Jadubans Panday vs Ekram Rai and Others

The facts of this case are that the appellants before us were members of a joint family of which the kartas were Ambica and Jamadar. Ambica and Jamadar were declared insolvents and their property-vested in a Receiver. On the 12th January 1917 the present opposite party made an application to execute a decree obtained against the joint family by the attachment and sale of the family dwelling house. Various objections to his execution were taken by the appellants and the following judgment thereon was written:

The decree-holder wants to execute his decree against two houses belonging to the judgment-debtors Ragho Bans, Jadu Bans and others. They object on the ground that the managing members of the joint family named Ambica and Jamadar were declared insolvents and so the property belonging to the joint family cannot be seized in execution of the decree. On reference to the insolvency proceedings it is clear that Ambica and Jamadar were declared as insolvents in their personal capacity, so the objection cannot stand. It is also clear that the houses sought to be proceeded against did not vest in the Receiver, but were released on the ground that they had been purchased by one Deo Narain so the objections have no legs to stand upon. The insolvency proceedings came to an end on 15th July 1916. The present application for execution was put in on 13th January 1917. It is further contended that the present application for execution is barred. On reference to the copy of the order-sheet it appears that the previous proceeding came to an end on 2nd March 1914. So no bar of limitation applies. The previous objection was decided on 17th August 1912 against Malicka, to which the present judgment-debtors were not parties. The objections are disallowed and execution is to proceed.

In this Court it is contended that this judgment must be set aside, on the ground that the point in issue had already been decided by a judgment written on the 2nd March 1914 upon an application made to sell the houses of two other members of the joint family. It is conceded in argument that in these proceedings the whole joint family, including all the sons and grandsons of Ambica and Jamadar, were on the record. The existence of this judgment was apparently not brought to the notice of either of the Courts below. We have, therefore, to consider whether the judgment of the 17th March 1917 decides issues which had already been decided. For it is settled law that where in execution an objection is raised and gone into, the same objection cannot be considered on any subsequent application in execution. If it was decided against the judgment-debtors it was decided for good and all against them, and if decided in their favour it is equally binding. The learned District Judge at the hearing of the appeal before him substantially adopts the Subordinate Judge''s decision. He advances practically no new arguments of his own but merely elaborates the arguments of the first Court. We propose, therefore, to take the judgment of the first Court and compare it with the judgment which is said to be a bar to the execution.

The first half of the judgment deals with the question whether Ambica and Jamadar were declared insolvents in their personal capacity or by the insolvency the whole joint family had become insolvent. This fact was substantially in issue on the first application for execution. It was specifically found in the Court deciding the objection on 2nd March 1914 that the father as managing member of the joint undivided Hindu family represents the entire estate and in the Insolvency Court represents the entire family. The issue, therefore, that the learned Judge set himself to decide in the first part of the case, that is to say, that part of the case which dealt with the effect of the insolvency of Ambica and Jamadar, had already been specifically decided in the previous proceedings. On the second part of the case the question was whether the particular property now pursued had been released by the Receiver to Indra Narain. This question did not, in our view, arise. The release of the property to a third party by the Receiver would not render it liable to pursuit. It is urged before us that the houses now under attachment and sale were not the same houses as were previously pursued. Whether this is so or not, there is not sufficient material before us to show; but we hold that where a decision of the execution Court is that no property of a judgment-debtor can be attached that decision is final. It could not for instance be asserted that if on a decree made against A, B and C, C''s cattle were attached, and on his plea that he could not be proceeded against under the decree the cattle be released, the decree-holder is entitled on the following day to seek to attach his ploughs and re-open the whole question of liability. Being of opinion that the order passed is res judicata, we must set aside the orders of the Courts below and direct that there be no further attempt to execute the decree by attachment and sale of the property of this joint family by this decree-holder. In view of the fact that the document upon which we have decided this case was not brought to the notice of the Courts below we make no order as to costs at any stage of this case.