Citation Codes

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citation codes

Case Number

A.F.A.O Nos. 415 and 416 of 1961

Attorney(S)

Sudhir Chandra Ghose
R.S. Chatterji and H.R Das

Judges

R.K Choudhary
S.N.P Singh, JJ.

Acts

provisions of the Bihar Privileged Persons Homestead Tenancy Act, hereinafter referred to as the Act.
SECTION 67 TRANSFER OF PROPERTY ACT
provisions of section 4 of the Bihar Money-Lenders Act
provisions of section 49-M of the Bihar Tenancy Act
Bihar Tenancy (Amendment) Act, 1955.
Order 21, Rule 64 of the CPC.
Order 21, Rule 22 of the CPC
Rule 22 of Order XXI,
Rule 64 of Order XXI
Order XXI, Rule 22

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Smart Summary

Case Summary — Appeals arising from Misc. Cases Nos. 77 & 78 of 1960

Factual and Procedural Background

In 1954 the respondent obtained two mortgage decrees against Kalipada Das (since deceased), the husband of the appellant. The respondent executed the decrees by filing execution cases Nos. 42 and 43 of 1958 against the appellant and the minor children of Kalipada Das. The appellant filed objection petitions in those execution proceedings (Miscellaneous Cases 31 and 32 of 1958), which the executing court rejected by order dated 29 November 1958. The appellant's appeals to the 1st Subordinate Judge, Dhanbad (Miscellaneous Appeals Nos. 1/4 and 2/5 of 1959), were dismissed on 28 July 1959. The appellant then filed Miscellaneous Second Appeals Nos. 287 and 288 of 1959 in the High Court; those appeals were dismissed on 30 June 1960 for non-compliance with certain Bench orders.

After that disposal, the appellant filed fresh objection petitions under section 47 CPC in the execution cases (numbered Misc. Cases 77 and 78 of 1960). The sole objection in these fresh petitions was that the property proposed to be sold was not saleable by reason of the Bihar Privileged Persons Homestead Tenancy Act ("the Act"). The executing court dismissed those petitions by order dated 7 January 1961 on two grounds: (1) that the Act did not apply because the property lay within a Notified Area Committee near Chirkunda Bazar, and (2) that the plea of non-saleability was barred by constructive res judicata.

The appellant appealed to the District Judge of Dhanbad (Miscellaneous Appeals Nos. 9 and 10 of 1961). By order dated 26 September 1961 the District Judge dismissed the appeals, agreeing that the plea was barred by constructive res judicata because it had not been raised in the prior miscellaneous cases, but he also found on facts that the appellant was a privileged tenant under the Act and that homestead land would generally be exempt from sale except for rent arrears. The appellant then appealed to this Court.

Legal Issues Presented

Whether the appellant's objection that the homestead land proposed for sale was not saleable under the Bihar Privileged Persons Homestead Tenancy Act is barred by the principles of constructive res judicata.

Arguments of the Parties

Appellant's Arguments

The appellant (through Mr. Sudhir Chandra Ghose) argued that an objection on the ground of non-saleability should be taken at the third stage of execution proceedings—i.e., when the court orders sale of the judgment-debtor's property—and not necessarily at earlier stages. He relied on observations in the decision referred to by the court (the passage attributed to Sahai, J.) and also referred to decisions of the Supreme Court in Merla Ramanna v. Nallaparaju (AIR 1956 SC 87) and Jyotish Thakur v. Tarakant Jha (AIR 1963 SC 605 / 1963 BLJR 267) in support of his position.
Earlier, in the first miscellaneous proceedings, the appellant had raised objections on limitation and that the decrees were not executable under section 4 of the Bihar Money-Lenders Act and section 67-A of the Transfer of Property Act; however, she did not then raise the non-saleability under the Homestead Tenancy Act despite the property being specified in the execution applications.

The opinion does not contain a detailed account of any specific arguments advanced by the respondent in these proceedings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Shamsunder v. Dhirendra, AIR 1950 Pat 465	Support for the proposition that constructive res judicata may apply in execution proceedings (relied upon by the District Judge).	The District Judge relied on this decision in holding that principles of constructive res judicata were applicable and thus the appellant's later plea was barred.
Baijnath Prasad Sah v. Ramphal Sahni, AIR 1962 Pat 72 (Full Bench)	That principles of constructive res judicata apply in execution proceedings; description of the five important stages in an execution-by-sale under the Patna amendment of Order XXI.	The Court treated this Full Bench decision as settling the question whether constructive res judicata applies in execution cases and relied on its exposition (including Sahai, J.'s discussion of stages and the need to raise objections before sale) to hold the appellant precluded from raising the non-saleability objection late in the proceedings.
Merla Ramanna v. Nallaparaju, AIR 1956 SC 87	The appellant cited it in support of his contention (specific rule cited by appellant is not described in the opinion).	The Court held this decision was of no assistance because it did not address whether constructive res judicata applies in execution proceedings.
Jyotish Thakur v. Tarakant Jha, (1963 BLJR 267) (AIR 1963 SC 605)	The appellant cited it in argument (specific rule cited by appellant is not described in the opinion).	The Court held this decision was of no assistance because it did not deal with constructive res judicata in execution proceedings.

Court's Reasoning and Analysis

The Court confined the appeal to a single point: whether the appellant's plea that the homestead land was not saleable under the Homestead Tenancy Act was barred by principles of constructive res judicata. The reasoning proceeded as follows:

The Court observed that in the earlier miscellaneous proceedings (Nos. 31 & 32 of 1958) the appellant raised objections on limitation and on executability under the Bihar Money-Lenders Act and section 67-A of the Transfer of Property Act, but did not raise the question of non-saleability under the Homestead Tenancy Act, despite the execution applications specifying the property to be sold.
The Court relied on the Full Bench decision in Baijnath Prasad Sah v. Ramphal Sahni (AIR 1962 Pat 72), which held that constructive res judicata applies in execution proceedings and explained the five stages of execution under the Patna amendment of Order XXI. The passage of Sahai, J., emphasised that where notice under Order XXI, Rule 22 is served, the judgment-debtor must raise all objections to executability at that stage; failure to do so operates as a decision against him in later stages.
The Court rejected the appellant's contention (advanced by counsel) that an objection on non-saleability need only be taken at the third stage (when the court orders sale). The Court explained that nothing in Sahai, J.'s observations confined the objection to the third stage; rather, the objection must be raised before the court orders sale under Order XXI, Rule 64. If notice under Order XXI, Rule 22 has been served, and the judgment-debtor omits to raise an objection which he might and ought to have raised, he is precluded from raising it later by constructive res judicata.
Applying that principle to the facts, since the property was specified in the execution applications and the appellant had earlier raised other objections in the prior miscellaneous cases, she "might and ought to have raised" the non-saleability objection at that earlier stage. Therefore her later objection under the Homestead Tenancy Act is barred by constructive res judicata.
The Court also noted that the appellant had relied on Supreme Court decisions (Merla Ramanna and Jyotish Thakur), but found them of no assistance because those decisions did not address whether constructive res judicata applies in execution proceedings.

The District Judge had found on the facts that the appellant was a privileged tenant under the Act; however, the Court's legal conclusion on bar by constructive res judicata was dispositive of the appeals.

Holding and Implications

HOLDING: Both appeals are dismissed. The Court held that the appellant's objection that the property was not saleable under the Bihar Privileged Persons Homestead Tenancy Act was barred by the principles of constructive res judicata, and the executing court had rightly dismissed the two miscellaneous cases.

Implications:

Direct effect on the parties: The appellant is precluded from litigating the non-saleability of the specified homestead land in the execution proceedings because she failed to raise that issue at the appropriate earlier stage; the executing court's and District Judge's dismissals are affirmed and the appeals were dismissed with costs.
On precedent: The Court applied existing precedent (notably the Full Bench decision in Baijnath Prasad Sah v. Ramphal Sahni and Shamsunder v. Dhirendra) regarding the application of constructive res judicata in execution proceedings. The opinion does not purport to lay down a new principle beyond the application of those authorities.

Additional procedural note from the record: Choudhary, J. concurred with the judgment (notation in the opinion: "I agree").

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Bijali Bala Das v. Charu Bala Ash .

S.N.P Singh, J.:— These two appeals by the judgment-debtor arise out of Miscellaneous Cases Nos. 77 and 78 of 1960.

2. The material facts may briefly be stated as follows. Sometime in the year 1954 the respondent obtained two mortgage decrees against one Kalipada Das (since dead), the husband of the appellant. The decree-holder respondent put the decrees into execution by filing two execution cases, namely, execution cases Nos. 42 and 43 of 1958, against the appellant as well as the minor sons and daughter of Kalipada Das. The appellant filed objection petitions in both the cases and they were numbered Miscellaneous Cases 31 and 32 of 1958. The executing court rejected both the objection petitions by its order dated the 29th of November, 1958. Being aggrieved by the order of the executing court, the appellant preferred appeals (Miscellaneous Appeals Nos. 1/4 and 2/5 of 1959), which were dismissed by the 1st Subordinate Judge, Dhanbad, on the 28th of July 1959. The appellant then preferred Miscellaneous Second Appeals Nos. 287 and 288 of 1959 in the High Court. On the 30th of June, 1960, both the appeals were dismissed for non-compliance of certain orders passed by the Bench. After the disposal of the two appeals in the High Court, the appellant filed fresh objection petitions under section 47 of the CPC in the two execution cases before the executing court and these were numbered Miscellaneous Cases 77 and 78 of 1960. The only objection raised in the two miscellaneous cases was that the property sought to be sold by the decree-holder was not saleable in view of the provisions of the Bihar Privileged Persons Homestead Tenancy Act, hereinafter referred to as “the Act”. The executing court by its order dated the 7th of January, 1961, dismissed the two miscellaneous cases on the following two grounds, namely, that the provision of the Act was not applicable in the present case as the property sought to be sold was situate within the Notified Area Committee close to the Chirkunda Bazar and that the plea that the property was not liable to be sold under the provisions of the Act was barred by the principles of constructive res judicata. Two miscellaneous appeals, namely, Miscellaneous Appeals Nos. 9 and 10 of 1961, were preferred by the appellant judgment-debtor against the decision of the executing court in the two miscellaneous cases. These appeals were heard by the District Judge of Dhanbad. The learned District Judge by his order dated the 26th of September, 1961, dismissed the two appeals holding, in agreement with the executing court, that the plea that the land sought to be sold is not saleable under the provisions of the Act is barred by the principles of constructive res judicata, as that plea was neither raised nor agitated by the appellant in the two previous Miscellaneous Cases. The learned District Judge, however, held on fact that the judgment-debtor was really a privileged tenant as defined in the Act and as such no portion of her homestead land was liable to be sold in execution of any decree or order except a decree for arrears of rent with respect to the holding itself. The appellant then preferred these two miscellaneous appeals in this Court.

3. The sole point for determination in the present appeals is whether the objection of the appellant judgment-debtor is barred by the principles of constructive res judicata. It appears that in the previous miscellaneous cases (Nos. 31 and 32 of 1958) objections were raised by the appellant on the point of limitation and also on the point that the decrees were not executable in view of the provisions of section 4 of the Bihar Money-Lenders Act and in view of the provisions of section 67-A of the Transfer of Property Act. Although the property sought to be sold had been specified in the two execution applications, no objection regarding the non-saleability of the property was taken by the appellant judgment-debtor. The learned District Judge held that the question as to whether a person is entitled to exemption of the sale of his homestead land under the provisions of the Act is not a pure question of law but a mixed question of fact as well as law and the facts have to be proved. Relying on the decision of this Court in the case of Shamsunder v. Dhirendra*, AIR 1950 Pat 465, the learned District Judge held that the principles of constructive res judicata were applicable to the present case and the plea about the non-saleability of the property was barred as the appellant had not raised the objection in the two previous execution cases.

4. The point whether the principles of constructive res judicata apply in execution cases has been settled by this Court in the Full Bench decision of this Court in the case of Baijnath Prasad Sah v. Ramphal Sahni, AIR 1962 Pat 72. In that case also objection had been raised by one of the judgment-debtors about the non-saleability of his land in view of the provisions of section 49-M of the Bihar Tenancy Act as amended by the Bihar Tenancy (Amendment) Act, 1955. That objection regarding the non-saleability of the land had been taken by him after the confirmation of the sale. It was held, according to the majority decision, that the judgment-debtor was barred by the principle of res judicata from raising the objection on the ground of non-saleability of the Kasht lands. In that case Sahai, J., who spoke for the majority, pointed out the five important stages in a proceeding for execution of a money decree by attachment and sale of the judgment-debtor's immoveable property. The learned Judge observed as follows:

“In a proceeding for execution of a money decree by attachment and sale of the judgment-debtor's immoveable property, there are five important stages, under the Patna amendment of Rule 22 of Order XXI, the Court has to issue notice in every case to the person against whom execution is levied, requiring him to show cause why the decree should not be executed against him. Rule 23 reads:

‘(1) Where the person to whom notice is issued under the last preceding rule does not appear or does not show cause to the satisfaction of the court why the decree should not be executed, the court shall order the decree to be executed.

(2) Where such person offers an objection to the execution of the decree, the court shall consider such objection and make such order as it thinks fit’.

5. This is the first stage. If the notice under Order XXI, Rule 22 is not served upon the judgment-debtor, that is a different matter; but, if the notice is served upon him, he must raise all his objections to the executability of the decree at that stage. If he does, the Court's decision on those objections will operate as res judicata in all further proceedings. If, in spite of service of notice he fails to raise an objection which he might and ought to have raised at that stage, for instance, an objection on the ground of limitation, the court, in passing the order for execution of the decree, must be deemed to have decided the objection against him.

6. Ordinarily, however, the court does not pass an express order to the effect that the decree be executed. That order is implied in the order for issue of attachment which is the next stage. In the present case also the order under Rule 23(1) is implied in order for issue of attachment All objections to the executability of the decree have to be raised in such cases before the order for issue of attachment. The third stage is one when the court orders sale of the judgment-debtor's property. Rule 64 of Order XXI provides that an executing court may order the sale of any property attached by it, provided that the property is liable to sale. As the Court has come to a decision at this stage that the property in question is liable to sale, any objection on the ground of non-saleability of the property must be raised before that stage. If an objection relating to saleability is raised, the court's decision will be binding upon the parties. In case the judgment-debtor fails to raise any such question, the court must be deemed to have decided it against him by passing an order for sale of the property because, unless it is liable to sale it cannot pass that order.”

7. Mr. Sudhir Chandra Ghose, learned counsel appearing for the appellant, contended before us on the basis of the observation, referred to above, that only at the third stage when the court orders sale of the judgment-debtor's property, an objection on the ground of non-saleability of the property has to be raised and not at the earlier two stages. In my opinion. It is not possible to accept the contention of learned counsel. There is nothing in the observation of Sahai, J., referred to above, which would indicate that the objection on the ground of non-saleability of the property is to be taken only at the third stage. On the contrary, the observation indicates that the objection on the ground of non-saleability of the property must be raised before the court orders sale of the judgment-debtor's property under Order 21, Rule 64 of the CPC. In my opinion, according to the view expressed in the observation quoted above, if a judgment-debtor in spite of service of notice under Order 21, Rule 22 of the CPC fails to raise an objection which he might and ought to have raised at that stage, he is precluded from raising that objection subsequently. As I have already pointed out, the property sought to be sold was specified in the two execution applications. The judgment-debtor, therefore, when she raised other objections in the two previous miscellaneous cases, might and ought to have raised the objection about the non-saleability of the homestead land specified in the execution applications at that stage. As such, her subsequent objection about the non-saleability of the property under the provisions of the Act must be held to be barred on the principles of constructive res judicata.

8. Mr. Sudhir Chandra Ghose, learned counsel appearing for the appellant, in course of his argument referred to the decisions of the Supreme Court in the case of Merla Ramanna v. Nallaparaju, AIR 1956 SC 87 and the case of Jyotish Thakur v. Tarakant Jha, 1963 BLJR 267 : (AIR 1963 SC 605).

9. In my opinion, these two cases referred to by learned counsel are absolutely of no assistance to him because the question whether the principles of constructive res judicata would apply in an execution proceeding was not the subject-matter of decision in these two cases.

10. For the reasons stated above, I hold that the objection of the appellant judgment-debtor about the non-saleability of the property was barred by the principles of constructive res judicata and the executing court rightly dismissed the two miscellaneous cases.

11. In the result, both the appeals are dismissed with costs.

12. Choudhary, J.:— I agree.

SSG/D.V.C

13. Appeals dismissed.

Bijali Bala Das v. Charu Bala Ash .

Case Summary — Appeals arising from Misc. Cases Nos. 77 & 78 of 1960

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Bijali Bala Das v. Charu Bala Ash .

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