SANTOKH SINGH Vs. KULDIP RAJ

JUDGEMENT

(1.) THIS is a Letters Patent Appeal against a judgment of Khosla, J. in which the learned Judge held that the objections raised by the judgment-debtor were barred on the principle of 'res judicata'.

(2.) ON the 14th February 1940, a preliminary decree for mortgage was passed which was made final on the 8th July 1940. Evidently no separate personal decree as required under Order xxxiv, rule 6, Civil P. C. was passed. In spite of that an execution was taken out by the decree-holder. The judgment-debtor raised objections where he stated that no personal decree had been passed against him, and, therefore, his person and other property could not be held liable. The executing Court overruled these objections holding that the judgment showed that he was personally liable for the payment of any amount which remained unpaid after the sale of the mortgaged property. No appeal was taken against this order and it therefore became final.

(3.) WHEN execution against the judgment-debtor's person and ether property was taken out, he again took the same objections which have been held by Khosla, J. to be barred by the rule of 'res judicata'. He has relied on a judgment of Bhide, J. in 'jogindra SINGH v. SHIB NARAIN singh', AIR 1941 Lah 171, the facts of which case are almost identical with the present case. It has been held more than once, and particularly in 'prabhu DAYAL v. DEWAT RAM', 15 Lah 869, that the principle of constructive 'res judicata' applies to execution proceedings. Mr. Roop chand for the appellant does not seem to deny that the principle of 'res judicata' applies to execution, but he submits that as there was no decree in existence, the executing Court could not execute anything against the person and property of the judgment-debtor. He has relied on a judgment of mine in 'mt. MONGI v MAHA-BIR PEHSHAD'. AIR 1951 Punjab 132, but there the facts were different. The decree-holder had applied for execution to which he attached a copy of the decree. No objection was taken and a proclamation of sale was issued. But before the sale the judgment-debtor filed objections saying 'inter alia' that there was no proper decree ordering sale. After the sale the objections were dismissed and the judgment-debtor came up in appeal against tbat order to this Court. There was no finding, constructive or otherwise, holding that the decree was executable nor was there an order of the Court for sale. That case, in my opinion, was wholly different because no question of 'res judirata' arose.