Ganapathi Mudali vs Meera Sahib and Others

Wallace, J.—This appeal is presented in the following circumstances: A decree for Rs. 17,000 and odd passed by the High Court on its

original side dated 20th September 1912 was transferred for execution to the Chingleput District Court on 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 the

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 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

Patannayya v. Pattayya, A. I R 1926 Mad. 453 and Munisami Mudali v. Meenakshi Ammal AIR 1928 Mad. 215 ""recorded"" the execution

petition with permission to the decree-holder to renew."" On 7th December 1922, the decree-holder put in the present E.P. 21 of 1923, again

asking for sale of the property, and the judgment-debtors were served in person. Only defendants 4 and 6 put in any counter. On 13th December

1923 arguments were heard and the sale was ordered for 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 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.

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 13th

December 1923 and heard at the time of the arguments on that date. This Court had 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 piecemeal at whatever time they think most convenient to themselves. The latest

ruling on this point is in (Lodd) Govindoss Krishnadoss Vs. Rajah of Karvetnagar and Another, . If these judgment-debtors did not put forward

the present points at the hearing on 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 13th December 1923 is a final order binding on the Court as on the parties. It is not open

to the Court to review that order on material 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, any apparently were not, put forward on 13th December 1923. Therefore they cannot be put

forward now.

The first point is merely one of clerical omission. The second is treated by the District Judge in a surprising way. If we understand him aright, 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 third objection, it is also on the merits untenable. There |was no

dismissal by the Court of E.P. 40 of 1917 for default of prosecution. Therefore the attachment did not come to an end by virtue of Order 21, Rule

The attachment before judgment therefore did not cease (see the Full Bench ruling in Meyyappa Chettiar v. Chidambaram Chettiar AIR 1924

Mad. 494. The order of the District Court in E.P. 40 of 1917 already quoted clearly meant that a fresh execution petition would be continuation of

the previous one: see Krishnayya v. Puttannayya AIR 1925 Mad. 152 and Pattannayya v. Pattayya 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 21, Rule 57 was not taken before him.

Obviously, the argument before him proceeded on the conceded position that E. P: 21 of 1923 was a continuation of the former petition.

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 for further proceedings.

Walsh, J.

I agree.