M. Vishnuvardhana Reddy vs Saya Nagappa

This revision petition is filed being aggrieved by the order dated 28-6-1999 passed by the Principal Junior Civil Judge, Kurnool on EA No.563 of 1999 in EP No.316 of 1997 in OS No.256 of 1996. By the impugned order, the petition filed by the petitioner-judgment debtor in EA No.563 of 1999 to determine the disobedience of the decree in terms of Section 47 of CPC is dismissed on the ground that the petitioner after notice look adjournment for one year for filing counter and he did not file counter. Consequently vide order dated 14-10-1998 in EP No.316 of 1997 in OS No.256 of 1997, the Court below directed detention of the petitioner -judgment-debtor for disobedience of the decree of the Court.

The learned Counsel for the petitioner contended that the Court below has failed to exercise its jurisdiction vested u/s 47 of CPC and, therefore, the impugned order is illegal. In support of his contention, he relied upon the judgments reported in Thakur Prasad v. Kasturi Narain, AIR 1935 All. 364, and Kancherla Ram Mohan Vs. Mogal Ahmed Baig, . The Counsel appearing for the respondent strenuously supported the impugned order, contending that after service of notice in the execution petition, the petitioner - judgment-debtor entered into appearance through an Advocate, but he did not file counter for one year and, therefore, the Court below placed him ex parte and on the basis of the material produced by the decree-holder, it decided vide order dated 14-10-1998 by holding that the judgment-debtor has disobeyed the injunction decree and consequently directed detention of the judgment-debtor. After that, the judgment-debtor has filed the present application in EA No.563 of 1999 to determine the disobedience of the decree. When this matter was already decided by an earlier order dated 14-10-1998 passed in EP No.316 of 1997 in OS No.256 of 1996, it operates as res judicata and the same cannot be reagitated and the present application u/s 47 of CPC would not be maintainable. By filing objections the petitioner-judgment-debtor could have raised all the contentions that were open to him u/s 47 of CPC immediately after service of notice in the execution petition and that he has not done, therefore, the earlier order operates as res judicata. In support of his contention, he relied upon the judgments reported in Chitturi Perraju and Another Vs. Yednapudi Venkamma and Others, , Katragadda Ramayya and Another Vs. Kolli Nageswararao and Others, , Smt. Pushpa Vs. Ganpatsingh and Others, and Ramrup Rai Vs. Mst. Gheodhari Kuer and Others, . The learned Counsel for the respondent further submitted that the discretionary order of the Court below does not call for any interference u/s 115 of CPC and accordingly the revision petition is liable to be dismissed.

Both the Counsel took me through the impugned order. The earlier order order dated 14-10-1998 passed in the execution petition also has been brought to my notice. From the reading of both the orders and also on the basis of the contentions urged by learned Counsel on both sides, I find that few things are admitted. It is admitted that an ex parte decree was passed against the present petitioner-judgment-debtor. The said decree was for a permanent injunction restraining the judgment debtor and his men and anybody on his behalf from digging or laying big pipe line through the suit schedule land and from digging gaint size ring well on either side of the plaintiffs small ring well without leaving requisite distance from the plaintiffs ring well. In the execution petition, the decree holder alleged that, the judgment debtor has laid a pipe line through item No.1 of the suit schedule land after the decree was passed inspite of the protest by him and accordingly the judgment-debtor has disobeyed the decree. It is not in dispute that, in the execution petition, notice was issued to the judgment-debtor and the judgment-debtor entered into appearance by engaging an Advocate and he was taking time for filing counter to the execution petition, and he did not file objections for a period of one year and thereafter he was placed ex parte. After perusing the affidavit and also the material produced by the decree-holder, the executing Court passed an order dated 14-30-1998 in EP No.316 of 1997 in OS No.256 of 1996, determining that the judgment-debtor has disobeyed the decree and consequently directed the detention of the judgment-debtor for such disobedience. It is only thereafter the judgment-debtor filed the present application in EA No.563 of 1999 requesting the Court to determine whether there is really disobedience of the decree or not in terms of Section 47 of CPC. The learned Counsel for the petitioner submitted that the Court below should have allowed the present EA and determined the disobedience of the decree. But the Court below has taken an erroneous view that once the judgment-debtor was placed ex parte and an order was passed, he cannot be deemed to be a party for the purpose of Section 47 of CPC. He further submitted that since it was an ex parte decree and even the earlier order dated 14-10-1998 passed in the EP No.316 of 1997 was an exparte order, the petitioner - judgment-debtor could still file one petition u/s 47 of CPC and the judgment-debtor being a party to the suit as defendant, is entitled to raise all the contentions regarding disobedience in terms of Section 47 of CPC. Accordingly he submitted that the Court below was in error in dismissing the present application. As I have already stated above, in support of his contentions, he relied upon the judgments Thakur Prasad v. Kasturi Narain and K. Ram Mohan v. Mogal ahmed Baig (cited supra).

So far as the applicability of Section 47 of CPC regarding the dispute between the decree-holder and judgment-debtor, the law is well settled. As a judgment-debtor, he is entitled to raise the contentions regarding the executability of the decree and also regarding its disobedience, u/s 47 of CPC, as per the law declared in the judgment of this Court in K. Ram Mohan''s case (supra). This proposition of law laid down in this case cannot be disputed and the petitioner was entitled to raise all the contentions open to him regarding the execution of the decree u/s 47 of CPC by filing a counter. But the facts remain on record that the petitioner judgment-debtor took one year time for filing counter, which he did not file, and therefore he was placed ex parte. After he was placed ex parte, on the basis of the affidavit and the material produced" by the decree-holder, the Court has determined the disobedience of the decree by the judgment-debtor. Having suffered this order, though ex parte, the question would be whether the judgment-debtor would be entitled to file another petition u/s 47 of CPC requesting the Court to determine the disobedience. I may take note of the fact that against the earlier order dated 14-10-1998, determining the disobedience of the decree by the judgment-debtor, he has not taken up any proceedings to get the said order set aside by filing necessary application or by filing a revision petition before this Court. In these circumstances, the order dated 14-10-1998 determining the disobedience of the decree by the judgment-debtor has become final. Therefore, now I have to see whether the judgment-debtor could still maintain the present application in EA No.563 of 1999. The learned Counsel for the respondent contended that, the present application would be barred by principles of res judicata. There is substance in the argument of the Counsel for the respondent. The Division Bench of this Court in the Per Raju v. Venkamma (supra), has held that the principle of res judicata applies even to the execution proceedings, 1 think it appropriate to extract the relevant part of the said judgment as under:--

"5. The law on the point is well settled. The principle of res judicata applies not only to suits but also to the execution proceedings. The learned Judge referred to a decision of a Division Bench in Alluiri Bapanna v. Innuganti Vengayya, (1937) 1 Mad.LJ 296 at P.301 = AIR 1937 Mad. 511 at P.514. The learned Judge held in that case at P.301 (of Mad UP = (at Page 514 of AIR).

"If a judgment-debtor with due notice of the proceedings fails to raise any objection on any of these grounds, it must be held by the principle of constructive res judicata that his failure to do so has the same legal effect as if it had been raised and decided against him."

In Rity Kuer v. Alakhdeo Narain Singh,47lnd Cas 154 = AIR 1918 Pat. 67, it was held that:

"Whether rightly or wrongly, a Court with jurisdiction, had disposed of the judgment-debtors objection on the merits and has decided that the decree holder was not competent by reason of a defect of parties to proceed with the execution, the decision was binding on the decree-bolder till it was set aside."

The Bombay High Court took the same view in Vyasacharya Madhavacharya Vs. Daji Baba, . Further in Algappa Chettiar v. Somasundaram Chettiar, 1937 Mad.WN 465, a Division Bench of the Madras High Court had an occasion to consider whether the construction once placed on a document or a decree by a competent Court before which the question was directly and substantially in issue, is conclusive between the parties. After a review of the case law, Varadachari, J., speaking for the Bench observed at page 468:

"Though the construction of a document may for certain purposes be regarded as involving a question of law, e.g., for the purposes of Section 100 CPC, it is well established that a construction once placed on a document by a competent Court before which the question was directly and substantially in issue, is conclusive between the parties and it is immaterial that the property involved in the subsequent suit is not the same as that which formed the subject-matter of the first suit.....The issue in the former litigation was whether the decree in OS No.169/191 was a persona! decree against Chindambara (See the first issue in Ex.B) and that was decided by both the Courts in plaintiffs favour. I hold that this interpretation of that decree is conclusive between the parties even for the purpose of the present litigation. The decisions of the Privy Council in Ram Kirpal v. Rup Kuai, (1884) ILR 6 269 and Bent Ram v. Nanhianal, (1885) ILR 7 All. 102 (PC), showed that the principle of finality of construction is equally applicable to decree though the question, there arose in the course of proceedings in execution and not in a separate suit."

But at the same time the very principle and policy of Section 11, CPC should be born in mind. In order to attract the bar of res judicata, certain pre-conditions should be satisfied. It is not every matter decided in a former proceeding that can be pleaded as res judicata in a subsequent proceeding. To constitute a matter res judicata the following conditions must exist:

(1) The matter directly and substantially in issue in the subsequent proceedings must be the same matter which was directly and subsequently in issue either actually or constructively in the earlier proceedings.

(2) The former proceeding must have been one between the same parties or between parties under whom they or any of them claim.

(3) The parties must have litigated under the same title in the former proceedings.

(4) The Court which decided the former proceeding must have been a Court competent to try the subsequent proceeding or the proceeding in which such issue is subsequently raised.

(5) The matter directly and substantially in issue in the subsequent proceeding must have been heard and finally decided by the Court in the earlier proceeding."

In the present case, all those conditions prescribed for constitution of res judicata are fulfilled. The order dated 14-10-1998 in EP No.316 of 1997 is between the same parties and the parties are agitating under the same title. The said order is by a competent Court and the matter in issue is substantially the same. The order dated 14-10-1998 determined the disobedience of the judgment-debtor, but he wants that it should be redetermined again. Therefore, the earlier order dated 14-10-1998 deciding the same issue would definitely operate as res judicata for the present application. The judgment-debtor being absent and ex parte does not get any extra privilege and if he fails to raise the objections now raised, when an opportunity was given to him in EP No.316 of 1997, the matter would be hit by principle of constructive res judicata in terms of Section 11 CPC. To the same effect also is the judgment of the Patna High Court reported in Ramrup Rai v. Gheodhari Kuer (supra). The Division Bench of that Court ruled that after service of notice in execution petition if the judgment-debtor did not file any objections in terms of Section 47 read with Order 21, Rules 22 and 23, the order passed in the execution petition would operate as res judicata for his subsequent petition. I think it appropriate to extract the relevant part of the judgment as under:

"7. In support of his contention Mr. Rai placed reliance upon the Full Bench decision of this Court in Baijnath Prasad Sah Vs. Ramphal Sahni and Another, where it was held that the principle of constructive res judicata applies to an execution proceeding also, it was laid down in that decision that there are five important stages in an execution proceeding of a money decree, namely (1) issue of notice under Order 21, Rule 22, (2) the order for issue of attachment, (3) order for sale of the property, (4) sale of the property and (5) confirmation of sale.

It was held that if inspite of service of notice, the judgment-debtor fails to raise an objection which he might and sought to have raised at that stage, for instance, an objection on the ground of limitation, the Court in passing the order for execution of the decree must be deemed to have decided the objection against him. It was further observed that ordinarily the Court does not pass an express order to the effect that the decree be executed. That order is implied in the order to the issue of attachment. All objections, therefore, to the executability of the decree have to be raised in such cases before the order for issue of attachment. Similarly, when the Court orders sale of the judgment-debtor''s property at the third stage of the proceeding tinder Rule 64 of Order 21 any objection on the ground of non-sale ability of the property must be raised before that stage and in case the judgment-debtor fails to raise any such question at that stage, the Court must be deemed to have decided it against him by passing an order for sale of the property, because unless the property is liable to sale the Court cannot pass that order. We are, however, not concerned in this case with the subsequent stages as the principle of res judicata is sought to be applied on the basis of what happened at the earlier stage of the execution proceeding. On the facts and in the circumstances mentioned above, I would accept the contention of the learned Counsel for the appellant and as also observed by the Full Bench, an order under Rule 23 may be implied by passing of the subsequent order in the execution proceeding after the service return of the notice under Rule 22. In my view, the order of the executing Court dated 12-5-1972 directing the decree holder to deposit the traveling allowance of the Nazir and to file processes for effecting delivery of possession would amount to an order under Rule 23 for executing the decree. No objection, therefore, having been filed to the executability of the decree before that order, the objection filed subsequent thereto must be deemed to be res judicata. The order of the Courts below, therefore, to the maintainability of the execution case must also be upheld on this ground as well."

From the consistent principle of law declared by this Court and other High Courts, it is clear that the present application filed by the judgment-debtor in BA No.563 of 1999 in EPNo.316 of 1997 in OS No.256 of 1996 is barred by the principle of res judicata in view of the earlier order dated 14-10-1998, which has become final. As 1 have already stated above, the judgment-debtor consistently sat on the fence throughout the proceedings. He remained ex parte in the suit, liven in the execution petition after service of notice and after putting up his appearance through a Counsel, he did not file any counter for a period of one year and thereafter he was placed ex parte. In these circumstances only, the Court below passed the order dated 14-10-1998 by determining that the judgment-debtor has disobeyed the decree for injunction. Therefore, the said order dated 14-10-1998 definitely operates as res judicata for the present application. However, the learned Counsel for Ihe petitioner - judgment-debtor contended that nothing prevented him from filing one application even at this stage for determining the disobedience or otherwise of the decree, when earlier proceeding were ex parte. I do not think that such a submission can be accepted. By being ex parte, the law does not confer any extra privilege or immunity to the petitioner. Having failed to file the objections to the execution petition and after having suffered the order dated 14-10-1998, now the petitioner - judgment debtor cannot seek to reopen the entire issue. For these reasons, in my opinion absolutely there are no merits in the revision petition and accordingly I pass the order as under:

The revision petition is dismissed, but in the circumstances without costs.