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2007 DIGILAW 1922 (PNJ)

Ganga Singh v. Mewa Singh

2007-10-31

VINOD K.SHARMA

body2007
JUDGMENT Vinod K. Sharma, J. (Oral) - This Execution Second appeal raises the following substantial question of law :- "Whether withdrawal of objection petition on an earlier occasion would operate res judicata in the subsequent objections filed against the execution of the decree ?" 2. The appellant-judgment debtor filed objections against the attachment and sale of the only residential house of the judgment debtor. The said objections were contested by the Decree holder on the ground that the house was lying uninhabited at the time of attachment and the objector as well as his son were not occupying it for their residence and therefore, it was claimed that the said house was rightly attached. It was also claimed that the articles in possession of the judgment debtor were attached and the objections filed by the judgment debtor were withdrawn by him and therefore, he was estopped from making further objection to the attachment and that were liable to be dismissed. 3. On the pleadings of the parties learned Executing Court was pleased to frame the following issues :- 1. Whether the attached house of the JD is liable to be released in view of the objection of the JD ? OPO 2. Relief. Learned Executing Court though made observation on merit to hold that the attached house was not the only residential house in view of the fact that in the statement, the objector had nowhere made an assertion to this effect. It was also observed that the appellant had admitted that there was a house in the abadi but that was said to be ancestral house. 4. However, it may be noticed that the reason for deciding issue No. 1 against the appellant was that on an earlier occasion similar objections were filed by the appellant on which after framing the issue the appellant had failed to lead any evidence. Said objections were withdrawn as he had offered to make the payment of the decretal amount in instalments. The learned Executing Court, therefore, came to the conclusion that subsequent objections filed by the appellant were barred under the principle of res judicata. The appeal filed against the judgment also failed as the learned District Judge also came to the conclusion that the conduct of the appellant Judgment Debtor showed that he was trying to delay the execution of the decree on one pretext or the other. The appeal filed against the judgment also failed as the learned District Judge also came to the conclusion that the conduct of the appellant Judgment Debtor showed that he was trying to delay the execution of the decree on one pretext or the other. Withdrawal of objections was held to be binding on the appellant and the findings of the learned Executing Court that subsequent objections were hit by constructive res judicata were affirmed. Consequently, the appeal was dismissed. Judgment of Allahabad High Court in the case of Kishore Joo v. Gurman Behari Joo Deo, AIR 1978 Allahabad 1 was not followed by observing that the said judgment does not apply to the facts of the present case. 5. At the time of admission of the appeal, this Court observed that the appellant was bound to comply with the undertaking given before the learned trial Court in paying the decretal amount by instalments. It was also observed that in case the appellant failed to pay the decretal amount a contempt proceedings could be initiated against him. It was on the statement of the counsel appearing on behalf of the appellant that the case was adjourned to 29.8.1988 for payment of first installment. A sum of Rs. 1400/- was deposited by the appellant in court and it was ordered that additional sum of Rs. 700/- be brought on 16.9.1988 and a direction was issued to the appellant to deposit the same by 19.9.1988. 6. Mr. Vivek Goel, learned counsel appearing on behalf of the appellant has today offered to pay the total decretal amount in one lot if the time is given to him for this purpose. In view of the statement made by the learned counsel for the appellant showing his willingness to pay the amount and further in view of the fact that the learned courts below erred in law in holding the second objection petition to be barred by constructive res judicata, this appeal deserves to be allowed. 7. Learned lower appellate Court was not right in distinguishing the judgment of Allahabad High Court in the case of Kishore Joo v. Gurman Behari Joo Deo (supra) as the said case was fully applicable to the present case. Para No. 16 of the said judgment reads as under :- "16. 7. Learned lower appellate Court was not right in distinguishing the judgment of Allahabad High Court in the case of Kishore Joo v. Gurman Behari Joo Deo (supra) as the said case was fully applicable to the present case. Para No. 16 of the said judgment reads as under :- "16. The trial court has held that the objections raised by the judgment debtor which has led to this appeal, were barred by the principles of constructive res judicata, as objections in a prior execution application had been dismissed in default. This view was clearly wrong. In Aley Rasul v. Seth Bal Kishan, AIR 1937 All 446, a Division Bench of this Court followed the decision of a Full Bench of this Court in Genda Lal v. Hazari Lal, AIR 1936 All 21 : 1935 All LJ 1189, and quoted the following observation of the Full Bench :- "Where there has been an express adjudication by the execution Court in the presence of the parties, then the question must be considered to have been finally decided, no matter whether it is raised again at a subsequent stage of the same proceeding or in a subsequent execution proceeding. (2) Where an objection is taken but is dismissed or struck off, even though not on the merits, and the application for execution becomes fructuous, the judgment debtor is debarred from raising the question of the invalidity of that application, but (3) where an objection to execution is taken but it is not dismissed on the merits or is dismissed for default, and the application for execution does not become fructuous, the judgment debtor is not debarred from subsequently raising the question that that application was not within limitation, lastly, (4) where no objection to the execution is taken but the application becomes partly or wholly fructuous and such fructification necessarily involves the assumption that the application was made within limitation, then after such fructification the judgment is debarred by the principle of res judicata from raising question that the application was not within limitation." Thus, the learned courts below were not right in holding that the objections filed by the appellant were barred by the principle of constructive res judicata. The substantial question of law as framed, therefore, is answered in favour of the appellant and the appeal is consequently, allowed. The substantial question of law as framed, therefore, is answered in favour of the appellant and the appeal is consequently, allowed. The case is remanded back to the learned Executing Court to dispose of the objections filed by the appellant on merit in accordance with law. The Executing Court may also take into consideration the offer made by the appellant for payment of decretal amount in one lot. Appeal allowed.