BIJALI BALA DAS Vs. CHARU BALA ASH

JUDGEMENT

(1.) These two appeals by the judgment-debtor arise out of Miscellaneous Cases Nos. 77 and 78 of 1960.

(2.) The material facts may briefly be stated as follows. Sometime in the year 1954 the respondent obtained two mortgage decrees against one Kalipada Das (since dead), the husband of the appellant. The decree-holder respondent put the decrees into execution by filing two execution cases, namely, execution cases Nos. 42 and 43 of 1958, against the appellant as well as the minor sons and daughter of Kalipada Das. The appellant filed objection petitions in both the cases and they were numbered Miscellaneous Cases 31 and 32 of 1958. The executing court rejected both the objection petitions by its order dated the 29th of November, 1958. Being aggrieved by the order of the executing court, the appellant preferred appeals (Miscellaneous Appeals Nos 1/4 and 2/5 of 1959), which were dismissed by the 1st Subordinate Judge, Dhanbad, on the 28th of July. 1959. The appellant then preferred Miscellaneous Second Appeals Nos 287 and 288 of 1959 in the High Court On the 30th of June, 1960, both the appeals were dismissed for non-compliance of certain orders passed by the Bench After the disposal of the two appeals in the High Court, the appellant filed fresh objection petitions under Section 47 of the Code of Civil Procedure in the two execution cases before the executing court and these were numbered Miscellaneous Cases 77 and 78 of 1960. The only objection raised in the two miscellaneous cases was that the property sought to be sold by the decree-holder was not saleable in view of the provisions of the Bihar Privileged Persons Homestead Tenancy Act, hereinafter referred to as "the Act". The executing court by its order dated the 7th of January. 1961, dismissed the two miscellaneous cases on the following two grounds, namely, that the provision of the Act was not applicable in the present case as the property sought to be sold was situate within the Notified Area Committee close to the Chirkunda Bazar and that the plea that the property was not liable to be sold under the provisions of the Act was barred by the principles of constructive res judicata. Two miscellaneous appeals, namely, Miscellaneous Appeals Nos. 9 and 10 of 1961, were preferred by the appellant judgment-debtor against the decision of the executing court in the two miscellaneous cases These appeals were heard by the District Judge of Dhanbad. The learned District Judge by his order dated the 26th of September, 1961, dismissed the two appeals holding, in agreement with the executing court, that the plea that the land Bought to be sold is not saleable under the provisions of the Act is barred by the principles of constructive res judicata, as that plea was neither raised nor agitated by the appellant in the two previous Miscellaneous Cases. The learned District Judge, however, held on fact that the judgment-debtor was really a privileged tenant as defined in the Act and as such no portion of her homestead land was liable to be sold in execution of any decree or order except a decree for arrears of rent with respect to the holding itself. The appellant then preferred these two miscellaneous appeals in this Court.

(3.) The sole point for determination in the present appeals is whether the objection of the appellant judgment-debtor is barred by the principles of constructive res judicata. It appears that in the previous miscellaneous cases (Nos. 31 and 32 of 1958) objections were raised by the appellant on the point of limitation and also on the point that the decrees were not executable in view of the provisions of Section 4 of the Bihar Money-Lenders Act and in view of the provisions of Section 67A of the Transfer of Property Act. Although the property sought to be sold had been specified in the two execution applications, no objection regarding the non-saleability of the property was taken by the appellant judgment-debtor. The learned District Judge held that the question as to whether a person is entitled to exemption of the sale of his homestead land under the provisions of the Act is not a pure question of law but a mixed question of fact as well as law and the facts have to be proved. Relying on the decision of this Court in the case of Sham Sundar Singh v. Dhirendra Nath Chandra, AIR 1950 Pat 465. the learned District Judge held that the principles of constructive res judicata were applicable to the present case and the plea about the non-saleability of the property was barred as the appellant had not raised the objection in the two previous execution cases.