The Supreme Court has observed that the principle of res judicata will apply to execution proceedings as well. The Court added that a judgment debtor cannot raise objections to executions in installments.
A bench comprising Justices Hemant Gupta and V Ramasburmanian made this observation while rejecting a new objection raised by a judgment-debtor against the auction-sale proceedings in the fifth round.
To stall the execution of the decree which was passed in 1974 in a money-suit filed for recovering Rs.3000, the legal representatives of the judgment debtors, in the fifth round of litigation, filed a fresh application under Section 47 of the Code of Civil Procedure on the ground that the sale did not follow the mandate of Rule 64 of the Order XXI of the CPC. Rule 64 states, in essence, that only that portion of the property should be sold so as to satisfy the decree amount.
The application was rejected first by the trial court, and then by the appellate court and the High Court. The matter was ultimately carried to the Supreme Court by way of further appeal.
The Supreme Court noted that the objection as regards Rule 64 was not raised at earlier rounds, and was raised for the first time in 2006. The party had sufficient opportunities to raise this objection at earlier rounds.
"A judgment-debtor cannot be allowed to raise objections as to the method of execution in instalments. After having failed to raise the issue in four earlier rounds of litigation, the appellants cannot be permitted to raise it now", the judgment authored by Justice Ramasubramanian observed.
The judgment explained the the principle of res judicata will apply to Execution Proceedings as well.
"What is on hand is a second petition under Section 47 and, hence, it is barred by res judicata. It must be pointed out at this stage that before Act 104 of 1976 came into force, there was one view that the provisions of Section 11 of the Code had no application to execution proceedings. But under Act 104 of 1976 Explanation VII was inserted under Section 11 and it says that the provisions of this Section shall apply to a proceeding for the execution of a decree and reference in this Section to any suit, issue or former suit shall be construed as references to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree"
Editor's Note : Since the ground of defence was not raised in the earlier proceedings, it will be hit by the principle of "constructive res judicata", as per which the grounds which ought to have been raised in the previous proceedings are also presumed to have been matters which are directly and substantially issues in the previous proceedings. Explanation IV to Section 11 CPC may be referred.
Case Title : Dipali Biswas and others versus Nirmalendu Mukherjee and others | C.A 4557/2012
Citation : LL 2021 SC 538Click here to read/download the judgment