1. This is an appeal from the judgment of the Additional Subordinate Judge of Berhampur, dismissing an appeal filed against the judgment of the Munsif of Berhampur, in an execution case, allowing the objection of the judgment debtor to the attachment of his residential house in view of the provisions of clauses (b) and (c) of section 60 of the CPC. The judgment debtor claimed to be an ‘agriculturist’ and hence he sought for exemption under the said clauses of the Code of Civil Procedure.
2. The sole point of law taken by Mr. Misra for the appellant is that the objection of the judgment debtor under clauses (b) and (c) of section 60 of the CPC is barred by res judicata. A scrutiny of the records of Execution Case No. (E.P 7 of 1960) shows that on 15-3-62 the judgment debtor filed a petition describing it as one under section 47 read with section 151 of the CPC and objecting to the attachment and sale of the property on the ground that he was an agriculturist and that consequently clauses (b) and (c) of section 60 of the CPC would be attracted.
3. The Executing Court registered a miscellaneous case (M.C No. 60/1962) and issued notice to the decree-holder. This case was adjourned on several dates though both parties were present. On 20-10-62, the Executing Court passed the following order in this case:
“The petitioner files a petition for time. Opposite party files a Hazira. Adjourn to 3-11-62 for hearing. On 3-11-62 he passed the following order:
“The petitioner is absent on calls. Opposite Party is present. So the miscellaneous case is dismissed for default without costs.”
4. On 12-11-62 the judgment debtor again filed a petition, on almost identical terms, purporting to be one under Section 151 of the CPC praying that his properties may be exempted from attachment and sale in view of the provisions of clauses (b) and (c) of section 60 of the CPC. The Court posted this petition for hearing to 17-11-62, and then, after hearing parties and taking evidence, allowed the petition and set aside the attachment and sale of the house and other properties of the judgment debtor. An appeal against this order was unsuccessful.
5. Mr. Misra for the appellant contended that the order of the Executing Court dated 3-11-62 in M.C No. 60 of 1962 would operate as res judicata and that the judgment debtor was precluded from filing a fresh petition on the same grounds, but purporting to be one under Section 151 of the CPC and canvassing the very same point.
6. In my opinion, this objection must prevail. As already pointed out, the first petition of the judgment debtor dated 15-3-62 purported to be one under section 47 read with section 151 of the CPC. After the appearance of the decree-holder it was posted for hearing on 3-11-62 and on that day it was dismissed for default of the petitioner (appellant) though the respondent was present. It has been consistently held by this Court that the principles of res judicata being wider than the terms of Section 11 of the CPC would apply to execution proceedings; also see Full Bench decision of this Court, reported in ILR 1961 Cut 9 : (AIR 1960 Orissa 197 (FB)). It has also been held that if an execution petition is dismissed for default after notice to the opposite party and when that opposite party was present, it would amount to abandonment of the claim and would operate as res judicata, and merely because the court uses the words “dismissed for default”, it will not follow that the points have not been finally decided: see the single Judge decision of this Court in AIR 1964 Orissa 107 following AIR 1955 Orissa 81 and AIR 1961 Orissa 86.
7. When the Miscellaneous case was fixed for hearing on 3-11-62 and the appellant (petitioner) failed to appear on that date, the obvious inference is that he had no evidence to prove that he was an agriculturist, and the order dated 3-11-62 must be held to be an implied decision against the appellant. The principle of constructive res judicata applies to execution proceedings also.
8. The appellant should not therefore have been permitted to reagitate this matter by filing another petition on almost identical terms, but discreetly omitting any reference to Section 47 of the CPC and mentioning only Section 151 of the CPC. The lower appellate Court has completely overlooked the fact that the earlier petition was expressly stated to be one under Section 47 of the CPC and was dismissed in the presence of the respondent.
9. I therefore allow this appeal, set aside the orders of the two courts and dismiss the objection filed on 12-11-62 by the respondent judgment debtor to the attachment and sale of the disputed properties. But as the appellant is partly to blame for not having clearly raised the question of res judicata before the two lower courts, both parties will bear their own costs, throughout.
BJ/LGC/D.V.C
10. Appeal allowed.