Sulaiman, J.:— The judgement of after stating the facts as above, thus continued:—
I am of opinion that this appeal should fail on legal grounds. When notice was issued to the judgement-debtors to show cause why execution should not proceed and the judgement-debtors appeared before the court, they had full notice of the decree-holders' prayer for the removal of the disputed pavement. They had ample opportunity to object and urge that the construction of the pavement was not in contravention of the injunction. This objection they failed to raise. The objection which they did raise was disallowed and on the 27th of August, 1923 execution was ordered. Subsequently the proceedings were stayed because of another pending suit, but when that suit was dismissed, execution was ordered afresh. Process was issued to the Amin with specific instructions to demolish the pavement along with the other constructions complained of. The Amin went to the spot and carried out the order. All this time the objectors were sleeping. It was their duty to raise the objection, before it was too late, that the pavement should not be removed. The order directing execution by removal of the pavement was based on the assumption that the pavement was a building within the meaning of that term as used in the decree. Had the execution court been invited to consider and had it concluded that the pavement was not a building, it would never have ordered its removal. It must, therefore, be assumed that the question that this pavement was liable to be removed in execution of the decree was by necessary implication decided by the court against the judgement-debtors. They are, therefore, not entitled to come to court and ask for damages for the loss which they have suffered on account of such execution.
It is true that section 11 of the Code of Civil Procedure or any of its explanations, cannot in terms apply to an execution proceeding because the question arises in the same suit and not in a second suit. But, as observed by their Lordships of the Privy Council in the case of Ram Kirpal v. Rup Kuari an order in execution may be “as binding between the parties and those claiming under them as an interlocutory judgement in a suit is binding upon the parties in every proceeding in that suit, or as a final judgement in a suit is binding upon them in carrying the judgement into execution. The binding force of such a judgement does not depend upon section 13, Act X of 1877, but upon general principles of law. If it were not binding there would be no end to litigation.” See also the Privy Council case of Mangul Pershad Dichit v. Grija Kant Lahiri.
Where, therefore, a point has once been expressly decided in the execution department, there can be no doubt whatsoever that decision binds the parties in all subsequent proceedings. In cases where a point has not been directly decided but is such as must be deemed to have been necessarily decided before an order of execution was passed, the decision has also been held to have a similar binding force. For instance, objections that the application is not in accordance with the law, or that it is barred by time or that the decree is not capable of execution or that the court has no jurisdiction to entertain the application or that the person applying for execution has not the right to do so, are objections, which if not raised before the execution is ordered, have been held in several cases to have been decided adversely to the objectors by the execution order. Reference may be made to the recent case of Raja of Ramnad v. Velusami Tevar decided by their Lordships of the Privy Council. At page 48 Lord Moulton observed: “It was not only competent to the present respondents to bring the plea forward on that occasion, but it was incumbent on them to do so if they proposed to rely on it,” though in that case such a plea was in fact brought forward and decided upon. See also the case of Dwarka Das v. Muhammad Ashfaq-ullah and the cases cited therein.
On the other hand, in cases where the decretal amount is in dispute it has been held that a mere order directing execution does not imply a decision that the amount entered in the application for execution is necessarily correct, and it has been held that there is nothing to prevent the court at a subsequent stage from correcting the amount which the decree-holder is entitled to recover. In the case of Kalian Singh v. Jagan Prasad, it was held that if a judgement-debtor does not take exception to the amount erroneously set forth in an application for the execution of the decree as being the sum due, he is not prevented from doing so on a subsequent application for the execution of the same decree. Similarly in the case of Sheo Mangal v. Mummmat Hulsa the vendee decree-holder, who was at least entitled to execute his decree for costs, had included a sum of Rs. 380-15-0 in his application. An order issuing process was made but before the order could be executed the vendee gave up his claim for Rs. 380-15-0 and applied to be allowed to retain the property. It was held that the order issuing process, passed in favour of the decree-holders, did not preclude them from saying that they were not entitled to recover the sum of Rs. 380-15-0 by way of execution but that they were entitled to the property itself. It was pointed out that there was some amount recoverable by execution, namely, the amount of costs, and, therefore, the execution court had jurisdiction to order execution. The mere fact that a larger amount was included in the application of the decree-holders did not necessarily imply that the court had decided that the whole of that amount was due and recoverable only by execution.
I am of opinion that the objectors are prevented from now asking the court to reconsider the question and, holding that the buildings ought not to have been demolished, to award them damages. I would, therefore, dismiss the appeal.
Daniels, J.:— I concur both in the order dismissing the appeal and in the reasons given by my learned brother for doing so. The rulings on the subject of res judicata as applied to execution proceedings are not altogether consistent, and it is, in my opinion, unnecessary to express any opinion as to the decisions in Kalyan Singh v. Jagan Prasad or Sheo Mangal v. Musammat Hulsa. In the present case the judgement-debtors were clearly bound, if they alleged that the construction of the so called pavement was not inconsistent with the decree, to take this objection when the decree-holders asked for its demolition. It would be contrary to all principles of justice to allow them deliberately to stand aside while the pavement was demolished by order of the court, and then, after the work was completed, to come forward and claim, as they now do, that it should be restored and they should be awarded damages.
By The Court.—The appeal is dismissed with costs.
Appeal dismissed.