SMT. BALBIR KAUR Vs. SMT. GURDEV KAUR

JUDGEMENT

(1.) This Execution Second Appeal has been filed by the decree-holders Smt. Balbir Kaur and her daughter Smt. Kulwinder Kaur. They had filed a suit for maintenance against Harbhajan Singh which was decreed on September 27, 1984. They were allowed maintenance at the rate of Rs. 400/- per mensem with effect from the date of filing of the suit i.e. April 29, 1981. The amount of maintenance was ordered to be a charge on the property of the judgment-debtor, namely Harbhajan Singh. It was during the pendency of the aforesaid suit that Harbhajan Singh sold the land in favour of his brother's wives Smt. Gurdev Kaur and Smt. Gurmit Kaur on August 23, 1982. Subsequently the decree-holders filed application for execution of the decree by sale of the property on which charge was created in November, 1984. Gurdev Kaur and Gurmit Kaur filed objections to the execution claiming themselves to bebona fidepurchasers of the land without notice from Harbhajan Singh. Those objections were also dismissed on November 15, 1985. Appeal preferred against the aforesaid order was dismissed on March 10, 1986. Another execution application was filed by the decreeholders wherein fresh objections were filed by them. These objections were also dismissed by the trial Court. However, on appeal the order of the trial Court was set aside. Hence the present appeal is by the decree-holders.

(2.) Shri O.P. Hoshiarpuri, learned counsel for the appellants, has argued that the second objections were barred by the principle of constructive resjudicata. In support of this contention he has relied upon decision of the Full Bench in Pirji Safdar Ali V. The Ideal Bank Ltd., 1949 AIR(P&H) 94. The Full Bench observed that the judgment-debtor was bound to raise all questions that affected the saleability of the property before that order was made and if he failed to raise these questions, he was barred by the rule of constructive res judicata from re-agitating them after that order has been made. If no order for sale had been made in these proceedings, then the matter would have been quite different as the rule of constructive res judicata could not have applied then. There is force in the contention of the counsel for the appellants in this respect. As already stated above on November 10, 1984 Gurdev Kaur and Gurmit Kaur filed objections in the execution proceedings, which were dismissed on November 15, 1985 and their appeal also failed in March 1986. A copy of the judgment of the appellate Court is sought to be filed in this appeal by filing C.M. No. 2166-C of 1987. The same is allowed and the copy of the judgment is taken on the record. The appeal was dismissed as not maintainable. The order of the executing Court dated November 15, 1985 is on the execution file which shows that objections filed by Gurdev Kaur and Gurmit Kaur were dismissed. It was held therein that the sale in their favour was during pendency of the suit filed by the present decree-holders and was thus hit by the rule of lis pendens. The decision of the Allahabad High Court in Amar Nath V. Deputy Director of Consolidation, Kanpur and another, 1985 AIR(All) 163 was relied upon. When objections were earlier filed the objectors were supposed to take up all the objections to the execution. If some of the points were not taken up there, now they could not raise the same or other objections to the execution. The principle of constructive res judicata would be applicable as held by the Full Bench.

(3.) The broad facts are not disputed on which the question of applicability of the principle of lis pendens depends. The suit was filed on April 29, 1981 and decreed in 1984. In the plaint itself it was alleged that the amount of maintenance be made a charge over the property of Harbhajan Singh. Details of the property of Harbhajan Singh were submitted in the plaint. Copy of the decree also shows that the amount of maintenance was made a charge over the property in dispute. The matter was considered by the Supreme Court in Nagubai Ammal V. B. Shamma Rao, 1956 AIR(SC) 593. That was also a suit filed for maintenance with a prayer that it be charged on specified properties. It was observed that it was a suit in which right to immovable property was directly in question and the lis commences from the date of the plaint and not on the date of the decree which created the charge. Facts in the present case are also similar and ratio of the decision of the Supreme Court aforesaid is applicable. The sale of the land in dispute during pendency of the suit in favour of Gurdev Kaur and Gurmit Kaur objectors was thus hit by the principle of lis pendens and the present decree-holders are not affected by the sale.