(1.) THIS is a further appeal by the judgment-debtor in execution proceedings.
(2.) THE material facts are very clearly and succinctly stated by the learned District Judge. It appears that the auction sale was stayed or adjourned several times at the request of the judgment-debtor on his giving repeated undertakings not to raise any objections, including the objection under Order 21, rule 66 of the Civil Procedure Code as well as the one under section 32 (2) of the Madhya Pradesh Public Trusts Act. THEse undertakings were given by the judgment-debtor with a view to secure the postponement of the auction sale on one pretext or another.
A few facts will bear repetition. On 27-10-1965, the judgment-debtor secured an adjournment of the sale after giving an assurance that he will pay off the decretal amount by 1-1-1966 at the latest, and this undertaking was embodied in an affidavit on the next day, in the following terms: "I consent to waive all objections to the execution sale in case I do not pay or discharge the amount as stated, except legal objections." The judgment-debtor again filed an application for stay on 1-1-1966 and gave a categorical assurance not to raise any objections to the sale, and this undertaking was supported by an affidavit stating "the judgment-debtor will not take any objection to the sale to be held on the next day, the date to be fixed by the Court". On 2-2-1966, he prayed for a further postponement of the sale stating that he was "trying to arrange for payment", and the sale was accordingly stayed. Thereafter, on 14-2-1966, he filed an application under section 47, read with section 32 (2) of the Madhya Pradesh Public Trusts Act, objecting to the executability of the decree on the ground that the decree was a nullity. While this application was pending, the judgment-debtor sought on 2-3-1966 a postponement of the sale after waiving all objections and giving an undertaking to the following effect:
On 4-7-1966 the judgment-debtor filed another application under section 47 of the Code, read with section 32 (2) of the Madhya Pradesh Public Trusts Act, regarding the maintainability of the execution proceedings. On the same day, he also filed an application under section 151, read with Order 21, rule 66, objecting to the validity of the sale notice and the sale proclamation. These objections now form the basis of the present appeal.
The question for consideration in this appeal is whether it is still open to the judgment-debtor to raise any objection with regard to non-compliance of Order 21, rule 66 of the Code and/or as regards the executability of the decree on the ground that the decree was a nullity, by reason of section 32 (2) of the Madhya Pradesh Public Trusts Act. The Courts below have taken the view that the judgment-debtor is precluded from raising any such objections to the auction sale, by reason of waiver and also by the principle of constructive res judicata.
(3.) SHRI S. L. Jain, learned counsel for the judgment-debtor, however contends that the previous undertakings were wiped out, when the executing Court felt the necessity of drawing up a fresh proclamation, and the rights of the judgment-debtor could not be affected unless the requirements of Order 21, rule 66 (2) of the Code were complied with afresh and for this, he relies upon the dictum of Bhutt J. (as he then was) in Purshottam Lal v. Gokul Prasad (Misc. (First) Appeal No. 38 of 1953 dated the 13th August 1953), namely-
"Before a sale proclamation could be revised it was incumbent on the executing Court under Order 21, rule 66 (2) of the Code to give notice to the parties. It is true that in this case the judgment-debtor was present during the execution proceedings after the first sale proclamation was filed by the decree-holder. However, that notice operated only in respect of the original sale proclamation that was then under consideration. When that proclamation was found to be defective in material particulars, and the Court felt the necessity of drawing up a fresh proclamation, the rights of the judgment-debtor could not be affected unless the procedure laid down in Order 21, rule 66 (2) of the Code was followed. It is obvious that in such a case the original notice which was given in respect of the previous sale proclamation could not be deemed to be effective for purposes of drawing up a revised document. In Narayan Purushottam v Ramchandra Mudgalji (1947 NLJ 607-AIR 1948 Nag. 177) it is held that the issue of a notice under Order 21, rule 66 (2) touches the jurisdiction of the Court which effects the sale, and that the omission to give it cannot be treated as a curable irregularity. The order refusing to set aside the sale cannot, therefore, be upheld."
It is well settled that the principle of constructive res judicata is applicable to execution proceedings [see, Mohanlal v. Vinayak Krishna (AIR1953 SC 65)]. The foregoing narration of the various stages through which the execution proceedings passed from time to time will show that neither at the time when the execution application was made and a notice served upon the judgment-debtor, nor at the subsequent stages, did the judgment-debtor raise any objection to execution being proceeded with on the ground that the executing Court had no jurisdiction to execute the decree, by reason of the decree being a nullity by virtue of section 32 (2) of the Madhya Pradesh Public Trusts Act. The failure to raise such an objection which went to the root of the matter precludes him from raising the plea of jurisdiction on the principle of constructive res judicata at the subsequent stages. Although on 14-2-1966, the judgment-debtor raised an objection of this character, he waived it on 2-3-1966 by giving an undertaking to the following effect:
It is amply clear that execution sale was stayed or postponed several times at the request of the judgment-debtor upon his waiving all the objections. These undertakings were given foregoing all his rights, and by repeating the same objections he is merely trying to gain time with a view to put off the auction sale.