Dharam Pal Jain vs M/s Vijay Kumar Manohar Lal and Others

R.N. Miltal, J.—This judgment will dispose of Civil Revision Nos. 990 and 991, of 1987, as both the cases contain common questions of law and fact.

The facts in the judgment are being given from Civil Revision No. 990 of 1987. A decree for the recovery of Rs. 19,250/- was passed against Respondents Nos. 1 to 3 by Subordinate Judge First Class, Hoshiarpur, on June 12, 1984, which was affirmed upto the High Court. The Petitioner/decree holder started execution of the decree in which Deepak Walia, Respondent No. 4 filed an objection petition that the property in dispute was not liable to attachment and sale as it had been partitioned by members of the Joint Hindu Family and had fallen to his share. The objection petition was contested by the decree holder and was dismissed on September 26. 1986.

Thereafter, the Petitioner filed second objection petition on the ground that the property was Joint Hindu Family property and, therefore, his share could not be sold in execution of the decree. It was also opposed by the decree holder, who inter alia pleaded that the objection was barred by the principle of Constructive res judicata, as the objection could be taken by him in the previous objection-petition. The executing Court held that the objection was not barred by the principle of constructive res judicata and that the objection-petition was maintainable. The decree-holder has Come up in Revision against the said order.

The only question that arises for determination is, whether the objection now sought to be raised by Respondent No. 4 is barred by the principle of consructive res judicata. Section 11 of the CPC (hereinafter referred to as the Code) provides that no Court shall try any suit or issue in which the matter directly and Substantially in issue has been directly and substantially in issue in a former suit between the same parties litigating under the same title, in a Court competent to try such subsequent suit, and has been heard and finally decided by such Court Explanation IV says that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been made 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. Explanation VII was added to Section 11 by CPC (Amendment) Act, 1976, which says that the provisions of the 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 proceedings for the execution of that decree.

From the above provisions, it is evident that if an objection could be taken by the objector in the previous objection-petition and was not taken by him. he cannot be allowed to take the same in a subsequent objection-petition. Explanation VII was added in 1977, but the principle incorporated therein was recognised by Judicial decisions even earlier to its addition in the section. A reference in this regard may be made to a Full Bench decision of Lahore High Court in AIR 1942 153 (Lahore) in which it was held that although Section 11 did not apply to execution proceedings, the general principle of res judicata applied to such proceedings including the proceedings of constructive res judicata, embodied in Explanation IV to Section 11 Similar observations were made in another Full Bench decision of this Court in AIR 1949 94 (P & H.)

Now it is to be seen whether the objection sought to be raised by Respondent No. 4 in the present petition could be taken by him in the earlier objection petition. His earlier objection was that the attached property had been partitioned between him and his father and the same had fallen to his share. Now his objection is that the property is a Joint Hindu Family property and his share in the property is not liable to attachment and sale. In the earlier objection-petition, he could plead in the alternative that if it was not proved that there was partition of the property as alleged by him, his share was not liable to attachment and sale of the Joint Hindu Family property. Thus, he could take the objection which is sought to be J taken by him in the present objection-petition, in the earlier objection | petition. It is seen that the real trouble of the decree holder starts when he executes the decree. The judgment-debtor in order to delay the payment, files frivolous objections either himself or gets the same filed from his other family members or relations. The present case is a case of that type. After taking into consideration all the aforesaid circumstances, I am of view that the second objection-petition is barred by the principle of constructive res judicata.

No additional argument has been raised in the connected Revision Petition.

For the aforesaid reasons, I accept the Revision petition with costs and set aside the order of the executing Court and dismiss the objection petition.