- (1.) This execution second appeal has been filed against the judgment of District Judge, Patiala, dated November 11, 1975, who accepted the appeal of the decree-holder against the judgment of the executing Court and dismissed the objections of the judgment-debtor.
(2.) The sole point for determination in the present appeal is whether the objection of the appellant judgment-debtor is barred by the principles of constructive res judicata. The material facts of the case bearing on the decision of the above question are as follows:-- The consent decree was passed by the Subordinate Judge, Bassi, on 22-12-1962, decreeing the money suit of Nathu Ram (respondent decree-holder) against Tara Singh (appellant judgment-debtor) to the tune of Rs. 3,400 and the said amount was to be paid in two instalments. The judgment-debtor failed to pay any of the stipulated instalments of the decretal amount. The decree-holder commenced execution proceedings against the judgment-debtor on 18-7-1972. That application was resisted by the judgment-debtor on the ground that he had already paid half of the decretal amount through a valid receipt, which was misplaced by him and that he may be allowed to pay the decretal amount in six monthly instalments. The parties led evidence. The Subordinate Judge accepted the execution application on 20-7-1973 and directed that warrants of attachment be issued. The judgment-debtor challenged that order in appeal, but the same was dismissed by the District Judge, Patiala, vide his order dated October 15, 1973. Thereafter, the judgment-debtor filed an objection application dated November 14, 1973 under Section 11-B of the Punjab Debtors Protection Act No. II of 1936. That application was resisted by the decree-holder, on the ground that it was barred by the principles of constructive res judicata as no such objection was taken earlier by the judgment-debtor. That objection petition was dismissed by the Subordinate judge on February 25, 1974. Thereafter, the judgment-debtor filed another objection application dated April 10, 1974, alleging therein that under Section 3 of the Punjab Registration of Money Lenders' Act, 1938, the decree-holder was not entitled to realise the decretal amount as he was a professional money lender. This application was also contested by the decree-holder on the ground that it was barred by the principles of constructive res judicata. The learned Subordinate Judge came to the conclusion that the judgment-debtor was not barred by the principles of constructive res judicata to raise the point whether the decree-holder was a professional money lender, in the execution proceedings and that finding was reversed on appeal filed by the decree-holder. Feeling aggrieved, the judgment-debtor has filed this execution second appeal.
(3.) The only contention of the learned counsel for the appellant is that under Section 3 of the Punjab Registration of Money Lenders' Act, the decree-holder was not entitled to realise the decretal amount as he was a professional money lender. I find no merit in this contention. At the outset, it may be mentioned here that there is not a tattle of evidence on the record that the decree-holder was a professional moneylender during the relevant period. In order to attract the provisions of Section 3 of the said Act, the judgment-debtor has to allege and prove that the decree-holder is a money lender. The judgment-debtor has failed to plead or raise the, objection in the suit or in the execution proceedings arising from the consent decree and as such his sub-sequent objection that the decree-holder was not entitled to realise the decretal amount as he was a professional money lender, must be held to be barred on the principles of res judicata. The Point whether the Principles of constructive res judicata apply in execution cases has been settled in Full Bench decision in the case of Baijnath Prasad Sah v. Ramphal Sahni, AIR 1962 Pat 72. In that case also objection had been raised by one of the judgment-debtors about the provisions of Section 49M of the Bihar Tenancy Act as amended by the Bihar Tenancy (Amendment) Act 1955. That objection regarding the non-saleability of the land had been taken by him after the confirmation of the sale. It was held, according to the majority decision, that the judgment-debtor was barred by the principles of res judicata from raising the objection on the ground of non-sale-ability of the kasht lands. Similar view was taken in case--Prem Lata Agarwal v. Lakshman Prasad Gupta, AIR 1970 SC 1525.;