KHARTAR SHAH Vs. SHYAMLAL SINGH

JUDGEMENT

(1.) This matter came before this Court on 27 February 1934 and was heard ex parte, that is to say, in the absence of the respondent. The Chief Justice and my brother Dhavle on that occasion held that the former decision of the Court in the execution case was res judicata. The matter was reinstated for the reasons which I have indicated and the respondent is now represented by Mr. Sushil Madhav Mullick. In my judgment the matter is a relatively simple one and is determined on equally simple considerations, the chief of which is the question of the order of sequence of the petition of the respondent which was dated 29 November 1928, and the order of the Subordinate Judge of Jamtara made in Execution Case No. 12 of 1928 and bearing the same date. The substance of the matter is stated in great detail by the learned Judge in the order to which I have referred, but it is necessary perhaps to mention one or two facts for the purpose of the determination of the question which arises in this appeal. A money decree had been obtained on 23 March 1926, against one Shyam Lal Singh for a sum of Rs. 7,581 and on 22 May, 1928, an execution case was started. An objection was taken out by the judgment-debtor or his representative. I put it in that form purposely and for a reason which will in a moment appear. On some date prior to that, that is to say on 10 January 1923, Shyam Lal Singh had executed what was called a deed of assignment in favour of the present respondent Thakur Madhusudan Singh for the purpose of paying off the debts of the assignor and after that purpose had been effected to return the property to the assignor. It is not necessary perhaps to mention it but I propose just to refer to the fact that in March of 1927 Madhusudan Singh found it necessary to bring an action against the assignor by reason of the fact that he had been refused possession.

(2.) Ultimately the objection case to which I have made reference, which was taken in the execution case on 22 May, 1928, was decided on 29 November 1928, a date to which I have already referred, against the respondent, and the effect of that decision was that Madhusudan Singh was the representative of the judgment-debtor. It is necessary perhaps to notice the questions to which the learned Judge in deciding that objection case addressed himself. One was that the decree was against Raja Shyam Lal Singh alone and not against Thakur Madhusudan Singh; the second was, Thakur Madhusudan Singh is not the representative of Shyam Lal Singh, and the third that the decretal amount is not a charge on the properties assigned by Raja Shyam Lal Singh to Thakur Madhusudan Singh. They were questions, as I say, to which the learned Judge addressed himself and which were the substance of the objections that were taken by the present respondent. Now if the deed of 10 January 1923 was in a sense a conveyance of the property to Thakur Madhusudan Singh with an undertaking as a part of the consideration, to pay off the debts of the assignor, I have little hesitation in coming to the conclusion that the learned Judge in deciding the objection case against the respondent was wrong. It is difficult in other words to see how Madhusudam Singh could possibly be described as representative of the judgment-debtor, but anything which I say with regard to that matter for the reasons which will presently appear, and by reason of the conclusion to which I arrive, is quite irrelevant. The fact remains that the case was decided against the respondent. In those circumstances the question arises whether the matter which was determined by the Subordinate Judge in the objection case is res judicata. It was so held I have stated by the judgment of this Court on 27 February 1934, and there has been no argument by the respondent who is now represented which would show that the conclusion arrived at in his absence was wrong. Mr. Sushil Madhab Mullick refers us to the provisions of Order 21, Rule 58 and Order 21, Rule 63, more particularly the latter. The provisions of Order 21, Rule 63. are well- known. They are: Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive.

(3.) On going back to Order 21, Rule 57, it is provided that: Where any property has been attached in execution of a decree but by reason of the decree-holder's default, the Court is unable to proceed further with the application for execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date,