Barkat
Ali & Anr Vs. Badri Narain (D) by LRS [2008] Insc 144 (6 February 2008)
Dr.
Arijit Pasayat & P. Sathasivam
CIVIL
APPEAL NO.1383 OF 2002 Dr. ARIJIT PASAYAT, J.
1.
Challenge in this appeal is to the order passed by a Division Bench of the
Rajasthan High Court at Jodhpur dismissing the special appeal filed under
Section 18 of the Rajasthan High Court Ordinance 1949 (in short 'Ordinance')
against judgment of learned Single Judge dated 16.1.1981 in SB Civil Misc.
first appeal no.5/75.
2.
Background facts in a nutshell are as under:
The
respondents are legal representatives of the decree holder Badrinarain and the
appellants are the legal representatives of the judgment-debtor Abdul Ghani.
The said Badrinarain obtained a decree against Abdul Ghani in a mortgage suit
on 11.5.1952 in which an amount of Rs.11,194.25/- was determined as payable by
the said Abdul Ghani from the date of final decree. Successive execution
applications were filed for recovering the said sum. First application for
execution was filed on 7.10.1952 in which proceedings the decree was partially
satisfied. The proceedings ended on 21.12.1956. The second execration resulted
in further partial satisfaction. The said execution terminated on 25.9.1957.
The third execution application which was filed on 20th May 1958 resulted in further partial satisfaction of the decree and
the said proceedings ended on 6.8.1960. The present execution application for
the recovery of remainder sum was filed on 30th January, 1971. The notice of the application was
issued to all the appellants and another son who was reported to be dead by the
process server. The appellant No.1 accepted service on behalf of appellant
Nos.2 & 3, who were then minors. The notice was served on 20.4.1972 for
hearing on 3.6.1972. An appearance was filed by the counsel on 3.6.1972, who
sought time to file objections which was granted and the proceedings were
adjourned to 5.8.1972.
On
5.8.1972, again adjournment was sought which was granted and the case was
adjourned to 12.8.1972. On 12.8.1972 also, the proceedings could not proceed
further because the learned Presiding Judge was on leave and the case was
adjourned to 16.9.1972. On 16.9.1972, the Court finding that no objections have
been filed till then by the judgment-debtors, the decree holder was directed to
file expense for carrying out attachment within five days on the submission of
which the warrants of attachment could be issued and the proceedings were
adjourned to 21.9.1972. The attachment warrant was not issued prior to 21.9.1972.
On finding that expenses for attachment has been filed, the executing Court
ordered for the issuance of warrant of attachment on 21.9.1972. After issuance
of warrant of attachment, the objections were filed by the appellant on
21.9.1972 pleading inter alia that the execution proceedings were barred by
time and that amount for which the execution was sought was also not correctly
stated. The executing Court found that since after completing preliminaries of
issuing notice and finding that no objection has been filed in spite of the
service under Order XXI Rule 22 of the Code of Civil Procedure, 1908 (in short
'CPC') and the Court had proceeded to next stage of execution for attaching the
property under Order XXI Rules 23 and 24 of C.P.C., any objection raised
subsequent thereto cannot be entertained being barred by principles of
constructive res judicata. Against the dismissal of the objections dated
16.11.1972 by order dated 13.7.1974, an appeal was, preferred before the High
Court which has been dismissed by the Learned Single Judge by judgment dated
16.1.1981. The Learned Single Judge found that the objections filed on
16.11.1972, after the warrant of attachment was issued, could not be
entertained by the executing Court as the same was barred by principles of
constructive res judicata. Ancillary issues raised by the Learned Counsel for
the appellant were also found to be not sustainable and the appeal was
dismissed.
3. As
noted above, learned Single Judge found that the objection filed after issuance
warrant of attachment could not be entertained by the executing Court as the
same was barred by principles of constructive res judicata.
4. The
same contention was raised before the Division Bench which did not find any
substance.
5.
Learned counsel for the appellant reiterated the stand taken before the learned
Single Judge and the Division Bench.
6.
There is no appearance on behalf of the respondent.
7.
Order XXI Rule 22 CPC culminates in end of one stage before attachment of the
property can take place in furtherance of execution of decree. The proceedings
under Order XXI Rule 23 can only be taken if the executing Court either finds
that after issuing notice, under Section XXI Rule 21 the judgment-debtor has
not raised any objection or if such objection has been raised, the same has
been decided by the executing Court. Sub rule (1) as well as sub rule (2) under
Order XXI Rule 22, operates simultaneously on the same field.
Sub
rule (1) operates when no objection is filed. Then the Court proceeds and
clears the way for going to the next stage of the proceedings namely attachment
of the property and if the Court finds objections on record then it decides the
objections in the first instance and thereafter clears the way for taking up
the matter for attachment of the property if the objections have been
overruled. Whether the order is made under sub rule (1) or sub rule (2), it has
the effect of determining the preliminary stage before the attachment process
is set in motion. In this background, the order of the Court to proceed with
attachment on finding that no objection has been raised also operates as an
order deciding the preliminary stage of the execution proceedings and operates
as if the judgment-debtor has no objection to file. If thereafter, the
judgment-debtor wants to raise an objection in the same proceedings in the
absence of any modification of order passed under Order XXI Rule 22 sub rule
(1) or (2), he has to take recourse to get rid of the order by way of appeal.
There
is no dispute and it has not been agitated that the order for proceeding by the
judgment under Order XXI Rule 22 amounts to a decree under Section 47 of CPC
and it is appealable as a decree i.e to say it is not an appeal against the
interim order but an appeal against the decree which is provided against the
final order. It means that at the different stages of the execution orders
passed by the executing court have attained finality unless they are set aside
by way of appeal before the higher forum. Otherwise they bind the parties at
the subsequent stage of the execution proceedings so that the smooth progress
of execution is not jeopardised and the stage which reached the finality by
dint of various orders of the Order XXI, operates as res judicata for the
subsequent stage of the proceedings. Since the order passed at different stage
itself operates as a decree and is appealable as such, the same cannot be
challenged in appeal against subsequent orders also, because appeal against an
order passed under Order XXI Rule 22 does not amount to appeal against order at
initial stage, but amounts to a decree finally determining the question. That
is why no appeal against orders made under Order XXI has been provided under
Order 43. In this background, where a judgment-debtor has an opportunity to
raise an objection which he could have raised but failed to take and allowed
the preliminary stage to come to an end for taking up the matter to the next
stage for attachment of property and sale of the property under Order XXI Rule
23 which fell within the above principle, the judgment-debtor thereafter cannot
raise such objections subsequently and revert back to earlier stage of
proceedings unless the order resulting in termination of preliminary stage
which amounts to a decree is appealed against and order is set aside or
modified.
8. The
principles of res judicata not only apply in respect of separate proceedings
but the general principles also apply at the subsequent stage of the same
proceedings also and the same Court is precluded to go into that question again
which has been decided or deemed to have been decided by it at an early stage.
9. In Arjun
Singh v. Mohindra Kumar and Ors. (AIR 1964 SC 993) it was observed as follows:
"Scope
of principle of res judicata is not confined to what is contained in Section 11
but is of more general application. Again, res judicata could be as much
applicable to different stages of the same suit as to findings on issues in
different suits..Where the principles of res judicata is invoked in the case of
the different stages of proceedings in the same suit, the nature of the
proceedings, the scope of the enquiry which the adjectival law provides, the
decision being reached, as well as the specific provisions made on matters
touching such decision are some of the material and the relevant factors to be
considered before the principle is held applicable."
10. In
Satyadhyan Ghosal and Ors. v. Smt. Deorajin Debi and Anr. (AIR 1960 SC 941) it
was observed as follows:
"The
principle of res judicata applies also as between two stages in the same
litigation to this extent that a court, whether the Trial Court or a Higher
Court having at an earlier stage decided a matter in one way will not allow the
parties to re-agitate the matter again at a subsequent stage of the same
proceedings."
11.
Above being the position, the High Court was justified in dismissing the
special appeal and in confirming the order of learned Single Judge. The appeal
is without merit, deserves dismissal, which we direct.
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