BARKAT ALI Vs. BADRI NARAIN

JUDGEMENT

(1.) Challenge in this appeal is to the order passed by a Division Bench of the Rajasthan High Court at Jodhpur dismissing the special appeal filed under Section 18 of the Rajasthan High Court Ordinance 1949 (in short 'Ordinance') against judgment of learned Single Judge dated 16.1.1981 in SB Civil Misc. first appeal no.5/75.

(2.) Background facts in a nutshell are as under: The respondents are legal representatives of the decree holder Badrinarain and the appellants are the legal representatives of the judgment-debtor Abdul Ghani. The said Badrinarain obtained a decree against Abdul Ghani in a mortgage suit on 11.5.1952 in which an amount of Rs.11,194.25/- was determined as payable by the said Abdul Ghani from the date of final decree. Successive execution applications were filed for recovering the said sum. First application for execution was filed on 7.10.1952 in which proceedings the decree was partially satisfied. The proceedings ended on 21.12.1956. The second execration resulted in further partial satisfaction. The said execution terminated on 25.9.1957. The third execution application which was filed on 20th May 1958 resulted in further partial satisfaction of the decree and the said proceedings ended on 6.8.1960. The present execution application for the recovery of remainder sum was filed on 30th January, 1971. The notice of the application was issued to all the appellants and another son who was reported to be dead by the process server. The appellant No.1 accepted service on behalf of appellant Nos.2 & 3, who were then minors. The notice was served on 20.4.1972 for hearing on 3.6.1972. An appearance was filed by the counsel on 3.6.1972, who sought time to file objections which was granted and the proceedings were adjourned to 5.8.1972. On 5.8.1972, again adjournment was sought which was granted and the case was adjourned to 12.8.1972. On 12.8.1972 also, the proceedings could not proceed further because the learned Presiding Judge was on leave and the case was adjourned to 16.9.1972. On 16.9.1972, the Court finding that no objections have been filed till then by the judgment-debtors, the decree holder was directed to file expense for carrying out attachment within five days on the submission of which the warrants of attachment could be issued and the proceedings were adjourned to 21.9.1972. The attachment warrant was not issued prior to 21.9.1972. On finding that expenses for attachment has been filed, the executing Court ordered for the issuance of warrant of attachment on 21.9.1972. After issuance of warrant of attachment, the objections were filed by the appellant on 21.9.1972 pleading inter alia that the execution proceedings were barred by time and that amount for which the execution was sought was also not correctly stated. The executing Court found that since after completing preliminaries of issuing notice and finding that no objection has been filed in spite of the service under Order XXI Rule 22 of the Code of Civil Procedure, 1908 (in short 'CPC') and the Court had proceeded to next stage of execution for attaching the property under Order XXI Rules 23 and 24 of C.P.C., any objection raised subsequent thereto cannot be entertained being barred by principles of constructive res judicata. Against the dismissal of the objections dated 16.11.1972 by order dated 13.7.1974, an appeal was, preferred before the High Court which has been dismissed by the Learned Single Judge by judgment dated 16.1.1981. The Learned Single Judge found that the objections filed on 16.11.1972, after the warrant of attachment was issued, could not be entertained by the executing Court as the same was barred by principles of constructive res judicata. Ancillary issues raised by the Learned Counsel for the appellant were also found to be not sustainable and the appeal was dismissed.

(3.) As noted above, learned Single Judge found that the objection filed after issuance warrant of attachment could not be entertained by the executing Court as the same was barred by principles of constructive res judicata.