SHARDA DEVI Vs. KARAMCHAND THAPPAR AND CO

JUDGEMENT

(1.) This appeal is by one Sharda Devi, who had filed an objection under Section 47 of the Code of Civil Procedure in Execution case No. 1 of 1960 alleging that the ex parte decree obtained by the decree holder on the 26th June, 1957 was not executable. She objected to the entire proceeding on several grounds. The Court below rejected her application on the ground that it was barred by principle of res judicata as a similar application by her filed in Miscellaneous Case No. 43 of 1963 on the 28th August, 1963 had been already dis-missed on the 13th September, 1963.

(2.) Learned Counsel appearing for the appellant contended that the previous application under Section 47 of the Code of Civil Procedure was dismissed for default on the 13th September. 1963, and therefore there was no decision on any of the objections raised by the appellant on that occasion. That will not disentitle her to file second application under Section 47 of the Code of Civil Procedure. In support of this contention learned Counsel referred to ILR 47 Pat 178 (FB), Sarjug Singh v. Basisth Singh wherein it was observed that if an application under Section 47 of the Code of Civil Procedure is dismissed for default of the judgment debtor and no other order was passed by the executing Court either on the same day or thereafter from which it can be inferred either expressly or by implication that the Court rejected the plea against the executability of the decree as had been raised in the application under Section 47 of the Code of Civil Procedure, the principle of res judicata will not be attracted for a second application by the same judgment debtor. I am afraid, the facts of the present case are entirely different and will not call for the application of the principle laid down in the aforesaid decision.

(3.) The previous Miscellaneous case No. 43 of 1963 by the present appellant Sharda Devi was dismissed on the 13th September, 1963. From the order sheet it appears that her application was rejected on the ground that neither she nor her husband was a defendant in the main suit which was ultimately decreed nor she or her husband were parties in the execution case. In that view, an application by her under Section 47 of the Code of Civil Procedure was held as not maintainable and was rejected. Learned Counsel for the appellant, however, pointed out that it does not appear from the order sheet that the judgment debtor was present in the Court that day. Whatever that may be, certainly the order passed by the executing Court on 13th September, 1963 was not an order of dismissal of the application for default of the judgment debtor but on merits. It is open to the Court either to dismiss such application for default of the applicant in exercise of its inherent powers (as there is no provision in the Code of Civil Procedure calling for dismissal of such application for default of the judgment debtor) or to deal with the objection as raised by the applicant. The Court in Miscellaneous case No. 43 of 1963 adopted the latter course and therefore her objections were rejected on merits. That will certainly attract the principle of res judicata in terms against her second application. In that view the Court was right. The Full Bench decision, on which learned Counsel wanted to rely, will not be applicable at all to the facts here.