HAZURA SINGH Vs. JEWON SINGH

JUDGEMENT

(1.) THE only point which requires determination in this appeal is whether the objections filed by the judgment-debtor in July, 1956 in execution proceedings are barred by operation of the rule of constructive res judicata owing to the dismissal of the previous objections on 18-10-1955 in default. The decree was passed as far back as 9-12-1949 in the sum of Rs. 787/- with costs. The application for execution was made in April, 1952 to which objections were taken in August 1955, but owing to the absence of the judgment-debtor these were dismissed on 18-10-1955. The explanation given for the absence is that there were unprecedented floods at that time of the year and even a circular had been issued by the erstwhile Pepsu High Court on 5-10-1955 that cases should not be dismissed in default. An appeal was taken against the order of dismissal, but the same was rejected on 22-3-1956 on the ground that the order was not appealable. On 13-7-1956 the present objections were filed. Both the Courts below have dismissed the objections on the ground that they are barred by the principle of res judicata.

(2.) IT seems that the learned District Judge has been largely affected by the fact that there has been a good deal of delay in the execution of the decree. He has referred to certain observations of the Privy Council that the difficulties of a litigant in India begin after obtaining the decree, but this can be no ground for giving an erroneous decision.

(3.) SO far as the Lahore High Court and this Court are concerned, it seems to be well settled that the rule of constructive res judicata cannot be made applicable when an objection petition under Section 47, C. P. C. has been dismissed for default. In Kishna v. Sundar, AIR 1932 Lah 64:3 (1) (A), Bhide J. held that when the first objection petition had been dismissed in default, and not on the merits, a second objection petition was maintainable. Actually the view is that when an application is dismissed for default a second applica-tion is barred not under Section 11, C. P. C, but if any bar can operate that can be only under the provisions of O, 9, R, 9, of the Code. Now O. 9, R. 9, does not apply to execution proceedings. Therefore the second objection petition cannot be held to be barred. See in this connection Haribux v. Shamsundar, AIR 1935 Lah 145 (1) (B), Mt. Acharji Bibi v. Shesh Sahai, AIR 1939 Lah 223 (C) and Jagadish ram v. Jagat Ram, AIR 1952 Punjab 123 (D ).