Khartar Shah and Another vs Shyamlal Singh and Another

Wort, Ag. C.J.

This matter came before this Court on 27th February 1934 and was heard ex parte, that is to say, in the absence of the respondent. The Chief Justice and my brother Dhavle on that occasion held that the former decision of the Court in the execution case was res judicata. The matter was reinstated for the reasons which I have indicated and the respondent is now represented by Mr. Sushil Madhav Mullick. In my judgment the matter is a relatively simple one and is determined on equally simple considerations, the chief of which is the question of the order of sequence of the petition of the respondent which was dated 29th November 1928, and the order of the Subordinate Judge of Jamtara made in Execution Case No. 12 of 1928 and bearing the same date. The substance of the matter is stated in great detail by the learned Judge in the order to which I have referred, but it is necessary perhaps to mention one or two facts for the purpose of the determination of the question which arises in this appeal. A money decree had been obtained on 23rd March 1926, against one Shyam Lal Singh for a sum of Rs. 7,581 and on 22nd May 1928, an execution case was started. An objection was taken out by the judgment-debtor or his representative. I put it in that form purposely and for a reason which will in a moment appear. On some date prior to that, that is to say on 10th January 1923, Shyam Lal Singh had executed what was called a deed of assignment in favour of the present respondent Thakur Madhusudan Singh for the purpose of paying off the debts of the assignor and after that purpose had been effected to return the property to the assignor. It is not necessary perhaps to mention it but I propose just to refer to the fact that in March of 1927 Madhusudan Singh found it necessary to bring an action against the assignor by reason of the fact that he had been refused possession.

Ultimately the objection case to which I have made reference, which was taken in the execution case on 22nd May 1928, was decided on 29th November 1928, a date to which I have already referred, against the respondent, and the effect of that decision was that Madhusudan Singh was the representative of the judgment-debtor. It is necessary perhaps to notice the questions to which the learned Judge in deciding that objection case addressed himself. One was that the decree was against Raja Shyam Lal Singh alone and not against Thakur Madhusudan Singh; the second was, Thakur Madhusudan Singh is not the representative of Shyam Lal Singh, and the third that the decretal amount is not a charge on the properties assigned by Raja Shyam Lal Singh to Thakur Madhusudan Singh. They were questions, as I say, to which the learned Judge addressed himself and which were the substance of the objections that were taken by the present respondent. Now if the deed of 10th January 1923 was in a sense a conveyance of the property to Thakur Madhusudan Singh with an undertaking as a part of the consideration, to pay off the debts of the assignor, I have little hesitation in coming to the conclusion that the learned Judge in deciding the objection case against the respondent was wrong. It is difficult in other words to see how Madhusudam Singh could possibly be described as representative of the judgment-debtor, but anything which I say with regard to that matter for the reasons which will presently appear, and by reason of the conclusion to which I arrive, is quite irrelevant. The fact remains that the case was decided against the respondent. In those circumstances the question arises whether the matter which was determined by the Subordinate Judge in the objection case is res judicata. It was so held I have stated by the judgment of this Court on 27th February 1934, and there has been no argument by the respondent who is now represented which would show that the conclusion arrived at in his absence was wrong. Mr. Sushil Madhab Mullick refers us to the provisions of Order 21, Rule 58 and Order 21, Rule 63, more particularly the latter. The provisions of Order 21, Rule 63. are well-known. They are:

Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive.

On going back to Order 21, Rule 57, it is provided that:

Where any property has been attached in execution of a decree but by reason of the decree-holder''s default, the Court is unable to proceed further with the application for execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date,

and upon the dismissal of such application the attachment shall cease. Now on 30th November 1928, the Subordinate Judge made this order:

Sale not held Case struck out partly satisfied on the joint petition of the decree-holder and the three judgment-debtors.

I should have stated a fact which I omitted to state earlier, namely, that on 30th November 1928, in pursuance of a compromise entered into between the parties the respondent had paid to the decree-holder a sum of Rs. 3,000. As a result of the order to which I have referred and by reason of the effect of Order 21, Rule 57, the attachment would cease, and it is the contention of Mr. Mullick that once attachment ceased there would be no occasion for him to bring an action which he otherwise would have done to establish his right to the property. In connexion with this a decision of the Calcutta High Court in Najimunnissa Bibi v. Nacharuddin Sardar 1934 Cal 744 is relied upon. There Rankin, J. as he then was, and Page, J. referred to the argument which is now addressed to us by Mr. Mullick and held that the action contemplated by Order 21, Rule 58, was maintainable, although brought more than a year after the claim case had been dismissed but in circumstances such as exist in the present case, namely, the attachment had ceased within that year. The answer to the argument based on that decision is that the case referred to dealt with the limited question of whether the action was within time. Another decision to which reference is made is a Full Bench decision of the Allahabad High Court in Habib Ullah v. Mahmood 1934 All 267. The main question which there had to be decided was:

Whether on the attachment having ceased to exist within the period of one year, from the dismissal of the objection, it is no longer incumbent upon the claimant to file a suit for a declaration of title to the property in order to avoid the conclusiveness of the order in the claim case, and whether the order in the claim case ceases to be conclusive as between the decree-holder and his representative, etc.

That was the question stated for the decision of the Full Bench. The learned Chief Justice there discusses the meaning of the expression "shall be conclusive," but during the course of the judgment he makes this observation:

It seems to me unnecessary to express any opinion as to whether, if any order is passed against the decree-holder releasing the property from attachment and the decree-holder voluntarily gets his own application dismissed, he would still be entitled to re-agitate, the question on filing a fresh application for execution. It may well be that although there is no bar under this rule, there is a bar on account of some general principle of res judicata.

The circumstances there contemplated were that the attachment order had been passed against the decree-holder releasing the property from attachment and the decree-holder had voluntarily got his own application dismissed. In so far as the decision which is in any way relevant to the discussion before us, there is an indication that the principle of res judicata would apply. It seems to me, as I stated at the commencement of my observations, that the matter depends upon one or two facts. I stated the substance of the objection raised before the Subordinate Judge and it is quite clear that the question he had there to determine was, whether the respondent was the representative of the judgment-debtor and not a question of whether the property had been properly attached. If that question arose, it was only identical to the main question; it could only be decided that the property was rightly attached, if it had been held, as it was held ultimately, that the respondent before us was the representative of the judgment-debtor. In my opinion that matter comes clearly within Section 47, Civil P.C., and, therefore, whether it was incumbent upon the objector to bring an action, an action contemplated by Order 21, Rule 58, in my opinion is quite beside the point. So far as the other question, which seems to determine this matter, is concerned, it depends upon whether the order in the objection case was made first or before or at some time when the compromise petition was filed. It is impossible to say that the respondent here has been taken by surprise and we should have imagined that had there been any substance in the case and the order of the Subordinate Judge was made after the compromise had been filed and that the execution objection had been disposed of on the basis of that compromise, we should have had some evidence before us in the nature of the order sheet which would have established that point.

But it would appear, and it seems to me the only conclusion at which we are entitled to arrive in this case, that the order of the Subordinate Judge of 29th November 1928, was made by him before the compromise was brought to his notice, presumably on 30th November 1928, the date upon which the order striking out the execution case was made. It is impossible to assume that the Judge did what he ought not to have done in the circumstances, had the fact been that the compromise was brought to his notice and that the execution case was disposed of on those terms which would have obviated the necessity of delivering any order in the matter. If it had been so, the execution case would have been disposed of on the terms of the compromise and it would have been unnecessary for him to come to any determination of the question of whether the respondent was the representative of the judgment-debtor. In other words the order of the Subordinate Judge was made prior to the hearing of the compromise petition before him and that once having made that order and having determined the question u/s 47, Civil P.C., in the absence of the reversal by way of appeal of that order, the matter stands as res judicata. In my opinion the appeal should be allowed with costs and we direct that the sale be confirmed.

Dhavle, J.

I agree. It is not as if the respondent had merely filed an application under Order 21, Rule 58, and as if the lower Court found it unnecessary to pass any orders on that application because of the compromise between the parties, as a result of which the execution case was struck off and the attachment itself came to an end. The order passed by the learned Subordinate Judge on 29th November 1928, shows that he also had before him at that time another application made by the respondent u/s 47, Civil P.C. It is true that too much importance ought not to be attached to the particular labels attached to his applications by the respondents; but from the points laid down by the lower Court for decision in connexion with the two applications of the respondent objecting to the execution, it is perfectly clear that one of the questions raised before him on that occasion was whether or not Thakur Madhusudan Singh was not the representative of Shyam Lal Singh, a question which arose and could only have been dealt with u/s 47 of the Code. The doctrine of res judicata applicable to execution proceedings does not rest on Section 11 of the Code, and distinctions are sometimes made between positive decisions and mere dismissals for default. In the present case there was no mere dismissal for default, but on the contrary the question whether Thakur Madhusudan Singh was not the representative of Shyam Lal Singh which was directly raised by the respondent, was dealt with by the lower Court and decided adversely to the respondent.

It seems to me impossible to ignore the force of that decision whether right or wrong as res judicata on general principles. This is quite irrespective of whatever may be the respondent''s position in relation to the proceedings under Order 21, Rule 58. When I dealt with this matter on a previous occasion, and this was in the absence of the respondent, reference was made to a decision of this Court in Jagat Narain Singh v. Sripati Nath Roy 1930 Pat 390. Reference has been made to that decision on the present occasion also, but as I then pointed out, that decision is entirely distinguishable on the facts because in that case there was no previous order passed by the executing Court constituting res judicata as between the parties. In the present case we have such an order, to say nothing of the undisputed facts that there was a compromise between the parties which was filed in this case and that in accordance with that compromise the respondent paid Rs. 3,000 to the decree-holder and undertook to pay the balance in further instalments. The appeal must therefore succeed with costs, here and below, and the sale stands confirmed.