TARA SINGH Vs. NATHU RAM

JUDGEMENT

(1.) This execution second appeal has been filed against the judgment of District Judge, Patiala, dated November 11, 1975, who accepted the appeal of the decree-holder against the judgment of the executing Court and dismissed the objections of the judgment-debtor.

(2.) The sole point for determination in the present appeal is whether the objection of the appellant judgment-debtor is barred by the principles of constructive res judicata. The material facts of the case bearing on the decision of the above question are as follows:--

(3.) The only contention of the learned counsel for the appellant is that under Section 3 of the Punjab Registration of Money Lenders' Act, the decree-holder was not entitled to realise the decretal amount as he was a professional money lender. I find no merit in this contention. At the outset, it may be mentioned here that there is not a tattle of evidence on the record that the decree-holder was a professional moneylender during the relevant period. In order to attract the provisions of Section 3 of the said Act, the judgment-debtor has to allege and prove that the decree-holder is a money lender. The judgment-debtor has failed to plead or raise the, objection in the suit or in the execution proceedings arising from the consent decree and as such his sub-sequent objection that the decree-holder was not entitled to realise the decretal amount as he was a professional money lender, must be held to be barred on the principles of res judicata. The Point whether the Principles of constructive res judicata apply in execution cases has been settled in Full Bench decision in the case of Baijnath Prasad Sah v. Ramphal Sahni, AIR 1962 Pat 72. In that case also objection had been raised by one of the judgment-debtors about the provisions of Section 49M of the Bihar Tenancy Act as amended by the Bihar Tenancy (Amendment) Act 1955. That objection regarding the non-saleability of the land had been taken by him after the confirmation of the sale. It was held, according to the majority decision, that the judgment-debtor was barred by the principles of res judicata from raising the objection on the ground of non-sale-ability of the kasht lands. Similar view was taken in case--Prem Lata Agarwal v. Lakshman Prasad Gupta, AIR 1970 SC 1525.