SATAPPA SHIDAPPA SHINTRE AND Vs. HIRACHAND ATMARAM SHAH

JUDGEMENT

(1.) These two Second Appeals arises out of an order made by the Joint Civil Judge, Chikodi, on 7-7-1956 in two Execution Cases, namely, Regular Darkhast Nos. 1154 and 1155 of 1941 on the file of his Court. The orders made on that date are as follows :

(2.) The only point which arises for determination in these two appeals is as to whether the view taken by the lower appellate Court in regard to the question of res judicata, is correct. In so far as the order dated 7-7-1956 relates to the finding that as the D. A. R. Act is not in force, the property should he sold "through court, it is not disputed (and it cannot be disputed) that the same is a repetition of the earlier order dated 16-1-1956. The correctness of the order dated 16-1-19561 not having been questioned by the judgment-debtors either by way of an appeal or otherwise, it cannot be denied that the same has become final as against them. The appeals by them against the subsequent order dated 7-7-1956 cannot be viewed as appeals directed against the order dated 16-1-1956. When the judgment-debtors did not seek to question the correctness of the order dated 16-1-1956, they cannot be permitted to contend later against its correctness by means of an appeal against the subsequent order dated 7-7-1956, which is merely a repetition of the earlier order. Sri Mahajan the learned Advocate for the appellants sought to show that this order dated 16-1-1956 is not binding upon the judgment-debtors, for more reasons than one. He stated in the course of his arguments that the view taken by the Civil Judge that the property should be sold through the court because the provisions of the Dekkhan Agriculturists Relief Act were not in force, was erroneous. He pointed out that by virtue of certain saving provisions found in the B.A. D.R. Act, the benefits under the D. A. R. Act were still available to the judgment-debtors and that therefore the decree should have been sent to the Collector for being executed in accordance with the provisions of Section 68 of the C. P. C. read together with the III Schedule. He also pointed out that the lower Appellate Court has recognised that this view taken by the Civil Judge, is not correct. But, as contended by Sri B. V. Krishnaswamy Rao the learned Advocate for the respondents, for the application of the bar of res judicata, it is not necessary that the decision which operates as res judicata should be a correct one. As pointed out by the Supreme Court in the case of Mohanla! v. Benoy Kishna, AIR1953 SC 65 , [1953 ]4 SCR377 , even an erroneous decision on a question of law operates as res judicata between the parties to it and that the correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. Therefore, there cannot be any serious doubt that the decision of the Civil Judge of 16-1-1956, that the property should be sold through court, operates as res judicata. The mere fact that the grounds on which he reached this decision may not be correct, will not prevent the operation of that decision as res judicata. At one stage of his arguments Sri Mahajfin suggested that the judgment debtors had not at all been served with notice by the time the court passed the order dated 16-1-1956. But, after a scrutiny of the records of the executing Court, Sri Mahajan conceded that the judgment-debtors had been represented by a Pleader, by then. Upon a scrutiny of the Roznama of the executing Court, it is found that on 24-12-1955, the Pleaders for the decree-holder as well as the judf-ment-debtors were present before court and that purshis marked Ex. 103 was filed by the decree-holder's pleader, giving the details of the properties which he wanted to be put up for sale. Thereupon, the executing court directed the judgment-debtors to put forward their objections and adjourned the case to 16-1-1956. On that date namely 16-1-1956, neither the judgment-debtors nor their pleader appeared before the court. Then, the court ordered that the property should be sold through court. At no time earlier, had the judgment-debtors put forward any objection to the effect that the executing court was not competent to execute the decree. In the objection statement Ex. 99 dated 1-10-1956, the judgment-debtors had raised objections to the effect that the original debtor (who was dead) did not have a half share in the attached properties, that the value of the attached properties was much more than what the decree-holder had stated and that it was enough to sell only some of the properties to satisfy the decree debt. They had not raised any contention to the effect that the executing court had no jurisdiction to execute the decree. Not having raised any such objection, the judgment-debtors would be barred by the application of the principles of constructive res judicata from raising any objection as to the jurisdiction of the Court at a subsequent stage. On this ground, the Civil Judge's order dated 7-7-1936 overruling the objections as per Ex. 113 can be justified.

(3.) Sri Mahajan attempted to make out that though no appeal had been preferred against the order dated 16-1-1956, it was not binding as it was according to him, a nullity. He sought to make out that by virtue of the provisions of Section 68 of the C. P. C. read together with the III schedule, there was a statutory bar against the Civil Court making any order in execution and that the execution should have been only before the Collector. In order to properly understand this contention, it is necessary to briefly set out the history of the execution of this decree. The execution of this decree had been proceeding in the Civil Court; thereafter, the decree was sent in accordance with the provisions of Section 68 of the C. P. C. to the Collector for his taking further action in accordance with the provisions of schedule III of the C. P. C. While the execution of the decree was so pending before the Collector, the B. A. D. R. Act came into force; thereafter, on an application having bee" made by the decree-holder, the records of this decree were sent by the Collector to the B. A. D. R. Court. The matter appears to have been pending for some years before the B. A. D. R. Court; thereafter, the B. A. D. R. Court found that the judgment-debtor was not a "debtor" within the meaning of the B. A. D. R. Act. Consequently the B. A. D. R. Court sent back the decree to the Civil Court, namely, the Court of the Civil Judge at Chikodi. By then, the original decree-holder was dead; his legal representatives were brought on record and further steps in execution were taken in the court of the Civil Judge. The contention which has been urged by Sri Mahajan is, that once the decree having been sent to the Collector for execution, the Civil Court had no further jurisdiction in the matter and that, therefore, the order passed by the Civil Court on 16-1-1956 is an order made by the Civil Court without any jurisdiction and that therefore, it is a nullity. He has placed reliance on para 11, in particular, of Schedule III of the Code of Civil Procedure, in support of the proposition that the Civil Court would, under such circumstances have no jurisdiction. He has also relied on two decisions, One of thorn is a decision of the High Court of Mysore reported in Veerabhadrappa v. Sakhalchand, 37 Mys LJ 129 and the other is a decision reported in Shahzad Singh v. Hanuman Rai, AIR 1924 All 704. It appears to me, that, on facts, both these decisions are distinguishable from the present case. In the Mysore case above referred to, the point which arose for decision was, as to whether the validity of a sale by the Collector acting under the provisions of III Schedule of the C. P. C., could be challenged by means of a suit and as to whether Section 47 operated as a bar to such a suit. It was pointed out in the said decision that so long as the Collector could exercise any of the powers conferred by paras 1 to 10 of the III Schedule of the C. P. C., the Civil Court had no jurisdiction to interfere. It may be pointed out that their Lordships were considering there, the question as to whether the Civil Court had jurisdiction to interiere when the execution of the decree was pending before the Collector and the Collector could exercise the powers or perform duties under paras 1 to 10 of the III schedule. I regard to this aspect of the question this is what his Lordship the Chief Justice has stated at page 131 of the decision: