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(Lodd) Govindoss Krishnadoss Vs. Rajah of Karvetnagar and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1929Mad404; 121Ind.Cas.598; 122Ind.Cas.519
Appellant(Lodd) Govindoss Krishnadoss
RespondentRajah of Karvetnagar and anr.
Cases ReferredRamkirpal v. Rupkuari
Excerpt:
.....that the decree is satisfied. it is a well-recognized principle and settled practice that a party must put forward his case at the earliest opportunity- and as a whole. each party to a legal proceeding is entitled to have a fair outline of the whole of his opponent's case at the earliest opportunity, and is not to be defeated by his opponent withholding part of it from him in order to bring it forward later. 61 respondent 1 failed to adduce in time any evidence to prove the allegation of fact which he had to prove and his petition was, therefore, dismissed. 563. the lower court was clearly in error in holding that the dismissal was not on the merits. 12. this principle has been clearly laid down by the privy council in rajah of ramnad v. , but is the well-known principle which has..........abundantly illustrates the necessity for courts refusing to allow their procedure to be abused by recalcitrant and unscrupulous judgment-debtors whose only desire is by hook or crook to postpone the evil day.17. i would, therefore, cancel the lower court's order and direct that the sale in execution do proceed without any further delay. the petitioner will get his costs in the two civil revision petitions (one advocate's fee) and will pay the respondent's costs in the civil miscellaneous appeal.madhavan nair, j.18. i agree and have nothing to add.
Judgment:

Wallace, J.

1. This Civil Miscellaneous Appeal is against the order of the lower Court in a matter in execution. In O.S. No. 12 of 1901, the appellant obtained against the respondent 1 a mortgage decree under which the amount now owing is said to be about 43 lakhs of rupees. In 1905 he put in an execution petition E.P. No. 145 of 1905 in the lower Court to bring the mortgage property, Narayanavanam Taluk in Karvetnagar zamindari, to sale. In various Ways that sale has been delayed and postponed until 1925, when it was eventually begun but so far has not come to an end. In the meantime, respondent 2 on 6th -January 1927 bought at a Court sale in another suit, O.S. No. 9 of 1912, respondent 1's equity of redemption in this property. In M. P. No. 17 of 1927, respondent 2 applied in the lower Court to be brought on record in the appellant's execution petition as the present holder of the equity of redemption in place of respondent 1 the original judgment-debtor. That was allowed by the Court on 12th April 1927. On 25th July 1927, respondent 1 put in M. P. No. 61 of 1927 in the E.P. stating that respondent 2's purchase in the Court-sale was benami for the appellant, his judgment-creditor, and asked that the Court would:

close the sale declaring the decree-holder to be the purchaser at the upset price of 29 lakhs.

2. That petition was dismissed on 3rd 'September 1927. Ten days later, respondent 1 put in M. P. 103 of 1927 alleging precisely the same facts as in M. P. 61 of 1927 and asking for the passing of the same relief, but by an amendment petition, M. P. No. 133 of 1927, he was allowed to amend the form of relief asked for into a request that his judgment-creditor's decree had been fully satisfied by his purchase of the equity of redemption and, therefore, the execution petition should be dismissed. Against this petition, various preliminary objections were taken by the appellant, the judgment-creditor, on the ground of res judicata and that respondent 1 has no locus standi to move the petition at all. These have been heard and dismissed by the lower Court by the order now under appeal. The lower Court is now intending to proceed to decide on the merits, whether in fact the appellant was the purchaser of the equity of redemption. The appellant comes up here to have the enquiry stopped and respondent 1's M.P. 103 of 1927 dismissed on the preliminary points urged him in the lower Court.

3. It is contended by respondent 1 as a preliminary objection to this appeal that no appeal lies. The order of the lower Court appealed against is in form an interlocutory order and it has not finally disposed of respondent 1's M. P. 103 one way or the other. The learned Counsel for the appellant does not strongly contest this view, but urges that the finding that respondent 1 has a locus standi to maintain the petition is a final order and therefore appealable since, if the finding were against respondent 1 the miscellaneous petition would be finally disposed of. I do not think it necessary to go here into the somewhat complicated question of whether a decision which is only a final disposal of the whole matter in issue if decided in one way is a 'decree' for purposes of appeal. I think the balance of authority is against that view and in favour of the view that in order to be a 'decree' a decision must be a final disposal whichever way it has been or may be decided. In any case, the appellant's counsel has not restricted the discussion merely to the question of respondent 1's locus standi but has raised questions of constructive res judicata as well. What the general discussion turned upon was the competence of the lower Court to ignore the previous orders passed by it -in the two earlier miscellaneous petitions by respondents 1 and 2. That is really a question of the irregular exercise of jurisdiction. I would hold that the civil miscellaneous appeal does not lie, but we have heard the appeal as a civil revision petition.

4. In order to decide whether the lower Court has exceeded its jurisdiction, it is necessary to set out in detail what happened on the two earlier miscellaneous petitions to which all the present parties were also parties. In M. P. No. 17 of 1927, respondent 2 asked to be brought on record in the appellant's execution petition because he had purchased the equity of redemption and, therefore, respondent 1 'has no right whatever in the abovesaid Narayanavanam Taluk.' This was heard by the Judge on 6th April 1927 when respondent 1's vakil said he would file his objection on 12th April 1927. On that date, he wanted more time which was refused, as 'there is no ground and no objections are stated.' As the decree-holder also had no objection, the petition was allowed. It is clear to me from the contentions and proceedings in that petition that such contest as there was between respondents 1 and 2, and that respondent 1 then had no objection to respondent 2 being brought on as the real purchaser of the equity of. redemption. No objection was then put forward that respondent 2 was benamidar for the decree-holder, nor was any counter put in at all. It appears to me that the Court then decided in effect that respondent 1 had no longer any interest in the property which was being put up for sale, as his interest had passed in full to respondent 2, and that respondent 2 was the real purchaser of the equity of redemption.

5. Nevertheless, the lower Court allowed the respondent 1 to return to the charge in M. P. 61 of 1927, a petition put in under the general Section 151, Civil P.C. in which respondent 1 still styles himself as the judgment-debtor. It was put in on the very day of the sale and advanced the ground that the decree-holder had no right to execute the decree since he himself was the purchaser of the equity of redemption, but nevertheless asked that the sale should close in his (decree-holder's) favour at the upset price. To this petition, both the appellant and respondent 2 were parties, and both raised inter alia the objection- that respondent 1 had no locus standi to move the petition. That petition came on for hearing on 3rd September 1927, when the respondent asked for further time to file an affidavit in support of the petition. The request was refused as the judgment-debtor has had ample time,' and the petition was dismissed on that date.

6. Nothing daunted, respondent 1 came up again ten days later with the petition which forms the origin of the appeal and the civil revision petition now before us, M. P. 103 of 1927 dated 13th September 1927. That, as originally presented, was exactly in the same terms and asked for exactly the same relief as the previous M. P. 61 of 1927 already dismissed. The Judge nevertheless entertained it. It was followed by M. P. 133 of 1927 dated 30th November 1927 to amend the relief sought for by asking the Court to declare that the decree had become satisfied and is no longer capable of execution because the judgment-debtor's interest had passed by benami purchase under the Court sale in E.P. 22 of 1923 to the decree-holder. An independent petition for the same relief M. P. 132 of 1927, was put in on the same-day. It was put in on the specific ground that there was no real difference between the original relief sought for and the relief sought for by the amendment, and the amendment was allowed on 16th January 1928 by the Judge on that very ground, namely:

as the real prayer in M. P. 103 of 1927 is to declare that the decree is satisfied.

7. M.P. 103 of 1927 as thus amended was. then heard, and the Judge, as already mentioned, overruled the preliminary objections by the appellant that the matter was res judicata and that respondent 1 had no locus standi to move the petition. The learned Judge now intends to enquire into the merits of the contention that the purchaser in Court sale in E.P. 22. of 1923 was really the appellant and not respondent 2.

8. The question of law that is for decision is whether already the lower Court has not gone more than once beyond its jurisdiction in entertaining further petitions on matters which it had already finally decided. It appears to me that in this discussion two general principles have to-be kept in mind; (1) that a party who has objections to a proceeding before the Court must put these forward at the earliest opportunity and must put all of them forward and not keep back any of them for subsequent presentation, and (2) that when a Court of law has, in any proceeding before it, decided upon evidence or in the absence of evidence, a question of fact, it is not competent to it to allow that question to be again reopened except on the very restricted terms laid down by the provisions for review of judgment. The learned advocate for respondent 1 argues at large that since there is no specific provision in the Civil Procedure Code laying down such principles, these are not the law. He would and does contend that it is open, for example, for a judgment-debtor who has several objections to the execution of a decree against him to put forward only one of them at a time and hold the others in reserve until that one has been disposed of, then to put forward another, holding the rest again in reserve and so on. It is a sufficient answer to that contention to repeat the old principle which Courts of law are bound to obey and respect, even if parties before them do not, that there must be an end to litigation and it is intolerable that a Court should encourage a judgment-debt-or to protract the execution of a decree against him in such a fashion. It is a well-recognized principle and settled practice that a party must put forward his case at the earliest opportunity- and as a whole. All the objections he has to state to a proceeding against him must be put forward at once on peril of his being estopped from putting them forward at a later stage. A party cannot be allowed to put forward his case piecemeal. Each party to a legal proceeding is entitled to have a fair outline of the whole of his opponent's case at the earliest opportunity, and is not to be defeated by his opponent withholding part of it from him in order to bring it forward later. Any other principle is merely turning the machinery for the disposal of cases into a machinery for not disposing of them.

9. It is not claimed that respondent 1's petitions, M. P. 61 and M. P. 103 were under Order 47 and would or could be justified under that order. They were put in under Section 151, last refuge of disappointed litigants and really they should have been put in as counters to the execution petition. Viewed in their true light, it is clear that respondent 1 should have stated in full and at once in one counter all the objections he had to the execution proceeding. An examination of the petitions M. Ps. 61 and 103 given above shows that, though the relief asked for in the second was, after amendment, different from that asked for in the first, the allegations of fact on which both the reliefs were founded were exactly the same. They were petitions which a Court usually disposes of on affidavits, and in such cases affidavits form the evidence on which the matter is decided. Now in M. P. 61 respondent 1 failed to adduce in time any evidence to prove the allegation of fact which he had to prove and his petition was, therefore, dismissed. That is a dismissal on the merits : see Kartick Chandra Pal v. Sridhar Mandal [1886] 12 Cal. 563. The lower Court was clearly in error in holding that the dismissal was not on the merits. It was not, therefore, open to respondent 1 to put in any further petition on the same allegation of fact, nor was it open to the Court to entertain it. The dismissal of the petition for want of evidence was a judicial order, and a Court is merely abusing legal procedure if, immediately after it dismisses a petition for want of evidence, it admits another on exactly the same allegations and proceeds to try it. It is saying in effect:

The dismissal of your case yesterday was because you did not adduce your evidence in time, but nevertheless I will allow you to adduce it to-morrow. My order dismissing your first petition was really not an order dismissing it and I will now hear it over again.

10. Nor can a party play with the Court saying:

I will not offer evidence and will suffer judgment to-day, but you cannot refuse to allow me to re-open the matter and to offer evidence to-morrow.

11. An order dismissing such a petition for want of evidence is a final order, binding not only on the parties but also on the Court itself. The use of Section 151, for purposes of this kind, where there is no question of fraud upon the Court or any abuse of its processes or where it is not merely seeing that its own orders already given are carried out, is unjustifiable.

12. This principle has been clearly laid down by the Privy Council in Rajah of Ramnad v. Velusami Tevar A.I.R. 1921 P.C. 23. In that case a judgment-debtor had omitted to argue the plea of limitation as a bar to an execution application put in by the assignee of the decree and execution by the assignee was allowed. Their Lordships refused to allow the judgment-debtor to take the plea against a subsequent application to execute and remarked:

It was not only competent to the present respondents to bring the plea forward on that occasion but it was incumbent on them to do so if they proposed to rely on it. No appeal was brought from the order then made and therefore, it was not competent for the Subordinate Judge to admit the plea on subsequent proceedings.

13. This case has been followed by a Bench of this Court in Rajitagiripathi v. Bhavani Shankaran A.I.R. 1924 Mad. 673 and in an unreported ruling in C.M.A. 467 of 1927 to which one of us was a party. A case of this Court reported in Natesa Chettiar v. Annamalai Chettiar A.I.R. 1923 Mad. 487 and relied on by respondent 1 appears to be contrary to the above ruling of the Privy Council: see also the Privy Council ruling in Ramkirpal v. Rupkuari [1884] 6 All. 269. The principle enunciated by the Privy Council does not fall directly under Section 11, Civil P.C., but is the well-known principle which has been styled as ' the judgment of the case.' I am quite clear then that, when M. P. 61 was dismissed because respondent 1 failed to adduce evidence to prove the allegations of fact made in it, it was not competent to the Court to allow him to re-open this same question of fact as a fresh counter to the same execution proceedings. The Court had in M.P. 61 decided that defendant 1 had not proved that the purchase in M.P. No. 22 was benami for the appellant, and that decision was final in all the subsequent execution proceedings.

14. That decision of fact being final, it is incompetent for respondent 1 to seek, as he now does, at any further stage of these proceedings for any relief which merely follows as a legal consequence if that point of fact is or had been decided in his favour. The form of relief asked for in M. P. 61 may be different from the form of relief in M. P. 103 after amendment. But apart from the fact that in his petition for amendment respondent 1 contended that there was no difference at all and obtained his amendment on that very ground (see the order in C. M. P. No. 102 already quoted,) both reliefs rest undoubtedly on the same allegation of fact which it was necessary to prove before either could be granted. The test is whether the same evidence would maintain both petitions, and in this case, there cannot be the slightest doubt that that test applies. I am astonished that the Judge should allow the petition of a party who first put in before him the argument that the two reliefs were the same and on that argument persuaded him to allow the amendment, and then turned round and argued that they were not the same, and therefore that his second petition is entitled to a fresh hearing.

15. I am prepared to hold also that this point of fact had been decided against respondent 1 even previously, in the order on respondent 2's M. P. 17 of 1927. As noted above, the contest in that petition was between respondent 1 and respondent 2, and the question of fact was who was the purchaser in E.P. 22 of 1923. Respondent I had no objections to state to that petition being granted and it was granted. He ought also then and there to have stated his objections that respondent 2 was not the real purchaser and had no locus standi therefore to come on as a party to the execution petition. Had respondent 1 stated and proved his present contention in that petition, that petition, instead of being allowed would have been dismissed. Therefore, even as early as 12th April 1927, it had been finally decided by an order of the Court against respondent 1 that respondent 2 was the purchaser of the equity of redemption in E.P. 22 of 1923. That had again been decided by the order in M. P. 61 of 1927. The lower Court by it order now under revision is not only allowing the presentation of objections piecemeal but is allowing its own order of each petition to be re-opened after it has been decided, This, I am quite clear it is not competent to do. It had grievously erred in jurisdiction in doing so. Such attempts by the Court to re-open its own decisions and orders already binding on the parties and itself are breaches of the settled processual law, and must be vetoed at the earliest opportunity, in order to prevent further illegality and useless waste of time.

16. It is hardly necessary to consider the point whether respondent 1 has any locus standi to put forward any objection now in the petition. The sale is only of his equity of redemption which has now admittedly passed from him by the sale of it to respondent 2 in E.P. 22 of 1923. It is difficult to see how this sale is going to injure him in any way. It is no doubt true that, if the sale is not enough to satisfy the mortgage, the decree-holder may enforce his personal remedy against respondent 1 for the balance, but that time has not yet come and it will be time to resist when it is being pressed. Nor is it necessary, in order to decide the point of law here, to emphasize that this decree-holder has been since 1901 for 27 years attempting to execute his decree, but the fact abundantly illustrates the necessity for Courts refusing to allow their procedure to be abused by recalcitrant and unscrupulous judgment-debtors whose only desire is by hook or crook to postpone the evil day.

17. I would, therefore, cancel the lower Court's order and direct that the sale in execution do proceed without any further delay. The petitioner will get his costs in the two Civil Revision Petitions (one advocate's fee) and will pay the respondent's costs in the Civil Miscellaneous Appeal.

Madhavan Nair, J.

18. I agree and have nothing to add.


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