Jayachandran v. Shibu T Varghese

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 25[TH] DAY OF MARCH 2022 / 4TH CHAITHRA, 1944** **OP(C) NO. 483 OF 2022** **(AGAINST THE ORDER DATED 03.02.2022 IN E.A NO.2/2022 IN E.P NO.52/2019 IN OS 95/2016 OF THE PRINCIPAL SUB COURT, KOTTAYAM)** ## **PETITIONER/JUDGMENT DEBTOR:** **JAYACHANDRAN** **SREERAMAVILAS HOUSE, THOTTACKADU, UMBIDI P. O., KOTTAYAM.** **BY ADV P.C.HARIDAS** ## **RESPONDENT/DECREE HOLDER:** **SHIBU T VARGHESE, THEKKUMPURATHU HOUSE, CHILAD P. O., PINDIMALA VILLAGE, ERNAKULAM DISTRICT – 686681.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON** **10.03.2022, THE COURT ON 25.03.2022 DELIVERED THE FOLLOWING:** 2 O.P(C).No.483 of 2022 ## _**“C.R”**_ ## _**A. BADHARUDEEN, J.**_ ================================ _O.P(C).No.483 of 2022_ ================================ _Dated this the 25[th] day of March, 2022_ ## _**JUDGMENT**_ A vital question arises for consideration in this matter is, whether failure on the part of the petitioner to raise the contention of exemption under Section 60(1)(c) of C.P.C at the prior stage of the execution proceedings would operate as _res judicata_ when it was raised subsequently ? 2. The judgment debtor in E.P.No.52/2019 in O.S.No.95/2016 on the file of the Principal Sub Court, Kottayam, who is aggrieved by the dismissal of E.A.No.2/2022 by order dated 3.2.2022, has preferred this Original Petition under Article 227 of the Constitution of India. The decree holder is the respondent herein. 3 O.P(C).No.483 of 2022 3. The grievance of the petitioner is that the property posted for sale on completing pre-sale steps shall not be liable to such attachment and sale since the same is house and the land immediately appurtenant thereto belongs to the petitioner, who is a labourer, exempted under Section 60(1)(c) of the Code of Civil Procedure. However, the execution court refuted the said contention, as per the order impugned. 4. The learned counsel for the petitioner submitted that the petitioner put up a specific contention before the execution court to the effect that the petitioner is a `coolie worker', i.e, labourer, and therefore being a labourer, the house and land immediately appurtenant thereof and necessary for the employment belonging to a labourer shall not be attached for realisation of decree debt. However, this contention was negatived by the execution court stating that in the `Gahan' produced by the petitioner, the employment of the petitioner was shown as `company employee' and, therefore, his contention that 4 O.P(C).No.483 of 2022 he was a coolie worker could not be substantiated. 5. According to the learned counsel for the petitioner, the order impugned is erroneous and the same is liable to be set aside. He argued further that the execution court is bound to consider the contention of the judgment debtor on merits. As such the impugned order sought to be unsettled. 6. On the facts, it could be gathered that the petitioner filed E.A.2/2022 during February, 2022, seeking exemption under Section 60(1)(c) of the C.P.C. It is relevant to note that much before filing E.A.2/2022, the petitioner herein filed objection to the execution petition. In the said objection, the petitioner contended that he had no means to pay the decree debt and he had no job or income. However, he failed to raise a contention in the initial objection stating that the property sought to be attached in view of Rule 66 notice is not liable to be attached, since the same is one exempted under Section 60(1)(c) of C.P.C. 7. Section 60(1)(c) of C.P.C provides as under: 5 O.P(C).No.483 of 2022 _"60. Property liable to attachment and sale in execution of decree:-- (1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment debtor or by another person in trust or for him or on his behalf:_ _Provided that the following particulars shall not be liable to_ _such attachment or sale, namely:--_ _(a) xxxx xxxx xxxx_ _(b) xxxx xxxx xxxx_ _(c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to [an agriculturist or a labourer or a domestic servant] and occupied by him;_ _xxxx xxxx xxxx"_ Thus the factual position is that the petitioner, who initially failed to raise a contention seeking exemption under Section 60(1)(c) of C.P.C, filed E.A.2/2022 raising exemption at a later stage, when the property was posted for sale on 3.2.2022. 8. In this connection, I am inclined to refer a 4 Bench 6 O.P(C).No.483 of 2022 decision of the Apex Court reported in [1953 SC 65], _**Mohanlal Goenka v. Benoy Kishna Mukharjee & Ors**_ . In the said case, the Apex Court, while considering a similar case, categorically held that the principle of _res judicata_ applicable to execution proceedings is no longer open to doubt. It was held further that _res_ even an erroneous decision on a question of law operates as _judicata_ between the parties to it. In the said case, the Apex Court categorically held that the indubitable position is that even before Explanation.7 was added, constructive _res judicata_ applied to execution proceedings. After the insertion of Explanation.7 to S.11, it could be said with certitude that S.11 applies to execution proceedings as well. That being the position, the failure to raise at the first opportunity the contention that the property is not liable to be attached in view of S.60(1)(c) of the Code precludes him from urging it at the fag end of the execution proceedings when the property is brought to sale. Defendant cannot whimsically and capriciously raise his contentions in utter 7 O.P(C).No.483 of 2022 disregard of the law of procedure. It is also significant to note that the property was proclaimed for sale to 8-2-1984 and the sale was being adjourned on several occasions on the motion of the petitioner. As the petitioner's contention is barred by constructive _res judicata_ , the executing Court was perfectly justified in rejecting the execution application. 9. Following the said ratio, a Single Judge of this Court in the decision reported in [1987 KHC 424 : 1987(2) KLT 239 : 1987 KLJ 925], _**Bhaskar Traders v. Kunjiraman**_ , reiterated the same legal position. 10. Thus it appears that the facts of the case on hand is at par with the facts of the case dealt by the Apex Court in .'s case _**Mohanlal Goenka v. Benoy Kishna Mukharjee & Ors**_ ( _supra_ ). 11. However, relying on a decision reported in [1962 KLT 675], _**Kannan v. Govindan**_ , the learned counsel for the petitioner fervently argued that deviation from the ratio in _**Mohanlal**_ 8 O.P(C).No.483 of 2022 _**Goenka v. Benoy Kishna Mukharjee & Ors.**_ 's case ( _supra_ ) was taken in the said decision. 12. In _**Kannan v. Govindan**_ 's case ( _supra_ ), a learned Single Judge of this Court, after considering the decision in 's case _**Mohanlal Goenka v. Benoy Kishna Mukharjee & Ors.**_ ( _supra_ ), has held as under: _The principles of constructive res judicata should be applied to proceedings in execution with great care and caution. Before the principles of constructive res judicata are applied against the judgment-debtor in a proceeding in execution, it must be established that he had notice of the particular question, which he seeks to raise now, on a previous occasion and he failed to raise any objection to that question and if, after such failure to appear and raise his objection, the court decided that question against him, the judgment-debtor cannot thereafter be allowed to raise that question at a subsequent stage. There is also some difference between the case of a judgment-debtor raising an_ 9 O.P(C).No.483 of 2022 _objection which he should have raised earlier, at a subsequent stage of the same execution petition and the case of a judgmentdebtor raising an objection, which he should have raised in a previous execution petition, in a subsequent execution petition. The judgment-debtor who fails to raise an objection at a prior stage of the same execution petition, should not be debarred from raising the objection at a later stage of the same execution petition, though, if he raises it in a subsequent execution petition, he would be debarred, if the previous execution petition, in which the objection was not taken became fructuous. If, on the other hand, the previous execution petition became infructuous either by a dismissal on merits or by a dismissal for default, in such a case the judgment debtor can raise the objection, which he should have raised in the previous execution petition, in the subsequent execution petition._ 13. The learned counsel for the petitioner argued that the judgment debtor, who fails to raise an objection at a prior stage of 10 O.P(C).No.483 of 2022 the same execution proceedings, should not be debarred from raising the objection at a later stage of the same execution petition. 14. In a subsequent decision reported in [1995 KHC 120], _**Narayanan v. Dhanalakshmi Bank Ltd.**_ , a Division Bench of this Court in paragraph 3 held that the appellant, who did not raise any contention in the Suit that his building and properties are exempted from attachment in view of S.60(1)(c) of the Code of Civil Procedure cannot belatedly do so in a later proceeding, having not raised it at the appropriate time. 15. It is relevant to note that, in _**Kannan v. Govindan**_ 's case ( _supra_ ), the learned Single Judge though held that the judgment debtor, who fails to raise an objection at a prior stage of the same execution petition, need not be debarred from raising the objection at a later stage of the same proceedings, the said decision cannot be followed, deviating from the ratio settled in 's case _**Mohanlal Goenka v. Benoy Kishna Mukharjee & Ors.**_ 11 O.P(C).No.483 of 2022 ( _supra_ ). Subsequently, in _**Bhaskar Traders v. Kunjiraman**_ 's case ( _supra_ ), this Court strictly followed the ratio in _**Mohanlal Goenka v. Benoy Kishna Mukharjee & Ors.**_ 's case ( _supra_ ). In _**Narayanan v. Dhanalakshmi Bank Ltd.**_ 's case ( _supra_ ) also, similar legal position re-iterated. Therefore, following the ratio in 's case _**Mohanlal Goenka v. Benoy Kishna Mukharjee & Ors.**_ ( _supra_ ), the question of res-judicata to be decided. 16. To sum up, the legal position emerges from _**Mohanlal Goenka v. Benoy Kishna Mukharjee & Ors**_ .'s case ( _supra_ ) is that the failure to raise the contention that the property is not liable to be attached in view of S.60(1)(c) of the Code of Civil Procedure precludes at the first opportunity him from urging it at the fag end of the execution proceedings when the property is brought to sale. Defendant cannot whimsically and capriciously raise his contentions in utter disregard of the law of procedure. Therefore, I am of the view that the present petitioner, who failed to object the executability of the decree by attaching and selling the 12 O.P(C).No.483 of 2022 property at the time when he had received notice, cannot raise the said contention at a subsequent stage, when the property was put on sale, that too, after waiting till completion of the pre-sale formalities, as per law, as he is debarred from raising such a . contention under the principle of constructive _res judicata_ Therefore, the order impugned does not call for any interference at the hands of this Court under Article 227 of the Constitution of India. Hence, the Original Petition stands dismissed. Sd/- ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ 13 O.P(C).No.483 of 2022 ## **APPENDIX OF OP(C).NO.483/2022** ## **PETITIONER'S EXHIBITS** **Exhibit P1 TRUE COPY OF THE E.P.NO.52/2019 IN OS 95/2016 ON THE FILES OF THE PRINCIPAL SUB COURT, KOTTAYAM. Exhibit P2 TRUE COPY OF THE OBJECTION TO THE EXECUTION PETITION FILED BY THE PETITIONER. Exhibit P3 TRUE COPY OF THE OBJECTION TO RULE 66 NOTICE FILED BY THE PETITIONER. Exhibit P4 TRUE COPY OF THE OBJECTION TO THE DRAFT SALE PROCLAMATION FILED BY THE PETITIONER. Exhibit P5 TRUE COPY OF THE ORDER DATED 22.12.2021 IN E.P.NO.52/2019 OF THE PRINCIPAL SUB COURT, KOTTAYAM. Exhibit P6 TRUE COPY OF THE E.A. NO.2/2022 IN E.P.NO.52/2019 IN OS NO.95/2016 OF THE PRINCIPAL SUB COURT, KOTTAYAM. Exhibit P7 TRUE COPY OF THE ORDER DATED 03.02.2022 IN E.A. NO.2/2022 IN E.P.NO.52/2019 IN OS NO.95/2016 OF THE PRINCIPAL SUB COURT, KOTTAYAM.**