RAMATHAYAMMA Vs. N DORESWAMY MUDALIAR

JUDGEMENT

(1.) The appellant is the judgment-debtor and respondents are decree-holders. The respondents obtained a money decree against the appellant in OS.13 of 1967 in the Court of the III Addl First Munsiff at Bangalore on 31-7-1971. The decree was sought to be executed in Ex.Case 1254/71. The execution petition was filed on 15-12-1971. An order under Or.21, R.54 CPC was passed on the same day and the house belonging to the judgment-debtor was attached on 17-12-1971. On 15-5-1972 notice was ordered to be issued to the respondent and it was served on 10-6-1972. Thereafter she filed her objections on 10-7-1972. In the objection statement it was contended that the decree is not executable since the judgment-debtor had filed an appeal against the decree, that the amount claimed in the execution petition is not correct, that there is no attachment of the property as contemplated in law, that no sale could be ordered and that the execution petition is not sustainable in law. It was also stated that the decree-holders are not entitled to proceed against the property in respect of which the relief was sought. The case was posted to 18-7-1972 for the evidence of the judgment-debtor in support of her objections. On that day the judgment-debtor remained absent. The Court passed an order to the effect that since there is no evidence adduced in support of the objections, the objections are overruled. On the next date of hearng i.e., on 8-8-1972 the Court ordered sale of the property attached. On 29-9-1972 the Court ordered notice to the judgment-debtor under Or.21, R.68 CPC. On 15-6-1973 the judgment-debtor filed IA.-II stating that the house 15 not liable to attachment under S.60(1) (c) CPC on the ground that the judgment-debtor is an agriculturist who is occupying the house. On the same day another application, IA.-III, for staying of further execution proceedings was also filed. The Court passed the order on both the applications to the effect that there is no reason to postpone the sale, that IAs.II and III will be considered before accepting the final bid and that the sale shall proceed. The judgment-debtor filed two execution appeals, namely, Ex Cases 38 and 39 of 1973 in the Court of the Prl Civil Judge, Bangalore City. We are now concerned in this second appeal with the order passed in Ex.Case 38 of 1973 which relates to the order on IA.-II, The lower appellate Court held that the executing Court was in error in postponing consideration of IA -II till the sale is held and that it should have considered it on merits before deciding to proceed with the sale. The lower appellate Court considered IA -II on merits and came to the conclusion that the objection under S.60 CPC was barred by principles of res judicata. It, therefore, held that the judgment-debtor cannot be said to have been prejudiced by the order passed by the executing Court.

(2.) The lower appellate Court has followed the decisions in Mohanlal Goenka v. Benoy Krishna Mukherjee, AIR. 1953 SC. 65, and Prem Lata Agarwal v. Lakshman Prasad Gupta, AIR. 1970 SC. 1525. In Mohanlal Goenka's case(1) the objection rajsed by the judgment-debtor was that the executing Court has no jurisdiction to execute the decree. He had not raised that objection either at the time when the execution application was filed and a notice was served on him or in the applications filed by Mm earlier for setting aside the two sales. It was held that the failure to raise such an objection which went to the root of the matter precludes him from raising the plea of jurisdiction on the principles of constructive res judicata after the property had been sold. In Prem Lata Agarwal's case (2), the order of revival of the execution proceeding was not challenged by the judgment-debtors. On the contrary they asked for setting aside the sale on the basis of the revival of the execution proceeding. The judgment-debtors did not raise any objection as to limitation in regard to the execution of the decree. It was held that the Judgment-debtors are thereby barred by the principle of res judicata from questioning directly or indirectly the order reviving the execution proceeding at a later stage.

(3.) It is urged by Mr. P.Krishnappa, the learned Counsel appearing for the appellant, that the bar to the Courts to sell the property under S. 60 CPC is based on public policy and that such an objection can be raised by the judgment-debtor at any stage. He has relied on the decision of this Court in Gowramma v. Basavan Gouda, (1974) 2 KarLJ. 108. In that case the question was whether the judgment-debtor, who had been served with the notice under Or.21, R.66 CPC but did not raise the objection that the house was not liable to be sold under S.60(1) (c) CPC at any time prior to the sale, could raise such an objection after the sale. The decision in Chagnati Raghava Reddy v. Kondapaneni Krishnappa, AIR. 1960 AP. 631, was followed. In the Andhra Pradesh case it has been held that in order to invoke the doctrine of res judicata the judgment-debtor should have notice of the question that is sought to be raised in the proceedings, should have an opportunity to put forward his objection and that the service of the notice under Or.21, R 66 CPC does not require him to raise an objection as to the sale of the property. Both in the Andhra Pradesh decision and in the decision of this Co,urt referred to above there was no earlier statement of objections filed by the judgment-debtor. But in the present case the judgment-debtor filed his objections subsequent to the attachment of the property and one of the contentions raised by the judgment-debtor in that statement of objections was as to the liability of the house to be proceeded against in execution. Hence, that decision does not apply to the facts of this case. In Pirji Safdar Ali v. Ideal Bank, AIR 1949 EP 94, the judgment-debtor raised certain objections as to the sale-ability of the property in the execution proceedings. The objections were over-ruled and the property was ordered to be sold. Subsequently, the judgment-debtor took another objection to the saleability of the property on a different ground. It was held that the judgment-debtor could raise all questions which affect the saleability of the property before the order of sale was made and that on his failure to do so he is barred by constructive res judicata from reagitating them after that order has been made.