Decided on February 13,1953



Krishnaswami Nayudu, J. - (1.) The appellants are the judgment-debtors in O. S. No. 276 of 1936 on the file of the District Munsif's Court, Repalle, and this appeal arises out of the execution proceedings taken out by the plaintiff-decree-holder. The main point for determination in this appeal is as to whether the execution petition is barred by limitation. The decree was passed on 8-3-1939. The first execution Petn. was on 2-3-1942 which was dismissed on 21-3-1942 as not pressed. The second execution was taken out in E. P. No. 72 of 1946 filed, on 31-1-1946 admittedly more than three years after the disposal of the prior execution. In E. P. No. 72 of 1946 the decree-holder alleged a payment of Rs. 25 said to have been made by the judgment-debtors on 6-2-1944 and relied on that payment as an acknowledgment saving the proceeding from the bar of limitation. That peti-tion was returned from time to lime for information as to the fact and mode of the payment of Rs. 25 and eventually on 28-2-1946, the Court ordered notice under Order 21, Rule 22, C. P. C. and the endorsement on the petition on that date was as follows: "The previous E. P. was rejected on 21-3-1942 as it was not pressed. This E. P. is filed on 31-1-1946 after the lapse of the three years from the date of last order and as such the decree is barred by limitation. But the petitioner relies on an uncertified payment of Rs. 25 on 6-2-1944, which is shown in col. 7 of this E. P. He further represents that mere showing of a payment in an execution petition amounts to certifying the payment. Authority is not cited in support of this contention. Notices subject to questions of limitation 28-3-1946." On 18-4-1946 arrest was ordered. The present execution petition out of which this appeal arises is E. P. No. 37 of 1947 presented on 3-2-1947. Objection was taken on behalf of the appellants that in fact no payment of Rs. 25 or any other sum, was made, as urged by the plaintiff, that the earlier E. P. No. 72 of 1946 was barred by limitation and "the present E. P. was equally barred and that, in any event, the payment relied upon could not save the bar of limitation, not having been certified by Court and not having been evidenced in writing. The objection of the appellants was upheld by the learned District Munsif and, in appeal, the learned Subordinate Judge, Tenali, while holding in favour of the appellants that the payment relied upon in E. P. 72 of 1946 was not true and that, even if it was true, it would not save limitation, as there was no evidence in writing, however, allowed the appeal and remanded the petition holding that the order dated 18-41946 in E. P. No. 72 of 1946 ope-rates as 'res judicata' and the judgment-debtors are barred in the present E, P. from raising the question that E. P. No. 72 of 1946 was barred by limitation.
(2.) It is contended on behalf of the appellants that the notice under Order 21, Rule 22, C. P. C. did not mention that the question as to whether the execution application was in time was to be decided, that is, that the question of limitation was raised and remained to be adjudicated upon though the notice that was directed to the appellants was subject to the question of limitation, the Court intending thereby that the appellants should be given notice that a question of limitation had been raised and would be decided and the appellants had to show cause why it should not be decided against them and execution issued) and that unless the notice did in express terms inform the judgment-debtors of the point to be decided, any order allowing execution to proceed expressly or impliedly deciding the question in favour of the decree-holder would not be 'res judicata' on subsequent proceedings. Reliance is placed in support of this proposition on the following decisions, viz., -- 'Adaikappa Chettiar v. Natesan', AIR 1931 Mad 381 (A); --'Subra-mania Aiyar v. Raja Rajeswara Sethupathi', AIR 1918 Mad 1167 (B); -- 'Narayaiia Pattar v. Gopalakrishna Pattar', 28 Mad 355 (C); --llamaswami Naik v. Ramaswami Chetti', 30 Mad 255 (D); --'Richharam v. Pasupathi Baneriee', AIR 1928 Pat 471 (E); -- 'Chandulal Agarwala v. Khalilur Rehaman', AIR 1950 PC 17 (F). In -- 'AIR 1931 Mad 381 (A), this question has been exhaustively dealt with in in the judgment of Madhavan Nair J. It was held that though neither Section 11. nor any of its explanations can in terms apply to, an execution proceeding because the question arises in a proceeding which is a continuation of the same suit and not in a second suit, yet where a point has been decided in execution by a competent Court after notice to the counter petitioner, either expressly or by necessary implication, that decision is binding upon the parties in subsequent execution proceedings; and, when applying this principle, it must be- steadily kept in view that the party, who is sought to be affected by the bar of 'res judicata', should have notice of the point likely to be decided against him and should have an oppprtunity of putting forward his contentions against such decision. In that case all the relevant decisions were fully considered. This principle was also recognised by Seshagiri Aiyar J. in --'AIR 1918 Mad 1167 (B)', as could be seen from the following observations of the learned Judge at page 1172: "At the same time, as pointed out by the Judicial Committee, parties should hot be allowed to agitate the same question after it has been once decided; and this dictum of their Lordships has been extended to cases where the parties had an opportunity to object to the decision, but did not avail themselves of that opportunity. One, principle seems to be clear, & that is, that the party who is sought to be affected by the bar of 'res judicata' should have notice of the point which is likely to be decided against him. and should have an opportunity of putting forward his contentions against such a decision." In -- 'AIR 1928 Pat 471 (E)', in execution, of the mortgage decree the first petition was filed and the Court directed issue of notice under Order 21, Rule 22, C. P. C. with special mention of the question of limitation. The service was found defective and substituted service was allowed and the decree-holders were ordered to take further steps. This execution petition was dismissed for failure of the decree- holders to do so. In a latter execution the property was sold. The judgment-debtor applied under Section 47 contending that the execution was time barred. With reference to a contention, that as the objection was not taken in the first execution case, it was 'res judicata', it was held that there was no adjudication in the previous proceedings, that the execution was not barred by limitation and that the judgment-debtor was entitled to raise the question of limitation and to have it decided.
(3.) In -- 'AIR 1950 PC 17 (F)', the question, of the application of the doctrine of 'res judicata' arose as between parties, who have been co-defendants in a previous suit. It was held that the principle of 'res judicata' would apply as between codefendants, but that, in addition to the conditions for the application of 'res judicata', the qualification must be added that, if such a party is to be bound by a previous judgment, it must be proved clearly that he had or must be deemed to have had notice that the relevant question was in issue and would have to be decided. Though this decision does not deal with a case arising in execution, it is an extension of the principle laid down in Section 11, C. P. C. that is made applicable to co-defendants and in such a case it found eminently necessary that the person, who is sought to be bound by the decision, must have notice of the question that was in issue and required to be decided. That qualification should, with greater emphasis, be made applicable to execution proceedings where the plea of 'res judjcata' is raised barring the judgment-debtor from raising the objection) which he is debarred from contending by reason of an order made in previous execution, where the question to be decided was not given notice of to the judgment-debtor.;

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