The principle of constructive res judicata is applicable to execution proceedings as well.

JUDGMENT - 1. These two companion appeals raise a short point as to whether objection to the execution taken by the respondent - judgment - debtor on the ground of limitation is barred by constructive res judicata.

2. Although the decree - holders in these two cases are different, the Respondent - Judgment - debtor is common to both. The facts on which the above question arises are almost similar. It would be enough therefore, if the facts in the case in which Second Appeal NO. 147 of 1962 arises are stated. They are as follows :-

3. A money decree was obtained by the appellants against the respondent on 31-7-1939. The decree made the decretal amount payable by annual instalments and it contained a default clause to the effect that in default of payment of any two instalments, the entire balance due under the decree would be payable at once. The judgment - debtor having committed default in payment of the very first two instalments, the decree - holder filed an application for execution within three years from the date of default to realise the entire decretal amount. That darkhast was infructuous and was disposed of on 12-10-1943. A second darkhast which was filed by the decree - holder on 13-10-1944 also came to be disposed of on 6-4-1945 without any success. In the other case the first darkhast which was filed on 24-1-1952 (sic) by the decree - holder was disposed of on 27-3-1945 as being infructuous. In the meantime the Bombay Agricultural Debtors Relief Act having come into force on 1-5-1945, the decree - holders made an application on 31-10-1945 to the Special Court established under that Act for adjustment of the decretal debt, provided the judgment - debtor was found to be an agriculturist within the meaning of that Act. In both the cases that application was disposed of on 27-2-1954 on the ground that the judgment - debtor was not an agriculturist. Thereafter the decree - holder filed a fresh darkhast on 6-9-1956 in the Civil Judges Court at Kurandwad for realisation of the decretal debt by arrest and detention of the judgment - debtor in civil prison. It may be mentioned here that under Section 52 of the B. A. D. R. Act, the period during which a proceeding under that Act was pending, has to be excluded in computing the period of limitation prescribed for any suit or proceeding. Excluding, therefore, the period from 31-10-1945 to 27-2-1954 (inclusive of both days) during which the B. A. D. R. proceeding was pending, obviously this darkhast was filed beyond three years from 6-4-1945 on which date the last darkhast was disposed of by the Civil Court and was, therefore, barred by limitation under Article 182 of the Limitation Act, 1908.

4. A notice under O. 21, R. 37, Civil Procedure Code was issued to the judgment - debtor in this darkhast to show cause against his detention in civil prison. He raised certain contentions such as that his ordinary place of residence was within the jurisdiction of the Civil Court at Ichalkaranji, and hence the Kurundwad Court had no jurisdiction to execute the decree against him. It may, however, be mentioned here that contention that this darkhast was barred by limitation was not raised by the judgment - debtor. After hearing both sides, the executing court ultimately made an order to issue warrant of arrest against the respondent. It, however, appears that thereafter the decree - holder having informed the court that he did not wish to prosecute the darkhast further, it came to be disposed of on 26-11-1957.

5. The decree - holder thereafter got the decree transferred for execution to the Court of Civil Judge (Junior Division) at Ichalkaranji and on 3-4-1958 filed a fresh darkhast which has given rise to this appeal seeking to realise the decretal amount by attachment and sale of the property of the Judgment - debtor.

6. The Judgment - debtor in response to the notice under Order XXI, Rule 22, Code of Civil Procedure, inter alia, contended that the execution was barred by limitation. In this

Click Here to Read the rest of this document