P L D 1966 (W (PLP)

For the purposes of this second ‑ appeal, the following statement of fact would suffice: Sher Mohammad and Mian Mohammad instituted an application for ejectment of a shop against Abdur Rehman. Gul Mohammad, Sardar Ahmad, Mir Ahmad, Aziz Ahmad and Bashir Ahmad, the other co‑sharers to the extent of I share were also impleaded as proforma defendants in the application. The decree for ejectment was granted to the applicants by the Rent Controller on 22‑6‑1960. Abdur Rahman's appeal against the ejectment was dismissed on 7‑9‑1961. Abdur Rahman preferred Further Miscl. Civil Appeal No. 19 of 1961. The case came up before Anwarul Haq, J. On 18‑1‑1963 and on the basis of the statement of the parties, a consent decree in the following terms was passed:‑

"The appellant shall retain half the shop whereas the decree- holders will get possession of other half which is adjacent to the door of House No. 249, within a week. The parties shall bear their own costs."

2. On 28‑4‑1964, Abdur Rahman preferred objection against the execution of the decree, which was registered at No. 13, that the consent decree dated 18‑1‑1963, recorded by Anwarul Haq, J. was not executable in that there had been no partition of the shop. This objection was presumably taken on the ground that the judgment‑debtor, on the basis of a registered mortgage deed dated 3‑9‑1960, had obtained usufructuary mortgage to the extent of one- half share in the shop from the five co‑sharers referred to above. The objection was dismissed on 26‑10‑1964, by the executing Court, on the ground that under the consent decree he had to deliver the possession of half of the shop specified in the consent decree within a week. Abdur Rahman did not prefer any appeal against this order. In other words, the order dismissing his objection that the consent decree was not executable, has become final.

3. On 3‑12‑1964, Abdur Rahman preferred another objection that the decree was not executable in that the two decree‑holders had alienated their interest in the shop in favour of their wives on the basis of registered dower deeds dated 14‑11‑1955 and 23‑11‑1964, the existence of which came to his knowledge after the decree. This objection too was dismissed on 9‑7‑65 and the same result followed on appeal to the Additional District Judge who dismissed the appeal on 19‑11‑1965. Abdur Rehman has preferred the second appeal.

4. After hearing Mr. Khwaja Mohammad Khan for the appellant and Mr. Qasim Imam for the respondents, I have formed the opinion that this second appeal is unmeritorious in that the second objection preferred by the appellant against the execution of the decree is barred not by the terms of section 11 of the Civil Procedure Code, but by the general principle of res judicata, on the ground that when the appellant failed to raise all his objections to the application for the execution in the first objection claim which he might and ought to have raised, all such objections would be deemed to have been impliedly decided against him and he will be precluded from raising the same objection in the later execution of the same decree. There is abundant authority including the high authority of the Privy Council in support of this view. In Dula Bibi v. Parmananda Das (A I R 1940 Patna 251) Rowland, J. at p. 251, expressed himself as follows: "The law is that the doctrine of constructive res judicata is applicable to execution proceedings to this extent, that where a judgment‑debtor fails to raise all his objections to the application in execution made by the decree‑holder which he might and ought to have raised and the application is ordered, to proceed, all such objections will be deemed to have been impliedly decided against him and he will be precluded from raising the same objections in a later execution on the same decree."

5. In Kalipada De and others v. Dwijapada Das and others (AIR1930PC22) the general principle of res judicata was extended to the decision in probate proceedings as to the relationship of parties. At p. 23, Lord Darling while dealing with section 11 of the Civil Procedure Code, observed:‑

"In that section are given many examples of circumstances in which the rule concerning res judicata applies; but it has often been explained by this Board that the terms of section 11 are not to be regarded as exhaustive." His Lordship extracted the following observation of Sir Barnes Peacock in the case of Ram Kirpal Shukul v. Rup Kuari (11TA37PC):‑

"The binding force of such a judgment in such a case as the present depends not upon section 13 of Act X of 1877" (now replaced by section 11, Civil P. C., 1908): "but upon general principles of law. If it were not binding there would be no end to litigations."

6. There is another aspect of the case and it is that the consent decree dated 18‑1‑1963, in fact, tantamounts to a partition in that on the statements of the parties half of the portion towards house No. 249 was to be retained by the decree‑holders and the remaining half to be left over with the judgment‑debtor, Abdur Rahman.

7. In the result, the appeal fails and is dismissed with costs. S. Q. Appeal dismissed.