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CASE NO.: Appeal (civil)  1383 of 2002

PETITIONER: Barkat Ali & Anr

RESPONDENT: Badri Narain (D) by Lrs

DATE OF JUDGMENT: 06/02/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.1383 OF 2002

Dr. ARIJIT PASAYAT, J.

1.      Challenge in this appeal is to the order passed by a  Division Bench of the Rajasthan High Court at Jodhpur  dismissing the special appeal filed under Section 18 of the  Rajasthan High Court Ordinance 1949 (in short ’Ordinance’)  against judgment of learned Single Judge dated 16.1.1981 in  SB Civil Misc. first appeal no.5/75.             

 2.       Background facts in a nutshell are as under: The respondents are legal representatives of the decree  holder Badrinarain and the appellants are the legal  representatives of the judgment-debtor Abdul Ghani. The said  Badrinarain obtained a decree against Abdul Ghani in a  mortgage suit on 11.5.1952 in which an amount of  Rs.11,194.25/- was determined as payable by the said Abdul  Ghani from the date of final decree. Successive execution  applications were filed for recovering the said sum. First  application for execution was filed on 7.10.1952 in which  proceedings the decree was partially satisfied. The proceedings  ended on 21.12.1956. The second execration resulted in  further partial satisfaction. The said execution terminated on  25.9.1957. The third execution application which was filed on  20th May 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 30th January, 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 appellant Nos.2 &  3, who were then minors. The notice was served on 20.4.1972  for hearing on 3.6.1972. An appearance was filed by the  counsel on 3.6.1972, who sought time to file objections which  was granted and the proceedings were adjourned to 5.8.1972.  On 5.8.1972, again adjournment was sought which was  granted and the case was adjourned to 12.8.1972. On  12.8.1972 also, the proceedings could not proceed further  because the learned Presiding Judge was on leave and the  case was adjourned to 16.9.1972. On 16.9.1972, the Court  finding that no objections have been filed till then by the  judgment-debtors, the decree holder was directed to file

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expense 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 21.9.1972. The  attachment warrant was not issued prior to 21.9.1972. On  finding that expenses for attachment has been filed, the  executing Court ordered for the issuance of warrant of  attachment on 21.9.1972. After issuance of warrant of  attachment, the objections were filed by the appellant on  21.9.1972 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 has been filed in spite of  the service under Order XXI Rule 22 of the Code of Civil  Procedure, 1908 (in short ’CPC’) and the Court had proceeded  to next stage of execution for attaching the property under  Order XXI Rules 23 and 24 of C.P.C., any objection raised  subsequent thereto cannot be entertained being barred by  principles of constructive res judicata. Against the dismissal of  the objections dated 16.11.1972 by order dated 13.7.1974, an  appeal was, preferred before the High Court which has been  dismissed by the Learned Single Judge by judgment dated  16.1.1981. The Learned Single Judge found that the  objections filed on 16.11.1972, 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.  3.     As noted above, learned Single Judge found that the  objection filed after issuance warrant of attachment could not  be entertained by the executing Court as the same was barred  by principles of constructive res judicata.              

4.      The same contention was raised before the Division  Bench which did not find any substance.       5.       Learned counsel for the appellant reiterated the stand  taken before the learned Single Judge and the Division Bench.                           6.      There is no appearance on behalf of the respondent.    

7.      Order XXI 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 XXI Rule 23 can only be taken if the executing Court  either finds that after issuing notice, under Section XXI Rule  21 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 XXI Rule 22, operates simultaneously on 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. 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,

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the judgment-debtor wants to raise an objection in the same  proceedings in the absence of any modification of order passed  under Order XXI Rule 22 sub rule (1) or (2), he has to take  recourse to get rid of the order by way of appeal. There is no  dispute and it has not been agitated that the order for  proceeding by the judgment under Order XXI Rule 22 amounts  to a decree under Section 47 of CPC and it is appealable as a  decree i.e to say it is not an appeal against the interim order  but an appeal against the decree which is provided against the  final order. It means that at the different stages of the  execution orders passed by the executing court have attained  finality unless they are set aside by way of appeal before the  higher forum. Otherwise they bind the parties at the  subsequent stage of the execution proceedings so that the  smooth progress of execution is not jeopardised and the stage  which reached the finality by dint of various orders of the  Order XXI, operates as res judicata for the subsequent stage of  the proceedings.  Since the order passed at different stage  itself operates as a decree and is appealable as such, the same  cannot be challenged in appeal against subsequent orders  also, because appeal against an order passed under Order XXI  Rule 22 does not amount to appeal against order at initial  stage, but amounts to a decree finally determining the  question. That is why no appeal against orders made under  Order XXI has been provided under Order 43. In this  background, where a judgment-debtor has an opportunity to  raise an objection which he could have raised but failed to  take and allowed the preliminary stage to come to an end for  taking up the matter to the next stage for attachment of  property and sale of the property under Order XXI Rule 23  which fell within the above principle, the judgment-debtor  thereafter cannot raise such objections subsequently and  revert back to earlier stage of proceedings unless the order  resulting in termination of preliminary stage which amounts to  a decree is appealed against and order is set aside or modified.

8.      The principles of res judicata not only apply in respect of  separate proceedings but the general principles also apply at  the subsequent stage of the same proceedings also and the  same Court is precluded to go into that question again which  has been decided or deemed to have been decided by it at an  early stage.    

9.      In Arjun Singh v. Mohindra Kumar and Ors. (AIR 1964  SC 993) it was observed as follows:  "Scope of principle of res judicata is not  confined to what is contained in Section 11  but is of more general application.  Again, res  judicata could be as much applicable to  different stages of the same suit as to findings  on issues in different suits\005..Where the  principles of res judicata is invoked in the case  of the different stages of proceedings in the  same suit, the nature of the proceedings, the  scope of the enquiry which the adjectival law  provides, the decision being reached, as well as  the specific provisions made on matters  touching such decision are some of the  material and the relevant factors to be  considered before the principle is held  applicable."

10.     In Satyadhyan Ghosal and Ors. v. Smt. Deorajin Debi  and Anr. (AIR 1960 SC 941) it was observed as follows:

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"The principle of res judicata applies also  as between two stages in the same litigation to  this extent that a court, whether the Trial  Court or a Higher Court having at an earlier  stage decided a matter in one way will not  allow the parties to re-agitate the matter again  at a subsequent stage of the same  proceedings."       11.     Above being the position, the High Court was justified in  dismissing the special appeal and in confirming the order of  learned Single Judge.  The appeal is without merit, deserves  dismissal, which we direct.