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Shanmugavelu Pillai Vs. Karupannaswami Pillai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberLetters Patent Appeal No. 42 of 1951 and C.M.P. No. 3774 of 1954
Judge
Reported inAIR1954Mad1070
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 and 47 - Order 21, Rule 53; Madras Practice Civil Rules - Rule 178;
AppellantShanmugavelu Pillai
RespondentKarupannaswami Pillai
Appellant AdvocateK.S. Ramabhadra Iyer and ;S. Thyagaraja Iyer, Advs.
Respondent AdvocateS. Rajaraman, Adv.
Cases ReferredPandla Naicker v. Kamaraja Pandia Naicker
Excerpt:
civil - res-judicata - sections 11 and 47 and order 21 rule 53 of code of civil procedure, 1908 and rule 178 of madras practice civil rules - whether execution petition can be barred by constructive res-judicata - condition precedent in order to apply principle of constructive res-judicata is finality of proceedings - judgment debtor not allowed to protect claim by forwarding objections in piecemeal - proprietory of order passed at one stage cannot be challenged at another stage by overruling objections - in view of legal position order passed at previous stage operates as res-judicata in execution proceedings of same decree. - .....of the supreme court in -- 'mohanlal v. benoy krishna' : [1953]4scr377 and the several bench decisions of this court. it is now well established that if an order to execute is passed in an execution petition the court is deemed to have 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 other proposition that objections as to the amount of the decree can be raised in later execution proceeding, though they were not raised in prior execution proceedings and that there can be no constructive 'res judicata' as to the amount due under a decree by reason of the failure on the part of the judgment-debtor to object at an earlier stage in.....
Judgment:

Umamaheshwaran, J.

1. This appeal is brought by the 53rd defendant in O. S. No. 86 of 1921, Sub Court, Madurai, as against the judgment and order of Chandra Reddy J. in C. M. A. No. 124 of 1947 confirming the Judgment and order of the Subordinate Judge Of Madurai, in E. A. No. 393 of 1946 in E. P. No. 101 of 1945 in O. S. No. 86 of 1921. In E. P. No. 291 of 1943 in O. S. No. 288 of 1933 on the file of the District Munsif's Court, Madurai Town, the decree tor costs in O. S. No. 83 of 1921 was brought to sale, and the respondent herein who became the court auction-purchaser applied for execution of the decree for costs in E. P. No. 101 of 1045 and the appellant herein who was the only contesting respondent filed his objections on 11-9-1945. The right of the respondent to execute the decree was recognised on 8-10-1945. When the immoveable properties belonging to the appellant were attached on 15-10-1945, a claim petition was filed by the appellant's wife setting up her title to the properties. The claim petition was allowed, holding that she had a life interest in the properties attached.

The respondent thereafter sought to bring the vested remainder of the appellant to sale. The appellant filed objections on 23-1-1946 stating that he had no Interest in the attached properties. On 36-1-1946, the Court passed the following order:

'The only objection is that the Judgment-debtor has no interest. If so, he will not be affected by the sale and indeed he will stand only to gain by the property of somebody else being sold to discharge his liability. There is no other objection stated by the learned counsel. Proclaim and sell on 11-3-1946.'

On 19-8-1946 the appellant herein filed E. A. No. 393 of 1946 in E. P. No. 101 of 1945 praying that the Court may be pleased to receive his statement raising further objections and dismiss the execution application. The main objection sought to be raised was that the respondent acquired no rights under the court sale as the decree for costs in O. S. No. 88 of 1921 could not be brought to sale in execution of the decree in O. S. No. 288 of 1933, District Munsif's Court, Madurai Town, under Rule 178 of the Civil Rules of Practice. The respondent herein opposed the application on the ground that the petitioner was barred by constructive 'res judicata' from seeking to reopen the order made on 8-10-1945 recognising his right to execute the decree and that the court sale was not prohibited by law.

2. The Subordinate Judge, Maduraf, dismissed the application on the ground that as his objections were heard and execution was permitted to proceed by order dated 26-1-1946, he was not entitled to raise further objections to the execution. On appeal, Chandra Beddi J. confirmed the judgment of the Subordinate Judge upholding the plea of constructive 'res judicata'. On the question as to whether the court sale was prohibited under Rule 178 of the Civil Rules of Practice, no finding was recorded by the learned Subordinate Judge or by Chandra Reddi J. The appeal is filed under Clause 15 of the Letters Patent by the judgment debtor against the decision of Chandra Reddi J.

3. The learned advocate for the appellant raised two contentions, namely, that the decree for costs against him in O. S. No. 88 of 1921 being a money decree could not be brought to sale under Rule 178 of the Civil Rules of Practice in execution of O. S. No. 268 of 1933 and that the sate was void and conferred no rights on the court auction-purchaser, the respondent herein, and that the principles of constructive 'res Judicata' do not apply in respect of orders passed in the course of the same execution proceedings and so long as the decree is not executed and satisfied. Rule 178 of the Civil Rules of practice runs in the following terms:

'No decree shall be ordered to be sold in execution of another decree.'

The learned advocate for the appellant relied upon the decisions in -- 'Tiruvengada Chari v. Vythi-linga Pillai', 6 Mad 418 (A); -- 'Vithaldas Prabhu v. Subraya Manjappa', : AIR1921Bom127 (B) and -- 'Domi Lal Sahu v. Bijoy Prasad Singh', : AIR1932Pat349 (C) in support of his contention. What has been held in those decisions is that a money decree cannot be sold in execution and that the procedure laid down under Order 21, Rule 53, C. P. C., namely, that either the creditor who had attached the decree or his judgment-debtor should proceed to execute the attached decree and apply the net proceeds in satisfaction of the decree sought to be executed, should be followed.

4. In -- 'Subbaraya Rawthu Minda Nainar v. Kuppusami Aiyangar', 34 Mad 442 (D) a Bench of this Court had to consider whether sale held in contravention of Rule 184 of the Civil Rules of Practice, 1902, corresponding to Rule 178 of the present Rules and Section 273, C. P. C. of 1882 corresponding- to Order 21, Rule 53, C. P. C., was void. Reliance was placed on the decision in -- '6 Mad 418 (A)' and it was distinguished in the following terms:

'No doubt in -- '6 Mad 418 (A)' the facts of which were similar to the present case, the objection to the execution which was upheld was raised by the Judgment-debtor, but the question whether he was competent to raise such an objection in the absence of any objection on the part of the person whose decree was sold was not argued before his learned Judges nor considered by them.'

It was held by the Bench that Section 273 was a mererule of procedure and that Rule 184 merely embodiedthe effect of that section and that that did notaffect the provisions of Section 266.

They observed:

'I think that it would be extending the application of Section 273 beyond all reasonable limits if we were to hold that it was the effect of rendering the sale of a decree for money held in execution altogether invalid and without jurisdiction. On the other hand it seems to be unreasonable that where no objection is raised to such a sale by the holder of the decree or his creditorwho in 'this case has in fact brought about thesale, it should be open to the judgment-debtorunder that decree to raise any objection.'

We respectfully agree with the reasons given inthat judgment and hold that the enactment of the Civil Procedure Code of 1908 has in no way affected the correctness of that Judgment.

The provisions of Order 21, Rule 53 and Rule 178 of the Civil Rules of Practice are intended only for the protection of the holder of the decree sought to be sold or the person seeking execution against it. The judgment-debtor under the decree which is proceeded against has in any event to satisfy the judgment outstanding against him, and it can make no difference to him as to who puts it in force, so long as he has not to pay twice & whatever equities he has against his judgment-creditors are safeguarded.

No objection whatsoever was taken by the decree-holder in O. S. No. 86 of 1921 to his decree being brought to sale. The Judgment-debtor, that is, the appellant herein, is in any event liable to pay the costs as per the decree in O. S. No. 86 of 1921. Following the decision in -- '34 Mad 442 (D)' we hold that it is not open to the appellant herein to question the validity of the sale, or the right of the respondent to execute the decree by virtue of his rights as a court auction-purchaser. We follow the decision in -- '34 Mad 442 (D)', in preference to the decision in -- '6 Mad 418 (A)' which has been rightly distinguished. We do not agree with the decisions in -- ' : AIR1921Bom127 (B)' and -- ' : AIR1932Pat349 (C)'.

5. The learned advocate for the appellant relied upon the decision in --'Venkataswamy v. Venkataramana Rao' : AIR1934Mad692 , as supporting his contention that his client was entitled to attack the validity of the sale. In that case, the objection to the sale under Rule 178 of the Civil Rules of Practice was raised before the sale took place. The decision in -- '34 Mad 442 (D)' was distinguished in the following terms:

'It is clear from the circumstances of the case that the objection which was held to be unreasonable was taken by the Judgment-debtor after the sale was over and not before the sale, as in the present case. In the context the question that was considered by the learned Judge was not whether the attached decree could be sold but the sale having taken place the irregularity of the procedure made the sale altogether invalid and without Jurisdiction. In the present case, the sale of the attached decree has not taken place and we see no reason why before the sale the Judgment-debtor should not be allowed to take objection to its saleability in view of Rule 178 of the Civil Rules of Practice.'

This decision docs not therefore touch the point or affect our conclusion as the sale had already taken place and the respondent had become the purchaser. The learned advocate for the respondent drew our attention to the decision of a single Judge, in -- 'Chathu Nayar v. Janaki Amma', AIR 1946 Mad 251 (D, where the facts are 'ad idem', and the learned Judge following the decision in -- '34 Mad 442 (D)' held that the sale could not be regarded as void or inoperative, and we agree with that decision. There is, therefore, no substance in the first contention of the learned advocate for the appellant.

6. The next contention raised by the learned advocate for the appellant was that the order passed on 26-1-1946 'Proclaim and sell' after overruling his objections was not an appealable order and that as E. P. No. 101 of 1945 was still pending, it was open to him to raise the objection at a later stage that the petitioner (the respondent herein) was not entitled to execute the decree and that the principle of constructive 'res judicata' did not therefore apply to this case. In the counter-affidavit filed by the respondent herein, he pleaded that the order made on 8-10-1945 recognising his right to execute the decree after overruling the appellant's objection operated as 'res judicata'. The Privy Council decision in --'Raja of Ramnad v. Velusami Tevar', AIR 1921 PC 23 (G) concludes the point. The observations of Lord Moulton clinch the matter.

They are as follows:

'Their Lordships are of opinion that it was not open to the learned Judge to admit this plea. The order of the 13th December 1915* is a positive order that the present respondent should be allowed to execute the decree. To that order the plea of limitation if pleaded, would according to the respondent's case, have been a complete answer, and therefore it must be taken that a decision was given against the respondents on the plea. No appeal was brought against that order and therefore it stands binding between the parties. Their Lordships are of opinion that it is not necessary for them to decide whether or not the plea would have succeeded. It was not only competent to the present respondents to bring the pleas forward on that occasion, but it was incumbent on them to do so if they proposed to rely on it, and moreover it was in fact brought forward and decided upon.'

So, there can be no doubt that the plea raised by the respondent in paragraph 2 of the counter-Affidavit is well founded and conclusive as to the non-maintainability of the application.

7. But the learned advocate for the appellant rightly contended that both Chandra Reddy J. and the Subordinate Judge did not consider whether the order dated 8-10-1945 operated as 'res judicata' and that his application ought to be dismissed on the ground raised in the counter-affidavit. He contended that the order dated 26-1-1946 did not operate as 'res judicata' as held by the learned Judge & the Subordinate Judge. We do not agree with this contention also. A number of authorities were cited by the learned advocate for the appellant on the question as to how for constructive 'res judicata' is applicable to execution proceedings. It is unnecessary to deal with all of them in detail having regard to the latest pronouncement of the Supreme Court in -- 'Mohanlal v. Benoy Krishna' : [1953]4SCR377 and the several Bench decisions of this Court. It is now well established that if an order to execute is passed in an execution petition the Court is deemed to have 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 other proposition that objections as to the amount of the decree can be raised in later execution proceeding, though they were not raised in prior execution proceedings and that there can be no constructive 'res judicata' as to the amount due under a decree by reason of the failure on the part of the judgment-debtor to object at an earlier stage in the execution proceedings to figure claimed in the execution petition is also settled by a series of decisions of this Court. In ' : [1953]4SCR377 ', Ghulam Hasan J. reviewed several Privy Council decisions and held:

'That the principle of constructive 'res judicata' is applicable to execution proceedings is no longer open to doubt.'

In -- 'Venkatranga Reddi v. Chinna Sithamma', AIR 1941 Mad 440 (I) Wadsworth and Patanjaii 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. The Bench examined the reasoning in the Pull Bench case in -- 'Gendalal v. Hazari Lal' : AIR1936All21 and ultimately expressed their dissent from it. They refused to apply the proposition laid down by Sulaiman C. J. that it is only where the previous application for execution became 'fructuous' that the judgment-debtor would be precluded from questioning the validity of the application.

This Bench decision was followed by a single Judge of this Court in -- 'S. C. Puttappaji v. Mallappa' : AIR1944Mad420 the facts of which are 'ad idem' with the present case. We also hold that the words 'Proclaim and sell' in the order dated 26-1-1946 were appealable under Section 47, C. p. c., and that the appellant not having raised any objection that the respondent acquired no rights under the court sale and had consequently no right to execute the decree is precluded by the principle of 'res judicata' from putting forward that objection at a later stage of the execution proceedings. A number of decisions of the Allahabad High, Court were cited by Mr. K. S. Bamabhadra Aiyar, the learned advocate for the appellant. We do not agree with the view of the Allahabad High Court and we prefer to follow the decisions of this Court. The decision in -- 'Aley Rasul v. Seth Balakishan', : AIR1937All446 (L) no doubt supports the contention of the learned advocate for the appellant. But we express our dissent therefrom and we do not agree with the observations therein, viz.:

'In the absence of express adjudication, and during the pendency of the same execution petition, there is nothing to prevent the judgment-debtor from taking any objection which might have been taken on the earlier occasion, but was not taken.'

The essential principle underlying the doctrine of 'res judicata' is that there should be finality of proceedings. The judgment-debtor ought not to be permitted to protract the execution proceedings indefinitely by putting forward objections piecemeal. The Bench decision in -- 'Dorayya v. Veerayya', AIR 1919 Mad 888 (M) is a clear authority for the proposition that the propriety of an order passed at one stage after overruling objections cannot be questioned at another stage in the execution petition. In the Privy Council decision in -- 'Ramkirpal v. Rup Kitari', 6 All 269 (N) the order that was held to operate as 'res judicata' was passed in a previous stage of the proceedings for execution of the same decree. There is therefore no substance in the contention that an earlier order passed in the course of the same execution proceedings would not operate as constructive 'res judicata' at a later stage of the same execution proceedings. The argument of the learned advocate for the appellant that while an order passed in an earlier execution application would operate as constructive 'res judicata' if a separate application is filed, it would not so operate if it is in the course of the same execution proceedings, is unsound and untenable.

8. There is only one more decision which was referred to on this aspect of the case, and which remains to be considered, namely, the decision of a single Judge of this court in -- 'Appayya v. Venkataratnam' : AIR1954Mad1 . Though the learned Judge was bound to follow the Bench decision in -- 'AIR 1941 Mad 440 (I)', he preferred to follow the Full Bench decision of the Allahabad High Court in : AIR1936All21 which was expressly dissented from by the Bench, and refused to grant leave to appeal under Clause 15 of the Letters Patent. A single Judge of a High Court is bound to follow the Bench decision of that Court in preference to the decisions of other Courts, whether of a Division Bench or a Full Bench, and if in his opinion, the Bench decision requires reconsideration, the proper course is to place the papers before the Chief Justice for constituting a Full Bench and considering the correctness of the Bench decision. We hold that the learned Judge was wrong in laying down that

'it will be inequitable to apply in toto the provisions of Section 11, C. P. C., to execution proceedings as Section 11 has been expressly enacted and confined to suits alone'

and that the principle of constructive 'res judicata' did not apply to the facts of the case.

We are also of the opinion that when the question involved in the second appeal was as to whether the view of the Pull Bench of the Allahabad High Court or the view of the Bench of this Court was right, and when he followed the Full Bench decision of another Court, he ought to have granted leave to appeal under Clause 15 of the Letters Patent. Though the discretion to grant leave to prefer a Letters Patent appeal as against the judgment of a single Judge is one vested in the presiding Judge it is still a judicial discretion which should be properly exercised, and especially when there is a conflict of authority or when the question involved is a pure question of law, leave ought a be granted, irrespective of the view which the particular Judge might take.

9. The learned advocate for the appellant also drew our attention to the same decision in --'Pandla Naicker v. Kamaraja Pandia Naicker', AIR 1933 Mad 500 (P), in support of the contention that the order dated 26-1-1946 was not appealable and that consequently that order ought not to be held to operate as constructive 'res judicata'. That decision has really no application to the facts of the present case, as it was held therein that no final order had been passed in execution by the learned Subordinate Judge, though he overruled the two legal objections. We have no doubt that if the properties are directed to be proclaimed and sold as has been done in this case, the order is appealable under Section 47, C. P. C.

10. In the result, we hold that both the objections raised by the learned advocate for the appellant failed and the appeal is dismissed with costs.

11. C. M. P. NO. 3774 of 1954 is not pressed and is dismissed.


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