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Ghisalal Vs. Seth Kanhaiyalal - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Ex. First Apeal No. 18 of 1967
Judge
Reported in1969WLN95
AppellantGhisalal
RespondentSeth Kanhaiyalal
DispositionAppeal dismissed
Cases ReferredMohanlal Goenka v. Benoy Kishna Mukherjee and Ors.
Excerpt:
.....settled that where a judgment-debtor failed to raise all his objections in execution made by the decree holder which he might and ought to have made, all such objections will be deemed to have been decided against him. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years ..........of the judgment-debtor's immoveable property mortgaged with the decree-holder. the judgment-debtor filed objections on 30-11-61. these were dismissed in default on 11-10-62 and the execution proceeded against the judgment-debtor. but ultimately for reasons, which we need not state here, the decree-holder got the execution application dismissed on 20th january, 1965. the present execution application, out of which was appeal arises, was filed by the respondent-decree-holder on 1-12-66 and it was prayed that the mortgaged property for the sale of which the d2cree had been passed may be auctioned for realisation of the decretal amount. on 23-1-67 the decree-holder also made an application under order 21, rule 66 c.p.c., for issuing a proclamation of the intended sale. on receipt of the.....
Judgment:

C.M. Lodha, J.

1. This is a judgment-debtor's appeal from the order of the Senior Civil Judge No. 1, Jaipur City, Jaipur dated 24-5-67, in civil Execution Case No. 32 of 1966, by which the learned Judge rejected the objections of the appellant regarding validity and executability of the decree dated 30th August, 1960.

2. The respondent Seth Kanhaiyalal obtained a compromise decree for Rs. 76,000/- on 30th August, 1960, from the court of Senior Civil Judge, Jaipur City Rs. 20,000/- were paid by the judgment-debtor to the decree-holder on i-il-60. On 18-8-61 the decree-holder levied execution for the rest of filed the decretal amount by sale of the judgment-debtor's immoveable property mortgaged with the decree-holder. The judgment-debtor filed objections on 30-11-61. These were dismissed in default on 11-10-62 and the execution proceeded against the Judgment-debtor. But ultimately for reasons, which we need not state here, the decree-holder got the execution application dismissed on 20th January, 1965. The present execution application, out of which was appeal arises, was filed by the respondent-decree-holder on 1-12-66 and it was prayed that the mortgaged property for the sale of which the d2cree had been passed may be auctioned for realisation of the decretal amount. On 23-1-67 the decree-holder also made an application under Order 21, Rule 66 C.P.C., for issuing a proclamation of the intended sale. On receipt of the notice of this application, the judgment-debtor filed objections on 18-2-67. The principal contention raised on behalf of the judgment-debtor was that the decree, sought to be executed, had not ten passed in accordance with the provisions of Order 34 C.P.C., and was consequently not executable. The learned Senior Civil Judge, however, over-ruled this contention and held that the decree was executable as a final decree for sale of the property. Aggrieved of this decision of the learned Senior Civil Judge, the Judgment-debtor has filed this appeal.

3. When this appeal was argued for sometime on the last date of hearing, we felt that it was necessary to peruse the previous execution file to find out whether the judgment-debtor had taken any such objection in the course of previous execution, and if so, what had been the result of the same? That file has not been received and on perusal of the same we have found that no such objection referring to the executability of the decree was taken by the judgment-debtor in the petition of objections filed by him in respect of the proposed sale of this property. A serious question, therefore, arises whether it is at all open to the judgment-debtor to take this objection now in the present execution

4. It was held by their Lordship of the Supreme Court in Mohanlal Goenka v. Benoy Kishna Mukherjee and Ors. : [1953]4SCR377 that where neither at the time when the execution application was made and a notice served upon the judgment-debtor, nor in the applications for setting aside the sales made by him, did the judgment-debtor raise any objection to execution being proceeded with on the ground that the execution Court had no jurisdiction to execute the decree, the failure to raise such an objection which went to the root of the matter precluded the judgment-debtor from raising the plea of jurisdiction on the principle of constructive 'res judicata' after the property had been sold to the auction-purchaser who had entered into possession. Thus the principle of constructive 'res judicata' is applicable to the execution proceedings and the law is well settled that where a judgment-debtor failed to raise all his objections in execution made by the decree-holder, which he might and ought to have made, all such objections will be deemed to have been decided against him. This position has not been disputed by the learned Counsel for the appellant. The inevitable result, therefore, is that the judgment-debtor is debarred from raising this objection in the present execution. The appeal filed by the judgment-debtor must fail on this simple ground. In this view of ours it is neither necessary nor desirable to go into the question whether the compromise decree, which is sought to be executed, was passed in accordance with the terms of Order 34, C.P.C., and whether any valid objection can be raised regarding its executability.

5. Consequently, we do not see any force in this appeal and dismiss it. In view of the fact that the ground, on which we have dismissed this appeal, was not taken by the decree-holder at any stage, we leave the parties to bear their own costs. The executing court is directed to proceed with the execution expeditiously.


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