GENDA LAL Vs. HAZARI LAL

JUDGEMENT

(1.) These are revisions from decrees of a Court of Small Causes in which a question of limitation is involved. They have been referred to this Bench as there has been some apparent conflict on the question as to how far the principle of res judicata or estoppel by judgment applies to execution proceedings. A money decree was passed on 12 March 1928, and more than three years after that date, namely on 29 November 1932, the decree-holders filed an application in Court certifying the receipt of Rs. 50 on 11 November 1930. No notice of this was, of course, sent to the judgment-debtor, and the certificate was noted. On the 15 February 1933, the first application for execution was filed, and it was stated in the application that Rs. 50 had been received on 11 November 1930; and there was a further allegation that the judgment-debtor had given a slip, which was lost. The decree-holder prayed for the issue of a warrant of arrest. On 16th February 1933 the office reported that the application was in time. Accordingly a notice, possibly under Order 21, Rule 22, Civil P.C., was issued, fixing 6 March 1933. On receipt of a report that the judgment-debtor had received the notice but had not signed it, an order was passed on 6 March 1933 to the effect that, inasmuch as notice had been served on the judgment-debtor, and he had not filed any objection, therefore the application be considered to be within limitation and be entered in the register and be put up for orders. This was an entry made on the order sheet which was initialled by the judge but was not contained in any saparate order. Later on a warrant was issued on 9 March 1933, and the judgment-debtor was arrested and produced before the Court on 23 March 1933. On this date he filed an objection on the ground that he had never made any payment in November 1930 and that therefore the application was barred by time. The Court summarily dismissed the objection on the sole ground that he had not taken it earlier. He was ordered to be sent to the civil prison, and was released after a week, as subsistence money was not deposited by the decree-holder. The judgment-debtor then filed a fresh objection to the same effect, which was ultimately dismissed on 19 August 1933 on the same ground that the plea of limitation was barred by res judicata. The two revisions before us are from the orders dismissing his objections on 23 March 1933 and 19 August 1933.

(2.) The principle of res judicata, as laid down in the Civil P. C., is contained in Section 11, but that section in terms applies to a subsequent suit and does not in terms apply to applications for execution. A matter which has been finally decided between the parties in a previous suit is, subject to the conditions mentioned in the section, res judicata between the parties and cannot be re- agitated in a second suit. The explanation added to Section 11 further lays down that any matter which might and ought to have been made a ground of defence or attack in the former suit shall be deemed to have been a matter directly and substantially in issue in such suit, and therefore decided against the defendant. Now, where the former suit, even after certain findings are recorded, is actually dismissed, and therefore the dismissal of such suit is not based on those findings against the defendant but is in spite of them, there would be no res judicata. Again, while the suit is pending and the Court is still seized of the case, although it may be that a defendant may not be allowed to reopen a finding which has been recorded on a particular issue, there is nothing to preclude the Court itself from changing its mind and coming to a contrary conclusion, particularly if a new ruling, containing a fresh interpretation of some provision of law, comes into existence in the meantime. It is not Section 11, but the principle of estoppel by judgment underlying that section which has been applied to proceedings in execution with a view to preventing the same point from being re-agitated again.

(3.) In Ram Kirpal v Rup Kuari (1884) 6 All 269, in a case in which the amount of mesne profits awarded had been once ascertained upon a certain construction put on the decree, their Lordships did not allow the matter to be re-opened on the ground that the decision had become final between the parties upon general principles of law though not under Section 13 of Act X of 1877. In that case an interlocutory judgment in the suit had been passed and was binding upon the parties while carrying the judgment into execution. Again in G.H. Hook V/s. The Administrator General of Bengal 1921 19 ALJ 366, where an issue as to the construction of a certain will and codicils had been decided in the lifetime of a survivor of the legatees and the point after her death was sought to be raised a second time by the Administrator-General, their Lordships did not allow it to be raised on the ground that the previous decision must be treated as final between the parties though it did not actually come within the purview of Section 11, Civil P.C. It is thus the principle underlying Section 11, which is a general principle of estoppel by judgment which has been applied to execution proceedings, but it does not follow that that principle is much wider in scope or more extensive in application than the principle of res judicata embodied in Section 11 itself. So far as decree-holders are concerned it has been laid down by a Full Bench of this Court in Dhonkal Singh V/s. Phakkar Singh (1893) 15 All 84 that when an order is made striking an execution case off the file of the pending cases, or dismissing it on grounds other than a distinct finding, that the decree is incapable of execution, that the decree-holder's right to have the decree executed is barred by limitation or by any other rule of law, or on some similar ground on which the application has clearly been dismissed on the merits, the decree-holder is not debarred by the force of any such order from presenting and prosecuting a fresh application for the execution of his decree. Where however there is an express adjudication against the decree-holder which disentitles him either from claiming execution of the whole or part of the decree, such an adjudication would remain binding on him even though he ultimately allows his application to be dismissed or struck off. In a suit, if a defendant fails to file his written statement within the time allowed or fails to appear at the date of the hearing, the suit may proceed ex parte and be may even be prevented from raising a defence afterwards. But if the suit happens to be dismissed or struck off, there would be no bar against the defendant from raising the defence in a subsequent suit. It would seem to follow that ordinarily the mere non-appearance of a judgment-debtor would not debar him from raising an objection if the application for execution is for some reason dismissed and a fresh application is filed.