Judgement Key Points

Honble BALIA, J.–This special appeal has arisen in the following circumstances. The respondents are legal representatives of the decree holder Badrinarain and the appellants are the legal representative of the judgment-debtor Abdul Gani. The said Badrinarain obtained a decree against Abdul Gani in a mortgage suit on 11.5.52 in which an amount of Rs. 11,194.25 ps. was determined as payable by the said Abdul Gani from the date of final decree. The successive execution applications were filed for recovering the same sum. First application for execution was filed on 7.10.52 in which proceedings the decree was partially satisfied. The proceedings ended on 21.12.56. The second execution resulted in further partial satisfaction. The said execution terminated on 25.9.1957. The third execution application which was filed on 20.05.1958 resulted in further partial satisfaction of the decree and the said proceedings ended on 6.8.1960. The present execution application for the recovery of remainder sum was filed on 30.01.1971. The notice of the application was issued to all the appellants and another son who was reported to be dead by the process server. The appellant No. 1 accepted service on behalf of appellants No. 2 & 3, who were then minors. The notice was served on 20.4.72 for hearing on 3.6.72. An appearance was filed by the counsel on 3.6.72 who sought time to file objections which was granted and the proceedings were adjourned to 5.8.72. On 5.8.72, again adjournment was sought which was granted and the case was adjourned to 12.8.72. On 12.8.72 also, the proceedings could not proceed further because the learned Presiding Judge was on leave and the case was adjourned to 16.9.72. On 16.9.72, the Court finding that no objections have been filed till then by the judgment-debtor, the decree holder was directed to file expenses for carrying out attachment within five days on the submission of which the warrants of attachment could be issued and the proceedings were adjourned to 21.9.72. The attachment warrant was not issued prior to 21.9.72. On finding that expenses for attachment has been filed, the executing Court ordered for the issuance of warrant of attachment on 21.9.72. After issuance of warrant of attachment, the objections were filed by the appellant on 21.9.72 pleading inter alia that the execution proceedings were barred by time and that amount for which the execution was sought was also not correctly stated. The executing Court found that since after completing preliminaries of issuing notice and finding that no objection have been filed in spite of the service under Order 21 Rule 22 and the Court has proceeded to next stage of execution for attaching the property under Order 21 Rules 23 and 24 of C.P.C. any objections raised subsequent thereto cannot be entertained as the same are barred by principles of constructive resjudicata. Against the dismissal of the objections dated 16.11.72 by order dated 13.7.74 an appeal was preferred before this Court which has been dismissed by the learned Single Judge by judgment under appeal, the learned Single Judge found that the objections filed on 16.11.72, after the warrant of attachment was issued, could not be entertained by the executing Court as the same was barred by principles of constructive res judicata. Ancillary issues raised by the learned counsel for the appellant were also found to be not sustainable and the appeal was dismissed on 16.1.1981.

(2). The same contentions have been raised before us. In our opinion, in substance, the only question that arise for consideration is whether on failure of the judgment-debtor to raise objection to the execution of the decree in pursuance of notice under Order 21 Rule 22 within the time allowed and the Court has proceeded under Order 21 Rule 23 for attachment of property, is the judgment-debtor precluded from raising any objection to the continuance of the execution proceedings?

(3). It has been vehemently contended by the learned counsel

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