LACHIRAM SANTHOKCHAND AMEECHAND FIRM BY ITS PARTNER SANTHOKCHAND Vs. TARACHAND JAYARUPJI FIRM BY PARTNER TARACHAND

JUDGEMENT

(1.) This is an appeal from the decree of the District Judge of Bellary dated 7 February, 1933, affirming in appeal the order of the District Munsiff of Bellary dated 8 August, 1932, in E.A. No. 325 of 1932 which was an application for transfer of the decree to the District Munsiff's Court, Gooty, for execution. There was a previous application for transfer of the same decree to the same Court, viz., E.A. No. 274 of 1931 and in that application the judgment-debtor pleaded an adjustment whereby the amount due by him under the decree was agreed to be only Rs. 150 with interest. This agreement or adjustment was denied by the decree-holder. After a partial examination of the judgment-debtor himself in support of his case in August, 1931, the objection was overruled because he did not appear on the adjourned date of hearing and there was an order for transmission of the decree for execution as prayed for. That order was appealed from, and on appeal the matter was remanded for further enquiry.

(2.) Several adjournments were asked for and given. On the final date, viz., 19 February, 1932, an important witness who the decree-holder wanted to examine in support of his case not having, returned from Marwar to Bellary, adjournment was applied for and in the affidavit the decree-holder offered even to pay the costs of the other side if the adjournment was granted. In the alternative he stated that if adjournment is refused he was not pressing his petition for the present. Thereupon the following order was passed on the application "not pressed. Dismissed with costs". So far the previous history of the case. The present application was made on the 16 June, 1932, and the amount in respect of which execution was sought was the entire amount due under the decree. The judgment-debtor opposed the application on the ground that the adjustment or agreement which he had pleaded in the previous application for transmission of the decree must be deemed to have been decided in the previous application and in his favour and that the decree could be transmitted only in respect of the admitted sum of Rs. 150 with interest thereon.

(3.) The point therefore which the Courts below had to decide was whether this question as to the truth of the agreement or adjustment pleaded by the judgment-debtor in the previous application of 1931 was res judicata and had been decided by the order in the previous application. The question was answered in favour of the judgment-debtor by both the Courts below, but the reasons given in support of this conclusion do not appear to me to be sound. The general proposition laid down by the learned District Munsiff to the effect that a dismissal for default operates equally as res judicata and that dismissal even when the application is not pressed has the same effect fails to take into account the difference between the dismissal of suits and dismissal of execution applications. In the case of dismissal of execution petitions for default or on the ground that they are not pressed, the only point that is decided is that that application is dismissed and there is no bar in the way of a fresh application being made, if necessary, the very next day with the same prayer. This is settled law, and unless it can be said that there was a decision or adjudication which either directly decided the question on which the parties are at issue on which must be deemed to have impliedly decided it on the ground that the order could not have been made without such implied decision having been arrived at, the rule of res judicata cannot, in my opinion, operate or apply. In the present case, the order that was passed was that the petition is dismissed with costs because it was not pressed. It is clear therefore that the only point decided by that order was that the application was to stand dismissed and that the judgment-debtor was to be paid his costs by the decree-holder. No other point was decided, and in view of the circumstances that have been narrated above it is impossible to accept the view that there was any abandonment of contest by the decree-holder by his not pressing the petition. He did not press the petition merely because that was the only other alternative favourable to him if his application for adjournment was going to be refused. The circumstances are such that it is impossible in my opinion to accept the learned District Judge's view that in this case though the decree-holder said in effect. "I do not press my petition", he must be held to have meant, "I accept the defendant's objection". I am of opinion that there was no question of abandonment of the issue of any acceptance of the plea put forward by the judgment-debtor. The question that arose between the parties has not been decided either expressly or impliedly till now, and the decree-holder as well as the judgment-debtor have a right of having the matter decided after getting a reasonable opportunity of adducing evidence. The orders of the Courts below are set aside and the application is remanded to the executing Court, viz., the District Munsiff of Bellary for fresh disposal after giving the parties a reasonable opportunity to adduce evidence as regards the agreement or adjustment pleaded by the judgment-debtor and after deciding upon its truth and validity. Costs in all the Courts up to date will abide the event and should be provided for in the revised order to be passed by the District Munsiff of Bellary.