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1 - 10 of 11 (0.70 seconds)Dhirendra Nath Gorai And Subal ... vs Sudhir Chandra Ghosh And Others on 4 March, 1964
In Dhirendra Nath Gorai v Sudhir Chandra Ghosh and Others, (para 18), the Supreme Court has observed thus:
Mohanlal Goenka vs Benoy Krishna Mukherjeeand Others on 9 December, 1952
In the case of Mohanlal Goenka v Benoy Krishna Mukherjee and Mathura Prasad Sarjoo Jaiswal and Others v Dossibai N.B. Jeejeebhoy and Kani Ram and Another v Smt. Kazani and Others (at para 28), doctrine of constructive res judicata does apply to execution proceedings where a plea which could be raised and ought to have been raised has not been raised will be deemed to have been decided against one who raises that subsequently. Here such plea of defect on the ground of non-mentioning any of the encumbrances which could and ought to have been raised under Order 21, Rule 66 of the CPC at the stage of settlement of sale proclamation, during execution proceedings, not to have been raised then could not be raised under Order 21, Rule 90 of the CPC stage as being barred by constructive res judicata doctrine.
Mathura Prasad Bajoo Jaiswal & Ors vs Dossibai N. B. Jeejeebhoy on 26 February, 1970
In the case of Mohanlal Goenka v Benoy Krishna Mukherjee and Mathura Prasad Sarjoo Jaiswal and Others v Dossibai N.B. Jeejeebhoy and Kani Ram and Another v Smt. Kazani and Others (at para 28), doctrine of constructive res judicata does apply to execution proceedings where a plea which could be raised and ought to have been raised has not been raised will be deemed to have been decided against one who raises that subsequently. Here such plea of defect on the ground of non-mentioning any of the encumbrances which could and ought to have been raised under Order 21, Rule 66 of the CPC at the stage of settlement of sale proclamation, during execution proceedings, not to have been raised then could not be raised under Order 21, Rule 90 of the CPC stage as being barred by constructive res judicata doctrine.
Kani Ram And Anr vs Smt. Kazani And Ors on 19 April, 1972
In the case of Mohanlal Goenka v Benoy Krishna Mukherjee and Mathura Prasad Sarjoo Jaiswal and Others v Dossibai N.B. Jeejeebhoy and Kani Ram and Another v Smt. Kazani and Others (at para 28), doctrine of constructive res judicata does apply to execution proceedings where a plea which could be raised and ought to have been raised has not been raised will be deemed to have been decided against one who raises that subsequently. Here such plea of defect on the ground of non-mentioning any of the encumbrances which could and ought to have been raised under Order 21, Rule 66 of the CPC at the stage of settlement of sale proclamation, during execution proceedings, not to have been raised then could not be raised under Order 21, Rule 90 of the CPC stage as being barred by constructive res judicata doctrine.
Section 35 in The Transfer Of Property Act, 1882 [Entire Act]
Section 100 in The Transfer Of Property Act, 1882 [Entire Act]
Section 115 in The Transfer Of Property Act, 1882 [Entire Act]
T.R.M. Arunachellam Chetti vs V.R.R.M.A.R. Arunachellam Chetti And ... on 29 September, 1891
16. The observation of the Court was with reference to the failure of a party to raise objection in spite of notice. The judgment-debtor has to establish that there was not only substantial injury caused as a result of low price fetched, but also to establish that such a result was on account of the material irregularities or fraud in publishing the auction sale. Sub-rule (3) of Rule 90, Order 21 of the CPC provided that no application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. This provision clearly bars from setting aside of an auction sale where no application was made by the judgment-debtor on or before the date on which the proclamation of sale was drawn up. The ruling of the Allahabad High Court was long prior to the amendment of Order 21, Rule 90, which was substituted by Act 104 of 1976, with effect from 1-2-1977. No doubt the Allahabad High Court had as well amended and enacted a proviso to original proviso to Rule 90 of Order 21 of the CPC. The rule aforesaid as mentioned in Uttar Pradesh by Allahabad High Court recognised and applied the doctrine of estoppel in specific terms, Where a notice was given to judgment-debtors to appear and show cause before the settlement of the proclamation of sale and he had full opportunity of pointing out the mistake to the Court. The judgment-debtor should not have kept quiet and allow the things to happen resulting in change of situation and creation of third party interest, and third party investing the money as well, he can be held to be debarred from raising such plea at this stage in view of doctrine of estoppel and res judicata. When I so opine as above, I find support from the decision mentioned hereinafter, namely, Girdhari Singh v Hurdeo Naran Singh , (observations at p. 240) : T.R, Arunachallam Chetty v V.R.R.M.A.R. Arunachalam Chetty and Another.