Search Results Page

Search Results

1 - 3 of 3 (0.33 seconds)
Documents citing Mittasaheb Hirama Kakkalmali vs Gurunath Hanmant Kulkarni on 2 October, 1942

Union Bank Of India vs Byram Pestonji Gariwala And Others on 1 November, 1990

Thus, in this case, the doctrine of constructive res judicata was applied even in respect of an objection as to the jurisdiction of the executing court which objection was not raised by the judgment debtor in reply to the notice served upon him earlier or in the earlier application for setting aside the sales. It was held by the Honourable Supreme Court in this case that the principle of constructive res judicata was applicable to the execution proceedings. Mr. Walawalkar, learned counsel for defendant No. 1 has relied upon a Division Bench judgment of our High Court reported in Mittasaheb Hirama Kakkalamali v. Gurunath Hanmant Kulkarni reported in AIR 1943 Bom 252. In this case the judgment" debtor had failed to raise the contention as to part satisfaction of the decree at an earlier stage of the execution proceedings in reply to notice issued under O. XXI, R. 22 of the Code of Civil Procedure. At a subsequent stage, after the decree was transferred to the Collector for execution, an objection was raised by the judgment debtor to the effect that the judgment debtor has already made part payment of the decree-holders claim and the decree could be executed only in respect of outstanding amount to be computed after giving credit for such part satisfaction. The question arose before the Court as to whether the principles of the constructive res judicata applied to proceedings in execution. The Honourable Division Bench held in the second appeal arising out of the said proceedings that the provisions of S. 11 were not applicable to execution proceedings and only general principles of res judicata were applicable. It was held in this case that the rule of constructive res judicata must be applied with great caution against a party in execution proceedings and it could not be extended so as to penalise the judgment debtor for his omission. In my humble opinion, this judgment stands overruled by the above referred judgment of the Supreme Court in the case .
Bombay High Court Cites 18 - Cited by 4 - Full Document

Ganchi Laxmichand Ambaram vs Tulsidas Madhavdas on 24 January, 1962

7. As against these decisions of the Calcutta, Madras and Assam High Courts, Mr. C.G. Shastry relied upon a decision of the Bombay High Court reported in Mittasaheb Hirama v. Gurunath Hanmant, 45 Bom LR 519: (AIR 1943 Bom 252). The learned Judges of the Bombay High Court in this case reviewed all the previous decisions of the High Court of Bombay on the point and came to the conclusion that there was no real authority for the proposition that the principle of constructive res judicata cannot be applied to execution proceedings but that that principle should be applied with great caution in execution proceedings. On the facts of the case before them, the learned Judges held that the principle of constructive res judicata should not be applied and they accordingly took the view that though the judgment-debtor had omitted to appear in response to the notice under Order XXI, Rule 22, he was not precluded from contending at a subsequent stage of the execution proceedings that there was a partial adjustment of the decree. The main ground which weighed with the learned Judges in refusing to apply the principle of constructive res judicata to the 'facts of the case before them was that the judgment-debtor "had no direct notice of the point and therefore no opportunity to raise it" at the stage of the notice under Order XXI, Rule 22 since the notice under Order XXI, Rule 22 did not specify the amount sought to be recovered from the judgment-debtor and the only matter in respect of which the judgment-debtor was required to show cause by the notice under Order XXI, Rule 22 was why the decree should not be executed. Now if I may say so, with the greatest respect, this was obviously a correct ground, for it is apparent that the excitability of the decree did not depend upon the question as to what was the correct amount due by the judgment-debtor to the decree-holder under the decree and the only matter in issue in the notice under Order XXI Rule 22 being whether the execution of the decree should proceed, the contention as regards the correct amount due by the judgment-debtor to the judgment-creditor under the decree could not be said to be a contention which might and ought to have been urged by the judgment-debtor in answer to the notice under Order XXI, Rule 22 so as to attract the applicability of the principle of constructive res judicata in regard to such contention. This decision of the High Court of Bombay was, therefore, manifestly right in so far as it held that the principle of constructive res judicata did not debar the judgment-debtor from contending at any subsequent stage of -the execution proceedings that there was a partial adjustment of the decree. But the purpose for which Mr. C.G. Shastry relied on this decision was different. Mr. C.G. Shastry relied on this decision for the principle enunciated by it in regard to the application of the doctrine of constructive res judicata to execution proceedings. Now Mr. C.G. Shastry is right in his contention that this decision does lay down that the principle of constructive res judicata does not necessarily apply in all cases in execution proceedings and that there is a discretion in the Court whether or not to apply it in a particular case and that the discretion to apply it must be exercised with great caution. But the word "caution" seems to me to be a word of very vague import and with the greatest respect to the learned Judges who decided this case, I do not see how the word "caution" furnished any guide to the Court in deciding whether or not the principle of constructive res judicata should be applied in any particular case in execution proceedings. Can the application of the principle of constructive res judicata in execution proceedings depend upon so vague a thing as caution to be used by the Court? But even apart from the vagueness of this test, I do not see any reason on principle why any distinction should be made between one set of circumstances and another in execution proceedings for the purpose of the application of the principle of constructive res judicata. The underlying principle behind constructive res judicata does not warrant the making of any such distinction. The principle of constructive res judicata is applied, as pointed out above, on the basis that a contention which might and ought to have been raised in an earlier proceeding or at a previous stage of the same proceeding cannot be permitted to be raised in a later proceeding or at a subsequent stage of the same proceeding because it must be deemed to have been decided by the order made on the earlier proceeding or at the previous stage of the same proceeding. Now If the principle of constructive res judicata applies to execution proceedings, as conceded by Mr. C.G. Shastry, in a case where the judgment-debtor appears in answer to the notice under Order XXI Rule 22 and raises some contentions against the execution of the decree but does not raise other contentions, it is difficult to see why the principle of constructive res judicata should not apply when the judgment-debtor fails to appear and as a result of such failure does not raise contentions against, the execution of the decree which he might and ought to have raised by appearing in answer to the notice under Order XXI, Rule 22. The negligence of the judgment-debtor to raise contentions which he might and ought to have raised in answer to the notice under Order XXI, Rule 22, is the same, if not greater, in the case where he does not appear as in the case where he appears and omits to raise contentions against the execution of the decree. If the principle of constructive res judicata applies in one case, there is on principle no reason why it should not equally apply in the other.
Gujarat High Court Cites 11 - Cited by 6 - P N Bhagwati - Full Document

Delta Rubber And Plastic Products vs Ahmedabad Mercantile Co Op Bank Ltd on 24 September, 2025

"10. Having regard to these decisions of the Privy Council and the Supreme Court I must refuse to follow the decision of the High Court of Bombay in Nittasaheb Hirama v. Gurunath Hanmant (supra) even though that is a decision of a Division Bench of the Bombay High Court. I therefore take the view that if the necessary conditions are satisfied the principle of constructive res judicata applies to execution proceedings in all cases without any discretion in the Court whether or not to apply the same having regard to the facts and circumstances of a particular case. This being the position it is clear that the executing Court having made the order on the notice under Order XXI Rule 22 directing issue of warrant for attachment it was not open to the applicant to raise at a subsequent stage of the proceedings any contention against the execution of the decree. All the contentions which the applicant wanted to raise by filing his written statement related Page 18 of 22 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Sep 29 2025 Downloaded on : Mon Sep 29 21:51:45 IST 2025 NEUTRAL CITATION C/SCA/5138/2014 JUDGMENT DATED: 24/09/2025 undefined to the execution of the decree and were contentions which might and ought to have been urged by him is answer to the notice under Order XXI Rule 22. These contentions were barred by constructive res judicata as a result of the order made by the executing Court on the notice under Order XXI Rule 22 and the executing Court was therefore right in rejecting the application of the applicant to raise these contentions in answer to the execution of the decree."
Gujarat High Court Cites 19 - Cited by 0 - Full Document
1