GYARSILAL Vs. RAMGOPAL RADHEYSHAM

JUDGEMENT

(1.) THIS appeal by Gyarsilal one of the Judgment -debtors, is directed against the order dated 18th April, 1986, of the District Judge Partabgarh.

(2.) FIRM Ramgopal Radheshyam obtained a decree for Rs. 10027/2/9 against the appellant from the court of Senior Civil Judge, Kishengarh on 31st July, 1952. The decree -holder got the decree transferred for execution to the court of District Judge, Partabgarh. When the decree -holder took out execution proceedings, the appellant raised two objections, namely, (1) that there had been an adjustment of the decree due to which it had become inexecutable and (2) that it was barred by limitation. These objections were disposed of by the learned District Judge Partabgarh on 9th July, 1930, in execution case No. 43 of 1958. Judgment -debtor's appeal against the aforesaid order was also dismissed by a Division Bench of this Court on 6th August, 1962, in D.B. Civil Execution First Appeal No. 29 of 1960. The decree -holder took out fresh execution proceedings and this time objection was raised by the judgment -debtor to the effect that he himself was a partner of the decree -holder firm and as such the decree holder could not execute the decree without the leave of the court. This application purported to be made under Order 30 Rule 9 C.P.C., which is as follows:

(3.) LEARNED counsel for the appellant relying upon a recent decision of the Supreme Court in Shivshankar v. Baikunth : [1969]3SCR908 contends that the learned District Judge was in error in holding that the present objection is barred by the principle of res judicata in view of the previous decision dated the 9th December, 1963. He says that the objection whether it was necessary to hold an inquiry and take accounts of the decree -holder firm was necessary or not was neither heard nor decided in the previous execution applications and as such the previous orders cannot operate as either res -judicata or constructive res -judicata. Further he says that it would be quite anomalous to allow the decree -holder to recover the decretal amount and appropriate it wholly to itself although the judgment -debtor appellant is also a party of the decreeholder firm In my view the contention has no force. As already stated, the judgment -debtor had raised objections in the first execution application and failed to take objection under Order 30 Rule 9 asking the court to hold an inquiry and take acconts of the decree -holder firm. In the objections filed by him on the second time, objection was taken under Order 30 Rule 9 that the execution application could not be proceeded with without the leave of the court and that objection was rejected by the court on 9th December, 1963. In the appeal before the High Court, objection was raised that in the circumstances of the case it was necessary that an inquiry be held and accounts be taken of the decree -holder firm, but the High Court rejected this objection also on the ground that no foundation was laid in the application for allowing such prayer. In such circumstances the decision upon relied by the learned counsel cannot be applied to the facts of this case because here the judgment debtor raised objections including the objection about holding as inquiry and taking accounts and that was rejected by the court after hearing the appellant. I am, therefore, of the view that it is not open to the judgment -debtor to raise this objection again as it is barred by the principle of res judicata. The previous order of the District Judge dated 9th December, 1963, and of the High Court dated 3rd February, 1964, operate as a bar against this objection being raised again.