JAGANNATH PRASAD Vs. KRISHNA MAHADEO

JUDGEMENT

(1.) 1. In execution of a decree for Rs. 9,150 payable with interest at 1 per cent per mensem passed on 29th June 1922 the respondent attached three houses belonging to the judgment-debtor (appellant) two of which were sold by auction on 19th November 1930 and the third on 22nd November 1930. The judgment-debtor made an application under Order 21, Rule 89, for an order to set aside the sales by depositing within the time required by law Rs. 8,135 inclusive of the compensation of 5 per cent of the purchase money payable to the auction-purchaser whereon the sales were set aside. Then the decree-holder claimed Rs. 767-6-0 on account of interest and costs not covered by the proclamation of sale. The judgment-debtor prayed for time to pay the amount and it was granted. The judgment-debtor thereon applied to the Court stating that the decree-holder had already received more than was recoverable under the decree and prayed for an order directing the decree-holder to refund the surplus. The judgment-debtor raised a dispute as regards the appropriations of repayment made by him from time to time and disputed the charging of compound interest when the decree had only provided for simple interest. The decree-holder pleaded that in the several applications previously filed by him for execution the judgment-debtor not having contested the amount for which the execution was applied for he was debarred on the principle of res judicata from contesting the correctness of the amount, particularly when he deposited the amount into Court as specified in the proclamation sale. The lower Court-was of opinion that the judgment-debtor was estopped by res judicata and ordered the execution to proceed and the judgment-debtor to pay Rs. 767-6-0 to the decree-holder. The judgment-debtor has filed this appeal.

(2.) HAVING regard to the long course of decisions reported in Ram Kirpal v. Rup Kuari (1884) 6 All 269, Mungul Pershad Dichit v. Grija Kant Lahiri (1882) 8 Cal 51, Fateh Singh v. Jagannath Baksh Singh , Div Prakash v. Bohra Dwarka Prasad , Daw Ohn Bwin v. U Ba AIR 1930 Bang 213 and Khairulla v. Dhanrupmal AIR 1925 Nag 82, it must be conceded that the principle of res judicata is applicable to execution proceedings. But in applying the principle one has to consider the facts and circumstances of each case. In the present case the decree-holder made his first application on 19th July 1923 for recovering Rs. 8,368-2-6, but as the decree-holder did not ask for any specific action in execution but only for issue of a notice under Order 21, Rule 22 which was not issued, that execution application was dismissed. Second application was made on 22nd July 1924 for recovering Rupees 9,348-8.0; a notice was issued to the judgment-debtor at whose request six months time was allowed for payment. Third application was filed on 19th October 1926 for recovering Rs. 8,957-8-9 but it was dismissed as partly satisfied as the decree-holder acknowledged payment of Rs. 2,000. Fourth application was made on 16th February 1928, but it was rejected as not being in order. Fifth application was made on 9th July 1929 for recovering Rs. 7,292-2-7 and four months' time was granted to the judgment-debtor. Sixth application on 17th March 1930 for recovering; Rs. 7,868-14-7 in the course of which the judgment-debtor's houses were sold. Now in none of these several proceedings was there any issue raised regarding the correctness of the amount for which the execution was sought; consequently, there was no express decision.

(3.) , Civil P. C.: but to preclude the party from raising the dispute relating to a clerical or arithmetical error on the ground of constructive res judicata would appear to be unwarranted on any ground of justice, equity or good conscience.? 4. For the foregoing reasons I hold that the judgment-debtor is not estopped from raising the objection as to the correctness of the amount recovered or recoverable by the decree-holder and set aside the lower Court's order and direct that the lower Court will investigate the objection raised by the judgment-debtor. Pleader's fee Rs. 15.