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T.R. Kaliya Perumal Naidu and ors. Vs. T.P.L.S. Subramanian Chettiar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1928Mad203
AppellantT.R. Kaliya Perumal Naidu and ors.
RespondentT.P.L.S. Subramanian Chettiar and anr.
Cases ReferredCoventry v. Tulshi Pershad Narayan Singh
Excerpt:
- - , remarks led him to hold that failure to raise the question of ownership in the proclamation proceedings did not constitute res judicata. 5. in the present case the appellants not only knew that the actual sale was imminent, but consented to its being held after a month's grace to allow them to dispose of the property if possible by private negotiation, which is very different from a case where a party without notice of what was likely to be decided against him, failed to put in an appearance......who were acting with him after the insolvency of the original judgment-debtors allowed the execution proceedings to go on without raising the question; and it is now pleaded that their omission to do so constitutes res judicata.2. the proceedings were frequently adjourned at the instance of the appellants (vide counter affidavit dated 19th april 1924), until in march 1924 appellant 2 applied for one month's adjournment of the sale, consenting that it should be held on 10th april 1924, without a fresh proclamation. before that date, however, another claimant was set up and the matter dragged on till october 1925, when the sale was posted for the 22nd. on the 21st the appellants applied to have the execution petition dismissed on the ground that the decree being a preliminary.....
Judgment:

1. Appeal against appellate order of the Subordinate Judge of Kumbakonam in A.S. No. 86 of 1925. The respondent obtained a decree on 5th December 1921, to the effect that second appellant and two others should pay him a certain sum of money and he might also proceed against certain properties charged therein. He proceeded against the properties without previous attachment. Such procedure has the authority of M. Chandu Kutty v. K.K. Narayann, Nayar : AIR1925Mad1083 , but whether that authority should or should not be followed is not the point before us, because appellant 1 and the special receivers in insolvency who were acting with him after the insolvency of the original judgment-debtors allowed the execution proceedings to go on without raising the question; and it is now pleaded that their omission to do so constitutes res judicata.

2. The proceedings were frequently adjourned at the instance of the appellants (vide counter affidavit dated 19th April 1924), until in March 1924 appellant 2 applied for one month's adjournment of the sale, consenting that it should be held on 10th April 1924, without a fresh proclamation. Before that date, however, another claimant was set up and the matter dragged on till October 1925, when the sale was posted for the 22nd. On the 21st the appellants applied to have the execution petition dismissed on the ground that the decree being a preliminary decree was not executable.

3. The question for determination is whether when they were fully apprised of the execution proceedings, and when they took a month's adjournment as a matter of grace, it was not then incumbent upon the appellants to bring forward the present plea of non-executability. When they waived the right to a fresh proclamation they undoubtedly gave the respondent to understand that there would be no further opposition on their part and it was on that understanding that he consented to the adjournment of a month. Can they afterwards come forward with a plea cutting at the root of the execution?

4. There is no statutory obligation binding the judgment-debtor to disclose his full defence at the inception of the execution proceedings as though Section 11, Expl. 4, Civil P C., had been made applicable to such proceedings. At the same time, it cannot be said that this omission constitutes for the judgment-debtor a charter of chicanery. It is incumbent upon him not to defeat the decree by improper delays and if in any particular case he is shown to have resorted to such methods the Courts will not assist him: see P.C., ruling in Rajah of Ramnad v. Velusami Tevar A.I.R. 1921 P.C. 23. Of necessity, therefore, this question turns upon the particular circumstances of each case, as will be found emphasized in Chidambaram Chetti v. Theivanai Ammal A.I.R. 1924 Mad. 1. In that case a material consideration was whether clear notice that the validity of the execution was in question had been given to a party who was advised that the terms of the proclamation were about to be settled; and it was found that the party had no notice of the attachment, which Oldfield, J., remarks led him to hold that failure to raise the question of ownership in the proclamation proceedings did not constitute res judicata. Schwabe, C.J., also observes that the decision in that case was confined to the particular facts of the case.

5. In the present case the appellants not only knew that the actual sale was imminent, but consented to its being held after a month's grace to allow them to dispose of the property if possible by private negotiation, which is very different from a case where a party without notice of what was likely to be decided against him, failed to put in an appearance. In Rajitagiripathy v. Bhavani Sankaran A.I.R. 1924 Mad. 673, it is held that an application to transmit a decree is sufficient notice to a judgment-debtor that the validity of the decree is asserted, and it is incumbent upon him to dispute the validity, if so advised, at that stage; otherwise his omission will count as res judicata.

6. It is hardly necessary to examine every reported case, once it is held that the determination of the question turns upon the particular facts, but the facts in Coventry v. Tulshi Pershad Narayan Singh [1904] 31 Cal 822, where also a plea of res judicata was upheld are very similar to those of the present case.

7. The special receivers appointed to administer the judgment-debtor's estate, after the insolvency, seem to have been very remiss in settling the respondent's clear claim as a secured creditor, and by October 1925 it was altogether too late for them to raise an objection against the execution, the propriety of which they had not previously challenged. The appeal is accordingly dismissed with costs.


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