MITTASAHEB HIRAMA KAKKALMALI Vs. GURUNATH HANMANT KULKARNI

JUDGEMENT

(1.) THIS is a second appeal from a decision of the learned District Judge of Bijapur in proceedings in execution of a decree dated August 9, 1934 for sale on a mortgage passed under the Dekkhan Agriculturists' Relief Act. The mortgage debt was found to be Rs. 1,750, and it was made payable by four instalments. There was also a default clause provided by the decree. The only question raised in this appeal is whether the failure of the judgment-debtor to dispute the amount of the claim made in the application for execution after he had received a notice under Order XXI, Rule 22, of the Civil Procedure Code, operates as a bar to his raising the dispute at another stage of the same execution proceedings, after the executing Court had made an order transmitting the application for execution to the Collector, on the principle of res judicata.

(2.) THE material facts may be shortly stated. THE decree-holder alleged in his application for execution that as the judgment-debtor had not made any payment the mortgaged property was liable to be sold under the provisions of the Dekkhan Agriculturists' Relief Act. Upon that application made on August 7, 1937, notice was given to the judgment-debtor under Order XXI, Rule 22, of the Civil Procedure Code on September 1, 1937. That notice required the judgment-debtor to show cause why the decree should not be executed against him. THE judgment-debtor did not appear in response to that notice, and the executing Court transferred the proceedings to the Collector on October 8, 1937. THEreupon the Collector issued a notice to the judgment-debtor on November 11, 1937. It appears that the judgment-debtor contended before the Collector that he had paid Rs. 601-13-3 in part satisfaction of the decree-holder's claim, and that to that extent execution should not proceed. THE Collector directed the judgment-debtor to move the executing Court further in the matter. In that Court the judgment-debtor filed an application objecting to the amount claimed in the application for execution by the decree-holder on the grounds referred to. He pleaded that execution should proceed only in respect to the balance. THE decree-holder contended that that plea was not open to him, as he might and ought to have raised that contention before the order transferring the application to the Collector was made in those proceedings. THE Courts below were divided on the point. THE learned Judge of the executing Court thought that the contention of the judgment-debtor was barred, for, if he had raised it successfully, it would have resulted in modification of the orders of the Court, and that the omission to do so operated constructively as res judicata. THE learned District Judge in the appeal by the judgment-debtor took a contrary view. He held that the principle of res judicata could not be applied to the facts of this case because the judgment-debtor had no notice of the point which was likely to be decided against him and therefore had no opportunity of putting forward his contentions. He has referred to the' ruling in, Alluri Bapanna v. Inugonti Vengayya [1937] A.I.R. Mad. 511 for the view that the order directing execution to proceed could only imply that the Courtconsidered the questions as to whether the decree-holder had a right to execute the decree, whether the judgment-debtor was liable to satisfy the decree, whether the decree was executable, and whether the claim was not barred by limitation. He held that the question of part satisfaction was not decided nor required to be decided at that stage. He therefore directed that the question of part satisfaction should be raised and decided by the executing Court upon the contentions of the judgment-debtor. Against that decree the decree-holder has filed this second appeal.

(3.) THE important question is whether the principle underlying expln. IV of Section 11 of the Civil Procedure Code could be properly extended to the present case on the ground that the question as to part satisfaction might and ought to have been raised, and not having been raised, was by necessary implication decided against the judgment-debtor. THEre is no direct authority on the point whether the judgment-debtor, who has omitted to appear in response to a notice under Order XXI, Rule 22, of the Code, can be precluded from contending that there has been a partial adjustment of the decree. That could only be done if the rule of constructive res judicata could be so extended as to penalize the judgment-debtor for his omission. In Mahadeo v. Trimbakbhat (1918) 21 Bom. L.R. 344 a decree was) passed in 1910, and in 1914 an application to execute it was dismissed as barred by time. A second application to execute the decree was made in 1915 and it was pleaded that it was within time in consequence of certain earlier applications and acknowledgments. THE question arose as to whether the adjudication in the earlier darkhast operated as res judicata. Mr. Justice Shah sitting singly held that in the earlier darkhast the adjudication was not that the execution of the decree was barred, but only that the application was not shown to be in time, and that to that extent only the adjudication was binding on the parties. He says (p. 347): THE rule of res judicata applicable to execution) proceedings makes all decisions binding upon the parties in subsequent proceedings but it does not necessarily involve the result that any point which is not heard and decided but which might and ought to have been raised must be treated as necessarily decided as under s, 11 of the Code .... I do not think that the application of the doctrine of res judicata to execution proceedings would involve the result that it should be taken to have been decided. At least, as I read the decisions bearing on this point, I do not understand the rule to go so far. That view was followed in Ramchandra v. Shriniwas (1921) I.L.R. 46 Bom. 467 : S.C. 24 Bom. L.R. 97 by a division bench of which Mr. Justice Shah was a member. THEre the applicant obtained a decree in 1913 which he sought to execute first in 1915 and again in 1919. THE second application to execute the decree was rejected as barred by limitation. THE applicant relied on an acknowledgment, dated June 19, 1917, and applied on June 19, 1920, to execute the decree. THE executing Court dismissed the application on the ground that the decision in the darkhast of 1919 operated as res judicata. In appeal Macleod C.J. observed as follows (p. 469): It does not seem to me that the doctrine of res judicata can be extended to that length. I agree with what was said by my brother Shah in the case of Mahadev v. Trimbakbhat, which was cited, that in the earlier Darkhast there was no adjudication that the execution of the decree was barred but only that the application was not shown to be in time. In the later case of Gadigappa v. Shidappa (1924) I.L.R. 48 Bom. 638 : S.C. 26 Bom. L.R. 817 the authorities were reviewed by Sir Lallubhai Shah, Acting Chief Justice, and Mr. Justice Fawcett. THE Acting Chief Justice remarked (p. 645): What is binding upon the parties is the point actually decided. THE principle of Explanation IV of Section 11, Civil Procedure Code, has no direct application; but in determining the exact effect of the point decided on the subsequent proceedings the principle cannot be altogether ignored. That shows a modification of the view as to the applicability of the provisions of expln. IV of Section 11 expressed in the two earlier decisions. Mr. Justice Fawcett examined the case law on the point and thought that the following deduction was permissible from those cases (p. 654): On the other hand I quite agree with the rulings already referred to that great caution should be used in applying it," and that generally speaking the mere fact that an objection has not been raised at one stage of execution proceedings is not a sufficient ground for holding that the objection is barred at another stage. It was pointed out that although there was no real authority for the proposition that the principle of constructive res judicata referred to in expln. IV of Section 11 cannot be applied to execution proceedings, the authorities laid down that caution was needed in applying it.