Bhan Kumar Chand and Another vs Ajhodhya Prasad Singh and Others

Agarwala, J.—Plaintiffs 1 to 4, plaintiffs 5 to 8 and defendants 3 to 7 were respectively the members of three branches of a joint Hindu family. Defendant 3 executed two mortgage bonds in December 1923, and May 1924, respectively, in favour of defendants 1 and 2. In 1929 the mortgagees sued on their mortgage impleading both sets of plaintiffs and defendants 3 to 7. Defendants 4 to 7 were the minor sons of defendant 1. The general defence to the suit was that the mortgage did not bind the family because the executant had no power to act on behalf of the family and the loan was not contracted for family necessity. The special defence of the two sets of plaintiffs was that there had been separation in the family in 1925. On 27th January 1931, the Court passed a decree for money ex parte against defendant 3 The suit was dismissed as against both sets of plaintiffs. The sons of defendant 3 were declared to be liable to the extent of their interest in the joint family property. It may be mentioned that by the partition a mukarrari interest in two villages had been allotted to defendants 3 to 7 as their share in the family properties. The decree-holders took out execution of the decree, and, on 20th May 1931, two claim cases were filed: one, No. 30 of 1931 by plaintiffs 1 to 4, and the other, No. 31 of 1931 by plaintiffs 5 to 8. In each of these claim cases the applicants alleged that the property attached by the decree-holders in execution of their decree included property belonging to the applicants and not belonging to the judgment-debtors, defendants 3 to 7. On 13th February 1932, claim case No. 30 of 1931 was dismissed for default. Claim case No. 31 of 1931 was allowed on 20th April 1932.

On the same day an application for restoration of claim ca3e No. 30 of 1931 was made by plaintiffs 1 to 4. This application was dismissed on 16th July 1932, on the ground that Order 9, Rule 9 does not apply to execution proceedings. The execution proceedings continued. On 17th January 1933 both sets of plaintiffs instituted the suit which has given rise to this appeal, for a declaration that certain of the properties attached in execution of the decree passed against defendants 3 to 7 were not liable to attachment and sale in execution of that decree. The decree-holders and defendants 3 to 7 were impleaded in the suit. The plaint alleged that as no partition deed had been prepared at the partition of 1925, such a deed had been subsequently executed and registered in August 1931. It was stated that by this deed the former partition was confirmed, but that some of the properties which had been allotted to plaintiffs 1 to 4 at the partition of 1925 had now been allotted to plaintiffs 5 to 8 and that some of the properties which had been allotted to plaintiffs 5 to 8 by the partition of 1925 had now been allotted to plaintiffs 1 to 4. There can be no doubt that the object of the re-distribution of property between the two sets of plaintiffs was to meet the difficulty that had arisen by the claim case of plaintiffs 1 to 4 having been dismissed. By allotting to plaintiffs 1 to 5 properties which had been the subject matter of that claim case it was sought to enable them to object successfully to the sale of those properties in execution of the decree.

Those properties however were under attachment in August 1931. The suit was found by the learned Subordinate Judge to be not maintainable for the reasons that the matter in dispute between the parties was a matter relating to the execution of the decree, that both sets of plaintiffs were parties to the suit in which that decree had been passed and that Section 47, Civil P.C. was a bar to the suit. The learned Subordinate Judge, however, treated the plaint as an application u/s 47, and held that properties allotted to the plaintiffs by the partition are not liable to sale in execution of the decree against defendants 3 to 7. Defendants 1 and 2 have preferred this miscellaneous appeal against the decision of the learned Subordinate Judge. Substantially the question that falls for decision is whether the dismissal for default of claim case No. 30 of 1931 debars the plaintiffs from raising again the question which it was sought to raise in that application, viz., the liability to sale of those items of property which, in that claim case, plaintiffs 1 to 4 claimed to have been allotted to them at the partition. The learned advocate for the appellants relies on the decision of the Court in Jago Mahton v. Khirodhar Ram 1924 Pat 122, where it was held that a judgment-debtor, whose objection to execution on the ground that the application for execution was barred by limitation, has been dismissed for default, is not entitled, on a subsequent application for execution, to object that the previous application was time-barred. There are other decisions to the effect that a party who has been defeated at one stage of a litigation is not entitled, either by reason of the rule of constructive res judicata or by reason of the general policy of the law, to re-agitate the same question at a subsequent stage. The learned Court below however has relied on a decision of the Calcutta High Court in Akhoy Kumar Kar v. Krishna Chandra 1932 Cal 569. That was a case where objections of a judgment-debtor had been dismissed for default, and, the question then arose whether the same objection could be agitated in subsequent execution proceedings. With regard to this contention, the learned Judges observed:

So far as res judicata is concerned, there have been cases in this Court in which it has been held that where objections of a judgment-debtor have been dismissed not on their merits but upon the ground that the judgment-debtor was in default, the dismissal of such objections would not be a bar to the judgment-debtor taking the same objections in subsequent execution proceedings. If that be so, it is somewhat difficult to urge that any different view should apply with regard to objection of this character which may be taken at a subsequent stage of the same execution proceedings. On the other hand the difficulty of applying this proposition in such a case is very great, because then it would be open to the judgment-debtor to come up -with the same objection as often as it has been dismissed for default. One thing however is quite clear and it is this: that the doctrine that a decision at one stage of the execution proceedings cannot be questioned at a later stage of the proceedings proceeds not upon any ground of res judicata u/s 11, Civil P.C., but upon general principles of law, for if it were not binding there would be no end of litigation.

It is quite clear from the passage just read that the Bench of the Calcutta High Court, which was considering the question, was opposed to the view that it was open to a judgment-debtor to raise at a later stage of the execution proceedings objections which were raised at an earlier stage and which were dismissed on account of the judgment-debtor''s default. But in the particular case which their Lordships were considering, they came to the conclusion that the first objection of the judgment-debtor had not been disposed of in a satisfactory manner and they therefore remanded the case to the Court below for a reconsideration of the original objection preferred by the judgment-debtor. In the case that is before us, the registered partition deed on which the plaintiffs now rely were executed in August 1931. Their claim case was not disposed of until 13th February 1932. No attempt was made in the interval between the execution of the deed and the disposal of the claim case to place the terms of the deed before the Court. The claim case has been rightly held by the Court below to have been in fact an application u/s 47, Civil P.C., and the correctness of that decision is not in question before us. The plaintiffs therefore on the dismissal of their claim case had a remedy open to them by way of an appeal from the order u/s 47. That remedy they did not avail themselves of. Being of opinion that the judgment-debtors are not entitled to re-agitate the question which had already been raised in the previous application, I would set aside the order of the Court below and allow this appeal with costs of this Court.

Varma, J.

I agree.