Venugopal Pillai vs Sri Kachaleeswarar Devasthanam

G. Maheswaran, J.—This revision is directed against the order of the District Munsif, Sholinghur, proclaiming for sale the properties

attached.

The plaintiff-Devasthanam, the respondent herein, obtained a decree against the revision petitioner for Rs. 912.37 being the arrears of rent due

by the revision petitioner to the plaintiff. The respondent filed an application for execution for attachment and sale of immovable properties

belonging to the revision petitioner. Notice under Order 21, Rule 22 of the Code of Civil Procedure, was issued and that notice was received by

the revision petitioner judgment-debtor on 8th September, 1980, and after some adjournments the revision petitioner represented to the Court that

he is not filing any counter, whereupon the Court posted the application to enable the judgment-debtor revision petitioner to pay the amount. The

petition was posted on 8th December, 1980, 17th December, 1980 and 24th December, 1980, but as no payment was made and as the petitioner

remained ex parte, the Court made the order attaching the property. The Court proceeded with the execution for sale of the properties. It is at that

time the judgment-debtor revision petitioner filed a counter-affidavit contending inter alia that several payments have been made towards the

decree and that they have not been credited to, that he is also entitled to the benefits of Section 3 of the Tamil Nadu Cultivating Tenants Arrears of

Rent (Relief) Act (XXI of 1972). The executing Court took the view that as the revision petitioner has not objected to the execution, at the time

when he received the notice under Order 21, Rule 22, Civil Procedure Code, he cannot raise it at this stage as such pleas would be barred by the

principles of constructive res judicata. In the end, the Court ordered further proceedings and ""ordered proclamation for sale"" and posted the matter

to 23rd September, 1981. That order is now challenged by the revision petitioner.

In Mohanlal Goenka Vs. Benoy Krishna Mukherjee and Others, Ghulam Hasan, J., observed that ""that the principles of constructive res

judicata are applicable to execution proceedings, is no longer open to doubt"". I must make reference in this connection to Explanation 7 now

added to Section 11, Civil Procedure Code, by Act CIV of 1976, which runs thus:

The provisions of the section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit

shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former

proceeding for the execution of that decree.

In view of this explanation, it would be no longer open to say that Section 11 applies only to suits and not to execution proceedings.

S.C. Puttappaji v. Dooda Mallappa (1944) 1 M.L.J. 494 : 57 L.W. 356 : AIR 1944 Mad. 420 was a case where an execution, petition was

filed out of time. Notice went to respondents and other judgment-debtors, but they remained ex parte and an order was passed in the following

terms ""proclaim and sell"". At a later stage of the execution proceedings, an objection as to limitation was taken. Horwiil, J., observed:

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.

I am in respectful accord with these observations of the learned Judge.

In Desayi Venkatranga Reddi and Others Vs. Paraku Chinna Sithamma and Another, Wadsworth and Patanjali Sastri, JJ. held that even though

an execution petition is finally dismissed, an order in it that the decree should be executed would operate as constructive res judicata in subsequent

proceedings. In C. Abdul Afeez Sahib Vs. Official Receiver, Sub Court, Rajagopalan and Balakrishna Ayyar, JJ., took the view that an earlier

order passed in the course of execution proceedings would operate as constructive res judicata at the later stage of the same execution

proceedings. In Prem Lata Agarwal Vs. Lakshman Prasad Gupta and Others, the Supreme Court had to deal with the applicability of the principle

of res judicata to execution proceedings. That was a case where the decree was transferred by the Subordinate Judge of Arrah for execution to

Madras High Court. The matter was first heard by the Master of the High Court in Madras who held that the application for execution was barred

by limitation. An appeal from the decision of the Master was heard by a single Judge of Madras High Court who held that the application was not

barred by limitation. Letters Patent Appeal was heard by a Division Bench of Madras High Court. It upheld the judgment of the learned single

Judge. The Supreme Court had to deal with the principles of application of Section 11 to execution proceedings. It was pointed out by the

Supreme Court:

The principle of res judicata applies to execution proceedings. The judgment-debtors in the present case did not raise any objection as to limitation

in regard to execution of the decree before the Civil Judge at Allahabad. On the contrary the judgment-debtors asked for setting aside the sale on

the basis of revival of execution proceedings. The revival of execution was not challenged and the judgment-debtors are thereby barred by the

principle of res judicata from questioning directly or indirectly the order dated 13th May, 1950, reviving the execution proceedings.

Learned Counsel appearing for the revision petitioner invited my attention to Raghunath Pradhani Vs. Damodra Mahapatra and Others, That

was a case where in execution of a'' money decree, the immovable properties belonging to the judgment-debtor who was a member of the

Scheduled Tribe was attached The decree-holder applied to the executing Court to obtain permission of the competent authority for sale of a

property as the judgment-debtor to whom the property belonged was a member of the Scheduled Tribe. Such a permission was considered

necessary by reason of the provisions contained in Clause 6 of the Orissa Scheduled Areas Transfer of Immovable Property by Schedule Tribes

Regulation II of 1956, read with Rule 4 made thereunder. The judgment-debtor was in that meantime negotiating for private sale and he also

obtained the requisite permission for safe of the property and sold the property to a third party by a registered deed of sale. The decree-holder

produced a copy of the order passed by the competent authority in the executing Court whereupon the property was put to sale. The person who

purchased this property from the judgment-debtor filed an application to set aside the auction sale on the ground that the attachment and auction

sale were void as they were effected without obtaining the requisite permission and that the decree-holder bad played a fraud on the Court by

inducing it to put the property to sale on the strength of the order which was passed by the competent authority at the instance of the purchaser.

Their Lordships of the Supreme Court while disposing of the case on the question of res judicata observed thus:

No question of res judicata can arise because the basic issue in the appeal is as regards the validity of the auction sale in favour of respondent 2.

The appellant claims through the judgment-debtor and neither the latter nor the decree-holder ever disputed that he, the judgment-debtor, was a

member of the Scheduled Tribe. On the other hand, both of them were conscious of the situation that the property could not be sold without the

sanction of the R.D.C. Nowrangpur. The decree-holder himself appraised the execution Court of that petition. The failure, therefore, of the

judgment-debtor to raise any particular contention cannot operate as a res judicata actually or constructively, either against him or against the

appellant.

It would thus be seen that the facts of that case have no relation to the facts of this case.

Thus, on a conspectus of the rulings referred to above, it would be seen, that if a judgment-debtor did not appear in answer to notice under

Order 21, Rule 22, Civil Procedure Code, or if he appears and does not file any objections to that notice asking him to show cause as to why the

decree should not be executed against him, the Court shall order the decree to be executed. Order 21, Rule 22, provides that the Court shall order

the decree to be executed if the judgment-debtor does not show cause as to why the decree should not be executed against him. If the person

against whom the decree is sought to be executed does not file an appeal against the order made against him, he cannot be permitted to contend at

any subsequent stage of the execution proceedings that the order was not rightly made. The order passed by the Court under Order 21, Rule 23,

Civil Procedure Code, will operate as res judicata in regard to the contention urged against the execution of the decree in answer to the notice

under Order 21, Rule 22, Civil Procedure Code. That order must also operate as constructive res judicata regard to the contentions which the

judgment debtor might and ought to have taken against the execution of the decree in answer to the notice under Order 21, Rule 22. In this case as

the judgment-debtor appeared in Court in answer to the notice under Order 21, Rule 22 the petition was posted for filing counter on two

occasions. The respondent stated that he has no counter to file Whereupon the executing Court posted the petition to enable the judgment-debtor

to make payments and on the third occasion the judgment-debtor remained ex parte and further proceedings were ordered. The Court below was

therefore correct in holding that the judgment-debtor cannot object to the execution of the decree at this stage. The civil revision petition fails and is

dismissed. No costs.