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Durgamma, Legal Representative of Chinnabba Naidu Vs. D. Kamakshiamma - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1975)1MLJ280
AppellantDurgamma, Legal Representative of Chinnabba Naidu
RespondentD. Kamakshiamma
Cases ReferredPuttappaji v. Dodda Mallappa and Ors.
Excerpt:
- .....12 years from the date of the decree, was an appealable order or only an interlocutory order. the learned judge had no doubts on the question that the order was one which arose between the parties to suit and related to the execution of the decree and accordingly the requirements of section 47, code of civil procedure, were satisfied. but the learned judge proceeded to investigate whether the order satisfied the definition of. the word, ''decree' in section 2 (2), code of civil procedure which is defined to mean 'the formal expression of adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final'. the learned judge held that the.....
Judgment:
ORDER

S. Maharajan, J.

1. The Judgment-debtor has preferred this civil miscellaneous second appeal against the judgment of the Subordinate Judge of Kancheepuram allowing an appeal against the order of the District Munsif of Tiruttani in E. P. No. 242 of 1968 in S.C No. 253 of 1956. The respondent obtained a decree in S.C. No. 253 of 1956 against one Chinnabba Naidu and filed several execution petitions for recovery of the decretal amount, without being able to realise any amount. Meanwhile Chinnabba Naidu died and the appellant Durgamma was impleaded as his legal representative. As against the legal representative, the decree-holder filed E. P. No. 242 of 1968 and attached two items of proportion and brought the same to sale. Durgamma filed an application in E. A. No. 398 of 1967 claiming that these two items belonged to her in her own right and not to the original judgment-debtor. Her application was, however, dismissed and the properties were brought to sale on the 9th February, 1970 and purchased by a third party. Subsequently, at the instance of the decree-holder himself this sale was set aside on the ground that the judgment-debtor had no saleable interest in those properties as well as on the ground that the Court auction-purchaser had failed to deposit three-fourth share of the sale price. The sale was actually set aside on 30th March, 1970. On 9th April, 1970, that is to say, over 12 years after the date of the decree, the decree-holder filed an application in E. A. No. 260 of 1970 praying for substitution of two other items of properties in the main execution petition No. 242 of 1968. Notice of this application was issued and served upon the appellant who appeared by counsel in E. A. No. 260 of 1970 and applied for time for filing a counter. The said execution application stood posted to 1st July, 1970. But on that date no counter was filed. On 14th July, 1970, in the absence of any counter, the District Munsif allowed E. A. No. 260 of 1970 and directed that the two fresh items of properties be substituted in the main execution petition. The execution petition was amended in accordance with this order and a new schedule of properties was attached to the execution petition. The substituted properties were attached subsequently and a sale notice was issued to the appellant who appeared by counsel on 25th January, 1971 and filed a counter to the main execution petition. The main objection taken in the counter was that the amendment of the execution petition more than 12 years after the date of the decree was invalid and illegal and consequently the attachment of the fresh properties included in the schedule by virtue of the amendment and the proposidsale thereof was illegal. This objection found favour with the District Munsif, who dismissed the main execution petition No. 242 of 1968 on this ground. Thereupon, the decree-holder preferred A. S. No. 155 of 1971 to the Sub-Court, Kancheepuram. The first appellate Court disagreeing with the Court of first instance, found that the amendment allowed was not illegal and that the validity of the order of amendment could not be questioned by the appellant in the execution petition, because the judgment-debtor was barred by constructive res judicata from raising this objection. Consequently, the first appellate Court allowed the appeal and remanded the execution petition to the executing Court for the purpose of deciding another objection raised by the appellant to the effect that the properties substituted in the execution petition by the amendment were his separate properties and not the properties of the original judgment-debtor. It is against this judgment that the present second appeal has been filed.

2. Learned Counsel for the appellant contends that the order passed by the executing Court on 14th July, 1970 in E.A. No. 260 of 1970 allowing an amendment of E. P. No. 242 of 1968 was in the nature of an interlocutory order and that it was not necessary for the judgment-debtor to prefer an appeal against that order, but he could wait instead and raise the objection in the execution petition itself, when the substituted properties were actually attached. Learned Counsel went the length of stating that the order allowing the amendment was not an appealable order at all and that under Section 105 (1), Code of Civil Procedure the appellant could, in an appeal against the final order in the execution petition, set forth any error, defect, or irregularity in an interlocutory order affecting the decision of the case, as a ground of objection in the memorandum of appeal. As the respondent in this appeal did not enter appearance, I appointed Mr. Ramamurthi as amcius curiae and I must record with appreciation the assistance he had rendered the Court by citing the relevant rulings. In Veluthandi Beerankutty v. Ameth Mammu : (1936)71MLJ256 , Venkatasubba Rao, J., had to consider whether an order directing an amendment of the execution petition by including a fresh prayer for the attachment of the judgment-debtor's immovable properties after the expiry of 12 years from the date of the decree, was an appealable order or only an interlocutory order. The learned Judge had no doubts on the question that the order was one which arose between the parties to suit and related to the execution of the decree and accordingly the requirements of Section 47, Code of Civil Procedure, were satisfied. But the learned Judge proceeded to investigate whether the order satisfied the definition of. the word, ''decree' in Section 2 (2), Code of Civil Procedure which is defined to mean 'the formal expression of adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final'. The learned Judge held that the order allowing the amendment of the execution petition did not constitute final adjudication, conclusive as regards the Court expressing it, determining the rights of the parties. According to the learned Judge, the Court's decision was only in the nature of a finding and had the Court gone further and attached the property, the defendant would then have the right of preferring an appeal. Upon this reasoning the learned Judge held that the order allowing the amendment was incidental and interlocutory and not final. In this view the learned Judge held that no appeal lay against that order.

3. In Gopalaswami v. Sri T. Devasthanam : AIR1948Mad43 a similar problem came up for consideration before Rajamannar, J., as he then was : The learned Judge held that the order of the executing Court dismissing an application of the decree-holder to amend his execution petition is a decree and is appealable. The decision of Venkatasubba Rao, J., in Veluthandi Beerankutty v. Ameth Mammu : (1936)71MLJ256 , was brought to the notice of the learned Judge, who held as follows:

The view of the learned Judge that an order made under Section 47 would not be appealable if it was interlocutory in the sense that it allowed the execution petition to proceed appears to me to be untenable in view of the decision of the Bench in Rama Rao v. Sreeramamurthi : AIR1936Mad801 . It was there held that an order disallowing the plea that the execution petition was barred by limitation and adjourning the subsequent proceedings to a future date was an appealable order. The decision of the Division Bench has been also followed in subsequent decisions.

Even assuming that the test laid down by Venkatasubba Rao, J., in the above case were to be applied to the present case, I think it should be held that the order in question was appealable because the order definitely negatived the right claimed by the decree-holder which was the subject-matter of the amendment petition. There was therefore a final adjudication conclusive as regards the Court expressing it and determining the rights of the parties. It is as if a relief claimed by the decree-holder in execution had been finally refused to him. Such an order would clearly come within the meaning of 'decree' as defined in Section 2 (2), Civil Procedure Code.

I respectfully follow the views of the learned Judge and hold that the order of the executing Court directing the amendment of the execution petition by praying for attachment of the substituted properties was an order which was not interlocutory in nature but a final order answering to the description of a decree within the meaning of Section 2(2) of the Code of Civil Procedure. Once the amendment was allowed, it was as if the relief claimed by the decree-holder by way of executing the decree against the substituted properties was finally granted in his favour. All that remained for the decree-holder to do was to pay batta for attachment and sale of the substituted properties- It was open to the judgment-debtor to have opposed the amendment application. Had she opposed it, she might conceivably have succeeded in securing an order dismissing the amendment application, in which case the order of dismissal would have been a final adjudication conclusive as regards the Court expressing it and determining the rights, of the parties. If the dismissal of the amendment application would be a decree within the meaning of Section 2 (2) of the Code of Civil Procedure, the order allowing the amendment application would on the same reasoning be a decree.

4. The next question that arises for determination is, whether it was open to the appellant-judgment-debtor, who had failed to challenge the order in appeal, to raise the question at a subsequent stage of the execution proceedings, after the notice of sale of the substituted properties was served upon her. It is settled law that where an appealable order prejudicial to the judgment-debtor is passed, but the judgment-debtor failed to prefer an appeal against such an order, he would be barred from disputing the correctness of that order at a subsequent stage. As observed by Horwill, J in Puttappaji v. Dodda Mallappa and Ors. : AIR1944Mad420 .

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.

It is true that at the time the amendment petition was allowed, the judgment-debtor did not actually file a counter and raise the objection which she raised at a subsequent stage, but the judgment-debtor ought to have raised the objection, while the amendment petition was pending. She would therefore be barred by the principle of constructive res judicata from raising the same objection at a later stage of the execution proceedings.

5. The resulting position is that the first appellate Court was right in allowing the appeal against the order of the Court of first instance and remanding the matter to the first Court for the purpose mentioned in the first appellate Court's judgment. The Civil Miscellaneous Second Appeal consequently fails and will therefore stand dismissed. There will be no order as to costs.


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