AKHOY KUMAR KAR Vs. KRISHNA CHANDRA SAHA

JUDGEMENT

(1.) This is an appeal preferred by a judgment-debtor from an order passed by the Subordinate Judge of 24-Pargannas on 24 July 1931. The circumstances under which the order came to be passed, briefly stated, are the following: There were execution proceedings, relating to a mortgage decree, which had been started upon an application filed by the decree- holders on 6 August 1930. The first objections that were put in on behalf of the judgment- debtor were filed on 15 September 1930. The objections related to an alleged adjustment of the decree, to the valuation as proposed to be inserted in the sale proclamation and to certain other matters relating to the formalities connected with the starting of the execution proceedings. On 2? April, 1931, these objections were dismissed for default of appearance on the part of the judgment debtor. On 27 April 1931, the judgment-debtor made an application under Section 151 of the Code setting out the circumstances under which, he alleged, he was absent when his objections were taken up for consideration. He alleged that he had deposited costs for issue of warrants against his witnesses, but the warrants had not been issued nor served, and so he gave instructions to his pleader for filing an application for adjournment that the said pleader had drafted the said application; that the clerk of the pleader was making a fair copy, and in the meantime the pleader went to another Court to attend to another case; that all this caused a little delay and the time for filing the application wag over; that the pleader came to this Court at about 12.45 p. m., but the peshkar advised him to move the application afterwards and on that he went away to the said other Court; that when the pleader came again at 1.30 p. m., after finishing his part-heard case in the other Court the learned Judge told the pleader that the case had had been dismissed for default. He alleged that it was in consequence of all this that the default had taken place. This application under Section 151 of the Code was dismissed by the Subordinate Judge on 18 July 1931. The learned Judge dealt with the various dilatory tactics adopted by the judgment-debtor at previous stages of the proceedings and eventually observed thus: The grievance is that if the Court had only anticipated what a busy lawyer might choose to do any moment and if the Court had only waited for a trifle of five minutes more then certainly the applicant would have found it possible to move the Court for time once More. No comment is called for on a contention like this. The present application is one of the worst instances of the wilful abuse of Section 151, Civil P. C., and it is as desperate as it is vexatious.

(2.) It may be quite true that the patience of the Court was exhausted and very rightly by reason of the judgment-debtor's conduct in connexion with the execution proceedings at previous stages. But the real question to be considered in connexion with the application under Section 151 of the Code was what were the circumstances under which the judgment- debtor was unable to appear and prosecute his objections on the date that they were taken up for disposal. We may observe in passing that this important matter in connexion with the application under Section 151 of the Code does not appear to have been fully kept in view by the learned Subordinate Judge. On the dismissal of the said application on 18 July 1931, the judgment-debtor made a fresh application purporting to be under Section 47 and Order 21, Rule 66 of the Code on 24 July 1931. In this application he reiterated some of the objections which had been previously taken by him in his petition of objection on 15 September 1930, and took certain other new objections. The learned Judge dismissed this application holding that it did not lie, for the reason that the first application of the judgment-debtor had been dismissed in the presence of the opposite party and also upon the ground that the new objections contained in that application would be barred by res judicata presumably by the rule of constructive res judicata. So far as res judicata is concerned there have been cases in this Court in which it has been held that where objections of a judgment-debtor have been dismissed not on their merits but upon the ground that the judgment-debtor was in default, the dismissal of such objections would not be a bar to the judgment-debtor taking the same objections in sub- sequent execution proceedings. If that be so it is somewhat difficult to urge that any different view should apply with regard to objections of this character which may be taken at a subsequent stage of the same execution proceedings.

(3.) On the other hand the difficulty of applying this proposition in such a case is very great because then it would be open to the judgment-debtor to come up with the same objection as often as it has been dismissed for default. One thing however is quite clear and it is this: that the doctrine that a decision at one stage of execution proceedings cannot be questioned at a later stage of the proceedings proceeds not upon any ground of res judicata under Section 11, Civil P. C., but upon general principles of law, for if it were not binding there would be no end of litigation: see Khosal Chandra Roy V/s. Ukiladdi [1910] 3 I.C. 47. On no conceivable principle therefore the new objections could be barred by reason of the previous objections, which were different, having been dismissed. "When therefore the new objections will in any case have to be heard and disposed of on the merits, should the previous order conclude the previous objections ? As we think the order passed on the application under Section 151 of the Code was not a right and proper order we should be unwilling to hold in the affirmative on this question. In any case there was nothing to prevent the subsequent petition, though made under Section 47 and Order 21, Rule 66 of the Code being regarded as a second application under Section 151 of the Code, on which the Court could act for the purpose of reconsidering its previous order of rejection. In our opinion, if what the judgment-debtor stated in his application under Section 151 of the Code be true the absence on his part to prosecute his objections was due to circumstances over which he had no control. His previous conduct in connexion with the execution proceedings however has also got to be taken into consideration. Upon a consideration therefore of all the facts and circumstances we have come to the conclusion that the proper thing for us to do would be to allow this appeal, to set aside the order from which it has been preferred and to direct that objections filed on 15 September, 1930, and 18 July 1931 be revived and a further opportunity being given to the judgment- debtor to support the same, the said objections may be disposed of in accordance with law. The order however should in view of the previous conduct of the judgment-debtor be conditional upon his paying to the respondents their costs of this appeal, hearing fee being assessed at three gold mohurs. We accordingly order that if within a month from today the same costs are paid by the appellant to the respondents, the appeal will be allowed, the order complained of will be set aside and the case sent back to the Court below to be dealt with in accordance with the directions given above. If On the other hand the said costs are not So paid the appeal will stand dismissed with costs three gold mohurs.