CHANDRA CHOOR DEO Vs. KRISHNAWATI

JUDGEMENT

(1.) Similar questions of law being involved in these three appeals, they were made analogous and have been heard together and are being disposed of by this common judgment.

(2.) The decree-holder is the appellant in each of these three appeals. They had obtained money decrees against Krishnanand Singh, who died before the execution could be levied. Three execution cases (Nos. 31, 32 and 33 of the year 1961) were filed and, in each of them, Krishnawati, the widow of Krishnanand Singh, was mentioned as the first judgment-debtor. Notices under Order 21, Rule 22 of the Code of Civil Procedure were issued against her and other judgment-debtors in all these execution cases and, as it appears from order No. 6 dated the 6th March, 1962, in Execution Cases 31 and 32 of 1961, and order No. 7 dated the 13th March, 1962, in Execution case No. 33 of 1961, the notices were properly served. By Order No. 9 dated the 10th April, 1962, in each of the three execution cases, orders for attachment were issued. Krishnawati or any other judgment-debtor had not appeared before the Court on or before that date and taken any objection to the attachment of the properties proceeded against. Subsequently, Krishnawati appeared and filed objections under Order 21, Rule 58 of the Code of Civil Procedure. Her case was that the properties proceeded against were her personal properties and not those of her husband. These applications were dismissed for default. Applications for their restoration were also dismissed. She thereafter, filed new applications under Order 21, Rule 58 of the Code; but they too were dismissed. She then filed objections under Section 47 of the Code, praying for the release of the properties from attachment, the ground being the same that they were her personal properties. The applications were registered as Miscellaneous Cases Nos. 34, 35 and 36 of 1963 in the three execution cases Nos. 31, 32 and 33 of 1961, respectively. These applications have been allowed by the executing Court and the decree-holders have appealed to this Court. Miscellaneous Appeal No. 278 of 1964 is directed against the order in Miscellaneous Case No. 35 of 1963, Miscellaneous Appeal No. 279 of 1964 is directed against the order in Miscellaneous Case No. 34 of 1963 and Miscellaneous Appeal No. 280 of 1964 is directed against the order in Miscellaneous Case No. 36 of 1963.

(3.) Various objections were taken by the decree-holders before the executing Court to the aforesaid applications under Section 47 of the Code. The main contention of Mr. Tara Kishore Prasad, appearing for the appellants before this Court, however, is that the judgment-debtor, Krishnawati, having failed to take any objection in the Court below to the sale-ability of the properties before the orders of their attachment were passed in the execution cases, her applications stand barred by res judicata and the orders of the Court below must be set aside.