SITA RAM Vs. DEVI DAYAL

JUDGEMENT

(1.) This appeal has been placed before us pursuarant to the ordar of reference dated 24th, April 1967 by Ismail J., because, according to the learned Judge, this appeal raises an important question of law.

(2.) The decree in execution of' which the order appealed from was made had been passed on 28th, January, 1959 in term, of an award. In Marchl961thedecree-holderstarted proceedings lor execution of the decree and the Judgment debtor was given notice for settling the proclamation of sale. 22nd. April. 1961 was the date fixed for this purpose, but the judgment debtor did not appear on the date. The executing court after recording the absence of the judgment-debtor directed that warrant for auction be issued and fixed 29th May, 1961 as the date for the auction. Srd. June. 1961 was fixed for the report to be put up before the court. On 2nd. May. 1961, the judgment debtor filed an application under order 21, Rules 2 and 23 read with section on 151 of the Code of Civil Procedure urging that the decree was not executable and also setting forth some of her objections. Praver for setting aside the ex-parte order with respect to the sale of the house was also made and by way of interim relief stay of sale was claimed. It may be noted that on 22nd. April 1961, the judgment debtor had sent a medical certificate praying for adjournment, but the same was declined on the ground that the counsel of judgment-debtor could have appeared. On 19th. May. 1961, the decree-holder filed his reply to the objections of the judgment-debtor dated 2nd May, IS61. The matter came up for hearing on 19th. August 1961 on which date again the judgment-debtor was absent though the decree-bolder and his counsel were present. On that date, the court- dismissed the objections preferred by the judgment-debtor explaining his non-appearance, with the observations that those objections were frivolus. Warrants of auction were again directed to issue; the auction was fixed for 26th. September. 1961 and the report to the court to be made on 30th. September, 196l. the auction Same how did not take place as directed and on l8th. December. 196! the judgment-debtor filed fresh objection petition praying for dismissal of the execution application. In this application, no relerence was made tithe order made by the executing court on 22nd. April. 1901. nor to the objections pre- sented by the judgment-debtor on 2nd. May. 1961, not to the order of the executing court dismissing those objections in default on 13th, August. 1961. Admittedly, no application was made by the ludgment-debtor for restoration of his objection-petition dated 2nd. May, 1961, which was as just observed, dismissed in deiauit on 19th. August. 1961. The decree-holder contested the judgment-debtor's objections on various grounds, including the plea that the order of dismissal dated 19th, August 1961 operated as res judicata and the judgment-debtor was not entieled to raise the objections contained in his petition dated 18th, December, 1961. This plea was taken up as a preliminary objection, and the exaouting court by an order dated 3rd, January, l962, repelled the prei minary objection holding that the doctrine of res jujicata did not deb^r the judgment-debtor from raising the objections in his petition dated j8th, December, 1961. It is this decision which falls for examination by us.

(3.) The executing court in support of its view relied on Hanmantrao v. Dhruvaraj, Jagdish Ram v. Jagat Ram and Hazura Singh v. Jewon Singh. The executing court observed in its order dated 3rd January, 1962 that as against the decisions of the Punjab High Court, mentioned above, the counsel for ths decree holder had not been able to cite aiiv other authority of that court holding to the contrary, and apparently feeling bound by those decisions the objections of the decree-holder wcie repelled.