Batakrisna vs Sarada

Raghubir Dash, J.—I have already heard the learned counsel for the appellants on the involvement of any substantial question of law for admission of this Second Appeal which arises out of judgment dated 08.09.1995 passed by the learned Civil Judge (Senior Division), Bargarh dismissing Misc. Appeal No. 5 of 1986 arising out of the order passed by the then Munsif, Bargarh in Misc. Case No. 57 of 1985 under Order 21 Rule 58 of the C.P.C.

The present respondent No. 1 filed a suit against one Chamara Karan, predecessor-in-interest of respondent Nos. 2 to 7 and four others, including the original appellant, late Batakrishna Dehury, as D-5, for specific performance of contract. The prayer for specific performance of contract was rejected but it was declared that the plaintiff was entitled to get a sum of Rs. 2,450/- with interest @ 6% per annum from all the defendants including defendant No. 5, the original appellant in this Second Appeal. After his death his L.Rs. have been substituted and arrayed as A-1(a) to A-1(e). The decree was passed on contest against L.Rs. of Chamara Karan as well as D-5 and ex-parte against D-2 to D-4. In that suit issue No. 2 which runs as follows:

"Have the suit land fallen to the share of Batakrishna Dehery? Was he in possession of the same on 30.11.1975?"

was answered against D-5

After the decree in the suit the plaintiff levied execution against the L.Rs. of Chamara Karan without impleading D-5 as a party to the execution proceeding. In course of the execution proceeding the land which was agreed to be sold by Chamara Karan was attached and against that attachment order, D-5 filed a petition under Order-21 Rule-58 of the C.P.C. to get the land released from attachment claiming that he was the owner in possession thereof. Learned executing court dismissed the Misc. Case refusing to lift the attachment. That order was challenged in the First Appeal. It was contended before the lower appellate court that issue No. 2 was unnecessary in the suit for specific performance of contract and as such findings on that issue would not operate as res judicata in the execution proceeding. Therefore, it was contended, the executing court committed gross error in holding that findings on issue No. 2 operates as res judicata in the execution proceeding. Learned lower appellate court did not accept this contention and confirmed the order passed by the learned executing court. Consequently, the Misc. Appeal was dismissed on contest.

While addressing to the question on res judicata the learned lower appellate court observed as follows:

The explanation VII to section 11, dealing with res judicata, clearly stipulates that the provision of res judicata shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit, shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. So, questions arising of the same decree between two execution cases and the facts decided in the former execution case would also operate as res judicata in the subsequent execution proceeding with reference to the original decree. In the light of the aforesaid principle, an issues raised by the parties and decided on contest; would clearly operate as res judicata in the subsequent stages of the proceeding like, execution proceeding. It has also been conclusively held in Seth Hiralal Patni Vs. Sri Kali Nath, . "The validity of a decree can be challenged in execution proceeding only on the ground that the Court, which passed the decree, was lacking inherent jurisdiction in the sense it could not have seisin of the case because the subject matter was wholly foreign to its jurisdiction...... ". In the instant case, if any issue in the main suit is allowed to be challenged in the execution proceeding on grounds other than jurisdiction of the Court with regard to the subject matter of the suit; more specifically, on the ground of res judicata, it would amount to challenge of decree passed in the main suit and thus, would be clearly an abuse of legal process. Thus, when the appellant contested the suit as D-5, he cannot be allowed to again raise the question of validity of issue No. 2 as decided by the learned trial court since it is hit by the principle of res judicata U/S. 11 of the C.P.C.

Learned counsel for the appellants submits that the Second Appeal involves mainly the following substantial question of law:

Since no claim was made against D-5 in the suit for specific performance of contract whether any finding against that defendant would operate as res judicata in the execution proceeding?

The question as to whether the issue decided in a suit would operate as res judicata in an execution proceeding arising out of the same suit cannot be a substantial question of law since the law governing the filed is incorporated in Explanation VII to Section 11 of C.P.C. It is submitted that no claim was made against D-5 in the suit for specific performance of contract. But the decree passed in that suit is against all the defendants including D-5 who was a contesting defendant therein.

The other substantial question of law according to the appellant''s learned counsel is "whether the executing court is competent to attach the appellant''s land without making the appellant a party to the execution proceeding". In view of the fact that the suit has been decreed on a finding that the suit land did not fall to the share of D-5 and that he was not in possession of the same as on 30.11.1975, such a question cannot be framed which is pregnant with a presupposition that D-5 is the owner in possession of the suit land which is contrary to the findings recorded in the suit on issue No. 2. On the basis of that finding, which has become absolute, the decree holder while putting the decree to execution has not impleaded D-5 as a judgment debtor. So the proposed question cannot be a substantial question of law involved in the Second Appeal.

In the aforesaid premises it is held that the present Second Appeal does not involve any substantial question of law. Accordingly, the Second Appeal is dismissed as being not admitted.

The interim order dated 27.11.1995 staying the further proceeding in Execution Case No. 4 of 1984 is vacated.

Communicate a copy of this order to the executing court immediately.