1. This is an appeal by Amarsingh under Section 96 read with Section 47, C. P. C., against the order of the District Judge, Jaipur City, dismissing his objection in an execution case.
2. The relevant facts are briefly as follows : Seth Anantram Vijailal, the predecessor-in-interest of the present respondent obtained a decree for Rs. 19,080/7/3 against Thakur Kishansingh of Patoda from the Dewani Adalat of the former Jaipur State on 5th November, 1948. After the death of the original judgment-debtor Kishansingh, one Jagatsingh, Tasirdar of Patoda was substituted as the legal representative of the original judgment-debtor on 10th of August, 1927. As the judgment-debtor was a Jagirdar, proceedings for satisfaction of the decree had to foe taken in the Bachat department of the former Jaipur State. After the promulgation of the Code of Civil Procedure in the integrated State of Rajasthan, the proceedings in the Bachat department came to an end on 25th of January, 1950. Gulabchand respondent, the successor of the decree-holder, thereafter on 26th of May, 1951 took out execution proceedings against the appellant Amarsingh treating him as the legal representative of the judgment-debtor.
A notice under Order 21 Rule 22 C. P. C. was served upon the appellant requiring him to show cause why the execution of the decree should not be directed against him. Amarsingh appeared in the execution court through one Sri Niranjan Dutt,Advocate and filed objections on 17th February, 1954. The only objection raised on his behalf was that the application for execution was timebarred. The objection of the appellant was, however, dismissed in default on 10-7-1954 and subsequently on 12th of September, 1954, the execution application itself was dismissed on account of default on the part of the decree-holder to deposit postal expenses.
3. A second execution petition was filed by the . decree-holder on 4th of April, 1955. In this execution case, the appellant raised an objection that as he was not the legal representative of the deceased judgment-debtor, the execution should not be directed against him. The objection was opposed by the decree-holder, amongst others, on the ground that the appellant was debarred from raising this objection on the principle of constructive res judicata. The execution court dismissed the objections holding that the appellant was so debarred from raising the objection. Hence, this appeal by Amarsingh.
4. It is now well settled that the principle of res judicata as embodied in Section 11 C. P. C., and the subsidiary principles of constructive res judicata are applicable to execution proceedings; vide Mohanlal v. Benoy Kishna, AIR 1953 SC 65 and this is not disputed by the learned advocate of the appellant. His contention, however, is that inasmuch as in the earlier execution case, the specific objection that he was not the legal representative of the deceased judgment-debtor was not taken and adjudicated upon and as the execution petition was eventually dismissed without fructifying, the principle of constructive res judicata could not be applied to his case and he was not debarred from raising the objection in the second execution case.
5. On the question raised on behalf of the appellant, the trend of judicial decisions is not harmonious and there is a sharp conflict of opinion. The leading case in support of the contention of the appellant is Gendalal v. Hazarilal, AIR 1936 All 21. In that case, Chief Justice Sulaiman, after referring to the application of the principle of res judicata to findings in favour of the defendants in suits which were eventually dismissed and basing his conclusions on that analogy and referring to the language of Sub-rules (1) and (2) of Order 21 Rule 23 C. P. C., laid down the following propositions:
(1) Where there has been an express adjudication by the Court in the presence of parties then the question must be considered to have been finally decided, no matter whether it is raised again at a subsequent stage of the same proceeding, or in a subsequent execution proceeding.
(2) Where an objection is taken but is dismissed or struck off, even though not on the merits, and the application for execution becomes fructuous,the judgment-debtor is debarred from raising the question of the invalidity of that application.
(3) Where an objection to execution is taken, but it is not dismissed on the merits or is dismissed for default and the application for execution does not become fructuous, the judgment-debtor is not debarred from subsequently raising the question that that application was not within limitation.
(4) Where no objection to the execution is taken but the application becomes partly or wholly fructuous and such fructification necessarily involves the assumption that the application was made withinlimitation, then after such fructification the judgment-debtor is debarred by the principle of res judicata from raising the question that that application was not within limitation.
(5) Where no objection is taken but the application for execution does not fructify, the judgment-debtor is not debarred by the principle of res judicata from raising the question of limitation later.'
6. The propositions relevant for the present case are Nos. (3) and (5).
7. This Full Bench case came up for consideration in Venkatranga Reddi v. Chinna Sithamma, AIR 1941 Mad 440. In the leading judgment, Patan-jali Sastri J., as he was then, examined in a little detail the reasoning of the Full Bench judgment of, the Allahabad High Court and expressed his inability to concur with the conclusions of the Full Bench. Referring to the language of Order 21 Rule 23 Sub-rules (1)and (2) C. P. C. it was pointed out that
'Sub-rule (1) covers not only cases where the judgment-debtor does not appear in response to the notice or does not offer any objection to execution, but also those where he appears and objects but fails to satisfy the Court that the decree should not be executed. In all such cases, the Court is requiredto 'order' the decree to be executed.
That is to say, even in cases where the judgment-debtor appears and 'offers any objection to the execution of the decree' and the Court 'considers such objection,' it has to act under Sub-rule (1) if it is not satisfied that the objection is valid. Where such objection is found to be tenable, thecourt has to make, under Sub-rule (2) 'such order as it thinks tit' that is to say, according to thenature and scope of the objection upheld. There is thus no justification for the view that an order under Sub-rule (1) 'has to be automatic' and that an order under Sub-rule (2) alone amounts to an 'adjudication' such as would Tall within the definition of a decree, and we are unable to see any such distinction as the learned Judge supposed to exist between these sub-rules.'
The learned Judge also found it difficult to see how fructification of a petition can have any bearing on the question of the binding character of an order passed upon it under Sub-rule (1) of rule 23 C. P. C. The analogy of a finding in favour of a defendant not operating as res judicata when the suit is dismissed, was thought mis-leading by the learned Judge. In this connection, it was observed that,
'a mere adverse finding in a suit cannot be appealed against and got reversed as the decree, in spite of such finding, is in favour of the defendant, whereas an 'order' directing execution to proceed can be appealed from irrespective of the application eventually Droving fruitful or infructuous. Again, even an express adjudication on the objections raised by the judgment-debtor must, on the analogy, be held not to be res judicata if the application on which execution was ordered to proceed is ultimately dismissed, but this has never been suggested to be the case.'
It was also pointed out by the learned Judge that the point is practically concluded by a Privy Council decision in Mungul Pershad Dichit v. Grija Kant Lahiri, ILR 8 Cal 51 (PC).
8. The Madras High Court, consequently, disagreeing with the Allahabad High Court held that an order for execution made after notice to the judgment-debtor who does not appear and otter any objection precludes him from raising a plea oti limitation or any other plea in bar in subsequent proceedings even though the application on which the order was passed does not fructify or is eventually struck off or dismissed. It follows as a natural corollary from the above decision that other similar pleas in bar cannot be allowed to be raised when they were not raised in an earlier execution case.
9. This view has been consistently followed by the Madras High Court, vide Adhilakshimi Animal v. Srinivasa Goundan, AIR 1944 Mad 193, and Vyravan Chettair v. Rayalu Ayyar Nagaswami Ayyar and Co.. AIR 1951 Mad 844.
10. A single judge of the Madras High Court in Appavva v. Venkataratnam. AIR 1954 Mad I has expressed some doubts about the correctness of the view taken in the earlier leading case, AIR 1941 Mad 440. With great respect, I prefer to follow the Division Bench decision in preference to that of the Single Bench.
11. As for choosing between the Allahabad and the Madras decisions, after a careful consideration of the reasoning of both the cases, I have no hesitation in preferring and accepting the Madras view. I cannot appreciate, on a consideration of general principles of constructive res judicata, why a judgment-debtor who ignores the notice of a court requiring him to show cause why execution should not issue against him and omits to raise any objection should be permitted to ignore an adjudication directing execution at a later stage. The effect of the order is that all pleas in bar, if any, go by the board.
There is absolutely no justice or equity in his favour and it will be wholly undesirable to set a premium on default and contumacy. The consideration that a notice under Order 21 Rule 22 is not accompanied by a copy of the application for execution as also those relevant in connection with suits should not have much weight in execution cases which are concerned merely with the enforcement of decisions binding on parties. There is no reason why default on the part of the judgment-debtor in this connection should be seriously viewed.
12. The Allahabad Full Bench decision was also not followed in Sadashiv Busappa v. Raja Kishtappa Naik, AIR 1950 Hvd 15. It was observed in that case that,
'these are strong reasons against making fructification the criterion for judgment-debtor not being allowed to raise his objections ..... If it be onceconceded, that objection so raised and decided against, would operate as res judicata, then there are no reasons as to why order passed on failure of such appearance should not have similar effect. Assigning different effects to orders passed under one sub-rule is hardly logical.'
13. The Calcutta High Court in Aswini Kumar v. Karamat Ali, AIR 1948 Cal 165 has also taken a similar view.
14. A similar view has also been consistently expressed by my Lord the Chief Justice as a judge of the Patna High Court in several cases. It will be interesting in this connection to tetter to Sham Sunder Singh v. Dhirendra Nath Chandra, AIR 1950 Pat 465. In the leading judgment, his Lordship, after an examination of a number of cases, quoted with approval the following observations of Wort J. in Mahadeo Prasad v. Bhagwatnarain Singh, AIR 1939 Pat 427 :
'If objections to execution proceedings cou Id be taken piecemeal one after the other, there will be no end to execution proceedings.....when aplea in bar is not taken, or is overruled, the judgment-debtor is not at a later stage entitled to challenge the validity of the proceedings on that ground.'
15. The learned Judge also referred to the Privy Council case, in Sadasiva Pillai v. Ramalinga Pillai, 2 Ind App 219 (PC), wherein the Judicial Committee has in emphatic terms condemned the attitude of parties in lying by and raising a plea in bar not until at a very late stage of proceedings.
16. In another case, Harnath Kaj v. Hirdai Narain, AIR 1953 Pat 242. his Lordship observed as follows:
'It is well settled that the rule of 'res judicata' applies to execution proceedings and even if a point, which ought to have been raised is not raised at the appropriate stage then it would be deemed to Have been decided against the person who was entitled to raise it in the course of the execution proceedings.'
17. With great respect, I entirely agree with the legal exposition in these two judgments of his Lordship based as they are on a balanced and realistic approach.
18. So far as this Court is concerned, the learned counsel for the appellant relied upon a single bench decision in Surjan Singh v. Gindorilal, 1958 Raj LW 203: (AIR 1957 Raj 398). It has followed the Allahabad view, but for reasons given above, I have preferred the Madras view to the Allahabad view. Reference was also made to a Full Bench decision of this Court in Vijal Singh v. Smt. Govindi, Ex. F. A. No. 1 of 1954 D/- 29-4-1957, (Raj). That, however, mainly relates to the interpretation of Section 214 of the Indian Succession Act and has not much relevance to the controversy raised in this appeal.
19. In the light of the above discussion of the case-law, I have no alternative out to hold that the District Judge was correct in applying the principle of re judicata to the case and overruling the Objections of the appellant.
20. In the end, it was pointed out that the Government of Jaipur, vide Council's Resolution No. 23 dated 13th May, 1940, had sanctioned as successor, one Sarjit Singh to the deceased Jagatsingh, who was in fact the legal representative of the original judgment-debtor and that at some earlier stage, the decree-holder himself had applied for substituting Thakur Sariit Singh as the legal representative of the deceased Jagatsingh. On thisbasis, it was argued that the absence of the specific objection by the appellant in the earlier execution case was only under a mistaken advice and that I should accept the admission of the decree-holder himself and should interfere in view of the peculiar facts of the case.
I may observe at this stage that the execution of the decree against the appellant is taken out only in his capacity as the legal representative of the deceased judgment-debtor and that he will be liable only to the extent of the property which he inherited and received from the judgment-debtor. The liability against him will not extend to his person or his personal properties or toe properties which he had received from other persons, except in a case of his failure to account for the property which he had received from the judgment-debtor. It will be open to him to raise appropriate objections on this score before the execution court in case his personal property is proceeded against in the course of the execution and it will be the fluty of the execution eourt to decide such objections, if any, on merits. In this view of the matter, the appellant's grievance is not so real and substantial as it was alleged to be. Of course, he will be a party to the execution case and will have to raise and substantiate his objections, but that is his own creation due to omission on his part to raise the objection in the first execution case.
21. In these circumstances, I do not find any meat in this appeal, which has to be and is hereby dismissed. In the peculiar circumstances of the case, the parties will bear their own costs.
Sarjoo Prosad, C.J.
22. I entirely agree.