Shankar Dass and others vs Captain Bhola Nath and another

Jaswant Singh, J.—This civil second appeal has been referred to this bench by one of us as it raises a substantial question of law as to the

interpretation of S. 47 of the Code of Civil Procedure, hereinafter referred to as 'the Code'.

For a proper appreciation of the matter, it is necessary to give a resume of the facts leading to this appeal.

In Civil suit No. 2 of 1962 instituted on October 1, 1962, by respondent No. 1 against the appellants, respondent No. 2 as also Mulla Singh

and Qabla Singh sons of Dhirku Raiput of Kotli Mian Fateh, an ex parte decree for possession of land measuring 12 Kanals comprised in Survey

No. 572/93 situate in Kotli Mian Fateh, Tehsil Ranbirsinghpura was passed on May 29, 1964, by the Munsiff R. S. Pura in favour of the former,

Alleging that possession of land comprised in Survey No. 571/93 instead of that comprised in Survey No. 572/93 situate in the said village was

handed over to respondent No. 1 in execution of the aforesaid decree, the appellants filed an objection petition in the court of the Munsiff

Ranbirsinghpura on July 2, 1965. This petition was consigned to records for default of the appellants on November 29, 1965, in the wake of Indo

Pak conflict. Instead of filing an application for restoration or an appeal against the aforesaid order of dismissal of their objection petition the

appellants filed on Feb. 2, 1966 a civil suit being Suit No. 3 of 1966, in the court of the Munsiff, Ranbirsinghpura, which was also the executing

court so far as the aforesaid decree dated May 29, 1964, was concerned for possession of the land comprised in the said survey No. 571/93 as

also for recovery of compensation amounting to Rs. 111/- alleging that the land covered by Survey No. 571/93 had been purchased by them vide

sale deed dated June 23, 1958, from Omkar Singh respondent 2 herein that mutation in regard to the transaction was also attested in their favour

by the revenue authorities as it was accompanied by delivery of possession and that respondent 1 herein had without any right or title and in

collusion with the Patwari taken possession of the land in May-June, 1965. This suit which was resisted by the respondent on various grounds was

eventually dismissed on August 28, 1969, by the Munsiff R. S. Pura on the ground that an application u/s 47 of the Code lay and a separate suit

was barred. Against this judgment the appellants went up in appeal to the Sub Judge (Chief Judicial Magistrate), Jammu, but were unsuccessful.

They have now come up in second appeal to this court.

Mr. Salaria appearing on behalf of the appellant has urged that the doctrine of res judicata could not be invoked in this case and in any event the

suit filed by his clients should have been treated as an application u/s 47 of the Code.

Mr. Inderjeet Gupta, learned counsel for Captain Bhola Nath, has on the other hand contended that the language of Section 47 of the Code is

unambiguous and as the objection of the appellants related to execution or satisfaction of the decree dated May 29, 1964, within the meaning of

the said Section, the question could only be determined by the court executing the decree and not by a separate suit. He has further urged that the

suit No. 3 of 1966 could not in the circumstances of the case be treated as an application under S. 47 of the Code.

Three questions fall for determination in this case, viz. (1) whether a separate suit filed by the appellants was competent. (2) whether the order

dated November 27, 1965, dismissing in default the appellants' objection petition amounted to res judicata between the parties and (3) whether

suit No. 3 of 1966 could and should have been treated as an application u/s 47 of the Code.

There cannot be any manner of doubt so far as the first question is concerned. In Merla Ramanna Vs. Nallaparaju and Others, , their Lordships

of the Supreme Court while approving the decisions reported in (1912) 13 Ind. Cas. 133 (Mad), ILR (1895) Cal 483, Abdul Karim Vs.

Musammat Islamunnissa Bibi and Others, and AIR 1930 86 (Privy Council) and Lakshminarayan Hiralal Vs. Laduram Onkar Agarwala, , held:

When a sale in execution of a decree is impugned on the ground that it is not warranted by the terms thereof, that question could be agitated, when

it arises between parties to the decree, only by an application u/s 47 and not in a separate suit

Again in M.P. Shreevastava Vs. Mrs. Veena, , it has been authoritatively observed :-

The principle of Section 47 is that all questions relating to execution, discharge or satisfaction of a decree and arising between the parties to the suit

in which the decree is passed, shall be determined in the execution proceeding, and not by a separate suit, it follows as a corollary that a question

relating to execution, discharge or satisfaction of a decree may be raised by the decree-holder or by the ""judgment debtor in the execution

department and that pendency of an application for execution by the decree holder is not a condition of its exercise. An application made by the

judgment debtor which raises a question relating to execution, discharge, or satisfaction of a decree in a suit to which he or the person of whom he

is representative was a party is an application before the court executing the decree and must be tried in that court.

In view of the aforesaid authorities it must be held that Suit No. 3 of 1966 filed by the appellants was not competent and the matter ought to

have been agitated by them by means of an application u/s 47 of the Code.

As regards the second question it may be observed that although there is consensus of judicial opinion that the principles of res judicata are

applicable to execution proceedings, there is a sharp divergence of opinion on the point as to whether or not when an objection petition is

dismissed for default in presence of the decree holder a subsequent objection petition by the judgment-debtor or his representative is barred by the

principle of res judicata underlying the provisions of section 11 of the Code. According to the decisions reported in Ram Narain Singh and Others

Vs. Basudeo Singh and Another, , Simhadri Sahu Vs. Balaji Padhi and Others, and Ramchandra Nahaka and Others Vs. Bharat Rana, a

subsequent petition is barred. There is however, a long string of authorities which hold a contrary view. Reference in this connection may be made

to the decisions reported in Bahir Das Pal and Another Vs. Girish Chandra Pal, . Bir Bikram Kishore Manikya Bahadur Vs. Khaliler Rahaman, .

AIR 1936 930 (Lahore) . AIR 1958 P&H 338. AIR 1948 Bom 221. Ram Chand Gupta Vs. Wazir Chand, . Bishwanath Kundu Vs. Sm. Subala

Dassi, and AIR 1970 Pat 237 (FB).

In Ram Chand Gupta Vs. Wazir Chand, it was held that the objection petition dismissed on the ground of limitation cannot be said to be a

decision on merits which can operate as res judicata.

In Bishwanath Kundu Vs. Sm. Subala Dassi, , it was held that the dismissal of objection petition u/s 47 of the Code for default which involves

no decision on merits cannot operate as a bar to a subsequent objection petition.

In AIR 1936 930 (Lahore) , it was observed that before the doctrine of res judicata is invoked in aid there must be some finding either express

or by necessary implication which decides the question one way or the other.

In view of the preponderance of judicial authority in favour of the view that the dismissal of an objection petition u/s 47 of the Code for default

which involves no decision on merits cannot be held to bar a subsequent objection petition, we hold that before the doctrine of res judicata is

invoked it must be shown that there was some finding either express or implied deciding the objection one way or the other. In the present case the

aforesaid order dismissing the objection petition of the appellants simply said:

(The portion in Original Script (Urdu) is omitted-Ed.)

From the text of the above order it is abundantly clear that there was no finding by the executing court as to whether possession of the correct

field was handed over to respondent No. 1 or not. We are, therefore, of the view that the order reproduced above does not operate as res

judicata.

This takes us to the last question as to whether the suit filed by the appellants could and should have been treated as proceedings u/s 47 of the

Code, or not. It will be advantageous in this connection to refer to Section 47(2) of the Code which runs as under :-

The court may subject to any objection as to limitation or jurisdiction treat a proceeding under this Section as a suit or a suit as a proceeding and

may if necessary, order payment of any additional court fees.

It is now well settled that the appellate court can also exercise the discretion u/s 47 of the Code and treat a plaint as an application.

In Merla Ramanna Vs. Nallaparaju and Others, relied upon by the lower appellate court, the plaint was treated as an execution application and

relief afforded to the respondent of that case.

Respectfully following the observations made in this case, we hold that the trial court which was also the executing court so far as the decree

dated May 29, 1964, was concerned ought to have treated the plaint in suit No. 3 of 1966 as an application u/s 47 of the Code as there was

nothing in the conduct of the appellants which should have impelled the court not to do so. The omission on the part of the trial court to follow this

procedure has manifestly resulted in grave failure of justice.

We would, therefore, accept the appeal, set aside the judgment and decree passed by the courts below and direct that the plaint in suit No. 3

of 1966, be treated as an application u/s 47 of the Code and disposed of according to law subject to all just exceptions regarding limitation or

jurisdiction as contemplated by Section 47(2) of the Code.

Appeal accepted.