Patna High Court
Bijali Bala Das vs Charu Bala Ash on 3 May, 1967
Equivalent citations: AIR1969PAT21, 1968(16)BLJR602, AIR 1969 PATNA 21
JUDGMENT S.N.P. Singh, J.
1. These two appeals by the judgment-debtor arise out of Miscellaneous Cases Nos. 77 and 78 of 1960.
2. The material facts may briefly be stated as follows. Sometime in the year 1954 the respondent obtained two mortgage decrees against one Kalipada Das (since dead), the husband of the appellant. The decree-holder respondent put the decrees into execution by filing two execution cases, namely, execution cases Nos. 42 and 43 of 1958, against the appellant as well as the minor sons and daughter of Kalipada Das. The appellant filed objection petitions in both the cases and they were numbered Miscellaneous Cases 31 and 32 of 1958. The executing court rejected both the objection petitions by its order dated the 29th of November, 1958. Being aggrieved by the order of the executing court, the appellant preferred appeals (Miscellaneous Appeals Nos 1/4 and 2/5 of 1959), which were dismissed by the 1st Subordinate Judge, Dhanbad, on the 28th of July. 1959. The appellant then preferred Miscellaneous Second Appeals Nos 287 and 288 of 1959 in the High Court On the 30th of June, 1960, both the appeals were dismissed for non-compliance of certain orders passed by the Bench After the disposal of the two appeals in the High Court, the appellant filed fresh objection petitions under Section 47 of the Code of Civil Procedure in the two execution cases before the executing court and these were numbered Miscellaneous Cases 77 and 78 of 1960.
The only objection raised in the two miscellaneous cases was that the property sought to be sold by the decree-holder was not saleable in view of the provisions of the Bihar Privileged Persons Homestead Tenancy Act, hereinafter referred to as "the Act". The executing court by its order dated the 7th of January. 1961, dismissed the two miscellaneous cases on the following two grounds, namely, that the provision of the Act was not applicable in the present case as the property sought to be sold was situate within the Notified Area Committee close to the Chirkunda Bazar and that the plea that the property was not liable to be sold under the provisions of the Act was barred by the principles of constructive res judicata. Two miscellaneous appeals, namely, Miscellaneous Appeals Nos. 9 and 10 of 1961, were preferred by the appellant judgment-debtor against the decision of the executing court in the two miscellaneous cases These appeals were heard by the District Judge of Dhanbad. The learned District Judge by his order dated the 26th of September, 1961, dismissed the two appeals holding, in agreement with the executing court, that the plea that the land Bought to be sold is not saleable under the provisions of the Act is barred by the principles of constructive res judicata, as that plea was neither raised nor agitated by the appellant in the two previous Miscellaneous Cases. The learned District Judge, however, held on fact that the judgment-debtor was really a privileged tenant as defined in the Act and as such no portion of her homestead land was liable to be sold in execution of any decree or order except a decree for arrears of rent with respect to the holding itself. The appellant then preferred these two miscellaneous appeals in this Court.
3. The sole point for determination in the present appeals is whether the objection of the appellant judgment-debtor is barred by the principles of constructive res judicata. It appears that in the previous miscellaneous cases (Nos. 31 and 32 of 1958) objections were raised by the appellant on the point of limitation and also on the point that the decrees were not executable in view of the provisions of Section 4 of the Bihar Money-Lenders Act and in view of the provisions of Section 67A of the Transfer of Property Act. Although the property sought to be sold had been specified in the two execution applications, no objection regarding the non-saleability of the property was taken by the appellant judgment-debtor. The learned District Judge held that the question as to whether a person is entitled to exemption of the sale of his homestead land under the provisions of the Act is not a pure question of law but a mixed question of fact as well as law and the facts have to be proved. Relying on the decision of this Court in the case of Sham Sundar Singh v. Dhirendra Nath Chandra, AIR 1950 Pat 465. the learned District Judge held that the principles of constructive res judicata were applicable to the present case and the plea about the non-saleability of the property was barred as the appellant had not raised the objection in the two previous execution cases.
4. The point whether the principles of constructive res judicata apply in execution cases has been settled by this Court in the Full Bench decision of this Court in the case of Baijnath Prasad Sah v. Ramphal Sahni. AIR 1962 Pat 72. In that case also objection had been raised by one of the judgment-debtors about the non-saleability of his land in view of the provisions of Section 49-M of the Bihar Tenancy Act as amended by the Bihar Tenancy (Amendment) Act 1955. That objection regarding the non-saleability of the land had been taken by him after the confirmation of the sale. It was held, according to the majority decision, that the judgment-debtor was barred by the principle of res judicata from raising the objection on the ground of non-saleability of the Kasht lands. In that case Sahai. J., who spoke for the majority, pointed put the five important stages in a proceeding for execution of a money decree by attachment and sale of the judgment-debtor's immoveable property. The learned Judge observed as follows;
"In a proceeding for execution of a money decree by attachment and sale of the judgment-debtor's immoveable property, there are five important stages. Under the Patna amendment of Rule 22 of Order XXI, the Court has to issue notice in every case to the person against whom execution is levied, requiring him to show cause why the decree should not be executed against him. Rule 23 reads:
'(1) Where the person to whom notice Is issued under the last preceding rule does not appear or does not show cause to the satisfaction of the court why the decree should not be executed, the court shall order the decree to be executed.
(2) Where such person offers an objection to the execution of the decree, the court shall consider such objection and make such order as it thinks fit'.
This is the first stage. If the notice under Order XXI. Rule 22 is not served upon the judgment-debtor, that is a different matter; but, if the notice is served upon him, he must raise all his objections to the executability of the decree at that stage. If he does, the Court's decision on those objections will operate as res judicata in all further proceedings. If, in spite of service of notice he fails to raise an objection which he might and ought 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.
Ordinarily, however, the court does not pass an express order to the effect that the decree be executed. That order is implied in the order for issue of attachment which is the next stage. In the present case also the order under Rule 23 (1) is implied in order for issue of attachment. All objections to the executability of the decree have to be raised in such cases before the order for issue of attachment The third stage is one when the court orders sale of the judgment-debtor's property. Rule 64 of Order XXI provides that an executing court may order the sale of any property attached by it, provided that the property is liable to sale. As the Court has come to a decision at this stage that the property in question is liable to sale, any objection on the ground of non-saleability of the property must be raised before that stage. If an objection relating to saleability is raised, the court's decision will be binding upon the parties. In case the judgment-debtor fails to raise any such question, the court must be deemed to have decided it against him by passing an order for sale of the property because, unless it is liable to sale it cannot pass that order."
5. Mr. Sudhir Chandra Ghose, learned counsel appearing for the appellant, contended before us on the basis of the observation, referred to above, that only at the third stage when the court orders sale of the judgment-debtor's property, an objection on the ground of non-saleability of the property has to be raised and not at the earlier two stages. In my opinion, it is not possible to accept the contention of learned counsel. There is nothing in the observation of Sahai, J., referred to above, which would indicate that the objection on the ground of non-saleability of the property is to be taken only at the third stage. On the contrary, the observation indicates that the objection on the ground of non-saleability of the property must be raised before the court orders sale of the judgment-debtor's property under Order 21. Rule 64 of the Code of Civil Procedure. In my opinion, according to the view expressed in the observation quoted above, if a judgment-debtor in spite of service of notice under Order 21. Rule 22 of the Code of Civil Procedure fails to raise an objection which he might and ought to have raised at that stage, he is precluded from raising that objection subsequently, As I have already pointed out, the pro-perty sought to be sold was specified in the two execution applications. The judgment-debtor, therefore, when she raised other objections in the two previous miscellaneous cases, might and ought to have] raised the objection about the non-saleability of the homestead land specified in the execution applications at that stage. As such, her subsequent objection about the non-saleability of the property under the provisions of the Act must be held to be barred on the principles of constructive res judicata.
6. Mr. Sudhir Chandra Ghose, learned counsel appearing for the appellant. In course of his argument referred to the decisions of the Supreme Court in the case of Merla Ramanna v. Nallaparaju, AIR 1956 SC 87 and the case of Jyotish Thakur v. Tarakant Jha, 1963 BLJR 267 = (AIR 1963 SC 605). In my opinion, these two cases referred to by learned counsel are absolutely of no assistance to him because the question whether the principles of constructive res judicata would apply in an execution proceeding was not the subject-matter of decision in these two cases.
7. For the reasons stated above, I hold that the objection of the appellant judgment-debtor about the non-saleability of the property was barred by the principles of constructive res judicata and the executing court rightly dismissed the two miscellaneous cases.
8. In the result, both the appeals are dismissed with costs.
Choudhary, J.
9. I agree.