SIMHADRI SAHU Vs. BALAJI PADHI

JUDGEMENT

(1.) This is a judgment-debtor's miscellaneous appeal against an order dated 27-91951 of Sri R. C. Misra, Agency Subordinate Judge of Jeypore, passed under Section 47, Civil P. C., in Exn. Case No. 14 of 1951. The aggregate amount of the decree in execution is Rs. 3254-2-11 and the suit costs amount to Rs. 419-4-0. Previous to this execution case the decree-holder had brought Execution Case No. 1Z4/45 wherein some riaddy of the judgment-debtor was attached and the bailiff reported that -it was 14 garces 5 putties and 18 manas which was attached and kept in custody of decree-holder 1. The decree-holder filed an affidavit stating that it was only 1 garce 5 putties and 18 manas which was attached and not 14 garces and odd as the bailiff reported. Thereafter the Agency Subordinate Judge directed the Munsiff of Gunpur to make an inquiry and to report as to the actual measure of paddy attached. The Munsiff, however, reported supporting the contention of the decree-holder. The judgment-debtor on 24-4-47 filed an affidavit with a prayer for enquiring into the matter that in fact 14 garces 5 putties and 18 manas of paddy was attached by the bailiff. This affidavit of the judgment-debtor was treated as a petition under Section 47, Civil P. C., and the Court ordered it to be registered as a miscellaneous case -- the order being "Registered the petition received on 24-4-47 as Misc. Case under Section 47, Civil P. C." Accordingly it was registered as Misc. Case No. 5/48 on 26-7-1948. The case was fixed for hearing on 7-2-1948. The judgment-debtor on 7-2-1948 applied for time which was rejected by the Executing Court as frivolous, and the judgment-debtor was asked to get ready immediately; but as he defaulted, the Court passed the following order:

(2.) On 11-2-1948, the Court called upon the decree-holder to prove that the price of the said 1 garce 5 putties and 18 kunchams was Rs. 250-0-0. On 16-2-1948, the judgment-debtor filed three petitions one for sale of paddy under attachment of the measure of 14 garces 5 putties and 18 kunchams, the second for scaling down the decree under the provisions of Orissa Money-lender's Act and the third for withholding attachment of other movables. The Court does not seem to have passed any order on the first petition, but the decree was scaled down and the petition for withholding attachment was rejected. Thereafter the execution case was dismissed on 8-4-1948 without costs on part satisfaction of Rs. 250/-. In the present execution case the judgment-debtor has put in his objection under Section 47, C. P. C. on the allegation that in fact what was attached in the previous, case was 14 garces and odd and not 1 garce and odd as alleged by the decree-holder. He prayed for an enquiry into the matter on the ground that there has been no enquiry to his objection in the previous case. This petition has been rejected by the Executing Court on the ground of res judicata that this very point was raised in the previous execution case which was the subject matter of Misc. Case No. 9/48 which was dismissed for default of the judgment-debtor in presence of the decree-holder.

(3.) Mr. A. L. J. Rao, appearing on behalf of the judgment-debtor-appellant, takes up his first plea that in the previous execution case this objection "as to the measure of the paddy actually attached was initiated by the decree-holder and the judgment-debtor merely filed a counter-affidavit to the said objection of the decree-holder on 24-4-47, and as the judgment-debtor had not put in a petition of objection under Section 47, die Executing Court had no jurisdiction to register the affidavit as a Misc. Case under Section 47. The dismissal for default of such a proceeding therefore is no res judicata for the judgment-debtor when the point was never decided but was left open by the Executing Court in the previous execution case. We have perused the affidavit filed by the judgment-debtor on 24-4-47. The significant feature about it is that after alleging that in fact 14 garces 5 putties and 18 kunchams of paddy was attached, the judgment-debtor prayed, in the last paragraph of his affidavit, that he might be given an opportunity to be heard and that the Hon'ble Court may be pleased to pass an order on the subject according to law. This affidavit containing all the relevant allegations and the prayer for investigation by the Court is manifestly a petition with reference to a question of execution, satisfaction and discharge of the decree. The Executing Court, therefore, in our opinion, was perfectly justified in starting Misc. Case No. 5/48 on the basis of this petition. It further appears that the judgment-debtor also on 7-248 applied for time to be granted for adducing evidence in the miscellaneous Case. The Executing Court of course treated the ground for adjournment as frivolous.