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Case Number

Misc. Appeal No. 3 of 1952

Attorney(S)

G.Dhal
A.L.J.Rao

Judges

Hon'ble Mr. Justice Souri Prasad Mohapatra
Hon'ble Mr. Justice Pitambar Mishra

Acts

provisions of Section 11, Expln. V of the CPC.
provisions of Orissa Money-lender's Act
O. 47, R. 1 and Section 47 of the CPC

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Smart Summary

Structured Summary of the Opinion (Mohapatra, J.)

Factual and Procedural Background

Case: Judgment-debtor's miscellaneous appeal against an order dated 27-9-1951 under Section 47, CPC, in Execution Case No. 14 of 1951.

The decree being executed aggregated to Rs. 3,254-2-11 with suit costs of Rs. 419-4-0. Before the present execution, Execution Case No. 114/45 had been brought in which paddy of the judgment-debtor was attached. The bailiff's report stated that 14 garces 5 putties and 18 manas were attached and kept in the custody of the decree-holder, but the decree-holder filed an affidavit asserting that only 1 garce 5 putties and 18 manas had been attached. The Agency Subordinate Judge directed the Munsiff of Gunpur to inquire into the actual measure; the Munsiff's report supported the decree-holder's contention.

On 24-4-1947 the judgment-debtor filed an affidavit claiming that 14 garces 5 putties and 18 manas were attached and praying for an opportunity to be heard and for the Court to pass an order according to law. That affidavit was registered as a petition under Section 47 CPC and became Misc. Case No. 5/48 (registered 26-7-1948). The matter was fixed for hearing on 7-2-1948. The judgment-debtor applied for time on that date; the Executing Court rejected the application as frivolous, recorded that the applicant was absent and the decree-holder present with counsel, and dismissed the application for default, allowing Rs. 5 as pleader's fee.

Subsequent procedural steps included the Executing Court calling upon the decree-holder to prove the price of the paddy and the judgment-debtor filing three further petitions (sale of the attached paddy measured at 14 garces ..., scaling down the decree under the Orissa Money-lender's Act, and withholding attachment of other movables). The Executing Court scaled down the decree and rejected the petition for withholding attachment. The earlier execution case was dismissed on 8-4-1948 without costs on the basis of part satisfaction of Rs. 250.

In the present execution, the judgment-debtor filed an objection under Section 47, alleging that the prior attachment was of 14 garces and odd rather than 1 garce and odd, and prayed for an inquiry. The Executing Court rejected this petition on the ground of res judicata because the same point had been raised in Misc. Case No. 5/48 which had been dismissed for default of the judgment-debtor in the presence of the decree-holder.

Legal Issues Presented

Whether the affidavit filed by the judgment-debtor on 24-4-1947, which contained allegations about the measure of paddy attached and a prayer to be heard, constituted a petition under Section 47 of the Civil Procedure Code such that the Executing Court had jurisdiction to register it as Misc. Case No. 5/48.
Whether the order of dismissal of Misc. Case No. 5/48 for default of the judgment-debtor in the presence of the decree-holder operates as res judicata and thus bars the judgment-debtor from raising the same objection again in a subsequent execution proceeding under the principles underlying Section 11, Explanation V of the CPC.

Arguments of the Parties

Judgment-Debtor / Appellant (summarised from the opinion)

The judgment-debtor (through Mr. A.L.J. Rao) contended that the objection as to the measure of the paddy in the previous execution case was initiated by the decree-holder and that the judgment-debtor merely filed a counter-affidavit on 24-4-1947.
He argued that because the judgment-debtor had not formally filed a petition under Section 47, the Executing Court lacked jurisdiction to treat the affidavit as a petition and to register it as a miscellaneous case under Section 47.
Consequently, dismissal of that proceeding for default could not operate as res judicata since, he asserted, the point was never actually decided by the Court.
He relied on authorities (cited in the opinion) that, in certain circumstances of dismissal for default, res judicata would not apply — in particular where the prior dismissal did not involve a decision on the merits or where both parties were negligent.

Decree-Holder / Respondent (as reflected in the opinion)

The decree-holder's position (as inferred from the Court's recounting) was that the previous dismissal of the judgment-debtor's petition for default in the presence of the decree-holder had the legal effect of adjudication for the purposes of res judicata, and therefore the subsequent like objection was barred.
The decree-holder relied on the application of the principles underlying Section 11, Explanation V of the CPC, and on precedents holding that where a prayer is raised but not granted because the applicant defaults before a judge who had the opportunity to consider the matter, it is to be treated as rejected.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ram Narayan Singh v. Basudeo Singh, AIR 1947 Pat 298	Held that an objection under Section 47 dismissed for default in the presence of the decree-holder operates as res judicata and bars the judgment-debtor from raising the same objection again.	The Court treated this decision as direct authority supporting the proposition that dismissal for default in the presence of the decree-holder binds the judgment-debtor by res judicata.
Mahadeo Prasad Bhagat v. Bhagwat Narain Singh, AIR 1938 Pat 427	Applied the principles underlying Section 11, Explanation V of the CPC — where a prayer is raised but not granted (because of default) it must be deemed to have been rejected.	The Court relied on this authority to justify applying Explanation V to a dismissal for default of one party present in court, treating the ungranted prayer as having been rejected.
Jago Mahton v. Khirodhar Ram, AIR 1924 Pat 122	Supported similar conclusions about consequences of dismissal for default when one party (the applicant) is absent and the other party is present.	The Court cited this decision as an illustration of the same view: that dismissal for default of the applicant in the presence of the opposite party may be treated as rejection of the prayer for res judicata purposes.
Nageshwar Pd. v. Jai Bahadur, AIR 1932 Pat 357	Distinguished cases where dismissal for default involved negligence of both parties (where res judicata is less likely to apply) from cases where only one party was at fault.	The Court relied on the distinction drawn in this case to support the narrower application of res judicata to cases of default by the judgment-debtor alone in the presence of the decree-holder.
Akhoy Kumar v. Krishna Chandra, AIR 1932 Cal 569	Held that res judicata did not apply where there was no decision on the objection raised because a previous proceeding was dismissed for default (the judgment did not make clear whether both parties defaulted).	The Court observed the decision but found it of no assistance because the material facts (whose default led to the dismissal) were unclear from the report.
Bhagwati Pd. v. Radha Kidhun, AIR 1950 Pat 354	Negatived the plea of res judicata on the ground that there was no adjudication of the objection in the prior dismissed petition (the Court observed the report did not clarify whether both parties defaulted).	The present Court declined to follow this decision because it appeared that earlier relevant decisions had not been placed or discussed before the Patna Bench in that case.

Court's Reasoning and Analysis

The Court approached the matter in two stages: first, whether the affidavit of 24-4-1947 filed by the judgment-debtor was properly treated as a petition under Section 47 CPC; and second, the legal effect of the order dismissing that petition for default in the presence of the decree-holder.

On the first point, the Court noted that the affidavit not only contained allegations that 14 garces 5 putties and 18 kunchams had been attached but also concluded with a specific prayer that the deponent be heard and that the Court pass an order according to law. The Court therefore held that the affidavit manifested the essentials of a petition relating to execution, satisfaction and discharge of the decree, and the Executing Court was justified in registering it as Misc. Case No. 5/48 under Section 47.

On the second and central point — whether the dismissal for default operated as res judicata — the Court examined relevant Patna High Court authorities and the principles underlying Section 11, Explanation V of the CPC. The Court accepted precedents (notably Ram Narayan Singh and Mahadeo Prasad Bhagat) which established that where a petition under Section 47 is dismissed for default of the judgment-debtor in the presence of the decree-holder, the ungranted prayer is to be treated as rejected (Explanation V), and the later repetition of the same objection is barred by res judicata.

The Court drew a deliberate distinction between dismissals for default where both parties were negligent and dismissals where only the judgment-debtor defaulted while the decree-holder was present. It held that the rule of res judicata is appropriately applied in the latter case (penalty is more severe when default is solely of the applicant) but not necessarily in the former.

The appellant's authorities that negated res judicata in certain dismissals for default were considered; the Court found some of them distinguishable (for example, because it was unclear whether both parties were at fault) and declined to follow a recent Patna decision (Bhagwati Pd. v. Radha Kidhun) because earlier supporting decisions had not been placed before that Bench.

Applying these principles to the facts — the Court found that the judgment-debtor's petition was properly before the court, that the decree-holder was present when the petition was dismissed for default of the judgment-debtor, and that therefore Explanation V and the doctrine of res judicata applied to bar re‑litigation of the same objection.

Holding and Implications

Holding: The appeal fails and is APPEAL DISMISSED, with costs.

Implications and direct consequences:

The Court held that an affidavit which sets out relevant allegations about execution and concludes with a prayer to be heard may properly be treated as a petition under Section 47 CPC and registered as a miscellaneous case.
The Court held that where a judgment-debtor's objection petition under Section 47 is dismissed for default of the judgment-debtor in the presence of the decree-holder, a subsequent petition on the self-same ground is barred by the principle of res judicata, applying the underlying principle of Section 11, Explanation V of the CPC.
As a direct result of the decision, the judgment-debtor's attempt to raise the same objection in the later execution proceeding was barred and the appeal was dismissed with costs.

The opinion does not indicate that the Court intended to lay down a novel rule beyond applying established authorities and the cited provisions of the CPC; rather, it applied existing precedents and Explanation V of Section 11 to the facts before it.

Disposition

Order: Appeal dismissed. (Misra, J. concurred.)

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Simhadri Sahu v. Balaji Padhi And Others

Mohapatra, J.:— This is a judgment-debtor's miscellaneous appeal against an order dated 27-9-1951 of Sri R.C Misra, Agency Subordinate Judge of Jeypore, passed under Section 47 of the CPC, in Exn. Case No. 14 of 1951. The aggregate amount of the decree in execution is Rs. 3254-2-11 and the suit costs amount to Rs. 419-4-0. Previous to this execution case the decree-holder had brought Execution Case No. 114/45 wherein some paddy of the judgment-debtor was attached and the bailiff reported that it was 14 garces 5 putties and 18 manas which was attached and kept in custody of decree-holder 1. The decree-holder filed an affidavit stating that it was only 1 garce 5 putties and 18 manas which was attached and not 14 garces and odd as the bailiff reported. Thereafter the Agency Subordinate Judge directed the Munsiff of Gunpur to make an inquiry and to report as to the actual measure of paddy attached. The Munsiff, however, reported supporting the contention of the decree-holder.

2. The judgment-debtor on 24-4-47 filed an affidavit with a prayer for enquiring into the matter that in fact 14 garces 5 putties and 18 manas of paddy was attached by the bailiff. This affidavit of the judgment-debtor was treated as a petition under Section 47 of the CPC, and the Court ordered it to be registered as a miscellaneous case — the order being “Registered the petition received on 24-4-47 as Misc. Case under Section 47 of the CPC” Accordingly it was registered as Misc. Case No. 5/48 on 26-7-1948. The case was fixed for hearing on 7-2-1948. The judgment-debtor on 7-2-1948 applied for time which was rejected by the Executing Court as frivolous, and the judgment-debtor was asked to get ready immediately; but as he defaulted, the Court passed the following order:

“Misc. Case No. 5/48

The applicant is absent on calls. The opposite party is present with his pleader. The learned pleader for the opposite party does not admit any part of the case of the applicant. The application is dismissed for default in presence of the opposite party. Rs. 5-0-0 is allowed as pleader's fee.”

3. On 11-2-1948, the Court called upon the decree-holder to prove that the price of the said 1 garce 5 putties and 18 kunchams was Rs. 250-0-0. On 16-2-1948, the judgment-debtor filed three petitions one for sale of paddy under attachment of the measure of 14 garces 5 putties and 18 kunchams, the second for scaling down the decree under the provisions of Orissa Money-lender's Act and the third for withholding attachment of other movables. The Court does not seem to have passed any order on the first petition, but the decree was scaled down and the petition for withholding attachment was rejected.

4. Thereafter the execution case was dismissed on 8-4-1948 without costs on part satisfaction of Rs. 250/-. In the present execution case the judgment-debtor has put in his objection under Section 47 of the CPC on the allegation that in fact what was attached in the previous case was 14 garces and odd and not 1 garce and odd as alleged by the decree-holder. He prayed for an enquiry into the matter on the ground that there has been no enquiry to his objection in the previous case. This petition has been rejected by the Executing Court on the ground of res judicata that this very point was raised in the previous execution case which was the subject matter of Misc. Case No. 5/48 which was dismissed for default of the judgment-debtor in presence of the decree-holder.

5. Mr. A.L.J Rao, appearing on behalf of the judgment-debtor-appellant, takes up his first plea that in the previous execution case this objection as to the measure of the paddy actually attached was initiated by the decree-holder and the judgment-debtor merely filed a counter-affidavit to the said objection of the decree-holder on 24-4-47, and as the judgment-debtor had not put in a petition of objection under S. 47, the Executing Court had no jurisdiction to register the affidavit as a Misc. Case under S. 47. The dismissal for default of such a proceeding therefore is no res judicata for the judgment-debtor when the point was never decided but was left open by the Executing Court in the previous execution case.

6. We have perused the affidavit filed by the judgment-debtor on 24-4-47. The significant feature about it is that after alleging that in fact 14 garces 5 putties and 18 kunchams of paddy was attached, the judgment-debtor prayed, in the last paragraph of his affidavit, that he might be given an opportunity to be heard and that the Hon'ble Court may be pleased to pass an order on the subject according to law. This affidavit containing all the relevant allegations and the prayer for investigation by the Court is manifestly a petition with reference to a question of execution, satisfaction and discharge of the decree. The Executing Court, therefore, in our opinion, was perfectly justified in starting Misc. Case No. 5/48 on the basis of this petition. It further appears that the judgment-debtor also on 7-2-48 applied for time to be granted for adducing evidence in the miscellaneous Case. The Executing Court of course treated the ground for adjournment as frivolous.

7. The main question, therefore, that arises for determination in the present case is the legal effect of the order passed on 7-2-48, that is, whether it can serve as a res judicata against the judgment-debtor's raising the same plea once again in the present execution case. The main contention of Mr. Rao is that the decree-holder cannot bring in his aid the principles of constructive res judicata inasmuch as the judgment-debtor had in fact raised the objection in the previous case, and further the principle of res judicata is not applicable, because the point still remains undecided, and, as such, is not hit by the principles underlying any of the provisions of Section 11 of the CPC. His contention is that when the petition was dismissed for default, there is no decision of the Court as contemplated under S. 11.

8. There is a direct authority on the point of their Lordships of the Patna High Court in the case of — ‘Ram Narayan Singh v. Basudeo Singh’, AIR 1947 Pat 298 (A). In that case before their Lordships the objection put forth by the judgment-debtor under S. 47 was dismissed for default in the presence of the decree-holder on 6-5-44. The judgment-debtor again applied under O. 47, R. 1 and Section 47 of the CPC to set aside the order of dismissal for default; but the petition was rejected. Thereafter in the subsequent execution case when the judgment-debtor put in the self-same objection and prayed for enquiry into the matter on the allegation that the point still remained undecided as the Court had never applied his mind to the question on any occasion, their Lordships held that the judgment-debtor was hit by the principles of res judicata to raise the objection once again when his previous objection was dismissed for default in the presence of the decree-holder.

9. Their Lordships relied upon several decisions of the same Court laying down the same principle. A line of distinction was drawn between the two sets of cases where the Misc. Case under S. 47 was dismissed for default of both parties, and where it was dismissed for default of the judgment-debtor in the presence of the decree-holder. Reviewing quite a number of decisions of the same Court, their Lordships observed that where the Misc. Case was dismissed for default of both parties, the penalty is not so severe and the principles of res judicata would not apply but it would apply when the decree-holder was present and the case was dismissed for default only of the Judgment-debtor.

10. One of the caxes relied upon by their Lordships in this case was the decision of Wort and Agarwalla JJ. in the case of — ‘Mahadeo Prasad Bhagat…Defendant v. Bhagwat Narain Singh…Plaintiff .’, AIR 1938 Pat 427 (B). In that case in order to apply the principle of res judicata in a case where the objection of the judgment-debtor was dismissed for his default in the presence of the decree-holder their Lordships relied upon the principles underlying Section 11, Expln. V of the CPC, that is to say where a prayer is raised but not granted it must be deemed to have been rejected.

11. In our opinion, the principles underlying Expln. V rightly apply to such cases where the case is dismissed for default of one party only. In the present case we find the judgment-debtor came with a prayer that 14 garces and odd of paddy which was actually attached and kept by the decree-holder was to be credited towards the decree and even though every opportunity was given to him to adduce evidence he did not avail of it and the decree-holder's pleader being present at the time of the hearing of the petition did not admit any part of the case of the applicant. Exactly the same view also was taken in the judgment of Sir Dawson Miller C.J sitting with Kulwant Sahay J. in the case of — ‘Jago Mahton…Judgment-Debtor v. Khirodhar Ram…Decree-Holder .’, AIR 1924 Pat 122 (C).

12. Mr. Rao wants however to place strong reliance upon another Bench decision of the same Court reported in —‘Nageshwar Pd. v. Jai Bahadur’, AIR 1932 Pat 357 (D), where their Lordships negatived the plea of res judicata in a case where the miscellaneous case under Section 47 of the CPC was dismissed for default. It is one of the array of cases where the Misc. Case is dismissed for default of both parties. Even in this judgment their Lordships had recognised the distinction between the above two sets of cases. Their Lordships observed:

“Besides there ought to be some distinction between those cases where there is negligence on the part of both the parties and those where only one of the parties is at fault.”

13. Their Lordships again observed:

“It is clear that the principle upon which the provisions of O. 9, Rr. 3 and 4 are based is that a party is not to be precluded from bringing a fresh suit where there was no occasion for the Court to apply its mind to the points raised in the suit and where there were laches on the part of both the plaintiff and the defendant. In such a case the penalty to be imposed on the plaintiff cannot be so severe as in those where there is default on his part only. It was on this principle I think that it was conceded in ‘Jago Mahaton v. Khirodhar Ram (C)’, that where both parties do not appear different considerations would arise”.

14. The case of — ‘Akhoy Kumar v. Krishna Chandra’, AIR 1932 Cal 569 (E), was cited on behalf of the appellant where their Lordships negatived the contention of res judicata there being no decision on the objection raised by the judgment-debtor as the previous case was dismissed for default. It does not, however, appear from the judgment whether the case was dismissed for default of both parties or for the negligence of the judgment-debtor alone. The case therefore is not of any help for our decision in the present case.

15. Mr. Rao however lastly relies upon a decision of the Patna High Court reported in — ‘Bhagwati Pd. v. Radha Kidhun’, AIR 1950 Pat 354 (F), where one of the points that arose for decision of their Lordships is that where the previous objection petition is dismissed for default of the judgment-debtor whether it will serve as res judicata when the judgment-debtor raised the same question once again. Their Lordships indeed negatived the plea of res judicata on the ground that there was no adjudication of the objection raised by the judgment-debtor. Here again it does not appear clearly whether the previous objection petition was dismissed for default of both parties or in the presence of the decree-holder. We are not inclined to follow this decision, particularly for the reason that none of the previous decisions as we, have discussed in our judgment, was placed before their Lordships or discussed by them.

16. In conclusion, therefore, we are of the view that where an objection petition under Section 47 of the CPC, of the judgment-debtor is dismissed for his default in the presence of the decree-holder a subsequent petition on the self-same ground is barred by the principle of res judicata underlying the provisions of Section 11, Expln. V of the CPC. The appeal therefore fails and is dismissed with costs.

Misra, J.:— I agree.

K.S.B

17. Appeal dismissed.

Simhadri Sahu v. Balaji Padhi And Others

Structured Summary of the Opinion (Mohapatra, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Judgment-Debtor / Appellant (summarised from the opinion)

Decree-Holder / Respondent (as reflected in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Disposition

Simhadri Sahu v. Balaji Padhi And Others

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