Bhaskar Traders, Alavil vs Minikkipacha Kunhiraman

M.M. Pareed Pillay, J.—Revision petitioner is the judgment-debtor in E.P. 100 of 1983 in O.S. 390 of 1982 of the Munsiff Court, Cannanore, Revision petitioner filed E.A. 174 of 1984 in E.P. 100 of 1983 alleging that he is an agriculturist entitled to exemption u/s 60(1)(c) of the Civil P. C. That contention was rejected by the executing Court mainly on the ground that such on objection was raised only when the property was proclaimed for sale and after it was adjourned on several occasions on his application. The Court also held that the attempt is to procrastinate the execution proceedings.

Learned counsel for the cession petitioner submitted that even though the petitioner did not contend that he is entitled to exemption u/s 60(1)(c) when he received the notice of attachment he still can very well urge it when the property is brought for sale.

The point that arises for consideration is whether the judgment-debtor can advance his contentions piece-meal and at different stages of the execution proceedings. Counsel for the petitioner relied on Kannan v. Govindan, 1962 KLT 675; for the proposition that a judgment-debtor can very well contend that he is entitled to exemption u/s 60(1)(c) at the time when property is brought to sale even though he failed to raise it when he received the notice of attachment. Facts of the case in 1962 KLT 675 have no application to the case in hand. In Kannan''s case, 1962 Ker LT 675 this Court was not satisfied- that by serving a notice for recognising the assignment and for execution of the decree, the judgment-debtor was given notice of attachment of a particular property. In the above decision it was held in paragraph 4 as follows :

"Unless there is more evidence to prove that the copy or copies served on him were the attachment schedule and other paper which give him sufficient notice of the intended attachment of a particular property, he should not be held to be debarred from raising his objection to the attachment even in a subsequent execution petition,"

In the case" in hand the position is entirely different, The petitioner has no case that he did not receive any notice of attachment or that he was prevented by sufficient circumstances to raise his contention that the property was not attachable in view of Section 60(1)(c) of the Code.

Explanation VII to Section 11 was inserted by the C.P.C.. Amendment Act of 1976 Explanation VII reads :

"The provisions of this Section shall apply to a proceeding for the execution of a decree and reference in this Section to any suit issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree question arising in such proceeding and a former proceeding for the execution of that decree.

Explanation VII specifically enacts that Rule of res judicata applies to execution proceedings. That being the position it is futile to contend that the petitioner could claim exemption u/s 60(1)(c) even though he did not urge it when he received notice of attachment.

First proviso to Section 60(1) enumerates various categories of properties that are hot liable to attachment or sale. When a property is attached and notice is issued to the party concerned it is for him to claim exemption under any of the categories detailed in the first proviso then and there. As the petitioner did not raise his objection at the time when he received the notice of attachment he is precluded from raising such an objection subsequently. Explanation IV to Section 11 postulates that any matter which might and ought to have been made a ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. As the petitioner did not raise his objection at the time when he received the notice of attachment as he "might and ought" to have done, he is precluded by Explanation IV to Section 11 C.P.C. From Raising Such An Objection Subsequently By The rule of constructive res judicata. Even before Explanation VII was added that was the position. As Explanation VII has been added by the C. P. C. (Amendment) Act of 1976 the irrefutable position is that Section 11. C.P.C. applies with all vigour to execution proceedings also,

The Supreme Court in Arjun Singh Vs. Mohindra Kumar and Others, has clearly laid down that the scope of principle of res judicata is not confined to what is contained in Section 11 but is of more general application, Even before Explanation VII was added the position was that the principle of res judicata can be attracted to the proceedings taken at different stages in a particular suit or execution proceedings. Thus the position is that if in spite of service of notice of attachment the petitioner failed to raise the contention that he is entitled to exemption u/s 60(1)(c) he cannot obviously raise the very same contention at a later stage when the property has been brought to sale.

In Mohanlal Goenka Vs. Benoy Krishna Mukherjee and Others, , the Supreme Court held that the principle of constructive res judicata is applicable to execution proceedings is no longer open to doubt. Reference is made to Annada Kumar Roy and Another Vs. Sheikh Madan and Others, ) by the Supreme Court. In the above case an application was made by a certain person for execution of a decree and no objection was raised that the decree was not maintainable. It was held that no further objection on the score of maintainability of a fresh application for execution on the part of the same applicant could be raised. Thus the indubitable position is that even before Explanation VII was added constructive res judicata applied to execution proceedings. After the insertion of Explanation VII to Section 11 it can be said with certitude that Section 11 applies to execution proceedings as well. That being the position, the failure to raise at the first opportunity the contention that the property is not liable to be attached in view of Section 60(1)(c) of the Code precludes him from urging it at the fag end of the execution proceedings when the property is brought to sale. Defendant cannot whimsically and capriciously raise his contentions in utter disregard of the law of procedure. It is also significant to note that the property was proclaimed for sale on 8-2-1984 and the sale was being adjourned on several occasions on the motion of the petitioner. As the petitioner''s contention is barred by constructive res, judicata the executing Court was perfectly justified in rejecting the execution application.

The C.R.P. is devoid of any merit and hence the same is dismissed. There is no order as to costs.