Rajkishore Mohanty And Anr. vs Kangali Moharana And Ors. on 20 December, 1971
This view was approved In a later Full Bench decision of that Court in Sarjug Singh v. Basisth Singh f (1968} ILR 47 Pat 178) = (AIR 1970 Pat 237) (FB).
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Sarjug Singh And Ors. vs Basisth Singh And Ors. on 10 January, 1968
The Ranchi Khunti Central Co-Operative ... vs Prem Prakash Bagroy And Ors. on 28 July, 1978
9. The learned Subordinate Judge has rejected the claim of the petitioner, as already stated above, on three grounds. The first ground, that successive applications were not competent, does not appear to me of any substance. The applications which were dismissed merely for default did not create, in my view, any impediment in the way of a claimant to make a fresh application, until he is not late, i.e. till he is otherwise entitled to and can claim rateable distribution in terms of Section 73 of the Code. Although, no direct authority was cited, reference can be made to the Full Bench case of Sarjug Singh v. Basisth Singh, 1969 BLJR 774 : (AIR 1970 Pat 237). The question that arose in that case was as to whether a second application under Section 47 of the Civil P. C. by a judgment-debtor, an earlier application having been dismissed for default, would be maintainable and it was held that the dismissal of the earlier application did not bring about any bar on the principle of res judicata or the like. In my view the principle of the above case will apply with full force to an application under Section 73 of the Code also.
Ganesh Prasad Singh And Ors. vs Ram Chandra Prasad on 9 June, 1983
12. The second point, as stated above is with regard to constructive res judicata. From the facts stated above it is clear that the arguments in the aforesaid first appeal was heard on several dates in the year 1964 and the plea was not taken at all that the claim of the plaintiffs would not be tenable in view of Section 6 of the Bihar Land Reforms Act. It was not even whispered on behalf of the defendants-judgment-debtors that the suit of the plaintiffs in respect of Schedule 2 property would fail on this ground alone that they were not in khas possession on the date of vesting. This plea, though available to them, was not raised during the first appeal, and it is not open to the defendants-judgment-debtors to raise this point during the course of execution proceeding the plea being barred by constructive res judicata, the learned single Judge has erred in holding that as this plea was not taken by any of the parties during the first appeal the matter was mot decided and it was open to the defendants-judgment-debtors to raise this point for the first time in execution proceeding. In my opinion, the learned Judge has entirely overlooked the provision regarding the principle of constructive res judicata. This point has been well settled by judicial pronouncements of this Court as well as of other Courts, In the case of Batjnath v. Ramphal Sahani (AIR 1962 Pat 72), a Full Bench consisting of five Judges of this Court held that if a party takes an objection at certain stage of a proceeding and does not take another objection which it might and ought to have taken at the same stage, it must be deemed that the Court had adjudicated upon the other objection also and had held against it, It has also been held that if a party had knowledge of a proceeding and having had an opportunity when it might and ought to have raised an objection, it does not do so, it cannot be allowed to raise that objection subsequently if the court passes an order which it could not have passed in the case if that objection had succeeded on the ground that it must be deemed to have been raised by the party and decided against it. This case has been followed by a subsequent Full Bench in the case of Sarjug Singh v. Basisth Singh (AIR 1970 Pat 237). In the present case the defendants-judgment debtors having failed to raise the aforesaid point in the first appeal which they might and ought to have raised were precluded from raising in the execution proceeding and the plea of the respondent-judgment debtor regarding non-executability of the decree is barred by the principle of constructive res judicata.
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