NARAYANAN Vs. DHANALAKSMI BANK LTD

JUDGEMENT

(1.) Appellant is the petitioner in O.P.2620 of 1995. He filed the Original Petition to quash the order of sale of his properties in E.P.54 of 1994 in O.S.200/90 of the Munsiff Court, Vaikom and also for a writ of mandamus commanding the first respondent not to sell the properties as they are not liable to be attached or sold as per law.

(2.) It is admitted case of the appellant that the first respondent (bank) had filed O.S.200 of 1994 before the Munsiff Court Vaikom and obtained decree with charge on his properties. The judgment and decree in that suit have become final. The execution proceedings have been taken against the appellant. Appellant contended that the properties and the building cannot be sold as they are exempted from attachment under S.60(1)(c) of the Code of Civil Procedure. His contention is that the execution proceedings initiated against him by the first respondent is illegal and liable to be interfered by this Court by the issuance of writ of certiorari under Ait.226 of the Constitution of India. Learned Single Judge dismissed the Original Petition holding that the decree has become final and that the appellant cannot put forward any contention which he did not choose to advance before the civil court. Learned Judge further held that mere is no provision in the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 preventing the decree holder from executing the decree validly obtained by him. It was also held by the learned Judge that principle of constructive res judicata applies and hence the appellant cannot urge any contention against the judgment and decree of the civil court.

(3.) As the judgment and decree in O.S.200 of 1990 have become final appellant cannot validly raise any contention against the executability of the decree. Appellant did not raise any contention in the suit that his building and properties are exempted from attachment in view of S.60(1)(c) of the Code of Civil Procedure. Having not raised it at the appropriate time he cannot belatedly do so in a later proceeding. Contention of the appellant that the principle of constructive res judicata cannot be attracted to the proceedings under Art.226 of the Constitution is not tenable.