GHANCHI LAXMICHAND AMBARAM Vs. TULSIDAS MADHAVDAS

JUDGEMENT

(1.) This Revision Application raises an interesting question as to how far the principle of constructive res judicata applies in execution proceedings. Opponent No. 1 obtained a decree against the applicant on 14 April 1955 for a sum of Rs. 3 500 in a suit for recovery of possession of immovable property and mesne profits. Opponent No. 1 thereafter filed an application to execute the decree against the applicant and on the application a notice under Order XXI Rule 22 of the Code of Civil Procedure was issued to the applicant. The applicant appeared in answer to the notice under Order XXI Rule 22 of the Code of Civil Procedure and applied for adjournment from time to time on the ground that he wanted to file a written statement and to contest the notice. The applications for adjournment were granted by the executing Court on three or four occasions but ultimately the executing Court refused to adjourn the proceedings any further and dismissed the last application for adjournment made by the applicant on 14th April 1961. The executing Court thereafter made an order on the notice under Order XXI Rule 22 of the Code of Civil Procedure on 8th July 1961 directing a warrant for the attachment of the immovable property of the applicant to issue under Order XXI Rule 54 of the Code of Civil Procedure. The applicant appeared before the executing Court on 24th July 1961 and filed a written statement and applied that the written statement be taken on file and that he be heard in support of the contentions taken up in the written statement. The executing Court however by an order dated 4th August 1961 dismissed the application made by the applicant and proceeded with the execution of the decree against the applicant. The applicant thereupon filed a Revision Application in this Court challenging the order made by the executing Court dismissing his application for taking the written statement on file and hearing him on the merits of the contentions in reply to the notice under Order XXI Rule 22 of the Code of Civil Procedure.

(2.) When the Revision Application reached hearing before me Mr. M. C. Shah learned advocate appearing on behalf of opponent No. 1 contended that the executing Court was right in rejecting the application of the applicant raising various contentions against the decree sought to be executed by opponent No. 1 against the applicant. Mr. M. C. Shah urged that an order having already been passed by the executing Court on the application under Order XXI Rule 22 of the Code of Civil Procedure directing issue of a warrant for attachment of the immovable property of the applicant in execution of the decree it was not open to the applicant to raise by way of an application any contentions which could have been urged by him in reply to the notice under Order XXI Rule 22 of the Code of Civil Procedure. The order passed by the executing Court on the notice under Order XXI Rule 22 of the Code of Civil Procedure argued Mr. M. C. Shah operated as constructive res judicata and that the applicant was therefore precluded from raising at a subsequent stage of the execution proceedings the contentions which might and ought to have been urged by him in answer to the notice under Order XXI Rule 22 of the Code of Civil Procedure. Mr. M. C. Shah contended that the order passed by the executing Court rejecting the application of the applicant was therefore proper and justified and no case was made out for interfering with the same. Mr. C. G. Shastri learned advocate appearing on behalf of the applicant on the other hand contended that the principle of constructive res judicata did not apply in execution proceedings and that in any event that principle was required to be applied with great caution and that on the facts of the present case it could not be applied. These were broadly the rival contentions which were urged before me and both Mr..M. C. Shah and Mr. C. G. Shastri cited various decisions in support of their respective contentions. These decisions show that there is a conflict of authorities between the High Courts of Bombay and Allahabad on the one hand and the High Courts of Calcutta Madras and Assam on the other. The decisions of the High Courts of Bombay and Allahabad support the contention urged on behalf of the applicant while the decisions of the High Courts of Calcutta Madras and Assam support the contention advanced on behalf of opponent No. 1. Now having regard to the decision of the Special Bench of this Court in State v. Gordhandas Keshavji Gandhi and others (Criminal Appeal No. 381 of 1960). I would have ordinarily considered myself bound by the decisions of the High Court of Bombay and respectfully followed those decisions But I find that both the Privy Council and the Supreme Court have taken a view contrary to that taken by the High Court of Bombay and I cannot therefore accept the decisions of the High Court of Bombay as binding authorities and must refuse to follow them. With these preliminary observations I shall now proceed to examine the main point of controversy between the parties namely how far the principle of constructive res judicata applies in execution proceedings in the light of the various authorities cited before me on behalf of both the parties.

(3.) Before I proceed to consider the various authorities bearing upon the point it would be useful to examine the relevant provisions of the Code of Civil Procedure. Order XXI Rule 22 inter alia provides that where an application for execution is made (a) more than one year after the date of the decree or (b) against the legal representative of a party to the decree or where an application is made for execution of a decree filed under the provisions of sec. 44A the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause on a date to be fixed why the decree should not be executed against him. Now the person against whom the decree is shoght to be executed may either appear or not appear in answer to the notice issued Under Order XXI Rule 22. If he does not appear in answer to the notice under Order XXI Rule 22 to show cause why the decree should not be executed against him Order XXI Rule 23 provides that the Court shall order the decree to be executed. Order XXI Rule 23 likewise provides that the Court shall order the decree to be executed if he appears in answer to the notice under Order XXI Rule 22 but does not show cause to the satisfaction of the Court why the decree should not be executed. If he appears and shows cause to the satisfaction of the Court why the decree should not be executed the Court is empowered under Order XXI Rule 23 to make such order as it thinks fit depending of course upon the nature and scope of the objection urged by him to the execution of the decree. Order XXI Rule 23 thus provides for the making of tan order on the notice under Order XXI Rule 22 under different circumstances according as the person against whom the decree is sought to be executed appears or does not appear to show cause against the execution of the decree. The order under Order XXI Rule 23 being a determination of a question within sec. 47 would amount to a decree within the meaning of sec. 2(2) and an appeal would therefore lie from such order. Now if the person against whom the decree is sought to be executed does not file an appeal from an order made against him under Order XXI Rule 23 can he be permitted to contend at any subsequent stage of the execution proceedings that the order was not rightly made? If he cannot do so it is equally clear that he cannot raise at any subsequent stage of the execution proceedings the same contentions which were urged by him against the execution of the decree at the time of the hearing of the notice under Order XXI Rule 22 for the effect of allowing him to do so would be to permit him to challenge the correctness of the order which he could do only by way of an appeal. The order passed by the Court under Order XXI Rule 23 would operate as res judicata in regard to the contentions urged against the execution of the decree in answer to the notice under Order XXI Rule 22 If the order under Order XXI Rule 23 can operate as res judicata in regard to the contentions urged at the hearing of the notice under Order XXI Rule 22 that order must equally operate as constructive res judicata in regard to the contentions which might and ought to have been urged against the execution of the decree in opposition to the notice under Order XXI Rule 22. Equally must the order under Order XXI Rule 23 operate as constructive res judicata if the person against whom the decree is sought to be executed did not appear in answer to the notice under Order XXI Rule 22 and the order directing the decree to be executed was therefore made by the Court. In such a case all contentions which might and ought to have been urged by such person showing cause why the decree should not be executed would be barred by the principle of constructive res judicata and it would not be open to such person to raise those contentions at any subsequent stage of the execution proceedings.