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Venugopal Pillai Vs. Sri Kachaleeswarar Devasthanam by Its Executive Officer - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1983)2MLJ365
AppellantVenugopal Pillai
RespondentSri Kachaleeswarar Devasthanam by Its Executive Officer
Cases ReferredRaghunath Pradhani v. Damodara Mahapatra
Excerpt:
.....this property from the judgment-debtor filed an application to set aside the auction sale on the ground that the attachment and auction sale were void as they were effected without obtaining the requisite permission and that the decree-holder bad played a fraud on the court by inducing it to put the property to sale on the strength of the order which was passed by the competent authority at the instance of the purchaser. the failure, therefore, of the judgment-debtor to raise any particular contention cannot operate as a res judicata actually or constructively, either against him or against the appellant......he is not filing any counter, whereupon the court posted the application to enable the judgment-debtor revision petitioner to pay the amount. the petition was posted on 8th december, 1980, 17th december, 1980 and 24th december, 1980, but as no payment was made and as the petitioner remained ex parte, the court made the order attaching the property. the court proceeded with the execution for sale of the properties. it is at that time the judgment-debtor revision petitioner filed a counter-affidavit contending inter alia that several payments have been made towards the decree and that they have not been credited to, that he is also entitled to the benefits of section 3 of the tamil nadu cultivating tenants arrears of rent (relief) act (xxi of 1972). the executing court took the view.....
Judgment:
ORDER

G. Maheswaran, J.

1. This revision is directed against the order of the District Munsif, Sholinghur, proclaiming for sale the properties attached.

2. The plaintiff-Devasthanam, the respondent herein, obtained a decree against the revision petitioner for Rs. 912.37 being the arrears of rent due by the revision petitioner to the plaintiff. The respondent filed an application for execution for attachment and sale of immovable properties belonging to the revision petitioner. Notice under Order 21, Rule 22 of the Code of Civil Procedure, was issued and that notice was received by the revision petitioner judgment-debtor on 8th September, 1980, and after some adjournments the revision petitioner represented to the Court that he is not filing any counter, whereupon the Court posted the application to enable the judgment-debtor revision petitioner to pay the amount. The petition was posted on 8th December, 1980, 17th December, 1980 and 24th December, 1980, but as no payment was made and as the petitioner remained ex parte, the Court made the order attaching the property. The Court proceeded with the execution for sale of the properties. It is at that time the judgment-debtor revision petitioner filed a counter-affidavit contending inter alia that several payments have been made towards the decree and that they have not been credited to, that he is also entitled to the benefits of Section 3 of the Tamil Nadu Cultivating Tenants Arrears of Rent (Relief) Act (XXI of 1972). The executing Court took the view that as the revision petitioner has not objected to the execution, at the time when he received the notice under Order 21, Rule 22, Civil Procedure Code, he cannot raise it at this stage as such pleas would be barred by the principles of constructive res judicata. In the end, the Court ordered further proceedings and 'ordered proclamation for sale' and posted the matter to 23rd September, 1981. That order is now challenged by the revision petitioner.

3. In Mohanlal v. Benoy Krishna : [1953]4SCR377 Ghulam Hasan, J., observed that 'that the principles of constructive res judicata are applicable to execution proceedings, is no longer open to doubt'. I must make reference in this connection to Explanation 7 now added to Section 11, Civil Procedure Code, by Act CIV of 1976, which runs thus:

The provisions of the section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.

In view of this explanation, it would be no longer open to say that Section 11 applies only to suits and not to execution proceedings.

4. S.C. Puttappaji v. Dooda Mallappa (1944) 1 M.L.J. 494 : 57 L.W. 356 : A.I.R. 1944 Mad. 420 was a case where an execution, petition was filed out of time. Notice went to respondents and other judgment-debtors, but they remained ex parte and an order was passed in the following terms 'proclaim and sell'. At a later stage of the execution proceedings, an objection as to limitation was taken. Horwiil, J., observed:

There can be no doubt, not only that an order passed in one execution petition will operate as res judicata if a similar point arises for decision in a later execution petition, but a decision made at one stage of execution operates as res judicata at a later stage. If an order to execute is passed in an execution petition, then by implication the Court has decided : (1) that the petitioner has a right to execute ; (2) that the judgment-debtor is liable to satisfy the decree; (3) that the decree is executable; and (4) that it is not barred by limitation. The result is that at no subsequent stage after an order to execute has been passed is it open to the judgment-debtor to dispute the correctness of these four implied decisions.

I am in respectful accord with these observations of the learned Judge.

5. In Venkataranga Reddi v. Chinna Sithamma : AIR1941Mad440 Wadsworth and Patanjali Sastri, JJ. held that even though an execution petition is finally dismissed, an order in it that the decree should be executed would operate as constructive res judicata in subsequent proceedings. In Abdul Azeez Sahib v. Official Receiver : (1958)2MLJ526 Rajagopalan and Balakrishna Ayyar, JJ., took the view that an earlier order passed in the course of execution proceedings would operate as constructive res judicata at the later stage of the same execution proceedings. In Prem Lata v. Lakshman Prasad : [1971]1SCR364 the Supreme Court had to deal with the applicability of the principle of res judicata to execution proceedings. That was a case where the decree was transferred by the Subordinate Judge of Arrah for execution to Madras High Court. The matter was first heard by the Master of the High Court in Madras who held that the application for execution was barred by limitation. An appeal from the decision of the Master was heard by a single Judge of Madras High Court who held that the application was not barred by limitation. Letters Patent Appeal was heard by a Division Bench of Madras High Court. It upheld the judgment of the learned single Judge. The Supreme Court had to deal with the principles of application of Section 11 to execution proceedings. It was pointed out by the Supreme Court:

The principle of res judicata applies to execution proceedings. The judgment-debtors in the present case did not raise any objection as to limitation in regard to execution of the decree before the Civil Judge at Allahabad. On the contrary the judgment-debtors asked for setting aside the sale on the basis of revival of execution proceedings. The revival of execution was not challenged and the judgment-debtors are thereby barred by the principle of res judicata from questioning directly or indirectly the order dated 13th May, 1950, reviving the execution proceedings.

6. Learned Counsel appearing for the revision petitioner invited my attention to Raghunath Pradhani v. Damodara Mahapatra : [1979]2SCR196 That was a case where in execution of a' money decree, the immovable properties belonging to the judgment-debtor who was a member of the Scheduled Tribe was attached The decree-holder applied to the executing Court to obtain permission of the competent authority for sale of a property as the judgment-debtor to whom the property belonged was a member of the Scheduled Tribe. Such a permission was considered necessary by reason of the provisions contained in Clause 6 of the Orissa Scheduled Areas Transfer of Immovable Property by Schedule Tribes Regulation II of 1956, read with Rule 4 made thereunder. The judgment-debtor was in that meantime negotiating for private sale and he also obtained the requisite permission for safe of the property and sold the property to a third party by a registered deed of sale. The decree-holder produced a copy of the order passed by the competent authority in the executing Court whereupon the property was put to sale. The person who purchased this property from the judgment-debtor filed an application to set aside the auction sale on the ground that the attachment and auction sale were void as they were effected without obtaining the requisite permission and that the decree-holder bad played a fraud on the Court by inducing it to put the property to sale on the strength of the order which was passed by the competent authority at the instance of the purchaser. Their Lordships of the Supreme Court while disposing of the case on the question of res judicata observed thus:

No question of res judicata can arise because the basic issue in the appeal is as regards the validity of the auction sale in favour of respondent 2. The appellant claims through the judgment-debtor and neither the latter nor the decree-holder ever disputed that he, the judgment-debtor, was a member of the Scheduled Tribe. On the other hand, both of them were conscious of the situation that the property could not be sold without the sanction of the R.D.C. Nowrangpur. The decree-holder himself appraised the execution Court of that petition. The failure, therefore, of the judgment-debtor to raise any particular contention cannot operate as a res judicata actually or constructively, either against him or against the appellant.

7. It would thus be seen that the facts of that case have no relation to the facts of this case.

8. Thus, on a conspectus of the rulings referred to above, it would be seen, that if a judgment-debtor did not appear in answer to notice under Order 21, Rule 22, Civil Procedure Code, or if he appears and does not file any objections to that notice asking him to show cause as to why the decree should not be executed against him, the Court shall order the decree to be executed. Order 21, Rule 22, provides that the Court shall order the decree to be executed if the judgment-debtor does not show cause as to why the decree should not be executed against him. If the person against whom the decree is sought to be executed does not file an appeal against the order made against him, he cannot be permitted to contend at any subsequent stage of the execution proceedings that the order was not rightly made. The order passed by the Court under Order 21, Rule 23, Civil Procedure Code, will operate as res judicata in regard to the contention urged against the execution of the decree in answer to the notice under Order 21, Rule 22, Civil Procedure Code. That order must also operate as constructive res judicata regard to the contentions which the judgment debtor might and ought to have taken against the execution of the decree in answer to the notice under Order 21, Rule 22. In this case as the judgment-debtor appeared in Court in answer to the notice under Order 21, Rule 22 the petition was posted for filing counter on two occasions. The respondent stated that he has no counter to file Whereupon the executing Court posted the petition to enable the judgment-debtor to make payments and on the third occasion the judgment-debtor remained ex parte and further proceedings were ordered. The Court below was therefore correct in holding that the judgment-debtor cannot object to the execution of the decree at this stage. The civil revision petition fails and is dismissed. No costs.


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