sale was knocked down on 17-3-1971.

In the opinion of the executing Court these pleas were barred on the principle of constructive res judicata and therefore it held that the judgment-debtor was precluded from raising these objections at the time of the subsequent sale.

3. An appeal was preferred against the judgment of the executing Court, but the learned Judge also upheld the view taken by the executing Court and dismissed the appeal. It is in these circumstances that this second appeal has now been filed by the judgment-debtor.

4. Learned counsel appearing on behalf of the judgment-debtor confined his argument only to one point viz. that the properties could not be put to auction because they were not attached under Order 21 of the Code of Civil Procedure and the application of the principle of constructive res judicata under the circumstances of this case could not preclude the judgment-debtor to raise the objections about the competence of the Court to put the properties belonging to the judgment-debtor to auction sale with-out proper attachment.

5. The Supreme Court in ArjunSingh v. Mohindra Kumar, AIR 1964SC 993 has clearly laid down that thescope of the principle of res judicata isnot confined to what is contained in Section 11 but is of more general application. According to this judgment, resjudicata could be as much applicable todifferent stages of the same suit as tofindings on issues in different suits. TheirLordships have held that where the principle of res judicata is invoked in thecase of the different stages of proceedings in the same suit, the nature of theproceedings, the scope of the enquirywhich the adjectival law provides for thedecision being reached, as well as thespecific provisions made on matterstouching such decision are some of thematerial and relevant factors to be considered before the principle is held applicable.

6. From these observations of the Supreme Court, it can safely be held that the principle of res judicata can be attracted to the proceedings taken at different stages in a particular suit or execution proceeding. It is not necessary that the principle can be attracted only to the findings on issues in different suits. In the instant case, the properties belonging to the judgment-debtor were put to auction without attachment in the month of March, 1971, and the sale was knocked down but it could not become final or be confirmed because the auction-purchaser failed to deposit within time the balance sale price equal to 3/4th of the auction price and, therefore, the properties were put to auction once again. If the auction-purchaser had deposited the balance sale price within time, then the Court was left with no alternative but to confirm the sale and in that event the ownership in the property would have lawfully passed to the auction-purchaser.

According to the principle of constructive res judicata, if the judgment-debtor who might and ought to have raised a plea about the legality of sale without attachment, if failed to do so at the first sale held in the month of March, 1971, then he cannot be allowed to raise this plea over again if for one reason or the other the previous sale is set aside and the property is put for the second time to auction sale in the same execution proceedings. Even in the month of October, the properties would have been put to auction if the decree-holder had deposited the requisite fee for conducting the auction-sale. Upto that time the judgment-debtor was sleeping over Ms right and even before 4th of October, 1971, no such objection was raised by him that the properties could not be put to sale because they were not properly attached under the provisions of Order XXI of the Code of Civil Procedure.

7. The object of attaching the property before it is put to sale is to secure the interest of the decree-holder and the auction-purchaser. If the property is not attached before it is sold, it would be open to the judgment-debtor to transfer his right, title and interest in that property or to encumber it in favour of a third party before the date of sale and if he does so, the decree-holder may not be able to realise the decretal amount in view of such anterior transaction or encumbrance effected by the judgment-debtor. Similarly the auction-purchaser would also be exposed o the danger of purchasing a property an which the judgment-debtor may not have any interest at all or may be having an interest less than what he had on the date of the issue of the sale proclamation. It is in order to obviate these contingencies that attachment of the property before it is put to sale is effected, but if for one reason or the other the property could not be attached and (was) put to sale without attachment, then it would not vitiate the sale because attachment of the property is neither necessary nor is an essential step in the process of realisation of the decretal amount by sale of the property belonging to the judgment-debtor. Now it is a settled law that if the property is out to sale without attachment, then this flaw would not in any manner invalidate the sale. I find support to this view by the latest judgment of the Mysore High Court in the Karnataka Bank Ltd., Bangalore v. K. Shamanna, AIR 1972 Mys 321.

This view is further fortified by the provisions of Section 51 of the Code of Civil Procedure wherein it has been provided that the decree can be satisfied by attachment and sale or by sale without attachment of any property. Under the old Code which contained no provision corresponding to the present Section 51, there was a conflict of opinion. One class of decided cases held that attachment was an essential preliminary to sale in execution of simple decree for money and that the absence of attachment made the sale de facto void, but the other class of cases definitely laid down that the object of attachment is to bring the property under the control of the Court with a view to prevent the judgment-debtor from alienating it and that the absence of attachment was nothing more than an irregularity and did not ipso facto vitiate the sale. But that controversy has now been resolved by the legislature by enacting the present Section 51 where it has been specifically laid down that the decree can be executed by sale without attachment of any property. In this view of the matter, I fail to understand the logic in the arguments advanced by Mr. N. M. Kasliwal on behalf of the judgment-debtor and cannot hold that the property cannot be put to sale without first attaching it Since the judgment-debtor allowed the sale to be held in the month of March, 1971, without raising this Question, I feel that he should not be allowed to agitate this question at the stage of the subsequent sale and delay the execution of the decree.

8. I feel that no useful purpose shall be served if the judgment-debtor is allowed to raise the plea of the validity of sale without attachment at a subsequent stage. Looking to the circumstances of this case and the question of law involved therein. I agree with the finding of the two Courts below that the judgment-debtor was precluded by applying the principle of constructive res judicata from raising the objection that the properties could not be put to auction because they were not attached under the provisions of Order 21 of the Code of Civil Procedure.

9. The appeal, therefore, fails and it is hereby dismissed with costs.


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