Bindraban Kundan Lall vs Gauri Shankar Walaiti Ram and Others

Teja Singh, C.J.—This second appeal is directed against the order of the Dist. J., Barnala whereby he dismissed the decree-holder''s appeal from the order of the executing Ct. holding that the execution appln. was barred by time. The facts may be briefly stated.

A decree for Rs. 1200 with costs was passed in favour of the decree-holder on 28-4-1986. It appears that several execution applns were sued out & the last of them was dismissed on 8-2-1998. The present execution appln. was put in Ct. on 2-2-1997. A notice to the judgment-debtor under Order 21, Rule 22, CPC was ordered to be issued for 4-3-1997. For some reason or the other this could not be done & the hearing of the appln. was adjourned first to 25-4-1997 & then after some other dates to 22-7-1997. The record shows that the notice foe 22-7-1997 was personally served upon the judgment debtor on 10-6-1997 but he did not put in appearance on that day. The Ct., after recording that the judgment-debtor was absent inspite of service ordered warrants to issue for the attachment of his property & directed the decree-holder to put in process-fee. The order dated 30-12-1997 shows that several houses purporting to be the property of the judgment-debtor were actually attached. On this Walaiti Ram, father of the judgment-debtor put in objections under Order 21, Rule 58, CPC for the release of the houses alleging that they belonged to him & the judgment-debtor had no right title or interest therein. The objection was dismissed on 24-9-1998. Walaiti Ram then brought a regular suit for a declaration of his title in the houses. It is not denied that the judgment debtor was a party both to the objections & the suit. The suit was also dismissed on 30-8-2000. The appeal by Walaiti Bam against the order of the Ct. dismissing his suit also failed. The date of the final order in the appeal is 23-3-2001. More than a year & a half after this i.e. on 3-9-2002, the judgment debtor came forward with the objection that the execution appln. was barred by time & no action could be taken thereon. He further contended that the decree holder had commatted a fraud on the Ct. inasmuch as it was mentioned in his appln that the previous execution appln. had bean dismissed on 3-2-1996 while in fact the dismissal took place on 3-2-1993. The decree-holder pleaded that since the judgment debtor had failed to attend the Ct. after having been personally served & raise the question of limitation at the proper time the matter should be taken to have been finally decided against him & he could not in law resist the execution appln. on the point of limitation. He also pleaded that the judgment-debtor had been absent from the territory of Patiala State, to which he belonged & deducting the time of such absence the appln was within time. The following issue was raised by the executing Ct.:

Is the petition for execution of the decree-passed on 28-4-1996 within time?

The issue was found against the decree-holder, the finding of the Ct being that it had not been proved that the notice was properly served upon the judgment debtor. The decree-holder is the applt. before me.

To start with his counsel urged that the report on the back of the notice was duly signed by the judgment-debtor & there was ample evidence on record to show that he was informed of the date on which the execution appln. was to be heard & he accepted service. The process-server who was examined by the decree holder as his witness deposed that the notice in question was served by him upon the judgment-debtor & the latter affixed his signatures on the back of it. He also deposed that his report regarding the service of notice upon the judgment debtor (Ex. PB) was recorded by the Nazir. No doubt he also added that he did not know the judgment-debtor personally & that at the time he took his signatures the whole paper was lying blank, but it appears to me that this part of his statement was not true & the probability is that he had been won over by the judgment-debtor to trim his evidence in such a manner that it might leave a loophole for being disbelieved. In addition there were two other witnesses for the decree-holder who proved that the notice was properly served upon the judgment-debtor. It is significant that the judgment-debtor did not take the courage of coming into the witness-box & denying his signatures appearing under the process-server''s report. This coupled with the statements of the decree-holder''s witnesses makes me think that the notice in question was duly served upon the judgment-debtor & he was aware of the date. In addition, there are important circumstances which strengthen this conclusion. The first is that after the houses had been attached the judgment-debtor''s father put in objections & as I have already point d out, the judgment-debtor was made a party to the objection proceedings. Even if it be assumed that the decree-bolder deliberately kept him in dark about the execution appln & the attachment, surely his father could not be accused of this attitude, particularly when there could have been no love-lost between him & the decree-holder & it is not even alleged that the relations between the father & the son were not good. Then the judgment debtor was also a party to the declaratory suit brought by his father & there is no reason to think nor was it contended on behalf of the judgment-debtor, that the summons of the suit were not served upon him or that he remained ignorant of the existence or the result of the suit. The same remarks apply to the appeal preferred by his father from the decision of the declaratory suit. With all this he slept over the matter & did not come forward to oppose the execution applns & in my judgment the reason why he did not do so was not that he had not received notice of the appln., but because he depended upon his father to nullify the effect of the execution proceedings by setting up his title to the attached houses. Accordingly, I accept the contention of the decree-holder''s counsel & set aside the findings of the Cts. below on this point.

The next point urged on behalf of the decree-holder was that because the judgment-debtor did not attend the Ct. on 22-7-1997 & object to the maintainability of the execution appln. on all the grounds, including that of limitation, that were available to him with the result that the Ct. ordered the attachment of his property which impliedly amounted to a finding that the appln. was within time be was estopped from taking up the question of limitation at a later stage by virtue of the principles of constructive res judicata. Counsel for the Respondent on the other hand urged that the scope of Section 11, CPC was confined to suits & not to execution applns & further that even if the principles of res judicata applied to proceedings like those of an execution appln. their operation was limited to the questions that formed the subject-matter of clear & definite decision. Both counsel cited a number of cases in support of their respective arguments. It is, however, not my purpose to refer to all of them, because I am of opinion that so far as the fundamental principles are concerned there is no real divergence of opinion. To start with it is well settled that though Section 11 in terms applies to a subsequent suit, the principles of it apply to execution applns. also. The earliest decision on this point is Ram Kirpal v. Roop Kauri 6 All. 269 : 11 I.A. 37 P.C., a decision by their Lordships of the P.C. This case has since been followed by all the High Courts in India & recently by the Lahore H.C. in Prabhu Dayal v. Dewat Ram 15 Lah. 869 : A.I.R 1935 Lah. 200. The implication of this principle is that when questions such as those of limitation liability of a particular party under the decree, right of a particular person to take out execution as a legal representative of the original decree-holder or as an assignge of the decree, & the decree-holder''s right to claim mesne (sic) are adjudicated upon & decided in one execution appln. the decision will operate as binding in subsequent applns. In Desaiappa v. Dundappa 44 Bom. 227 : A.I.R.1920 Bom. 264 the decree was passed on 18-2-1999. The first Darkhast was presented on 20-3-1907, second on 31-3-1910 & a third on 12-9-1910 when the judgment-debtor appeared & contended that the Darkhast of 31st March was barred by limitation. The Ct. decided that the Darkhast of 12-9-1910 was in time & directed that the money should be paid in instalments. On 26-3-1919 Rs. 220 were paid to pltf. The last Darkhast was filed on 19-3 1915 to recover the balance. The lower appellate Ct dismissed the Darkhast as time barred on the ground that the decree was dead on 31-3-1910 & even though further Darkhast was admitted thereafter that would not have the effect of reviving the decree. On appeal the H.C. held that the Darkhast was within time as the order made on the Darkhast of 12-9-1910 not having been reversed on appeal was valid.

The weight of authority is also in favour of the view that the applicability of the rule of res judicata is not limited to matters which were directly & substantially in issue & were heard & expressly decided in former execution proceedings but that the principle of constructive res judicata as embodied in Expln. (IV) to Section 11 is also applicable to such proceedings, See in this connection Gadigappa Chanbasappa Malkarjun Vs. Shidappa Gurushidappa Yalehalli, Lalit Mohan Roy and Others Vs. Sarat Chandra Saha, ; Prabhu Dayal v. Dewat Ram 15 Lah. 869 : A.I.R.1935 Lah. 200; Bhagwan Singh v. Barkat Ram A.I.R 1943 Lah. 129 : 207 I.C. 561 ; Mittasaheb Hirama Kakkalmali Vs. Gurunath Hanmant Kulkarni, and Puttappaji v. Malappa A.I.R.1944 Mad. 420 : 1944 1 M.L.J. 494. It was however, held in Gadigappa Chanbasappa Malkarjun Vs. Shidappa Gurushidappa Yalehalli, that great caution should be used in applying the principle of constructive res judicata. The same view was taken in Mittasaheb Hirama''s case A.I.R1948 Bom. 252 : 208 I.C. 418 . In the latter case, a notice had been issued to the judgment-debtor under Order 21, Rule 22 but he refused to turn up with the result that the executing Ct. transferred the proceedings to the Collector. When the Collector issued (sic) notice to the judgment debtor he appeared & contended that he had already paid something to the decree-holder in part satisfaction of the decree & to that extent the execution should not proceed. It was urged on behalf of the decree-holder that the judgment-debtor''s failure to appear in response to the first notice issued by the executing Ct. & to raise an objection that the decree had been satisfied in part precluded him from raising that objection before the Collector. The learned Judges of the H.C. over-ruled the plea & though they agreed with the proposition that the principle of constructive res judicata apply to execution proceedings, they held that it must be applied with great caution against a party to the execution proceeding who had no direct notice of the point & therefore no opportunity to raise it. A contrary view was taken by the Bombay H.C. in earlier cases, viz. Mahadeo Gopalbhat Vs. Trimbakbhat Balambhat, and Rama Chandra v. Shriniwas A.I.R.1922 Bom. 238 : 46 Bom. 467 but both these cases were disapproved in Gadigappa Chanbasappa Malkarjun Vs. Shidappa Gurushidappa Yalehalli, & the latter case was followed in Mittasaheb Hirama Kakkalmali Vs. Gurunath Hanmant Kulkarni,

My attention was drawn to a single Bench decision of the Lahore H.C. Kundhu Mal v. Daulat Ram A.I.R 1940 Lah. 75 : 190 I.C. 379 but the facts of that case are quite distinguishable & there was no discussion of the question whether the principle of constructive res judicata could apply to execution proceedings. The other case that was relied upon by the decree-holder''s counsel is the F.B. decision of the Allahabad Genda Lal Vs. Hazari Lal, In that case a money decree against the judgment-debtor had been passed on 12-3-1928. The first execution appln. was made three years after the date of the decree but it was stated therein that it was within time because the judgment debtor had paid part of the decretal amount within three years of the date of the decree & he had also given a slip mentioning the payment but the slip had been lost. It may here be mentioned that before the appln. to the executing Ct. alleging the payment mentioned above & praying that the same be certified no notice of this appln. was given to the judgment-debtor but the certificate was noted. It was probably on the strength of this that the office made (sic) on the execution appln. that it was within time & the Ct. ordered a notice to issue to the judgment-debtor for the date fixed in the appln. Obviously the notice was under Order 21, Rule 22. On the day the appln. came up for hearing the judgment-debtor was absent but the report on the notice was that he had received it but had not signed it. The Ct. passed an order to the effect that inasmuch as notice had been served on the judgment-debtor & he had not filed any objection, the appln. be considered to be within limitation. Later on a warrant was issued for the arrest of the judgment-debtor & when he was arrested & produced in Ct. he put in an objection that he had not made any payment & that the execution appln. was barred by time. The Ct. summarily dismissed the objection on the sole ground that he had not taken it earlier. The Ct. further ordered that the judgment-debtor should be sent to the civil prison. He was actually cent there but was released after a week as his subsistence money was not deposited by the decree-holder. After this the judgment-debtor filed a fresh objection repeating his allegation that the execution appln. was barred by time. This was dismissed on the ground that the plea of limitation was barred by res judicata. The judgment-debtor went to the H.C. in revision from the orders of the executing Ct. dismissing both his objections. The H.C. allowed the revision & set aside the orders of the executing Ct. It held that the principle of res judicata can be applied to execution proceedings as it applies to suits but added that the application of this principle was subject to the usual limitations & could not be given an unlimited or an extended application. Sulaiman C.J. who wrote the main judgment of the Bench laid down the following propositions: (1) where there has been an express adjudication by the Ct. in the presence of the parties then the question must be considered to have been finally decided, no matter it is raised again at a subsequent stage of the same proceeding or in a subsequent execution proceeding; (2) Where an objection is taken but is dismissed or struck off even though not on the merits & the appln. for execution becomes fructuous, the judgment-debtor is debarred from raising the question of the invalidity of that appln; (3) Where an objection to execution is taken but it is not dismissed on the merits or is dismissed for default & the appln. for execution does not become fructuous, the judgment-debtor is not debarred from subsequently raising the question that that appln. was not within limitation; (4) Where no objection to the execution is taken but the appln. becomes partly or wholly fructuous & such fructification necessarily involves the assumption that the appln. was made within limitation, then after such fructification the judgment-debtor is debarred by the principle of res judicata from raising the question that that appln. was not within limitation; & (5) Where no objection is taken but the appln. for execution does not fructify, the judgment-debtor is not debarred by the principle of res judicata from raising the question of limitation later. Adverting to the facts of the case & while dealing with the contention that once a notice is issued to the judgment-debtor under Order 21, Rule 22 & he does not appear & the Ct. passes an order under Rule 23 Sub-rule (1) then he is debarred from raising any objection whatsoever to the validity of the appln. This is what his Lordship observed:

Now, before that stage arises it is the duty of the Ct. under Rule 17 to examine the appln. & satisfy itself that it is in accordance with law. It would also obviously be the duty of the Ct''s office to report that the appln. is burred by limitation if it is so prima facie. The Ct. must, therefore, make up its mind whether it is within time or not. If it is of the opinion that it is obviously barred by time it should dismiss the appln. summarily without issuing any notice to the judgment-debtor at all. Rule 22 requires notice to be issued not for the purpose necessarily of calling upon the judgment-debtor to satisfy the Ct. that the appln. is barred by time in all cases where the appln. is made after a certain period from the date of the decree or against the legal rights of the judgment-debtor....

It is accordingly apparent that where the judgment-debtor has appeared & offered any objection the Ct. is bound to consider such objection & must make an order thereon as it thinks fit. Such an order would, therefore, if against the judgment-debtor, amount to overruling his objection & dismissing it.... On the other hand, if the judgment-debtor doss not appear at all & does not offer any objection, & the Ct. has issued notice on the supposition that the appln. was in time, no occasion arises for the Ct. to enter upon an Inquiry as to whether the appln. is or is not barred by time. A mere order that the decree should be executed which under the sub-rule has to be automatic, cannot be regarded as an adjudication of the question as between the decree-holder on the one hand & the judgment-debtor on the other so as to operate as a bar by implication at all subsequent stages in the same proceeding.

....

In the case before us there was intimation given to the judgment debtor that the decree-holder had alleged a receipt of Rs. 50 in November, 1930 but there was no intimation alleging that the slip containing acknowledgment of the liability had been handed over to the decree-holder & was lost by the latter.... No intimation of it was given in the notice to the judgment debtor.... Therefore in the absence of any petn. or any written acknowledgment of the judgment-debtor the appln. filed more than three years after the decree was obviously barred by time & the Ct. should not have issued any notice at all....

If I may say so with respect all the remarks made by the learned Chief Justice are based upon sound principles & the law laid down by him was correct. As regards the present case, it falls within the ambit of the fifth proposition & inspite of the fact that the judgment-debtor wag properly served with the notice under Order 21, Rule 22 & he failed to appear in Ct., it cannot be held that he is debarred from raising the question of limitation. It is true that a house bad been attached & the different proceedings taken by the judgment-debtor''s father that the house belonged to him & not to the judgment debtor have proved infructuous the execution proceedings cannot be regarded having fructified either wholly or in fact, for the simple reason that the decree holder has not been able to realise anything. It may also be mentioned that at the time notice of the execution appln. was issued to the judgment debtor the Ct. could not possibly think of the question of limitation because of the wrong date given by the decree-holder of the last order made on the previous execution appln. Every body took it for granted that the appln. was within time. It was argued by the decree holder''s counsel that the mistake was bona fide since the date mentioned in the copy supplied to him was wrong. This may be so, but the fact remains that a mistake had been made & it was on the strength of that mistake that the office noted that the appln. was within time & the Ct. issued notice. There can, therefore, be no denying the fact that but for the mistake the appln. would have been dismissed in limine & no action would have been taken thereon. In the circumstances I see no force in the contention that the judgment-debtor''s failure to appear in response to the notice could debar him from taking up the question of limitation.

For all these reasons the appeal must stand dismissed with costs.