SITLA SAHAI Vs. GOURI NATH

JUDGEMENT

(1.) This is an appeal by the judgment-debtors and arises out of an application for execution of a decree passed by the Civil Judge of Lucknow in 1922. The decree was passed on compromise for the payment of maintenance to two ladies, Mt. Shampati Kuar and Mt. Bindo Kuar. The judgment-debtors having defaulted in payment of Mt. Bindo Kuar's maintenance, and she having died leaving a will under which the respondents were entitled to realise the amount due under the decree, the latter applied for execution of the decree in the Court of the Civil Judge at Lucknow. There the judgment-debtors raised an objection to the decree being executed by the respondents on the ground that they had neither obtained a probate of the will nor a succession certificate entitling them to realise the amount due. The respondents then applied for and obtained a succession certificate, and thereafter the decree was transferred to Patna for execution. On receipt of a notice under Order 21, Rule 22, Civil P.C., the judgment-debtors appeared and objected to the execution of the decree on two grounds, namely, that the decree was not capable of being transferred and that the application was barred by limitation. The latter objection was not pressed, and the first objection was overruled and the execution directed to proceed. In due course a sale proclamation was issued and then the judgment-debtors filed another petition of objection objecting to the execution of the decree on the ground that probate of the will had not been obtained and that the application was barred by limitation. Both these objections have again been overruled. With regard to the objection on the ground of limitation, the learned Subordinate Judge held that that question was res judicata by reason of its having been previously overruled.

(2.) In this appeal it is contended on behalf of the judgment-debtor appellants that the objection on the ground of limitation was not pressed or decided at the previous stage of this proceeding and therefore that the order directing execution to proceed does not operate as res judicata on the question of limitation. The principle that a party is not entitled to raise at a later stage of the proceeding a plea in bar which was open to him at an earlier stage and which he had an opportunity of raising, or which having been raised, has been overruled, is well established. So far as this Court is concerned, the h matter was dealt with by a Division Bench in Brajlal Marwari V/s. E.M. Atkinson A.I.R. 1920 Pat. 146. There the judgment-debtor failed to object to execution on the ground of non-service of notice of transfer of the decree under Order 21, Rule 16. At a later stage the validity of the execution proceeding was challenged on this ground. Applying the principle laid down by the Privy Council in Mungul Pershad Dichit V/s. Grija Kant Lahiri.1982. 8 Cal. 51 it was held that it was not open to the judgment-debtor to raise the question at the stage when he raised it.

(3.) In a later case, Mahadeo Prasad Bhagat V/s. Bhagwat Narain Singh A.I.R. 1938 Pat. 427 the principle was again under discussion before a Division Bench of which I was a member. There the judgment-debtor objected to an execution proceeding in which it was sought to sell a property to which Section 12A, Chota Nagpur Encumbered Estates Act, applied on the ground that sanction for the sale had not been obtained from the Commissioner, but the objection was not decided. Execution proceeded. Subsequently the purchaser at the auction sale was sued by the judgment-debtor for possession and a declaration that the sale was invalid by reason of the Commissioner not having sanctioned it. Wort, J. who delivered the judgment in that case, held that the matter was res judicata although the question whether the sale was valid for want of sanction from the Commissioner had not been decided at the earlier stage when it was raised, and pointed out that if objections to execution could be taken piecemeal one after the other, there would be no end to execution proceedings. In my opinion, when a plea in bar is not taken, or is overruled, the judgment-debtor is not at a later stage entitled to challenge the validity of proceedings on that ground.