CHINNASAMI Vs. NATARAJAN

JUDGEMENT

(1.) 1. The petitioner herein is the decree holder in O. S. No. 983 of 1989. He obtained the decree against the respondent herein and filed e. P. 368/91 for attachment of the house owned by the respondent. The respondent remained ex-parte in the suit as well as in the E. P when the order of attachment was made. Subsequently he filed E. A. No. 558 of 1993 to raise the attachment, claiming that the respondent is an agriculturist and as per Section 60, C. P. C. there is a bar for attachment of the house of an agriculturist and hence the order of attachment has to be raised.

(2.) THE petitioner herein opposed the application on the ground that notice in the attachment application was served on the respondent, he has not taken any objection and the order of attachment was made. Subsequently the petitioner moved the executing court for reduction of upset price and at that time also the respondent did not take any objection. THE respondent is doing milk business and he has let out a portion of the house to tenants. Hence the respondent is not entitled for the benefit of Section 60, c. P. C.

(3.) THE counsel for the petitioner referred to a judgment reported in Bhaskar Traders v. Minikkipacha Kunhiraman, AIR 1988 Kerala 227. In it, it has been held as follows: ' First proviso to S. 60 (l) enumerates various categories of properties that are not liable to attachment or sale. When a property is attached and notice is issued to the party concerned it is for him to claim exemption under any of the categories detailed in the first proviso then and there. As the petitioner did not raise his objection at die time when he received the notice of attachment he is precluded from raising such an objection subsequently. Explanation IV to S. I 1 postulates that any matter which might and ought to have been made a ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. As the petitioner did not raise his objection at the time when he received the notice of attachment as he ' might and ought' to have done, he is precluded by Explanation IV to S. ll C. P. C, From raising such an objection subsequently by the rule of constructive res judicata. Even before Explanation vii was added that was the position. As Explanation VH has been added by the c. P. C (Amendment) Act of 1976 the irrefutable position is that S. ll C. P. C applies with all vigour to execution proceedings also. . . . In Mohanlal v. Benoy Kishna, AIR 1953 SC 65, the Supreme court held that the principle of constructive res judicata is applicable to execution proceedings is no longer open to doubt. Reference is made to Ananda kumar v. Sheikh Madan, AIR 1934 Cal. 472 by the Supreme Court. In the above case an application was made by a certain person for execution of a decree and no objection was raised that the decree was not maintainable. It was held that no further objection on the score of maintainability of a fresh application for execution on the part of the same applicant could be raised. Thus the indubitable position is that even before Explanation VII was added constructive res judicata applied to execution proceedings. After the insertion of explanation VII to S. 11 it can be said with certitude that S. ll applies to execution proceedings as well. That being the position, the failure to raise at the first opportunity the contention that the property is not liable to be attached in view of S. 60 (lxc) of die Code precludes him from urging it at the fag end of die execution proceedings when die property is brought to sale. Defendant cannot whimsically and capriciously raise his contentions in utter disregard of die law of procedure. It is also significant to no te that die property ws proclaimed for sale on $. 2. 1984 and die sale was being adjourned on several occasions on die motion of die petitioner. As die petitioner's contention is barred by constructive res judicata die executing court was perfectly justified in rejecting die execution application. . .' It has been clearly held in die judgment referred to above that as per Explanation TV to Section 11, C. P. C, die failure on die part of die judgment Alebtor to take die objection at die earliest point of time would amount to constructive res judicata. In die case on hand also die respondent had failed toe exercise his right to raise his objection at die earliest point of time. Hence after die order of attachment and at die time of sale, it is not open to die respondent to raise die objection with regard to die validity of die order of attachment.