Patna High Court
Chandra Choor Deo And Anr. vs Smt. Krishnawati on 23 July, 1968
Equivalent citations: AIR1969PAT251, AIR 1969 PATNA 251
JUDGMENT Shambhu Prasad Singh, J.
1. Similar questions of law being involved in these three appeals, they were made analogous and have been heard together and are being disposed of by this common judgment.
2. The decree-holder is the appellant in each of these three appeals. They had obtained money decrees against Krishnanand Singh, who died before the execution could be levied. Three execution cases (Nos. 31, 32 and 33 of the year 1961) were filed and, in each of them, Krishnawati, the widow of Krishnanand Singh, was mentioned as the first judgment-debtor. Notices under Order 21, Rule 22 of the Code of Civil Procedure were issued against her and other judgment-debtors in all these execution cases and, as it appears from order No. 6 dated the 6th March, 1962, in Execution Cases 31 and 32 of 1961, and order No. 7 dated the 13th March, 1962, in Execution case No. 33 of 1961, the notices were properly served. By Order No. 9 dated the 10th April, 1962, in each of the three execution cases, orders for attachment were issued. Krishnawati or any other judgment-debtor had not appeared before the Court on or before that date and taken any objection to the attachment of the properties proceeded against. Subsequently, Krishnawati appeared and filed objections under Order 21, Rule 58 of the Code of Civil Procedure. Her case was that the properties proceeded against were her personal properties and not those of her husband.
These applications were dismissed for default. Applications for their restoration were also dismissed. She thereafter, filed new applications under Order 21, Rule 58 of the Code; but they too were dismissed. She then filed objections under Section 47 of the Code, praying for the release of the properties from attachment, the ground being the same that they were her personal properties. The applications were registered as Miscellaneous Cases Nos. 34, 35 and 36 of 1963 in the three execution cases Nos. 31, 32 and 33 of 1961, respectively. These applications have been allowed by the executing Court and the decree-holders have appealed to this Court. Miscellaneous Appeal No. 278 of 1964 is directed against the order in Miscellaneous Case No. 35 of 1963, Miscellaneous Appeal No. 279 of 1964 is directed against the order in Miscellaneous Case No. 34 of 1963 and Miscellaneous Appeal No. 280 of 1964 is directed against the order in Miscellaneous Case No. 36 of 1963.
3. Various objections were taken by the decree-holders before the executing Court to the aforesaid applications under Section 47 of the Code. The main contention of Mr. Tara Kishore Prasad, appearing for the appellants before this Court, however, is that the judgment-debtor, Krishnawati, having failed to take any objection in the Court below to the sale-ability of the properties before the orders of their attachment were passed in the execution cases, her applications stand barred by res judicata and the orders of the Court below must be set aside.
4. So far as two of the execution cases, namely, Nos. 32 and 33 of 1961, are concerned they now stand dismissed by order No. 123 dated the 5th February, 1966 and order No. 124 dated the 5th March, 1966 respectively. As a result of the dismissal of these two execution cases, the order of attachment stands automatically withdrawn and the properties stand released. In that view of the matter, the objections filed by Krishnawati for the release of the properties and these appeals consequently have become infructuous and the orders passed by the court below on the objections have lost their force. In the circumstances, Miscellaneous Appeals 278 and 280 of 1964 are dismissed as infructuous and there will be no order as to costs. The order for costs passed by the Court below in Miscellaneous case No. 36 of 1963 against the appellant also cannot be executed and realised from him. Mr. Prem Shankar Sahay, appearing for Krishnawati, has no objection to it.
5. Miscellaneous Appeal No. 279 of 1964, however, has to be decided on merits, because the execution case is still persisting. The contention of Mr. Prasad is supported by two Full Bench decisions of this Court, in Baijnath Prasad Sah v. Ramphal Sahni, AIR 1962 Pat 72, (FB), and Sarjug Singh v. Basisth Singh, 1968) ILR 47 Pat 178 (FB). In Baijnath Prasad Sah's case, AIR 1962 Pat 72 (FB), Sahai J. 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 21, 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 any 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 21, 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 the 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 21 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-saleabiiity 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 failed 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."
The recent Full Bench in Sarjug Singh's case, (1968) ILR 47 Pat 178 (FB) has followed the decision in Baijnath Prasad Sah's case, AIR 1962 Pat 72 (FB). Three miscellaneous appeals were referred to the Full Bench and were heard together. The facts of one of them, Miscellaneous Appeal No. 6 of 1964 (Pat) Bhagwat Ram v. Smt. Savitri Devi, were similar to the facts of the case before us. A previous order attaching the properties proceeded against in that case was held to operate as res judicata and to bar a subsequent application.
6. Mr. Prem Shankar Sahay for Krishnawati, however, contended that the objection as to the maintainability of the application filed by her was considered and disposed of by the executing court by its Order No. 81 dated the 30th August, 1963 and as that court by that order held that the application was maintainable and the decree-holder appellant did not move the higher court, it is not open to him to raise the question of maintainability over again. According to him, Order No. 81, being an order subsequent to the order of attachment, will now operate as res judicata between the parties. There appears no substance in this contention of Mr. Sahay, Krishnawati had previously filed applications under Order21, Rule 58 of the Code and the objection of the decree-holder was that, thereafter, it was not open to her to file an application under Section 47. The executing Court decided as a preliminary point that the application under Section 47 was maintainable. It did not decide whether the prayer made in the application under Section 47 was barred by res judicata or not and should or should not be granted to her on merits. That order does not appear to be final in nature against which the decree-holder could come in appeal.
7. For the reasons stated above, the prayer of Krishnawati for the release of the attached properties in Execution Case No. 31 of 1961 must be held to be barred by res judicata and Miscellaneous Appeal No. 279 of 1964 must succeed. The appeal is, accordingly, allowed; but, on the facts and in the circumstances of the case, there will be no order for costs for either of the two courts.
Anwar Ahmad, J.
8. I agree.