1. This appeal arises in execution, and raises a question of the application of the principle of res judicata. The appellant, who is the decree-holder applied in execution to sell the properties which he alleged were included in his decree. Amongst them was a certain site on which stands a school building, and to this property the respondent who was defendant 31 in the suit lays claim. Sale was ordered and notice of the proclamation of sale issued under Order 21, Rule 66 to the respondent. In response to this notice respondent filed objections contending that the site in question was not included within the boundaries of the property with which the decree dealt, and also that in any case the school building was an improvement for which he had to be paid. On the day of hearing, however, the respondent made no attempt to substantiate these contentions, and sale was ordered to be held on 27th February, 1935. There was no sale on that day. A fresh proclamation was ordered on 1st March, fixing 5th June, as the date of the sale. On 4th June, respondent applied under Section 47 of the Code of Civil Procedure for an order excluding the property now in dispute from the sale. This application was dismissed by the learned District Munsif of Chowghat on the ground that the matter in issue was res judicata. On appeal the learned Subordinate Judge of Ottapalam reversed this finding and gave a declaration that respondent is not debarred from proving in later proceedings that he is entitled to be compensated for his improvements. It is against this order that the present appeal has been filed.
2. The reason given by the learned Subordinate Judge for allowing the appeal before him is one which cannot be supported, and has not been supported in the arguments before me. He says in effect that in law the respondent's claim to have his improvements exempt from sale in this suit was unanswerable, and that therefore he need have paid no attention to the notice served upon him. This appears to mean that if a party has a good point of law to raise, he need not raise it, but can rely; upon the omniscience of the Court--and it ignores altogether the elementary principle that a decision may be res judicata whether it be right or wrong.
3. The question then arises whether the learned Subordinate Judge's decision can be supported on any other ground. I do not think it can. No-doubt this case does not fall strictly; within the provisions of Section 11 of the Code of Civil Procedure but as the Privy, Council has pointed out (see Ram Kirpal v. Rup Kuari (1883) L.R. 11 IndAp 37: I.L.R. 6 All. 269 (P.C.), and Hook v. Administrator-General of Bengal (1921) 40 M.L.J. 423 : L.R. 48 IndAp 187 : I.L.R. 48 Cal. 499 (P.C.),) the provisions of Section 11 are not exhaustive, and the principle of res judicata can be extended to cases which do not fall strictly within their terms. No doubt also there is no direct authority for the application of the principle to a subsequent stage of the same execution application but cases like the present in which negligence at the stage of settling the sale proclamation is followed by reawakened activity before the sale is actually held are certain to be rare; and I can see no logical reason why a decision which would be final if the sale were not held, and a fresh execution application were filed should not be equally final in the circumstances of this case.
4. The question to my mind really depends upon the nature of the decision. Is it a decision which would be final if not appealed against? Some matters which a Court decides in approving a sale proclamation are of course administrative only--others cannot from their nature be res judicata. If for instance, there is a personal decree against A and the decree-holder applies to sell certain property on the ground that it belongs to A, the Court may hold that he may do so, but if that sale is not held, and a subsequent application is filed it is obviously open to an assignee from A to contend that after the assignment the property is no longer saleable. That is to say, the decision is merely one that property is saleable in particular circumstances and at a particular time. But the decision to sell the present property is one which would clearly be binding upon an assignee. It goes to the root of the construction of the decree. The decree provides that certain property may be sold. If this property comes within the description of the property specifically covered by the decree it must be sold. Similarly the question whether compensation is payable to the respondent must depend upon the construction of the decree. On these questions of title it cannot seriously be denied that the respondent had the right of appeal (see Thoppai Vedaviasa Aiyar v. Madura Hindu Ldbha Nidhi Co., Ltd. : AIR1924Mad365 . He has not appealed and in approaching the executing Court itself with a petition under Section 47 has misconceived his remedy. Cases are numerous in which a decision on the construction of a decree has been held to be res judicata. (See Kondama Naidu v. Venkalakshmi (1911) 10 I.C. 632, Subbarama Aiyar v. Nagammal : (1901)11MLJ432 , Ram Kirpal v. Rup Kuari (1883) L.R. 11 IndAp 37 : I.L.R. 6 All. 269 (P.C)).
5. Respondent's learned advocate relies upon Subramania Aiyar v. Raja Rajeswara Dorai alias Muthuramalinga Sethupathi I.L.R.(1916) Mad. 1016, but I find nothing in that case which assists him The learned Judges who decided it point out that though caution should be used in applying the principle of res judieata to execution proceedings the Judicial Committee has pointed out that 'parties should not be allowed to agitate the same question after it has once been decided'; and they base their judgment in the case on the fact that the judgment-debtors there had no notice that execution was proceeding against any particular item of property. In the present case the title to the property in dispute was directly in issue.
6. I am of opinion therefore that the decree of the learned Subordinate Judge must be set aside and the decree of the learned District Munsif restored dismissing respondent's application with costs throughout.
7. Leave granted.