BINDRABAN KUNDAN LALL Vs. GAURI SHANKAR WALAITI RAM AND ORS.
LAWS(P&H)-1950-4-5
HIGH COURT OF PUNJAB AND HARYANA
Decided on April 04,1950

Bindraban Kundan Lall Appellant
VERSUS
Gauri Shankar Walaiti Ram And Ors. Respondents

JUDGEMENT

Teja Singh, C.J. - (1.) THIS second appeal is directed against the order of the Dist. J., Barnala whereby he dismissed the decree -holder's appeal from the order of the executing Ct. holding that the execution appln. was barred by time. The facts may be briefly stated.
(2.) A decree for Rs. 1200 with costs was passed in favour of the decree -holder on 28 -4 -1986. It appears that several execution applns were sued out & the last of them was dismissed on 8 -2 -1998. The present execution appln. was put in Ct. on 2 -2 -1997. A notice to the judgment -debtor under Order 21, Rule 22, Code of Civil Procedure was ordered to be issued for 4 -3 -1997. For some reason or the other this could not be done & the hearing of the appln. was adjourned first to 25 -4 -1997 & then after some other dates to 22 -7 -1997. The record shows that the notice foe 22 -7 -1997 was personally served upon the judgment debtor on 10 -6 -1997 but he did not put in appearance on that day. The Ct., after recording that the judgment -debtor was absent inspite of service ordered warrants to issue for the attachment of his property & directed the decree -holder to put in process -fee. The order dated 30 -12 -1997 shows that several houses purporting to be the property of the judgment -debtor were actually attached. On this Walaiti Ram, father of the judgment -debtor put in objections under Order 21, Rule 58, Code of Civil Procedure for the release of the houses alleging that they belonged to him & the judgment -debtor had no right title or interest therein. The objection was dismissed on 24 -9 -1998. Walaiti Ram then brought a regular suit for a declaration of his title in the houses. It is not denied that the judgment debtor was a party both to the objections & the suit. The suit was also dismissed on 30 -8 -2000. The appeal by Walaiti Bam against the order of the Ct. dismissing his suit also failed. The date of the final order in the appeal is 23 -3 -2001. More than a year & a half after this i.e. on 3 -9 -2002, the judgment debtor came forward with the objection that the execution appln. was barred by time & no action could be taken thereon. He further contended that the decree holder had committed a fraud on the Ct. inasmuch as it was mentioned in his appln that the previous execution appln. had bean dismissed on 3 -2 -1996 while in fact the dismissal took place on 3 -2 -1993. The decree -holder pleaded that since the judgment debtor had failed to attend the Ct. after having been personally served & raise the question of limitation at the proper time the matter should be taken to have been finally decided against him & he could not in law resist the execution appln. on the point of limitation. He also pleaded that the judgment -debtor had been absent from the territory of Patiala State, to which he belonged & deducting the time of such absence the appln was within time. The following issue was raised by the executing Ct.: Is the petition for execution of the decree -passed on 28 -4 -1996 within time? The issue was found against the decree -holder, the finding of the Ct being that it had not been proved that the notice was properly served upon the judgment debtor. The decree -holder is the applt. before me. To start with his counsel urged that the report on the back of the notice was duly signed by the judgment -debtor & there was ample evidence on record to show that he was informed of the date on which the execution appln. was to be heard & he accepted service. The process -server who was examined by the decree holder as his witness deposed that the notice in question was served by him upon the judgment -debtor & the latter affixed his signatures on the back of it. He also deposed that his report regarding the service of notice upon the judgment debtor (Ex. PB) was recorded by the Nazir. No doubt he also added that he did not know the judgment -debtor personally & that at the time he took his signatures the whole paper was lying blank, but it appears to me that this part of his statement was not true & the probability is that he had been won over by the judgment -debtor to trim his evidence in such a manner that it might leave a loophole for being disbelieved. In addition there were two other witnesses for the decree -holder who proved that the notice was properly served upon the judgment -debtor. It is significant that the judgment -debtor did not take the courage of coming into the witness -box & denying his signatures appearing under the process -server's report. This coupled with the statements of the decree -holder's witnesses makes me think that the notice in question was duly served upon the judgment -debtor & he was aware of the date. In addition, there are important circumstances which strengthen this conclusion. The first is that after the houses had been attached the judgment -debtor's father put in objections & as I have already point d out, the judgment -debtor was made a party to the objection proceedings. Even if it be assumed that the decree -bolder deliberately kept him in dark about the execution appln & the attachment, surely his father could not be accused of this attitude, particularly when there could have been no love -lost between him & the decree -holder & it is not even alleged that the relations between the father & the son were not good. Then the judgment debtor was also a party to the declaratory suit brought by his father & there is no reason to think nor was it contended on behalf of the judgment -debtor, that the summons of the suit were not served upon him or that he remained ignorant of the existence or the result of the suit. The same remarks apply to the appeal preferred by his father from the decision of the declaratory suit. With all this he slept over the matter & did not come forward to oppose the execution applns & in my judgment the reason why he did not do so was not that he had not received notice of the appln., but because he depended upon his father to nullify the effect of the execution proceedings by setting up his title to the attached houses. Accordingly, I accept the contention of the decree -holder's counsel & set aside the findings of the Cts. below on this point.
(3.) THE next point urged on behalf of the decree -holder was that because the judgment -debtor did not attend the Ct. on 22 -7 -1997 & object to the maintainability of the execution appln. on all the grounds, including that of limitation, that were available to him with the result that the Ct. ordered the attachment of his property which impliedly amounted to a finding that the appln. was within time be was estopped from taking up the question of limitation at a later stage by virtue of the principles of constructive res judicata. Counsel for the Respondent on the other hand urged that the scope of Section 11, Code of Civil Procedure was confined to suits & not to execution applns & further that even if the principles of res judicata applied to proceedings like those of an execution appln. their operation was limited to the questions that formed the subject -matter of clear & definite decision. Both counsel cited a number of cases in support of their respective arguments. It is, however, not my purpose to refer to all of them, because I am of opinion that so far as the fundamental principles are concerned there is no real divergence of opinion. To start with it is well settled that though Section 11 in terms applies to a subsequent suit, the principles of it apply to execution applns. also. The earliest decision on this point is Ram Kirpal v. Roop Kauri, 6 All. 269 :, 11 I.A. 37 P.C., a decision by their Lordships of the P.C. This case has since been followed by all the High Courts in India & recently by the Lahore H.C. in Prabhu Dayal v. Dewat Ram, 15 Lah. 869 :, A.I.R 1935 Lah. 200. The implication of this principle is that when questions such as those of limitation liability of a particular party under the decree, right of a particular person to take out execution as a legal representative of the original decree -holder or as an assignge of the decree, & the decree -holder's right to claim mesne (sic) are adjudicated upon & decided in one execution appln. the decision will operate as binding in subsequent applns. In Desaiappa v. Dundappa, 44 Bom. 227 :, A.I.R.1920 Bom. 264 the decree was passed on 18 -2 -1999. The first Darkhast was presented on 20 -3 -1907, second on 31 -3 -1910 & a third on 12 -9 -1910 when the judgment -debtor appeared & contended that the Darkhast of 31st March was barred by limitation. The Ct. decided that the Darkhast of 12 -9 -1910 was in time & directed that the money should be paid in instalments. On 26 -3 -1919 Rs. 220 were paid to pltf. The last Darkhast was filed on 19 -3 1915 to recover the balance. The lower appellate Ct dismissed the Darkhast as time barred on the ground that the decree was dead on 31 -3 -1910 & even though further Darkhast was admitted thereafter that would not have the effect of reviving the decree. On appeal the H.C. held that the Darkhast was within time as the order made on the Darkhast of 12 -9 -1910 not having been reversed on appeal was valid.;


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