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2021 Supreme(Bom) 538
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Nitin W. Sambre, J.
Mr. Pradeep Mehra - Appellant
Versus
Mr. Harijivan J. Jethwa - Respondent
Writ Petition No. 8475 of 2018
Decided On : 08-01-2021
Mr. Mehul Shah, for the Appellant / Ms. Savita Pattni, for the Respondent.
The central legal point established in the judgment is the applicability of the principle of res judicata to execution proceedings and the requirement to address this issue when dealing with related applications.
Headnote:
res judicata - Execution Proceedings - Order 21 Rule 22, Order 21 Rule 23, Section 47 CPC - The court discussed the applicability of the principle of res judicata to execution proceedings and referred to the provisions of Order 21 Rule 22, Order 21 Rule 23, and Section 47 of the Code of Civil Procedure. The court highlighted the observations made in the judgment of the Apex Court in the matter of Barkat Ali and Anr. vs. Bandrinarain (Dead) by LRs reported in (2008) 4 SCC 615 and emphasized that orders passed at different stages of execution proceedings operate as res judicata for subsequent stages, and the judgment-debtor cannot raise objections subsequently unless the order is set aside or modified through appeal.
Fact of the Case:
The Petition is by the decree holder in RAE Suit No. 1115/998 of 2004 seeking execution of the consent decree. The Respondents-judgment debtors filed Application-Exhibit-18 for setting aside the order permitting execution, which was initially disallowed but later allowed by the Appellate Bench of the Small Causes Court.
Finding of the Court:
The court observed that the issue of res judicata was not addressed by the parties or the lower courts when dealing with Application-Exhibits-18 and 19. The court directed that the issue of res judicata be looked into while dealing with the said applications.
Issues: The main issue was the applicability of the principle of res judicata to the execution proceedings and whether the executing court had considered the same. The court also considered the sensitivity of the Appellate Bench to the scheme of Section 47 of the Code of Civil Procedure.
Ratio Decidendi: The court held that the issue of res judicata should be addressed while dealing with the applications and disposed of the petition with the observation that the issue of res judicata be looked into.
Final Decision: The Petition stands disposed of with the direction to consider the issue of res judicata while dealing with the applications.
JUDGMENT
1. This Petition is by decree holder in RAE Suit No. 1115/998 of 2004. The decree holder took out Misc. Notice No. 152 of 2006 for execution of the consent decree and the Small Causes Court granted the said Notice with an observation that Defendant Nos. 1 and 2 i.e. Respondents herein have failed to pay monthly compensation for two months as was agreed. As such, prayer for execution of decree came to be allowed vide order dated 12/2/2013 passed in Misc. Notice No.152of2006.
2. As a consequence of above, Execution Application No.605 of2015 seeking execution of consent decree passed in RAE Suit No.1 115/998 of 2004 came to be moved. In the said proceedings, Application-Exhibit-19 came to be moved by decree holder objecting Application-Exhibit-18 which was taken out by the Respondents-judgment debtors for setting aside the order dated 12/2/2013.
3. The Application-Exhibit-19 moved by the decree holder came to be allowed by the Trial Court by order dated 28/09/2017 in which it is ordered that Application-Exhibit-18 filed by the Respondents-judgment debtors for setting aside the order dated 12/02/2013 is not maintainable.
4. The Respondents-judgment debtors feeling aggrieved preferred Revision Application No. 290 of 2017 before the Appellate Bench of the Small Causes Court, Mumbai. The Appellate Bench of the Small Causes Court allowed the said application and set aside the order dated 28/09/2017 passed below Exhibit-19 by its order dated 22/12/2017 whereby directions are issued to hear Exhibits-18 and 19 together in the light of the observations made in the said order.
5. The submissions of the learned Counsel for the Petitioner are, the principle of res judicata is applicable even to the execution proceedings. By drawing support from the observations made in paras 9, 10, 11 and 12 of the Judgment of the Apex Court in the matter of Barkat Ali and Anr. vs. Bandrinarain (Dead) by LRs reported in (2008) 4 SCC 615 and such other judgments, he would urge that once the executing court has permitted to proceed with the execution proceedings, Application-Exhibit-18 is not maintainable as the order passed by the executing court permitting execution of decree on 12/02/2013 will operate res judicata. Paras 9, 10, 11 and 12 of the said judgment in Barkat Ali cited supra read thus:-
"9. Order 21 Rule 22 CPC culminates in end of one stage before attachment of the property can take place in furtherance of execution of decree. The proceedings under Order 21 Rule 23 can only be taken if the executing court either finds that after issuing notice under Order 21 Rule 21 (sic Rule 22) the judgment-debtor has not raised any objection or if such objection has been raised, the same has been decided by the executing court. Sub-rule (1) as well as sub-rule (2) under Order 21 Rule 22, operate simultaneously in the same field. Sub-rule (1) operates when no objection is filed. Then the court proceeds and clears the way for going to the next stage of the proceedings, namely, attachment of the property and if the court finds objections on record then it decides the objections in the first instance and thereafter clears the way for taking up the matter for attachment of the property if the objections have been overruled."
"10. Whether the order is made under sub-rule (1) or sub-rule (2), it has the effect of determining the preliminary stage before the attachment process is set in motion. In this background, the order of the court to proceed with attachment on finding that no objection has been raised also operates as an order deciding the preliminary stage of the execution proceedings and operates as if the judgment-debtor has no objection to file. If thereafter, the judgment-debtor wants to raise an objection in the same proceedings in the absence of any modification of order passed under Order 21 Rule 22 sub-rule (1) or (2), he has to take recourse to get rid of the order by way of appeal."
"11. There is no dispute and it has not been agitated that the order
