S.C. Puttappaji vs D. Mallappa and Others

Horwill, J.—Execution Petition No. 286 of 1936 was filed out of time; because the prior execution petition - which was unnumbered - was

returned for supplying defects and no final order was passed on it. Notice went to the respondent and to the other judgment-debtors; but they did

not appear and remained ex parte. In due course, on 10th October 1938, the Court passed the order ""Proclaim and sell."" Because of the filing of a

petition under Act 4 of 1938, execution was stayed; and at a later stage an objection of limitation was taken, which was upheld. The appellant

appealed; and the lower appellate Court confirmed the order of the first Court.

There can be no doubt, not only that an order passed in one execution petition will operate as res judicata if a similar point arises for decision in

a later execution petition, but a decision made at one stage of execution operates as res judicata at a later stage. If an order to execute is passed in

an execution petition, then by implication the Court has decided: (1) that the petitioner has a right to execute; (2) that the judgment-debtor is liable

to satisfy the decree; (3) that the decree is executable; and (4) that it is not barred by limitation. The result is that at no subsequent stage after an

order to execute has been passed is it open to the judgment-debtor to dispute the correctness of these four implied decisions. On the authority of

Dewan Syed Aley Rasul Vs. Seth Balkishan and Others , it is argued that a judgment-debtor can raise objections at any stage and is not barred by

res judicata because he did not raise them at the earliest possible occasion. Whatever may be the law in Allahabad, that is not the law in Madras;

and no Madras case has been shown to me which departs from the rule that if an order prejudicial to the judgment-debtor is passed, then he is

barred from raising any point at a later stage of the proceedings decided expressly or impliedly by that order. In Venkataranga v. Seethamma AIR

1941 Mad. 440, Wads-worth and Patanjali Sastri JJ. held that even though an execution petition be finally dismissed, an order in it that the decree

should be executed would operate as res judicata in subsequent proceedings. That would certainly not be the case if the judgment-debtor were not

bound to raise his defences on the first appropriate occasion.

The law on the subject as far as this High Court is concerned, is clear and consistent; and the only reason urged for departing from it is that

Section 3, Limitation Act, makes it obligatory upon the Court to dismiss an application made after the period of limitation, even though limitation

has not been set up as a defence. The weak point of this argument seems to be that when the Court ordered the property to be sold, it decided-

rightly or wrongly-that the application was not barred by limitation and so had no power to pass any subsequent orders inconsistent with its earlier

decision. When the Court passed an order adverse to the respondent that the property should be sold, he had a right of appeal u/s 47; and as he

did not exercise that right he is barred from disputing the correctness of the order at a subsequent stage.

The appeal is therefore allowed and the execution petition remanded to the executing Court for further proceedings. Costs in all three Courts

will abide the result.