PHUMAN SINGH Vs. LAL SINGH

JUDGEMENT

(1.) THIS petition for revision which came for hearing before Grover, J., on 1st December, 1965, has been sent to this Bench for decision in pursuance of his recommendation to this effect made to the Hon'ble the Chief Justice.

(2.) A decree for a sum of Rs. 756 together with costs amounting to Rs. 120 was passed on 30th of January, 1956, in favour of the Respondent decree -holder Lal Singh against the Petitioner Phuman Singh. As submitted by the counsel at the Bar, a sum of Rs. 400 was to be paid on or before 15th of June, 1956, and the balance before 15th of January, 1957. The judgment -debtor failed to comply with the terms of the decree, and the decree -holder accordingly took out execution proceedings for the first time in 1959. His property having been attached, the judgment -debtor filed his objections on 25th of January, 1960. It was stated in the objections that the property was not liable to attachment, being exempt under Section 60 of the Code of Civil Procedure on account of it being agricultural land used for tethering cattle. The objections were dismissed on 1st of September, 1960. According to the statement of the case made by the counsel for the decree -holder, and not controverter by Mr. Ram Sarup, the counsel for the Petitioner, a sum of Rs. 60 only had been paid in satisfaction of the decree by that time. At the time when the objections were dismissed, it was directed that the balance of the amount due from the judgment -debtor would be paid in installments of Rs. 100 each. Only one instalment was paid and the second execution was filed by the decree -holder on 20th of July, 1961. Objections, which were substantially the same as on the previous occasion, were filed by the judgment -debtor on 21st of September, 1963. This objection petition was dismissed on the same day. The son of the judgment -debtor filed objections on 26th of June, 1964, and these were dismissed on 1st of September, 1964. The judgment -debtor, while the second execution was still pending, filed further objections on 26th of September, 1964; this time on the ground that the transaction is hit by the rule of Damdwpat. The executing Court holding that the objections could not be entertained on the principle of constructive res judicata dismissed them on 9th of November, 1964, and directed the auction of the attached property to take place on 13th of December, 1964. An appeal from this order was dismissed by the Senior Subordinate Judge, Barnala, on 24th of April, 1965, the order being in these terms:

(3.) MR . Ram Sarup, the learned Counsel for the Petitioner, has contended that the judgment -debtor should have been allowed by the executing Court to substantiate his plea as in substance it was urged that the amount which was sought to be executed was in excess of what had been decreed. The learned Counsel has not challenged the proposition that the principle of constructive res judicata is applicable to execution proceedings as held by the Supreme Court in Mohanlal Goenka v. Benoy Kishna Mukherjee : A.I.R. 1953 S.C. 65. The plea that the decree could not be executed is based on Section 30 of the Punjab Relief of Indebtedness Act, Sub -section (1) of which says that: