VIJAI DEVI Vs. RAM SWARUP

JUDGEMENT

(1.) THIS appeal has been filed by Jwala Prasad in the matter of execution arising out of proceedings under Section 144, C. P. C. One Murari Lal obtained a decree for Rs. 725 against Kunwar Lal with the condition that if the amount could not be recovered from Kunwar Lal the decree would be executable against Jwala Prasad. This decree was obtained in 1952. In 1955, the house of Kunwar Lal was put to sale and Ram Swarup, respondent in the present appeal, purchased it in the auction sale. Kunwar Lal filed objections under Order 21, Rule 90, C. P. C. but before they could be decided the sale was confirmed on 12-4-55. On 15-4-55 the decree-holder withdrew the money and the execution was struck off in full satisfaction of the decree. Objections of the judgment-debtor Kunwar Lal were then taken up and were dismissed. He went up in appeal. The appeal was allowed and the case was remanded to the execution court. The execution court then set aside the sale by allowing the objections. Thereafter Ram Swarup, the auction-purchaser, filed an application under Section 144 of the Code of Civil Procedure. In this application Jwala Prasad was also made a party. The court directed on 13-4-1957 the execution to proceed for recovery of auction-purchaser's money. This order was put into execution and the house which had been attached and sold earlier was again got attached for sale but upon objections being filed by one Bharose Lal the property was released from attachment. On 3-4-58. the auction-purchaser applied under Section 47, C. P. C. for the sale of the same house. This application was dismissed. He filed an appeal which was also dismissed. In spite of this order the auction-purchaser again moved an application under Section 47, C. P. C. and this time applied for recovery of his money by attachment and sale of the properties of Jwala Prasad Jwala Prasad filed a suit on the ground that his property was not liable to attachment and sale. Jwala Prasad also filed objections before the execution court to the effect that his property was not liable to sale in proceedings initiated by Ram Swarup. These objections were dismissed. Jwala Prasad then went up in appeal which was also dismissed. He has now filed the present second appeal.

(2.) THE error into which the courts below have fallen is to treat the order passed on the application of the auction-purchaser Ram Swarup under Section 144, C. P. C. as an executable decree. Firstly, the application under Section 144, C. P. C. was totally misconceived and, secondly, any order passed therein could only be an order in the nature of execution and could not amount to an executable decree. Section 144 (1), C. P. C., runs as under :

(3.) FURTHER , the present proceedings were also barred by the principle of constructive res judicata. As indicated above, the application of the auction-purchaser has been finally dismissed in appeal on 2-12- 59. The present proceedings had again been instituted under Section 47, C. PC In Maqbool Alam v. Khodaija, AIR 1966 SC 1194 the Supreme Court observed that the principle of res judicata applies also to execution proceedings.