Jawahar Lal vs Omkar

V.K. Jhanji, J.—This civil revision has been directed against the order of the Executing Court accepting the objection petition of the judgment debtor and dismissing the execution application filed by the decree-holder.

A decree for a sum of Rs. 4,000/- was passed on 17-10-1973 against the respondent in a suit filed by the petitioner. On 15-6-1974, the petitioner applied for the execution of the decree. In execution of the decree, some property of the judgment-debtor say respondent herein was attached. While the execution application was pending, Haryana Relief of Agricultural Indebtedness Act, 1975 (Act No. 22 of 1975) came into force and under the provision of the said Act, moratorium on debts for one year was imposed. Judgment-debtor filed objections inter alia on the ground that in view of the aforesaid provision, the execution application is not maintainable. On finding that the execution application could not proceed for one year, the decree-holder made a statement before the Executing Court that the execution application be dismissed as having remained unsatisfied for the time being. On his statement, the executing Court vide order dated 15-11-1975 dismissed the execution application as having remained unsatisfied. However, the Executive Court allowed the attachment to continue. After the expiry of one year, the petitioner filed another execution application which was resisted by the judgment-debtor who filed objections on various grounds including that the execution application is not maintainable because the earlier execution application was dismissed without deciding his objections and thus his objections would be deemed to have been accepted. He also took up the objection that he being a debtor within the meaning of Haryana Relief of Agricultural Indebtedness Act, 1976 (18 of 1976) stands discharged from the debt. The Executing Court vide the impugned order, accepted the objection petition of the judgment debtor and dismissed the execution application primarily on the ground that where the execution application is dismissed by the Court or got dismissed without any decision on the objection petition, then the objection petition stands ipso facto accepted in view of the judgment of Chiranji Lal v. Chhaju Singh and Anr. (1968) 70 P. L. R.419. The Executing Court was also of the view that decision dated 15-11-1975 operates as res judicata. However, while deciding issue No. 3, the Executing Court found that there is nothing on record to show that the judgment-debtor is a debtor within the meaning of Haryana Relief of Agricultural Indebtedness Act. This order is being challenged by the decree-holder by way of this civil revision.

Notice was issued to the respondent through registered A/D.

After hearing the learned counsel for the petitioner, I am of the View that this civil revision deserves to succeed.

The Executing Court while dismissing the execution application, over-looked the fact that previous execution application was not dismissed as withdrawn in view of the Haryana Act No. 22 of 1975 which merely imposed moratorium on debts for a period of one year. It was precisely for this reason that the decree-holder got his execution application dismissed as he could not proceed with the execution application for a period of one year. The execution application was consigned to the record as having remained unsatisfied but attachment was allowed to continue. The judgment relied upon by the Executing (Court in Chiranji Lal''s case (supra) has no application to the facts of the present case because in Chiranji Lal''s case (supra), objections were failed against the attachment and while the objections were pending execution application was dismissed, and, therefore, it was held that the attachment ipse facto stood vacated. However, in the present case, the facts are entirely different. In the present case, the Executing Court vide order dated 14-11-1975 specifically ordered that attachment shall continue and the application was dismissed as having remained unsatisfied. I fail to understand how decision dated 15-11-1975 operates as res judicata. Admittedly, the objection petition filed by the judgment debtor was never decided on merits and the same was got dismissed as withdrawn because of the imposition of moratorium on debts by virtue of Act No. 22 of 1975.

As already noticed, the Executing Court has already given a finding that the judgment-debtor is not a debtor within the meaning of Haryana Relief of Agricultural Indebtedness Act, 1976 and thus the objection of the judgment-debtor that he stands discharged from the debt cannot be accepted.

Consequently, this civil revision is allowed. The order of the Executing Court is set aside. The Executing Court is directed to proceed with the execution application filed by the decree-holder in accordance with law. Parties to appear before the Execution Court on February 28, 1992.