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PATNA HIGH COURT
V.Ramaswami and Sarjoo Prasad JJ.
Sham Sundar Singh
Versus
Dhirendra Nath Chandra
Appeal from Original Decree No. 143 of 1948 ;
Decided On : MAY 12, 1950
EXECUTION - OBJECTION - RES JUDICATA - CONSTRUCTIVE RES JUDICATA - APPLICABILITY - JUDGMENT-DEBTOR'S FAILURE TO RAISE OBJECTION AT PROPER STAGE - BAR OF RES JUDICATA - ESTOPPEL - SALE OF GOVERNMENT GHATWALI - INALIENABILITY - JURISDICTION OF COURT - STATUTORY PROHIBITION - NO ESTOPPEL AGAINST STATUTE.
Fact of the Case:
The judgment-debtor filed an objection under Section 47, Civil P. C., claiming that the properties under execution were not saleable as being part of a Government ghatwali. The objection was filed for the first time in February 1948, although the execution case had been pending since 1935 and the judgment-debtor had appeared and taken various steps in the execution proceedings.
Finding of the Court:
The Court held that the judgment-debtor was estopped from raising the objection at this late stage, as he had failed to raise it at the proper stage and had allowed the execution to proceed without objection. The Court also held that the doctrine of constructive res judicata was applicable to the case, as the judgment-debtor had failed to raise all his objections to the execution which he might and ought to have raised.
Issues: 1. Whether the judgment-debtor was estopped from raising the objection that the properties were not saleable as being part of a Government ghatwali. 2. Whether the doctrine of constructive res judicata was applicable to the case.
Ratio Decidendi: 1. The Court held that the judgment-debtor was estopped from raising the objection at this late stage, as he had failed to raise it at the proper stage and had allowed the execution to proceed without objection. The Court relied on the principles of estoppel and constructive res judicata, and held that the judgment-debtor was debarred from raising the objection now, and it will be deemed that the question of fact whether the properties in question are Government ghatwali, and, as such, non-saleable has been by implication decided against him. 2. The Court held that the doctrine of constructive res judicata was applicable to the case, as the judgment-debtor had failed to raise all his objections to the execution which he might and ought to have raised.
Final Decision: The Court dismissed the appeal with costs.
Sarjoo Prasad, J.
1. This appeal is by the judgment-debtor arising out of an objection under Section 47, Civil P. C.
2. This appeal was analogous to several other appeals but we directed that, as the execution case which gave rise to the present appeal was being held up this appeal should be heard and disposed of. It was accordingly placed for hearing before us. It relates to Execution case No. 547 of 1946, and our observations will have to be confined to that execution case alone.
3. It appears that the plaintiffs decree-holders obtained on 29th February 1932, a decree in the Court of the Subordinate Judge at Dhanbad in Money suit No. 261 of 1930 which was later confirmed on appeal by this Court on 25th August 1936. The decree-holders proceeded to execute this decree by sale of certain properties belonging to the judgment-debtor. The case appears to have a long and chequered history, and it is one of those cases which demonstrate how a decree obtained in 1932 has yet remained unexecuted for all these 18 years on account of the various obstructions successfully raised by the judgment-debtor under cover of legal procedure. The execution case was started and registered on 18th November 1935 and a writ of attachment was issued. The claim under execution was for a sum of over one lakh of rupees. It appears from the order sheet that several times writs of attachment and sale proclamations were issued and on several occasions on one pretext or another the judgment-debtor succeeded in having the sale postponed. The present objection which was filed not until 3rd February 1948, was registered as Miscellaneous Case No. 9 of 1948. In this objection for the first time it was alleged that the properties under execution were not saleable as being part of a Government ghatwali. The petition alleges that the estate of the judgment-debtor is known as the Pandra Estate and consists of tauzi Nos. 21 and 23 of the Manbhum Collectorate, that parts of Tauzi No. 21 had been attached and advertised for sale on 17th February 1948, and that the said tauzi being Government ghatwali was inalienable and could not be sold in execution. The petition further states that Tauzi No. 23 of the petitioners estate was sold in execution of a decree in Execution case No. 335 of 1931. The judgment-debtor then filed a title suit in the Court of the Subordinate Judge at Dhanbad being Title suit No. 41 of 1939 in which he claimed that the Pandra Estate was a Government ghatwali. The suit was, however, dismissed by the learned Subordinate Judge, and against the said decree an appeal has been preferred to this Court which is First Appeal No. 87 of 1947. The judgment-debtor accordingly prayed that his objection should be allowed and the property should be released from atta hment and sale. As I have said, this objection was filed for the first time in February 1948. Though the execution case had been pending since 1935 and the judgment-debtor had appeared and had taken various steps in the execution proceedings and filed objections to the execution, in none of it he ever raised the contention which he seeks to advance in the present objection.
4. Mr. Ghosh who appears for the appellant contends that this appeal should at any rate be postponed until the disposal of First Appeal No. 87 of 1947 wherein the question of ghatwali has been raised in connexion with another tauzi, Tauzi No. 23, belonging to the judgment-debtor. It may be at once pointed out that the present decree-holder is not a party to the said first appeal. The first appeal in question, although pending since 1947, has not yet been disposed of and there is hardly any chance of its being heard in the very near future. It would be, therefore, unjust that the present decree holder should be made to stay his hands until the disposal of the said appeal which for ought we know may yet take a meandering course even after its disposal by this Court until the remedy of the judgment-debtor of an appeal to the Su
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