RAHIM AHMAD KHAN Vs. JAGANNATH SHRIKISHAN

JUDGEMENT

(1.) BOTH these appeals by the judgment -debtor arise out of the Execution Case No. 4 of 1947 -48 which itself seems to be a new number given to an old case pending at the time of integration. After some controversy, the execution case was transferred from the Munsiff, Dhar to the District Judge who passed an order to the effect that the case was governed by the Dhar Usurious Loans Act and accordingly ordered that accounts should be taken -in other words -applied section 3(1)(i and ii) of the Dhar Usurious Loans Act. He refused to accept the judgment -debtor's contention that the execution was time -barred. Upon that, both the parties went up in appeal, the judgment -debtor repeating that the execution was time -barred and the decree -holder urging against the application of the Usurious Loans Act. After an order by a single Judge, the matter went up again in a special appeal to a Divisional Bench which rejected the plea of limitation. It also rejected a new ground set up by the decree -holder during the appeal that the District Judge had no jurisdiction having become functus by the operation of an Ordinance of the Madhya Bharat. As for the application of the Usurious Loans Act, the Divisional Bench directed that the District Judge should consider whether the Usurious Loans Act applied at all. When the case went back to the District Judge, he held that the Usurious Loans Act did apply but this was not a case in which the judgment -debtor could get any benefit on the merits of his case. Thereupon the judgment -debtor has come up again alleging that the District Judge was wrong, both on the merits of his decision and because he differed from his predecessor. Further it is contended that in the special appeal, one of the Judges of the High Court had been of the view that the objection regarding the District Judge's jurisdiction should be left open so that he should have been permitted to re -agitate it in the executing Court.

(2.) WHILE this was going on, apropos the objections originally raised in the Court of the District Judge, the judgment -debtor raised yet another objection on 22 -8 -1955. This was numbered as a miscellaneous case. Here the objection was that when the first execution case was filed soon after the passing of the decree in 1938, the Munsiff who entertained it, did not have jurisdiction to do so. The subsequent transfer of the case to the District Judge did not cure this irregularity and all proceedings taken after 1938 were void for want of jurisdiction. This objection being dismissed, the judgment -debtor has filed Misc. Civil Appeal No. 10 of 1957.

(3.) THE decree itself had been passed in 1938 so that this case is yet another of the multitude where the decree -holder, having got the decree, is unable to reap the fruit of a success for many years. Even now when he is pursuing the judgment -debtors for what they have inherited from him, he does not seem near the end of his troubles. In Misc. Civil Appeal No. 10 of 1957, the real question is not as to the jurisdiction of the Munsif in 1938 to entertain an application in execution. It is, whether having failed to raise this point in the particular form as an objection at any earlier state, the judgment -debtor should at all have been allowed to raise it. When he did raise it after so many years, it was the duty of the lower Court to have pointed out his omission to do so at the earlier stages and to reject it summarily. The applicability of the principles of res judicata, both express and constructive, to execution cases is so well established that it is unnecessary to cite any case -law. Thus Misc. Civil Appeal No. 10 of 1957 stands dismissed.