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Ganapathy Mudali Vs. Minor Meera Sahib by Guardian Ismoil Sahib and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in121Ind.Cas.845
AppellantGanapathy Mudali
RespondentMinor Meera Sahib by Guardian Ismoil Sahib and ors.
Cases Referred and Pattamayya v. Pattayya
Excerpt:
execution of decree - objections to execution not put forward originally, whether, open later. - .....appeal the high court on the 20th november 1918, confirmed that view. during the pendency of the appeal the district court following a practice which has been condemned many times [see pattamayya v. pattayya 92 ind. cas. 782 : 50 m.l.j. 215; (1926) m.w.n. 262 : a.i.r. 1926 mad. 453 and muniswami mudali v. meenakshi ammal 106 ind. cas. 660 : 51 m. 244; (1927) m.w.n. 884 : 54 m.l.j. 154 : 27 l. w. 320 : a.i.r. 1928 mad. 215] 'recorded' the execution petition 'with permission to the decree-holder to renew.' on the 7th december 1922, the decree holder put in the present e.p. no. 21 of 1923, again asking for sale of the property and the judgment-debtors were served in person. only defendants nos. 4 and 6 put in any counter. on the 13th december, 1923 arguments were heard and the sale was.....
Judgment:

1. This appeal is presented in the following circumstances.

2. A decree for Rs. 17,000 and odd passed by the High Court on its Original Side dated the 20th September 1912, was transferred for execution to the Chingleput District Court on the 29th January, 1917 and the sale of certain property was asked for. The execution in that Court (under E.P. No. 40 of 1917 dated 28th February 1917) was opposed by tbe judgment-debtors on the ground that there had been no attachment of the property in execution. The District Judge on 28th November, 1917, overruled the objection on the ground that an attachment effected before judgment enured. On appeal the High Court on the 20th November 1918, confirmed that view. During the pendency of the appeal the District Court following a practice which has been condemned many times [see Pattamayya v. Pattayya 92 Ind. Cas. 782 : 50 M.L.J. 215; (1926) M.W.N. 262 : A.I.R. 1926 Mad. 453 and Muniswami Mudali v. Meenakshi Ammal 106 Ind. Cas. 660 : 51 M. 244; (1927) M.W.N. 884 : 54 M.L.J. 154 : 27 L. W. 320 : A.I.R. 1928 Mad. 215] 'recorded' the execution petition 'with permission to the decree-holder to renew.' On the 7th December 1922, the decree holder put in the present E.P. No. 21 of 1923, again asking for sale of the property and the judgment-debtors were served in person. Only defendants Nos. 4 and 6 put in any counter. On the 13th December, 1923 arguments were heard and the sale was ordered for the 20th February 1924. On that date a petition by the decree holder for leave to bid had not been disposed of and the sale was adjourned to the 27th February 1924. On that date, what are styled claim petitions were filed by several of the defendants and the sale was postponed until they had been disposed of. These have been heard on three preliminary points by the District Court and the execution petition has been thereon dismissed. The decree-holder comes up in appeal.

3. Now the first and the most obvious remark to be made is that the judgment debtors ought never to have been allowed to raise these preliminary points at all. They contain no new matter which could not have been made matter of objection by way of counter before the hearing on the 13th December, 1923, and heard at the time of the arguments on that date. This Court has laid it down more than once and in emphatic terms that judgment debtors objecting to proceedings in execution must state at the earliest opportunity all their objections to the execution and cannot be allowed to delay proceedings by putting their objections forward piece-meal at whatever time they think most convenient to themselves. The latest ruling on this point is in A A.O. No. 37 of 1928. If these judgment debtors did not put forward the present points at the hearing on the 13th December 1923, they cannot put them forward now. If they put them forward then, they were overruled. In either case, the order for sale passed by the Court on the 13th December, 1923, is a final order binding on the Court as much aa on the parties. It is not open to the Court to review that order on matterial which was available at the time it was passed. The three preliminary points treated by the District Judge are clearly points which could have been, and apparently were not, put forward on the 13th December 1923. Therefore they cannot be put forward now.

4. The first point is merely one of clerical omission. The 2nd is treated by the District Judge in a surprising way. If we understand him a right, he holds that because the judgment-debtors were ex parte in the earlier proceedings, although they were personally served, that somehow gives them the right to be heard later. The very fact that they were served in the earlier proceedings and did not choose to put forward their objections then, is sufficient ground for not allowing them to put them forward now. As to the 3rd objection, it is also on the merits untenable. There was no dismissal by the Court of B.P. No. 40 of 1917 for default of prosecution. Therefore, the attachment did not come to an end by virtue of Order XXI, Rule 57. The attachment before judgment, therefore, did not cease. [See the Full Bench ruling in Meyyappa, Chettiar v. Chidambaram Chettiar 79 Ind. Cas. 144 : 47 M. 483 : 46 M.L.J. 415 : 34 M.L.T. 118; (1924) M.W.N. 392 : A.I.R. 1924 Mad. 494]. The order of the District Court in E.P. No. 40 of 1917 already quoted clearly meant that a fresh execution petition would be a continuation of the previous one, [See Puttayya v. Puttanayya 84 Ind.Cas. 807 : 20 L.W. 585 : 47 M.L.J. 608 : A.I.R. 1925 Mad. 152; (1925) M.W.N. 298 : 35 M.L.T. 107 and Pattamayya v. Pattayya 92 Ind. Cas. 782 : 50 M.L.J. 215; (1926) M.W.N. 262 : A.I.R. 1926 Mad. 453 and the High Court has already held that the attachment before Judgment was sufficient. The point is really res judicata and unarguable, and we find it difficult to understand the judgment of the District Judge. We may note that the objection now taken under Order XXI, Rule 57 was not taken before him. Obviously the argument before him proceeded on the conceded position that E.P. No. 21 of 1923 was a continuation of the former petition.

5. The order of the District Judge must, therefore, be reversed. As he has dealt only with certain preliminary points in the claim petitions we cannot dispose of these petitions finally here. They must be sent back for disposal there, but that disposal must be on the lines already indicated, namely that the order for sale is final and binding on the Court and on the parties unless some fresh objection which was not available on or before its date is now put forward, by these petitioners. The appeal is allowed with costs and the case sent back to the District Court of for further proceedings.


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