Sadashiv Busappa and Others vs Raja Kishtappa Naik

Ansari, J.—This is an appeal against the judgment and order of execution Court, where-by an execution application dated 23rd Ardibehist 1353 Fadi (27th March 1914 A.D.) has been held to be barred under Section, 262, Hyderabad Civil P.C. The section like Section 48, Indian Civil P.C., provides that no order for execution of a decree shall be made upon any fresh application presented after the expiration of twelve years from the date of the decree. The application seeks execution of a money decree passed on 10th Ardibehist 1329 Fasli (14th March 1920 A.D.) and has been filed exactly twenty four years and thirteen days after that date. It says that the previous application was dismissed for failure to pay process fee on 2nd Aban 1351 Fasli (7th September 1912 AD), that one of the two decree holders has since died leaving as legal representatives a minor son and a wife, they be brought on record and execution proceedings be started. It contains no specification of the property which is to be attached, but mentions that such a list was previously filed and further specification will be given at the time of the passing of attachment order. On 29th Aban 1353 Pasli (4th October 1944 A.D) the Court after taking evidence, ordered the representatives of the deceased decree holder, who were then shown to include two more minor sons, to be brought on record. On the same date, it ordered attachment, but the list of property promised was not furnished till a later date. This list contains property not covered by the previous list. The judgment-debtor raised objection that the present application being fresh one and being after twelve years from the date of the decree, no execution can now be ordered, he also objected to the wife being substituted as a legal representative when there were three minor sons of the deceased. In a rejoinder to the decree-holders'' reply, these objections were amplified that the properties now sought to be attached were different to properties mentioned in the previous application and the application was not a proper one as it mentioned no property. The decree-holders'' replies to these objections were -that a similar objection was previously rejected and the present application is not a fresh application.

The execution Court has held that the decree holders had for the first time applied for attachment of property in their application of 15th Farwardi 1347 Fasli (16th February 1938 A.D.) which was admittedly twelve years after the date of the decree, the present application was therefore, barred, and further the principle of res judicata did not apply.

The appeal has been filed against this decision and the points that we have to determine are: (i) Has the question of execution proceedings not being barred been previously decided either expressly or by implication, so as to make that adjudication res judicata in subsequent proceeding, and, if that be not so. (2) Is the present application a fresh application so as to prevent the Court from passing any order upon it u/s 262 Civil P.C.?

Before deciding these questions, it is necessary to refer to some more facts of the case. There have been three execution applications by the decree-holders after twelve years from the date of the decree The first of the three is dated 15th Farwardi 1347 Fasli (16th February 1938 A.D.), and in it the decree-holders for the first time prayed for attachment and sale of judgment-debtors'' movable and immovable property. Before it they wore trying to attach his jagir income and house. A notice appears to have been served on the judgment-debtor, but he failed to appear, and thereupon attachment of property was ordered. As the decree-holders did not deposit the necessary process fee, this application was dismissed for default on 11th shehrewar, 1347 Faali (17th July 1938 A.D.) Within three years from this dismissal Anr. application was field on 7th Azur 1350 Fasli (12th October 1910 A.D.). It prayed for attachment of property specified in the list annexed to the application, A notice was served on the judgment-debtor and this time he filed objection in which he specifically raised the plea of the application being barred because of the twelve years rule. His Vakil, however, did not appear, and on 29th Shehrewar 1351 Fasli (4th August 1942 A.D.) the execution Court hold that as money had been paid before, and as execution had continued without any plea of limitation, the plea cannot be raised it, therefore, ordered attachment. ''This application was also dismissed on 20th Aban 1351 Fasli (25th September 1912 A.D.) for nonpayment of process fee. Within three years of this order the present application has been filed and this time the lower Court has held that the above application was barred and the earlier decisions did not operate as res judicata. I am of opinion that the decision cannot be upheld.

By preponderance of authorities the rule is well established that if, after notice a judgment-debtor fails to show cause against an execution application being allowed on the ground that it in time barred, lie is precluded from raising this plea of limitation in subsequent proceedings, even though the application on which the order was passed in eventually struck off or dismissed. In a Madras case reported in Desayi Venkatranga Reddi and Others Vs. Paraku Chinna Sithamma and Another, there were two applications previous to the application in which the plea was raised, and each of the two wore dismissed for default; the first of the two was admittedly filed beyond three years, but the judgment-debtor in spite of being served with notice has failed to appear and oppose it. It was hold there that this failure precluded him from raising the plea in the third application. The Lahore High Court has also held in Bhagwan Singh v. Barkat Ram AIR 1943 Lah. 129 that although the execution of a decree might have been actually barred at the date of the application, if an order for such execution had been regularly made by a competent Court such order although erroneous must be treated as valid and would operate as res judicata. A single Judge of the Calcutta High Court his in Aswini Kumar Das Gupta and Others Vs. Karamat Ali Kha, and after considering the different authorities of that Court held that if on failure of judgment-debtor to appear in pursuance of notice and to show cause against execution, order is passed directing the decree-holder to take further step and even if on his default the execution case is dismissed, the judgment-debtor cannot in the second application raise objection of the application being barred, because the order in the first execution implied an adjudication that decree was executable, and the order having stood unchallenged either by way of review or by appeal, the judgment-debtor was precluded from raising the plea. In the Full Bench case of our own Court reported in 25 Deccan Law Rep. 220, the majority have held that if a Court has in execution proceedings passed an order which commences the proceeding, then there is no doubt that it operates as res judicata, even though the order be defective or wrong. In giving that decision the majority relied on the case of Raja of Ramnad v. Velusami Tevar AIR 1921 P.C. 23 where their Lordships of the Privy Council have held that the order of 13th December 1915, was a positive order allowing the appellant to execute the decree and that it was not open to the Court to hold that execution was barred. It is true that a Full Bench case of Allahabad reported in Genda Lal v. Hazari Lal AIR 1930 ALL. 21 F.B. has held that where no objection is taken and the application for execution does not fructify, the judgment-debtor is not barred from raising the question of limitation. There are strong reasons against making fructification the criterion for judgment-debtor not being allowed to raise his objections. Under Order 21, Rule 23, Sub-rule (1) which is similar to Section 28, Sub-section (1), Hyderabad Civil P.C. a Court can issue execution if the person to whom notice is issued does not appear, or does not show cause to the satisfaction of the Court why the decree should not be executed. If it be once conceded, (and at p. 320 of the ruling it is conceded), that objection so raised and decided against, would operate as res judicata, then there are no reasons as to why order passed on failure of such appearance should not have similar effect. Assigning different effects to orders passed under one sub-rule is hardly logical. I, therefore, agree with the Madras High Court a ruling in dissenting from the Allahabad ruling, and hold that an order of execution passed under sub-rule on failure of the judgment-debtor to appear, also operates as res judicata.

In the first of the three applications made after the expiration of twelve years from the date of the decree, the appellants prayed generally for the attachment of judgment-debtor''s movable and immovable property. Till then they were trying to realise the decretal amount from his jagir income. In spite of notice he failed to appear and the Court on 2nd Khurdad 1347 Fasli (6th April 1938) ordered attachment par application. I hold that this order operates as res judicata prevents the judgment-debtors from reagitating the question in subsequent applications. Similar result follows from Court''s overruling of his objection to the second application 29th Shehrewar 1351 Fasli (4th August 1942). The learned advocate for the respondent urges that as the properties sought to be attached in the third application are different to those prayed to be attached by the second he can still raise the objection. I cannot accept the argument. In applying the principle the identity of matters in issue in the applications alone must be looked at. If difference in properties be accepted to exclude the operation of the rule, a decree holder can get rid of a decision of limitation against himself by seeking to attach different properties by different applications. In the present case the issues in the previous two applications were whether by smoking to attach fresh properties after a lapse of twelve years the execution applications could be entertained. In this application the issue is not different. It having been constructively and expressly decided against the judgment debtor, he cannot have it re-opened. The decision of the lower Court about the plea of limitation being still open, is, therefore, incorrect and cannot stand.

Having decided the first question in the affirmative any adjudication on the second question is unnecessary. The appeal is, therefore, allowed, the judgment and order under appeal are set aside and the case is reminded to the execution Court for passing of appropriate orders of execution on the application.

Naik, C.J.

I agree.