Krishnamoorthi Pillai vs Lekshmi Rajamma

M.P. Menon, J.—The 1st Defendant-judgment debtor in O.S. No. 532 of 1958 is the revision Petitioner. The only point raised is limitation, and the decree-holder''s answer is that the plea is barred by constructive res judicata. A number of decisions have been cited, taking apparently different views depending upon the facts of each, and the facts are therefore important.

The decree-for redemption-was passed on 11th January 1962 E.P. No. 1101 of 1974 from which this revision arises was filed on 10th December 1974. It was filed by the Respondent herein. She was not a party to the decree, but it was claimed that she was entitled to the equity of redemption. On 21st December 1974 the court ordered notice on the Execution Petition to Plaintiffs (1) and (2) and to the Defendants. The first Defendant was served on or before 20th February 1975. Some others were still to be served and the matter was being adjourned from time to time to complete service. That was apparently completed before 29th March 1976 and on that day the Respondent herein was impleaded as additional third Plaintiff. The legal representatives of Defendants 3, 6 and 7 were also impleaded, and the matter was adjourned to 17th June 1976 for further steps. On 17th June 1976 deposit of mortgage money and value of improvements was ordered. A major portion of the amount was deposited, and on 26th August 1976 deposit of the balance.

On the passing of the order, dated 31st March 1977 the Respondent herein filed E.A. 1463/77 for reviewing that order, and that was allowed on 27th Mach 1978 holding that the 1st Defendant was not entitled to the benefit of Section 4A of the Land Reforms Act. It appears that the 1st Defendant had raised a contention that the Respondent herein was not "competent" to execute the decree. The court overruled the objection in the following terms:

The contention was that the decree holders 1 and 2 are alive and as such they could execute the decree and that one of the heirs of the judgment debtors cannot execute the decree. It appears from the decree that it was a joint decree passed on behalf of the family. The competency of the present additional decree holder to execute the decree was not challenged previously and it seems that this contention raised at present is barred by principles of constructive res judicata. I may also state here that the decree holders 1 and 2 have already filed a memo stating that they have no objection in the prevent additional decree holder executing the decree. I therefore hold that the present decree holder is entitled to execute the decree.

The 1st Defendant took the matter in appeal, in C.M.A. No. 46 of 1978. The District Court upheld the order so far as it related to reviewing and setting aside the order, dated 31st March 1977; but it was held that the passing of a common order in the review petition and the Execution Petition was opposed to Order 47, Rule 8. The Execution Petition was therefore ordered to be disposed of on merits separately. The executing court thereafter heard the Execution Petition and held by order, dated 7th August 1980, that the Respondent was competent to execute the decree and that the first Defendant was not entitled to the benefit of Section 4A.

It is the aforesaid order, dated 7th August 1980 which is now being challenged in this revision on the only-ground of limitation.

And now to some of the cases cited. In Kuruvilla v. Joseph 1956 KLT 541, the facts were these. The fourth execution Petition E.P. 65/52 was filed on 3rd March 1952. Notice under Order 21, Rule 22 was ordered and was affixed on 25th May 1952 alleging that the judgment debtor had refused to accept it. On 20th June 1952, the date fixed for return of the notice, the judgment debtor did not appear and the court passed an order: "No objections, further steps". The judgment debtor filed an objection later, on 28th August 1952, raising the plea of limitation and the question was whether this plea was barred by the principles of constructive res judicata. Koshi, C.J., who spoke for the bench held that the plea would be barred, if the service effected on 25th May 1952 was true and valid. A point was raised that it was not enough to issue a general notice under Order 21, Rule 22, but that the notice must be sufficiently specific to give information as to the nature of the reliefs applied for; but this did not find favour with their lordships. It was observed that such a requirement was necessary only when the execution application went beyond the terms of the decree and asked for something not granted by the decree.

The question in Parameswaran Nair v. Ayyappan Pillai 1958 KLT 1021 (D.B.), was whether an implied decision as to the validity of an assignment also involved a decision against a plea in bar of delivery. The 3rd Plaintiff in the suit was recognised as assignee on 29th April 1966. It appears that at the time of filing the application for impleadment, the 3rd Plaintiff was himself not sure whether the court sale of items (1) to (4) would be confirmed; an alternative relief for recovering the decree amount had also therefore been claimed, the executing court, while allowing impleadment, had reserved further consideration of the application "from the point of view of delivery" until after the sale was confirmed. The Division Bench therefore held that the order dated, 29th April 1966 had not the effect of impliedly deciding the enforceability of the assignment from the point of view of delivery. Of course, an observation was also made that in matters relating to execution, the extension of the principles of constructive res judicata had to be cautiously made. But the decision, if I understand it correctly, proceeded on the principle that what was apparently reserved for further consideration could not be considered as having been decided by implication.

In Rama Kurup v. Central Banking Corporation 1956 KLT 541, Raghavan, J., noticed the decision in Kuruvilla''s case 1962 K.L.T., but felt that the view taken by the T.C. High Court was not binding. In his lordship''s opinion, a judgment debtor who failed to object to notice under Order 21, Rule 22 could still raise the plea of limitation at a later stage in the execution proceedings. It was observed that a mere notice under Rule 22 was insufficient intimation to the judgment debtor that the question of limitation was also involved; in other words, it was held, contrary to the view expressed in Kuruvilla 1956 KLT 541, that the notice must be specific on the question of limitation also, if the principles of constructive res judicata were to be attracted. His lordship added:

...the court itself has the responsibility to satisfy itself as to whether the execution petition is barred by limitation before it issues notice to the judgment debtor and if it does not so satisfy itself, nor does it give to the judgment debtor sufficient indication in the notice that he has to meet the plea of the decree holder that the decree is not barred by limitation, it cannot be said that the question of limitation is a matter which might and ought to have been made a ground of defence or attack in the execution proceedings.

There was also an observation to the effect that if limitation was raised at a later stage of the same execution petition, and not in a different or subsequent petition, no question of res judicata could arise at all.

Sri James Vincent who argued the case on behalf of the judgment debtor referred to a number of other authorities also, but his main submissions, based on the above two rulings of this Court, were:

(i) the Limitation Act imposes a duty on the court to reject a barred claim, whether a party has raised the question or not and therefore the principles of res judicata can have very limited application, if at all, in such cases;

(ii) the mere impleading of the Respondent herein on 29th March 1976 did not mean that the question of limitation was examined at all; the notice issued on the Execution Petition was not specific;

(iii) the question of limitation is raised in the present case in the same Execution Petition wherein his client''s objections are yet to be finally disposed of; and;

(iv) the question whether the decree could be executed at all had been raised in the objections filed on 14th February 1977 and since that is one of the questions considered in the order now impugned it cannot be said that that question has become final so as to preclude a challenge to executability based on limitation.

It was urged that the decision in Rama Kurup 1962 KLT 683, supported the above contentions, and that in the light of the caution administered by the Division Bench in Parameswaran Nair''s case 1958 KLT 1021, against extending the principles of constructive res judicata to execution proceedings, the impleadment allowed on 29th March 1976 could not be held to have impliedly decided the question of limitation also.

It may be that I cannot prefer Kuruvilla 1956 KLT 541, to the decision of this Court in Rama Kurup 1962 KLT 683; but the view taken in the former rests on a consideration of at least half a dozen weightily authorities, including a decision of the Judicial Committee of the Privy Council in Raja of Ramnad v. Velusami Thevar 48 Ind. App. 45 (P.C.). That was a case where an assignee of the decree had applied on 20th November 1914 for being brought on record and to have the decree executed. The judgment debtor resided the application on various grounds, including one of limitation. On 13th December 1915 the court passed an order recognising the assignment and allowing the assignee to execute the decree. One of the Defendants then applied for review on the ground that the execution application was barred. This was dismissed in August 1916 on the basis that the order dated 13th December 1915 had not reserved any question of limitation for future consideration. But in the final proceedings, the court allowed the Defendants, by its order dated 31st March 1917, to raise the plea of limitation again, holding that the order passed in December 1915 did not preclude it from being raised. The Privy Council differed from this view and held:

Their Lordships are of opinion that it was not open to the learned judge to admit this plea. The order of December 13th 1915, is a positive order that the present Respondent should be allowed to execute the decree. To that order the plea of limitation, if pleaded, would according to the Respondents'' case have been a complete answer, and therefore it must be taken that a decision was given against the Respondents on the plea. No appeal was brought against that order, and therefore it stands as binding between the parties. Their Lordships are of opinion that it is not necessary for them to decide whether or not the plea would have succeeded. It was not only competent to the present Respondents to bring the plea forward on that occasion, but it was incumbent on them to do so if they proposed to rely on it, and moreover it was in fact brought forward and decided upon. No appeal was brought from the order then made, and therefore it was not competent for the Subordinate Judge to admit the plea on subsequent proceedings, or to consider it in his order of March 31st 1917, and the same remark applies to the judgment of the High Court on March 7th 1918, from which this appeal is brought.

And the above decision was noticed with approval by the Supreme Court in Mohanlal Goenka Vs. Benoy Krishna Mukherjee and Others, , to hold that the principles of constructive res judicata were applicable to execution proceedings also.

With great respect, it appears to me that Kuruvilla''s case 1956 KLT 541, reflects more accurately the principles emerging from the Privy Council''s decision than Rama Kurup''s case 1962 KLT 683. The notice issued to the judgment debtor in this case on 21st December 1974 was obviously under Order 21, Rule 16; probably, it was a combined notice under Rules 16 and 22. Now, the first proviso to Rule 16 lays down that where the interest of a decree holder in a decree is transferred by assignment, the court shall issue notice of the application to the transferor and the judgment debtor and, that the decree.

Shall not be executed until the Court has heard their objections (if any) to its execution.

The notice is intended to give an opportunity to the assignor as well as the judgment debtor to object to the execution of the decree. They can file objections, "if any", and the question whether the decree can be executed or not will then be heard and decided by the court. It is important to note that the assignee''s application is not for recognition of the assignment, but for execution of the decree; and when the court is satisfied about the assignment, it has to execute the decree in the same manner "as if the application were made by the decree-holder". Therefore any plea that the judgment debtor can put forward against excitability of the decree has to be heard and decided at this stage. On the language of the Rule and the first proviso, therefore, I see nothing wrong in holding that when a judgment debtor does not appear and object, the court is entitled to proceed as if he has no objection at all as regards the executability of the decree. Rule 22 also similarly indicates that the notice thereunder is to give an opportunity to the judgment debtor "to show cause why the decree should not be executed against him". As pointed out by the Pi ivy Council, if the judgment debtor herein had raised the plea of limitation in answer to the notice dated 21st December 1974, that would have been a complete answer to the question of executability. That was the point of time, whether it be under Rule 16 or Rule 22, when the court had to hear and decide any plea in bar of execution. Since the judgment debtor did not raise any such plea, the court directed on 29th March 197b that further steps be taken, implying thereby that the decree was alive and -executable. As a matter of fact, further steps for deposit of mortgage money and the like were actually taken thereafter. In respectful agreement with the view expressed by the Privy Council I would say that limitation was an objection the judgment debtor might and ought to have raised on 29th March 1976. It may not be of much help in this context to protest against implied decisions because the principle behind Explanation IV to Section 11 CPC itself rests on implication.

The question of limitation, it is interesting to notice, had arisen in the Privy Council case in the same execution proceedings and not in a different or subsequent application. As regards the need for a specific notice on the point of limitation, the decision does not disclose that any such qualification was considered necessary. If at all, the principle deducible from the facts and the dicta is that unless limitation or any other plea in bar of execution is reserved for future consideration at the time of recognising the assignment, it would not be open to the judgment debtor to raise any such plea later. Nor could it be lightly assumed that their Lordships of the Privy Council (and of the Supreme Court) were not aware of the duty cast on the court to examine and satisfy itself about the bar of limitation before issue of notice under Rule 16 or 22 of Order 21. When res judicata or constructive res judicata is pleaded in defence by one party in answer to an attack by the other, the question is not whether the attack is justified or whether the point was properly considered by the court at the earlier stage; the question is whether that party it precluded from making the attack at that stage in view of what had happened earlier. Res judicata, it is well known, is estoppel by judgment. If the point raised had been considered earlier and a decision rendered, and that decision has become final, the infirmities attributed to the decision are irrelevant; what is relevant is only the finality of the decision, however wrong or improper it might have been. And where constructive res judicata is involved, the only question will be whether the point could and ought to have been taken earlier.

In S.T.M. Vyravan Chettiar Vs. R.M. Rayalu Ayyar Nagaswami Ayyar and Co., a Division Bench of the Madras High Court had noticed with approval an earlier decision of that court in the following terms:

An exhaustive discussion of the application of the principles of constructive ''res judicata'' to execution proceedings will be found in ''Venkatarangav. Chinna Sithamma (1941) M.L.J. 270. The facts of that case are, a decree for mesne profits had been passed against a Hindu father and his undivided minor sons, directing recovery of the profits from the father personally and from the family properties of all of them. An application for execution was instituted against the father alone, but he did not appear and oppose the application as being time-barred despite notice to him. The learned Judges held that the order passed in such an application would preclude him from raising a plea of limitation in subsequent proceedings, even though the application on which the order was passed did not fructify and was eventually dismissed. We respectfully agree with the view expressed in that judgment.

And in a case where the judgment debtor had stayed away from court on the day fixed for hearing objections to notice under Order 21, Rule 22, and had appeared later, after the court had decided to proceed with the execution, to raise a plea of limitation, Raman Nayar, J., had said in K.G.S.B. Samajamv. ManikkaPai AIR 1959 Ker 384.

...execution having been ordered after due notice to the Defendants, and after giving them opportunity of being heard, they are precluded from raising a plea in bar of execution, like the present plea of limitation at a subsequent stage of the same proceedings.

The above discussion answers to (i) points (iii) formulated in paragraph (8) above; and in the view that I have taken that the failure of the judgment debtor to raise objections on 29th March 1976 precludes him from raising the plea of limitation at a later stage, point (iv) does not really arise. I will however examine whether even his objections, dated 14th February 1977 had given any hint about such a plea.

Apart from the tenancy claim founded on Section 4A of Act I of 1964 the only point raised on 14th February 1977 was that the additional Plaintiff was not entitled to recover possession, of the decree-schedule property. On the face of it, this part of the objection was not directed against executability of the decree as such, but was against the right of the additional Plaintiff to execute the decree by herself, without at least the junction of the original Plaintiffs. This is clear from the manner, in which the objection was dealt with by the executing court in the order dated 27th March 1978 in E.A. 1463/77 (vide paragraph 3 supra). In C.M.A. No. 46/78 against that order also, no attempt was made to suggest that the executing court had misconstrued the nature of the objection. And paragraph (8) or the order now impugned, passed in pursuance of the remand in the C.M.A, clinches the issue, because all that was contended for before the court below was that only a holder of the decree could seek execution under Order 21, Rule 10. The court''s order dated 29th March 1976 had not reserved for later consideration any plea in bar of execution; and what the objections dated 14th February 1977 really disclose is that the judgment debtor himself had no illusion on this aspect of the matter. I therefore held that the present plea of limitation is barred by the principles of constructive res judicata.

The C.R.P. is accordingly dismissed, but with no order as to costs.