DULA BIBI Vs. PARMANANDA DAS

JUDGEMENT

(1.) This is an appeal from an order in execution dismissing the objection of the appellant that the decree could not be executed against her property, namely tauzis Nos. 3644 and 3647. The suit has been brought by the respondent against Dula Bibi, the mother of the appellant, as a mortgage suit. There being a question whether the decree would be able to be satisfied out of the mortgaged property, he in the lifetime of Dula Bibi obtained an order of attachment before judgment of these two tauzis. Thereafter he obtained a decree against Dula Bibi and took out Execution Case No. 172 of 1933 against her praying that the decretal amount be realized by sale of the mortgaged property and these two tauzis. During this execution Dula Bibi died and the appellant was substituted in her place. She took an objection, Ex. G, that lots 3 and 4, namely these two tauzis, could not be sold until the mortgaged property was exhausted.

(2.) On this petition the order passed by the executing Court was Ex. A on 29th September 1934: Lots 1 and 2 should be sold first and after they are found insufficient to satisfy the decree lots 3 and 4 will be sold. That execution case was eventually dismissed. The mortgaged properties, it seems, could not be brought to sale because of a regular suit on behalf of a third party claiming them. The decree-holder now seeks to proceed against the two tauzis above mentioned and the judgment-debtor has objected that they are not liable to be taken in execution of the decree, because they are not properties of Dula Bibi which have come into the hands of the appellant but are the appellant's own property. The Subordinate Judge on two grounds rejected the objection. First, he said that no such objection having been taken in the previous execution the principle of constructive res judicata was applicable and the judgment-debtor was concluded by the order dated 29 September 1934, and could not raise this point again.

(3.) Secondly, on the merits he held that each of these tauzis had been the personal property of Dula Bibi and had come to the judgment, debtor as Dula Bibi's heir. On both these points the decision pf the Subordinate Judge is challenged, but it is, on both points, in my opinion, correct. The law is that the doctrine of constructive res judicata is applicable to execution proceedings to this extent, that where a judgment-debtor fails to raise all his objections to the application in execution made by the decree-holder which he might and ought to have raised and the application is ordered to proceed, all such objections will be deemed to have been impliedly decided against him and he will be precluded from raising the same objections in a later execution on the same decree. There are numerous authorities in support of this proposition, and it is not necessary to refer to the repeated decision of the Privy Council which have laid down the general principles to be followed.