1990 PLP 1845 (CLC)

‑‑‑‑OXXI, R.23, Ss.115 & 11‑‑Courts below were correct to have not entertained objection to execution of decree because objections raised were hit by the principle of res judicata‑‑‑Revision against dismissal of objection application was not maintainable in circumstances. S. Bashir Hussain Shah Zaidi for Petitioner. This is an application for revision under section 115 of the Code of Civil Procedure by Sher .Ian judgment‑debtor.

2. Karim Dad, decree‑holder, filed Suit No.805/1 of 1979 against Sher Jan, son of Allah Dad and his three sons, a daughter, and a daughter‑in‑law for possession of the house as described in the title of the plaint and obtained a decree. He has started the present execution case out of which this revision arises praying for delivery of possession of the house in question.

3. In response to the notice under rule 22 of Order XXI, C.P.C. the judgment‑debtor‑petitioner took objection to the executability of the decree on the ground that the parentage of the judgment‑debtor in the suit was recorded as Allah Dad, whereas the petitioner's actual parentage was Ashiq Khan. His further objection was that there was no house at the spot within the boundaries specified by the decree‑holder.

3. The decree‑holder filed rejoinder wherein besides controverting the allegations brought in the objection petition, he maintained that the objection petition of the judgment‑debtor was not maintainable. After recording such evidence as the parties wished to adduce and hearing the counsel for the parties, the Executing Court ultimately dismissed it on 10‑4‑1989. The learned Executing Court, held that the petitioner‑judgment‑debtor had not raised the objection qua the description of the wrong parentage either before the trial Court or in the Appellate Court and had raised it before the High Court where it was turned down by a learned Single Judge of this Court. It further held that the decree was executable and the decree‑holder was entitled to get delivery of possession over the disputed house.

4. The judgment‑debtor then filed an appeal in the Court of learned District Judge. The learned Appellate Court also took a similar view and the appeal was accordingly dismissed. The judgment debtor has now come up in revision to this Court.

5. S. Bashir Hussain Shah Zaidi Advocate, appearing in support of the revision petition, argued that in view of the overwhelming documentary record such as photo copy of Mutation No. 17595 dated 12‑6‑1979, the enquiry form Ex.A.W. 2/2 placed on the file of Custodian, allotment order Ex.A.W. 2/R‑1 and his identity card, the parentage of the petitioner was established to be Ashiq Khan and not Allah Dad and, therefore, both the Courts below have committed material irregularity in ignoring it.

6. The contention of the learned counsel has no force. Both the Courts below have correctly observed that the petitioner‑judgment‑debtor has failed to raise this objection in the pleadings or during the protracted litigation pending in the trial Court or before the Appellate Court but raised it only in the High Court in revision which was not entertained by a learned Judge of this Court. The failure of the petitioner to raise this objection before the trial Court and the learned Appellate Court that his parentage was Ashiq Khan rather than Allah Dad debars him under the doctrine of constructive res judicata from raising such objection in execution petition particularly when such an objection has been turned down by this Court in exercise of its revisional jurisdiction in the first round of litigation. It is now well settled that the principle of res judicata as embodied in section 11 of the Code of Civil Procedure and the subsidiary principles of constructive res judicata are applicable to the execution proceedings. Reference may be made to a case from Indian jurisdiction reported as Ganda Lai v. Hazarilal (A I R 1936 All 21). In that case, Chief Justice Suleman, after referring to the application of principle of res judicata to the provisions of sub rules (1) and (2) of rule 23, Order XXI of the Code of Civil Procedure, inter alia, laid down the following proposition: "Where there has been an express adjudication by the Court in the presence of parties then the question must be considered to have been finally decided, no matter whether it is raised again at a subsequent stage of the same proceedings, or in a subsequent execution proceeding."

7. Respectfully following the dictum reproduced above, I am inclined to reiterate that when a question is raised during the pendency of suit, appeal or revision and is finally decided, the same question would be barred by the principle of res judicata in execution proceedings. In the instant case too this objection was R raised in revision before the High Court but was repelled. Nonetheless under the doctrine of constructive res judicata even if a point which ought to have been raised but is not raised at the appropriate stage, then it would be deemed to have been decided against the person who was entitled to raise it in the course of execution proceedings.

8. In the light of the above discussion, I have no alternative but to hold that both the Courts below were correct to have not entertained this flimsy objection raised under Order XXI rule 23 of the Code of Civil Procedure on behalf of the judgment‑debtor.

9. In these circumstances, I find no force in this petition which has to be and is hereby dismissed in limine. A.A./1072/P Revision dismissed