RAJKISHORE MOHANTY Vs. KANGALI MOHARANA

JUDGEMENT

(1.) THIS is an appeal against an order of the First Additional Subordinate Judge, Cuttack setting aside an order of the Munsif, Jaipur dismissing an application under S.47 of the C.P.C. (hereinafter referred to as the Code) filed by the judgment-debtors. The facts of the case may be set down in chronological order as follows: 4-5-1950 -Suit filed by the appellants for possession was dismissed by the Munsif. 11-12-1951 -Appellate Court set aside the judgment of the trial Court and decreed the suit with costs. 10-4-1954 -First Execution Case No.158 of 1954 filed by the decree holder for recovery of possession and costs. 27-11-1956 -Second Appeal filed by the judgment-debtor respondents dismissed by the High Court. 28-2-1958 -Second Execution Case No.72 of 1958 filed. 5-4-1958 -Execution Case (No.72/58) dismissed. 25-12-1960 -Judgment debtor No.7 on his behalf and on behalf of all judgment debtors is alleged to have paid Rs.5/- to the decree- holder towards the decree. 14-8-1962 -Third Execution Case No.195 of 1962 filed 27-9-1962 -Execution Case (No.195/62) dismissed. 18-12-1962 -The present Execution Case No.339 of 1962 filed by the decree holder. The Court directed the same to be put up on 2-1-63 with office note. 2-1-1963 -Authentication fee paid by the decree-holder, Case admitted. Notice under Order 21, Rule 22, C.P.C issued fixing 24-1-63 for return. 24-1-1963 -Service return received. Service proved and accented as sufficient. Ordered to be put up on 1-2-1963 when decree-holder to take further steps. 1-2-1963 -Process-fee filed. Judgment-debtor No.1 appeared and prayed for time to file objections - let him file his objections by 9-2-1963. 9-2-1963 - Judgment debtor No.1 filed objections under Section 47, C.P.C. challenging the maintainability of the execution petition on the ground of limitation. Objection numbered as Misc. Case No.50 of 1963. 16-11-1963 - Misc. Case No.50 of 1963 dismissed for default. Petition for restoration filed the same day. 23-11-1963 - Misc. Case No.50/63 restored. The decree-holder let in evidence in support of his contention that Rs.5/- had been paid by the Judgment-debtors to him towards the decree. The allegation was denied by the judgment-debtors. 1-5-1964 - The learned Munsif dismissed the miscellaneous case on the findings (1) that the judgment-debtor No.1 not having filed any Objection on 24-1-1963 which was the date fixed for his appearance, the order passed by the Court on that day that the decree holder should take further steps amounted by implication to an adjudi- cation that the execution application is within time and is maintainable and that on the principle of constructive res judicata, the judgment-debtors are not entitled to object to the execution at a later stage of the same execution proceedings: (2) that the payment of Rs.5/- alleged to have been made on 25-12-1960 is true and it saves limitation. 26-10-1965 -On appeal, the learned Subordinate Judge set aside both the findings. He held that the alleged payment of Rs.5/- is not true, and that the principle of constructive res judicata is wholly inapplicable to the facts of the present case. He, therefore, held that the execution proceeding is barred by time and is not maintainable. It is against this order that the decree-holder has filed the present appeal.

(2.) THIS appeal, in the first instance came up for hearing before the Hon'ble Chief Justice who directed that this be heard by a Full Bench. Obviously, in view of certain conflicting decisions to which reference will presently be made.

(3.) I shall now refer to the decisions of the Supreme Court on the subject. The earliest of these cases brought to our notice is AIR 1953 SC 65 (Mohanlal Goenka v. Benoy Krishna Mukherjee). A decree was passed on the original side of the Calcutta High Court and was sent to the Court of the Subordinate Judge, Assansol for execution. In the latter Court execution was applied for, notice under Order 21, R.22, C.P.C. was issued and for the default of the decree-holder to prove service it was dismissed. The Assansol Court sent to the High Court what purported to be a certificate under Section 41, C.P.C. stating that the execution case was dismissed for default. Neither the copy of the decree nor any covering letter as required by the Rules of the High Court was sent along with the certificate. Thereafter the decree-holder filed a second application for execution of the decree in the Assansol Court praying for sale of the Sripur Colliery belonging to the judgment-debtor. Notice under O.21, R.22, Civil P.C. was duly served and the executing Court ordered issue of sale proclamation. It is unnecessary to refer to the details of the proceedings. It is enough to state that during the pendency of the execution proceedings several objections were filed on behalf of the judgment-debtor to the effect that after the Assansol Court had sent to the High Court a certificate under Section 41. C. P.C. stating that the execution case was dismissed for default, the decree was never again transferred to the Assansol Court for execution and consequently the latter Court had no jurisdiction to entertain the second execution application filed by the decree-holder. These objections were, however, not pressed on the earlier occasions with the result that the execution proceeded and the property was also sold. After the sale, the judgment-debtor filed another application repeating the same objections. The Subordinate Judge dismissed the objections taking the view that having made the allegations in the previous misc. case and then abandoning them, the judgment-debtor is precluded from raising the plea of jurisdiction to execute the decree on the principle of constructive res judicata. On appeal, the High Court in AIR 1950 Cal 287 (Benoy Krishna Mukerjee v. Mohanlal Goenka) held the view that the entertainment by the Assansol Court of the second execution case and passing of an order for sale therein are without jurisdiction after the certificate of non-satisfaction had been sent to the transmitting Court, and that such an order is null and void and can neither operate as an estoppel nor as a bar in res judicata to an application under Section 47, C.P.C. to set aside the sale by the judgment-debtor who discovered the defect subsequent to the order for sale. The matter was taken up in appeal to the Supreme Court which reversed the decision of the High Court observing: "That the principle of constructive res judicata is applicable to execution proceedings is no longer open to doubt."