Rai Debi Prasad vs Deo Parasnath Ji

A. P. Sen, J.

This is a further appeal by the judgment-debtor in execution proceedings.

The material facts are very clearly and succinctly stated by the learned District Judge. It appears that the auction sale was stayed or adjourned several times at the request of the judgment-debtor on his giving repeated undertakings not to raise any objections, including the objection under Order 21, rule 66 of the CPC as well as the one u/s 32 (2) of the Madhya Pradesh Public Trusts Act. These undertakings were given by the judgment-debtor with a view to secure the postponement of the auction sale on one pretext or another.

A few facts will bear repetition. On 27-10-1965, the judgment-debtor secured an adjournment of the sale after giving an assurance that he will pay off the decretal amount by 1-1-1966 at the latest, and this undertaking was embodied in an affidavit on the next day, in the following terms:

I consent to waive all objections to the execution sale in case I do not pay or discharge the amount as stated, except legal objections.

The judgment-debtor again filed an application for stay on 1-1-1966 and gave a categorical assurance not to raise any objections to the sale, and this undertaking was supported by an affidavit stating "the judgment-debtor will not take any objection to the sale to be held on the next day, the date to be fixed by the Court". On 2-2-1966, he prayed for a further postponement of the sale stating that he was "trying to arrange for payment", and the sale was accordingly stayed. Thereafter, on 14-2-1966, he filed an application u/s 47, read with section 32 (2) of the Madhya Pradesh Public Trusts Act, objecting to the executability of the decree on the ground that the decree was a nullity. While this application was pending, the judgment-debtor sought on 2-3-1966 a postponement of the sale after waiving all objections and giving an undertaking to the following effect:

On 4-7-1966 the judgment-debtor filed another application u/s 47 of the Code, read with section 32 (2) of the Madhya Pradesh Public Trusts Act, regarding the maintainability of the execution proceedings. On the same day, he also filed an application u/s 151, read with Order 21, rule 66, objecting to the validity of the sale notice and the sale proclamation. These objections now form the basis of the present appeal.

The question for consideration in this appeal is whether it is still open to the judgment-debtor to raise any objection with regard to non-compliance of Order 21, rule 66 of the Code and/or as regards the executability of the decree on the ground that the decree was a nullity, by reason of section 32 (2) of the Madhya Pradesh Public Trusts Act. The Courts below have taken the view that the judgment-debtor is precluded from raising any such objections to the auction sale, by reason of waiver and also by the principle of constructive res judicata.

Shri S. L. Jain, learned counsel for the judgment-debtor, however contends that the previous undertakings were wiped out, when the executing Court felt the necessity of drawing up a fresh proclamation, and the rights of the judgment-debtor could not be affected unless the requirements of Order 21, rule 66 (2) of the Code were complied with afresh and for this, he relies upon the dictum of Bhutt J. (as he then was) in Purshottam Lal v. Gokul Prasad Misc. (First) Appeal No. 38 of 1953 dated the 13th August 1953, namely-

Before a sale proclamation could be revised it was incumbent on the executing Court under Order 21, rule 66 12) of the Code to give notice to the parties. It is true that in this case the judgment-debtor was present during the execution proceedings after the first sale proclamation was filed by the decree-holder. However, that notice operated only in respect of the original sale proclamation that was then under consideration. When that proclamation was found to be defective in material particulars, and the Court felt the necessity of drawing up afresh proclamation, the rights of the judgment-debtor could not be affected unless the procedure laid down in Order 21, rule 66 (2) of the Code was followed. It is obvious that in such a case the original notice which was given in respect of the previous sale proclamation could not be deemed to be effective for purposes of drawing up a revised document. In AIR 1948 177 (Nagpur) it is held that the issue of a notice under Order 21, rule 66 (2) touches the jurisdiction of the Court which effects the sale, and that the omission to give it cannot be treated as a curable irregularity. The order refusing to set aside the sale cannot, therefore, be upheld.

It is well settled that the principle of constructive res judicata is applicable to execution proceedings [see, Mohanlal Goenka Vs. Benoy Krishna Mukherjee and Others, ]. The foregoing narration of the various stages through which the execution proceedings passed from time to time will show that neither at the time when the execution application was made and a notice served upon the judgment-debtor, nor at the subsequent stages, did the judgment-debtor raise any objection to execution being proceeded with on the ground that the executing Court had no jurisdiction to execute the decree, by reason of the decree being a nullity by virtue of section 32 (2) of the Madhya Pradesh Public Trusts Act. The failure to raise such an objection which went to the root of the matter precludes him from raising the plea of jurisdiction on the principle of constructive res judicata at the subsequent stages. Although on 14-2-1966, the judgment-debtor raised an objection of this character, he waived it on 2-3-1966 by giving an undertaking to the following effect:

It is amply clear that execution sale was stayed or postponed several times at the request of the judgment-debtor upon his waiving all the objections. These undertakings were given foregoing all his rights, and by repeating the same objections he is merely trying to gain time with a view to put off the auction sale.

According to the counsel, the insertion of a map to the sale proclamation is tantamount to the drawing up of a fresh proclamation. This contention is wholly devoid of substance. Several notices and sale proclamations have been issued from time to time and the insertion of a map to the sale proclamation was merely for the purpose of identifying the attached property. The term settled in the sale proclamation has not been altered. There is, therefore, no basis for this assertion. In Purshottamlal v. Gokulprasad, Bhutt J. was considering the effect of a revised proclamation of sale, the terms of which were entirely different, and therefore his decision is of no avail to the present judgment-debtor.

There is another reason why the contention cannot he accepted. All that Order 21, rule 66 requires is that the judgment-debtor should have notice. Admittedly several such notices had been served on him, and there is no need to serve him with a second notice. Furthermore, he has been appearing at the subsequent stages of the proceedings and would be deemed to have had constructive notice.

Next, learned counsel for the judgment-debtor contends that the conditions prescribed in section 32 (2) of the Madhya Pradesh Public Trusts Act, 1951, are for the purpose of protecting or benefiting the public, and its requirements cannot be dispensed with irrespective of any waiver on the part of his client. According to him, the words "other proceedings" appearing therein, refer to the proceedings in execution of a decree, and relies upon the following passage from Maxwell''s ''Interpretation of Statutes'', 10th Edition, p. 388:

Another maxim which sanctions the non-observance of a statutory provision is that, cuilibet licet renuntiare juri pro se introducto. Everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy. Where in an Act there is no express prohibition against contracting out of it, it is necessary to consider whether the Act is one which is intended to deal with private rights only, or whether it is an Act which is intended, as a matter of public policy, to have a more extensive operation.

In reply, Shri B. L Seth, counsel for the decree-holder, however, contends that there is no warrant for the assumption that the words "other proceedings" appearing in section 32 (2) of the M. P. Public Trusts Act, 1951, are referable to the proceedings in execution of a decree. The natural meaning of the words used in the context in which they occur, leaves no ground for speculation. The language of section 32 is clear and explicit, and giving to the words ''''other proceedings" that primary meaning, with the setting and context in which they appear, they must and ought to relate to the claims in defence in a suit brought against a public trust. These words "other proceedings" appear in section 69 of the Partnership Act and section 141 of the CPC and indeed the same language is used there.

Having regard to the view that I have taken on the applicability of the principle of constructive res judicata, the objection u/s 32 (2) of the Madhya Pradesh Public Trusts Act regarding maintainability of the execution proceedings, does not survive. Nevertheless, since the parties argued the point, I would briefly set-out my decision thereon.

It is a cardinal rule of construction that the meaning attached to an expression in one statute cannot be used for controlling the construction of that expression in another, where the Acts are not in pari materia and deal with different subject-matters. "When the Legislature", said Balckburn J., "change the words of an enactment, no doubt it must be taken prima facie that there was an intention to change the meaning." Wheatley v. Wheatley (1949) 65 TLR 602. This, however, is not necessarily so, for we find, as a matter of fact, that the same learned Judge observed in Hadley v. Perks (1866) L R 1 Q B 444, 457, "in drawing Acts of Parliament, the Legislature, as it would seem, to improve the graces of the style, and to avoid using the same words over and over again, constantly change" the words without intending to change the meaning. (See, Craies on Statute Law, sixth Edn., p. 143). On the plain language of section 32 (2) of the M. P. Public Trusts Act, it is clear that the words "other proceeding to enforce a right on behalf of such public trust" must, in the context of statute in which they appear, be construed to mean "original matters" in the nature of suits, and not to include executions.

In Thakur Prasad v. Sheikh Fakirullah (1895) I L R 17 All. 106 (P C), the Privy Council stated that the "proceedings" spoken of in section 647 of the Civil Procedure Code, 1882 (corresponding to section 141 of the present Code), include "original matters" in the nature of suits such as proceedings in probates, guardianships, and so forth, and do not include executions. We must not, however, forget that their Lordships qualified their statement, by indicating that the whole of Chapter XIX of the Code consisting of 121 sections (which corresponds to present Order 21), is devoted to the procedure in executions, and it would be surprising if the framers of the Code had intended to apply another procedure, mostly unsuitable by saying in general terms that procedure for suits should be followed as far as applicable. It is in that context, they say that section 141 does not apply to executions. Nevertheless, the decision is an authority for the proposition that the "proceedings" spoken of that section relate to'' "original" proceedings in the nature of suits.

The learned counsel for the decree-holder, however, relies upon the interpretation of the expression "other proceedings" occurring in section 69 (3) of the Indian Partnership Act. When we contrast the language of section 32(2) of the M. P. Public Trusts Act with that of section 69 (3) of the Partnership Act, it will be clear that the language is different, and therefore, the construction placed upon that expression in that section may not be of any real assistance. In section 69 (3), the particular class mentioned by name is "a claim of Bet off". While in section 32 (2) there are different classes mentioned, namely, "a claim or set off". The substitution of the word ''or'' in place of ''of is rather significant.

In AIR 1943 175 (Nagpur) , on the question whether "other proceedings" occurring in section 69 (3) of the Partnership Act, include execution proceedings, Grille C. J. and Puranik J. stated that the words should be taken as sui generis of a claim of set off and, therefore, an unregistered firm was under no disability in respect of execution of a decree. Their Lordships of the Supreme Court have, however, held that the words "other proceedings" in that section must receive their full meaning untrammelled by the words "a claim of set off" [See, Jagdish Chander Gupta Vs. Kajaria Traders (India) Ltd., ], According to them, the expression ''a claim of set off'' does not disclose a category or genus and, therefore, the words "other proceedings" cannot be read ejusdem generis. It is rather significant that their Lordships expressed no opinion as regards the correctness of the view taken by Grille C. J. and Puranik J., in Jamal v. Firm Umar Haji Karim.

The judgment-debtor cannot be permitted to raise the objection regarding inexecutability of the decree, for another reason. The suit by the public trust was instituted on 18-2-1953, i. e. long after the M. P. Public Trusts Act, 1951, was brought into force. If there was an invalidity in registration of the trust as a "public trust", it was open to him as the defendant to raise an objection u/s 32 (1), against the competence of the plaintiff-trust to bring a suit to "enforce a right" on behalf of the public trust and the objection would have been tried in the suit. In my view, the failure on his part to raise an objection, precludes him by the principle of constructive res judicata from raising the objection u/s 32, in execution. The reason is obvious. The invalidity, if any, in the registration of the trust as a public trust would not render the decree a nullity because there was no lack of initial jurisdiction in the Court trying the suit.

The result is that the appeal fails and it is dismissed with costs. Counsel''s fee Rs. 50, if certified.