JOSHI, J. - (1.) THIS is an appeal by Smt. Pushpa widow of Shri Magsingh under sec. 100 read with sec. 47 C. P. C. against the judgment and decree of Additional District Judge No. 1, Jodhpur, dismissing the objection of the judgment-debtor under sec. 47 C. P. C.
(2.) THE Material facts giving rise to this appeal briefly stated are as follows: - Respondents Nos. 1 to 3 filed a suit for partition against one Magsingh, the husband of the appellant in the court of Civil Judge, Jodhpur. A preliminary decree for partition was passed by the learned Additional Civil Judge on 30th of March, 1966. During the proceedings for final decree the matter was compromised whereunder Magsingh was allowed to keep the entire house, the price of which was determined at Rs. 7,750/- and Magsingh agreed to pay half of the amount of Rs 7,750/ towards the share of the respondents Nos. 1 to 3 in the joint property, Magsingh, however, failed to pay the amount agreed to under the aid decree. THE respondents Nos. 1 to 3 therefore took out execution and got the house of Magsingh attached in July 1969. Magsingh thereupon filed objection under sec. 47 C. P. C. on 19-9-69 inter alia alleging that the decree in question being a money decree could not have been passed in a partition suit and as therefore not executable. This objection was dismissed by the executing court by its order dated 2nd of April, 1970 Magsingh went in appeal against the order of dismissal of his objection but the appeal too was dismissed by the District Judge, Jodhpur, on 28th of August, 1971. THEreafter second appeal was taken by Magsingh reiterating his objection taken under sec. 47 C. P. C. This appeal was dismissed in limine by Gattani J. who held that the decree being a money decree was capable of execution. Consequently, the property was ordered to be auctioned and notices under O. 21 r. 66 C. P. C. were issued to the judgment debtor. Magsingh thereupon again filed objection on 15-10-73 on the ground that no amount is due under the decree and so the decree was not executable. This objection of the judgment-debtor Magsingh too was dismissed on 5-1-73 It appears that Magsingh died thereafter and his widow Smt. Pushpa who is the present appellant before me and the other legal representatives, namely, respondents Nos. 4 and 5 were brought on the record in place of deceased Magsingh. It was now the turn of Smt. Pushpa who filed objection under O. 21 r. 66 C. P. C. on 16-1-73 inter alia contending that money decree in question could not have been passed in a partition suit and so it was not executable. This objection was turned down by the executing court on 16-12-73, No appeal was taken against this order and so the same became final. Smt. Pushpa did not remain content and so she again preferred objection under sec. 47 C. P. C. on 22nd of Feb, 1974 inter alia on the ground that the decree was not executable as no money was due under the decree and further that the house in question was not liable to attachment. This objection petition was also dismissed by the executing court on 12-7-74. THEreafter Smt. Pushpa again filed objection under sec 47 C. P. C. on 27th of August, 1974 on the ground that the decree under execution being a partition decree and it having not been engrossed on a stamp paper as required by Article 45 of the Stamp Act could not be executed. This objection was also rejected by the executing court holding that the decree was not a partition decree but a simple money decree and that the same did not require to be stamped. Being aggrieved Smt. Pushpa filed appeal before the learned District Judge which too was dismissed by him by his judgment dated August 8, 1975. Pushpa therefore filed second appeal before this Court. THE appeal came up before Modi J. During the pendency of appeal the decree holder submitted stamp papers on 20th of February, 1976 whereupon the appeal was withdrawn and the same was dismissed as withdrawn. Meanwhile the house of the judgment-debtor was put to auction and the auction was knocked down in favour of the decree-holder-respondents on 30th of January, 1976, and the case was posted for the confirmation of the sale. In the mean time Smt. Pushpa filed another objection wherein she contended that as the stamp papers were submitted on 20th February, 1976 therefore the decree which was in essence a decree for partition could not have been executed and the auction of house pursuant to such a decree was without jurisdiction. THE objection was turned down by the executing court. This order of executing court was challenged by way of appeal which was dismissed by the learned Additional District Judge No. 1, Jodhpur on 31st of January, 1977. It is against this judgment and decree of the learned Additional District Judge No. 1, Jodhpur that Smt. Pushpa has come up in second appeal to this court. Mr. Tatia learned counsel for the appellant-judgment-debtor contends that the decree under execution being a partition decree and it having not been engrossed on a stamp paper, auction sale made in pursuant to such a decree was without jurisdiction, illegal and void and therefore the auction sale should be set aside. He relies upon Gopimal vs. Vidyawanti (Full Bench) (1 ). In reply, Mr Govind Mal Mehta on behalf of the decree-holder-respondents Nos. 1 to 3 raises a preliminary objection that the present objection of the judgment-debtor as to the non-executability of the decree is barred by principle of res judicata as previously four objections of the judgment-debtor against the excitability of the decree had been dismissed and the execution was allowed to be proceeded with On merits Mr. Mehta contends that at any rate the requisite stamps were submitted in appeal before Modi J. and so proceedings taken in execution prior to submission of stamp cannot be said to be without juristiction. His submission is that by the supply of the requisite stamp the validity of a partition decree dates back to the date of the decree and the validity of execution proceedings under that decree taken prior to the supply of the requisite stamp can hardly be questioned. According to him the payment of the stamp duty in such a case validates not only the decree but also the proceedings taken therein. He relies upon Ganesh Prasad vs. Mst. Makhna (2 ). Before dealing with Mr. Tatia's objection on merits, it would be proper to first deal with the preliminary objection of Mr. Mehta based on the ground of the principle of resjudicata. In this connection I may deal with some of the important cases bearing on the point. The first leading case on the point is Mungul Prashad Dichit vs. Grija Kant Lahiri (3) In that case an execution application was filed and notice issued to the judgment-debtor but judgment-debtor did not object to the execution being taken out. Later on in a subsequent execution application the judgment debtor took the objection that the first execution application was barred by time. Their Lordships over-ruling the objection held that the Court having proceeded to execute the decree in the first execution application without dismissing it as time barred. It should be presumed that the application was held to be within time. In Mohan Lal vs. Benoy Krishna (4) the Supreme Court after relying upon the decisions rendered in AIR 1934 Cal. 472 and AIR 1938 Pat. 427 ruled that the principle of constructive resjudicata is applicable to execution proceedings. In that case an execution application was taken out and a notice was served upon the judgment-debtor in the applications for setting aside two sales but no objection was raised by the judgment-debtor to execution being proceeded with on the ground that the executing court had no jurisdiction to execute the decree. It was held that the failure to raise such an objection which goes at the root of matter precludes the judgment-debtor from raising a plea of jurisdiction on the principle of constructive res judicate after the property had been sold to the auction-purchaser. It will be useful here to quate the observations of Gulam Basan J. as under: "the foregoing narrative of the various stages through which the execution proceedings passed from time to time will show that neither decree. at the time when the execution application was made and a notice served upon the judgmentdebtor, nor in the application for setting aside the two sales made by him did the judgmentdebtor raise any objection to execution being proceeded with on the ground that the execution court had no jurisdiction to execute the The failure to raise such an objection which went to the root of the matter precludes his from raising the plea of jurisdiction on the principle of constructive res judicata after the property has been sold to the auction purchaser. " In Krishna Mohan vs. Khandu Moyee Dasi (5) it has been held that if the judgment-debtor fails to raise the objection to the exccutability of decree inspite of service upon him of the notice under O. 21 r. 22 of the Code and the court orders the execution to proceed-that order attains finality in law and the subsequent objection on the ground of limitation becomes barred by constructive res judicata just as if such objection is takes and over ruled and if that decision is not challenged, the rule of actual res judicata precludes the judgment-debtor from raising the question of limitation. It will be apt here to refer to the decision of Chagla C J. reported as Usha Devi vs. Devidas (6 ). In that case there was a compromise decree between the landlord and the petitioner, the tenant. Under the compromise decree the petitioner-tenant agreed to vacate the suit premises on or before 31st of January, 1952. The judgment-debtor, however, failed to do so, so the decree-holder applied for execution on 1-2-52 and the executing court ordered the possession. The petitioner contended that the compromise decree had created a fresh tenancy and the tenancy was protected by the Rent Act. That contention was repelled by the executing court. Against that decision the petitioner appealed to the District Court. The District Court dismissed the appeal. The petitionee therefore, went in revision and the revision application too was dismissed and the High Court directed the executing court to give effect to the warrant of possession which it had already issued As the warrant of possession had expired a fresh warrant of possession was issued by the executing court and at that stage the petitioner contended that the decree was a nullity as the court that passed the decree had no jurisdiction. This contention was rejected. The petitioner thereupon appealed to the District Court which appeal was also dismissed. The petitioner thereafter went in revision before the High Court. The petitioner however had previously not raised the objection to the decree being a nullity but she had only put forward the contention that the decree had created a new tenancy. The contention of the petitioner tenant was over-ruled. It will be apt to extract here the observations of Chagla C. J. as under: - "now it is well settled that section 11 C. P. C. is not exhaustive and the principle of res judicata applies to proceedings other than suits referred to in section 11. It is equally well settled that the principle of res judicata applies to execution proceedings. The principle under lying res judicata is that there must be a finality to litigation and the finality is arrived at not only by the court actually deciding the issue but also by the law taking the view that the court has constructively decided the issue. The law does not only not permit a party, to raise a contention which has already been decided but it also prevents a party from raising a contention which he could have raised and has failed to raise. " Chagla C J. further observed as follows: "the principle of finality at least in country should have greater weight in execution proceedings than even in a trial of a suit, It is not orious how long and wearily execution proceedings are dragged on and if the court refuses to give effect to the principle of res judicata it would be open to a judgment-debter to raise the issue of jurisdiction at any stage of execution proceedings realising that the other objections that he has taken have failed. " In Kameshwar Singh vs. Krishnanand Singh (7) Patna High Court held that where a judgment-debtor fails to raise all his objections to the execution which he might and ought to have raised and the execution is ordered to proceed, all such objections will be deemed to have been impliedly decided against him and he will be precluded from raising the same objection at a later stage of the same execution proceedings. In Amer Singh vs. Gulabchand (8) the Division Bench of this Court observed that execution proceedings against A the legal representative of deceased-judgment-debtor were taken out and notice under O. 21, r. 22, C. P. C was served upon the legal representative of the deceased-judgment-debtor. In reply to the notice no objection was raised by the alleged legal representative that he was not the legal representative of the deceased judgment debtor. It was held that failure to raise objection on the part of A that he is not the legal representative debars him from raising such objections in subsequent execution case even though the first execution application was dismissed in default. In that case the Division Bench discussed the case law elaborasely and followed the view taken in A. I. R. 1941 Mad. 440 (Full Bench), A i R. 1944 Mad. 193, A. I. R. 1951 Mad. 844, A. I. R. 1950 Pat. 465 and A. I. R. 1953 Pat. 242. The Division Bench however did not follow the view taken in A. I. R. 1935 All. 21 and A. I. R. 1954 Mad. page 1. I am in respectfully agreement with the view taken in the Division Bench case.
(3.) REFERENCE may also usefully be made here to the recent decision of the Supreme Court reported as Premlata vs. Lakashman Prasad (9 ). In that case there was stay of execution procecdings. On 13th May, 1950 the execution proceedings were revived. The judgment-debtors impeached the sale only on a ground covered by the UP. Encumbered Estates Act, 1934. The judgment-debtor, however, in that case did not challenge the order of the Civil Judge at Allahabad reviving the execution proceedings attaching the Jhusi Sugar Mills and directing the sale of the sugar mill as barred by limitation, It was held by the Supreme Court that the principle of res judicata applies to execution proceedings and as the judgment-debtor in that case did not raise any objection as to revival of the execution proceedings before the Civil Judge Allahabad the judgment-debtors are barred by principle of res judicata from questioning directly or indirectly the order reviving the execution proceedings. Mr. Tatia learned counsel for the appellant, however, contends that the question of unexecutability of the decree on the ground of want of stamps was never heard and decided and as failure to raise objection in that behalf will not operate as bar in res judicata. He relied upon Shiv Shankar vs. Baikunth (lo ). In that case it has been of course held that unless the question is heard and decided by the court, the principle of res judicata does not apply to it. In that case objections under sec. 47 of the judgment-debtor were dismissed in default. The court relying upon the catena of decisions of the Indian High Courts held that where the execution application or objection petition is dismissed in default the decision is not a final decision of the court after hearing the parties and therefore could not operate as res judicata and in such a case the judgment-debtor can raise that objection in a subsequent application filed by him. This case deals with a limited point that if the application under sec. 47 C. P. C is dismissed in default such decision would not operate as res judicata. It is well to remember here that decision is only an authority for what it actually decided. What is of the essence in a decision is its ratio and not observations found therein nor what logically follows from the various observations made in it. The decision in Shiv Shanker vs. Baikunth (10) is clearly distinguishable. In that case objection was never decided on merits as has happened in the case before me. The point of constructive res judicata has not at all involved and could not have arisen as the objection petition was dismissed in default without hearing it on merits. From the foregoing discussion of the case law, the position of law which emerges is that the judgment debtor if he so desires must raise all objections to the excitability of the decree which are available to him at one and the same time at appropriate stage and if he does not do so he is precluded from raising fresh objection in a piece meal manner at a subsequent stage even in the same execution proceedings. ;