GUNDICHA PADHANO Vs. PARVATI PODHANUNI

JUDGEMENT

(1.) JUDGMENT-DEBTORS are the appellants. In T. M. Section 181 of 1949 in the Court of the Munsif, Berhampur, final mortgage decree was passed on 28-8-1954. The decree was transferred in favour of one Kalu Podhan by an assignment in writing. The transferee-decree-holder exe-cuted the decree in E. P. 89 of 1955. On his death his legal representatives were substituted. Some of the transferor decree- holders filed an objection in that execution proceeding against the genuineness and the validity of the transfer. Payment of consideration under the deed of transfer was challenged. It was also asserted that the original decree-holders were konds (aboriginals --hill tribes) and that deceased Kalu Podhan, who was looking after T. M. S. 181/1949, might have utilised some blank papers containing their signatures and thumb marks for the creation of the deed of transfer without their knowledge and consent. Despite this objection, the transferee-decree-holders allowed the execution proceeding to be dismissed for default on 17-8-1956 when the Executing Court passed the following order : "the lawyer for the D. Hr. IC files memo of no instructions. The decree holder's lawyer files Hajira. The E. P. is dismissed for default. " clearly the transferee-decree-holders were absent and did not pursue the matter while the lawyer for the transferor-decree-holders was present in Court. The original decree-holders filed E. P. 98 of 1958 which was dismissed as not pressed on 30-10-1958. A reference to this proceeding has been made incidentally as it has no bearing on the question in issue. The transferee-decree-holders again levied E. P. 14 of 1959 on 17-1-1959. Some of the original decree-holders and the judgment-debtors filed separate objections on identical grounds. The essence of the objections was that the deed of transfer was not genuine. Its execution and passing of consideration thereunder were disputed. A further plea was taken that E. P. 14/1959 was barred by the principle of constructive res judicata as the transferee-decree-holders failed to prove the transfer in E. P. 89 of 1955. The learned Munsif passed the following order on 2011-1959, the date fixed for hearing :

(2.) MR. N. V. Ramdas advanced two contentions-- (i) that the applications in E. P. 89/1955 and E. P. 14/1959 are not in accordance with law and would not save limitation; and (ii) that E. P. 329/1959 is not maintainable being hit by the principle of constructive res judicata.

(3.) TO appreciate both the contentions, it is necessary to analyse Order 21, Rule 16, C. P. C. This Rule, as amended by the Orissa High Court, may be quoted so far as relevant :