JUDGMENT
P.N. Bhagwati, J.
1. This Revision Application raises an interesting question as to how far the principle of construelive res judicata applies in execution proceedings. Opponent No. obtained a decree against the applicant on 14th April 955 for a sum of Rs. 3,5007- in a suit far recovery of possession of immovable property and mesne profits. Opponent No. 1 thereafter filed an application to execute the decree against the applicant and en the application a notice under Order XXI, Rule 22 of the Code of Civil Procedure was issued to the applicant. The applicant appeared in answer to the notice under Order XXI, Rule 22 of the Code of Civil. Procedure and applied far adjournment from lime to time on the ground that he wanted to file a written statement and to contest the notice. The applications for adjournment were granted by the executing Court on three or four occasions but ultimately the executing Court refused to adjourn the proceedings any further and dismissed the last application for adjournment made by the applicant on 14th April 1961. The executing Court thereafter made an order on the notice under Order XXI, Rule 22 of the Code of Civil Procedure on 8th July 1961 directing a warrant for the attachment of the immovable property of the applicant to issue under Order XXI, Rule 54 of the Code of Civil Procedure. The applicant appeared before the executing Court on 24th July 1961 and filed a written statement and applied that the written statement be taken on file and that he be heard in support of the contentions taken up in the written statement. The executing Court, however, by an order dated 4th August 1961 dismissed the application made by the applicant and proceeded with the execution of the decree against the applicant. The applicant thereupon filed a Revision Application in this Court challenging the order made by the executing Court dismissing his application for taking the written statement on We and hearing him on the merits of the contentions in reply to the notice under Order XXI, Rule 22 of the Code of Civil Procedure.
2. When the Revision Application reached rearing before me, Mr. M.C. Shah, learned advocate appearing on behalf of Opponent No. I, contended that the executing Court was right in rejecting the applicant of the applicant raising various contentions against the decree sought to be executed by opponent No. 1 against ‘the applicant. Mr. M.C. Shah urged that an order having already been passed by the executing Court on the application under Order XXI, Rule 22 of the Code of Civil Procedure directing issue of a warrant for attachment of the immovable property of the applicant in execution of the decree. It was not open to the applicant to raise by way of an application any contentions which could have been urged by him in reply to the notice under Order XXI, Rule 22 of the Code of Civil Procedure. The order passed by the executing Court on the notice under Order XXI, Rule 22 of the Code of Civil Procedure, argued Mr. M.C. Shah, operated as constructive res judicata and that the applicant was, therefore, precluded from raising at a subsequent stage of the execution proceedings the contentions which might and ought to have been urged by him in answer to the notice under Order XXI, Rule 22 of the Code of Civil Procedure. Mr. M.C. Shah contended that the order passed by the executing Court rejecting the application of the applicant was, therefore, proper end justified and no case was made out for interfering with the same. Mr. C.G. Shastry, learned advocate appearing on behalf of the applicant, on the other hand contended that the principle of constructive res judicata did not apply in execution proceedings and that in any event that principle was required to he applied with great caution and that on the facts of the present case it could not be applied. These were broadly the rival contentions which were urged before me and both Mr. M.C. Shah and Mr. C.G. Shastry cited various decisions in support of their respective contentions. These decisions show that ;here is a conflict of authorities between the High Courts of Bombay and Allahabad on the one hand and the High Courts of Calcutta, Madras and Assam on the other. The decisions of the High Courts of Bombay and Allahabad support the contention urged on behalf of the applicant while the decisions of the High Courts of Calcutta, Madras and Assam support the contention advanced on behalf of opponent No. 1. Now having regard to the decision of the Special Bench of this Court in state v. Gordhandas Keshavji Gandhi, Criminal Appeal No. 381 of 1960 : (AlR 1962 Guj 128), I would have ordinarily considered myself bound by the decisions of the high Court of Bombay and respectfully followed those decisions. But I find that both the Privy Council and the Supreme Court have taken a view contrary to that taken by the High Court ot Bombay and I cannot, therefore, accept the; decisions, of the High Court of Bombay as binding authorities 2nd must refuse’ to follow them. With these preliminary observations I shall now proceed to examine the main point of controversy between the parties, namely, how far the principle of constructive res judicata applies in execution proceedings in the light of the various authorities cited before me on behalf of both the parties.
3. Before I proceed to consider the various authorities bearing upon the point, it would be useful to examine the relevant provisions of the Code of Civil Procedure. Order XXI, Rule 22, inter alia provides that where in application for execution is made (a) more than one year after the date of the decree, or (b) against the lagal representative of a party to the decree, or where an application is made for execution of a decree filed under the provisions of Section 44A,, the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him. Now the person against whom the decree is sought to Se executed may either appear or not appear in answer to the notice issued under Order XXI, Rule 22. If he does not appear in answer to the notice under Order XXI, Rule 22, to show cause why the decree should not be executed against him, Order XXI, Rule 23 provides that the Court shall order the decree to be executed. Order XXI, Rule 23. likewise provides that the Court shall order the decree to be executed if he appears in answer to the notice under Order XXI, Rule 22 but does not show cause to the satisfaction of the Court why the decree should not be executed. If he appears and shows cause to the satisfaction of the Court why the decree should not be executed, the Court is empowered under Order XXI, Rule 23 to make such order as it thinks fit, depending of course upon the nature and scope of the objection urged by him to the execution of the decree. Order XXI, Rule 23 thus provides for the making of an order on the notice under Order XXI, Rule 22 under different cir-cumstanccs according as the person against whom the decree is sought to be executed appears or docs not appear to show cause against the execution of the decree. The order under Order XXI, Rule 23 being a determination of a question within Section 47 would amount to a decree within the moaning of Section 2(2) and an appeal would, therefore, lie from such order. Now if the person against whom the decree is sought to be executed does not file an appeal from an order made against him under Order XXI, Rule 23, can he be permitted to contend at any subsequent stage of the execution proceedings that the order was net ‘rightly made? If he cannot do so, it is equally clear that he cannot raise at any subsequent stage of the execution proceedings the same contentions which were urged by him against the execution of the decree at the time of the hearing of the notice under Order XXI, Rule 22 for the effect of allowing him to do so would be to permit him to challenge the correctness of the order which he could do only by way of an appeal. The order passed by the Court under Order XXI, Rule 23 would operate as res judicata in regard to the contentions urged against the execution of the decree in answer to the notice under Order XXI, Rule 22. If the order under Order XXI, Rule 23, can operate as res judicata in regard to the contentions urged at the hearing of the notice under Order XXI, Rule 22, that order must equally operate as constructive res judicata in regard to the contentions which might and ought to have been urged against the execution of the decree in opposition to the notice under Order XXI, Rule 22. Equally must the order under Order XXI, Rule 23 operate as construe-five res judicata if the person against whom the decree is sought to be executed did not appear in anser to the notice under Order XXI, Rule 22 and the order directing the decree to be executed was, therefore, made by the Court. In such a case all contentions which might and ought to have been urged by such person showing cause why the decree should not be executed would be barred’ by the principle of constructive res judicata and it would not be open to such person to raise those contentions at any subsequent stage of the execution proceedings.
4. So much on principle. Turning to the authorities, the first decision to which my attention Was invited by Mr. M.C. Shah on behalf of opponent No. 1 was the decision in Venkatranga Reddi v. P.C. Sithamma, AIR 1941 Mad 440 This was a decision of a Division Bench of the Madras High Court consisting of Wadsworth and Patanjali Sastri. Patanjali Sastri J., dealing with a contention similar to the one advanced before me analysed the provisions of Order XXI, Rule 23 and observed:
‘It will be noticed that Sub-rule (1) of Rule 23, Order 21 covers not only cases where the judgment-debtor does not appear in response to the notice or does not offer any objection to execution, but also those where he appears and objects but fails to satisfy the Court that the decree should not be executed. In all such cases, the Court is required to ‘order’ the decree to be executed. That is to say, even in cases where the judgment-debtor appears and ‘offers any objection to the execution of the decree’ and the Court ‘considers such objection’, it has to act under Sub-rule (1) of Rule 23, Order 21, C. P. C. if it is not satisfied that the objection is valid. Where such objection is found to be tenable, the Court has to make, under Sub-rule (2) ‘such order as it thinks fit,’ that is to say, according to the nature and scope of the objection upheld. There is thus no justification for the view that, an order under Sub-rule (1) ‘has to be automatic’ and that an order under Sub-rule (2) alone amounts to an ‘adjudication’ such as would fall within the definition of a decree, and we are unable to see any such distinction as the learned Judge supposed to exist between these sub-rules. If, therefore, the Court’s ‘order’ under Sub-rule (1) that the decree should be executed is, as it must be held to be, in cases where the judgment-debtor appears and objects but the objections are overruled, an appeal able adjudication binding on the parties so long as it is unreversed, it is difficult to see why a similar order under the same provision in cases where the judgment-debtor does not choose to appear in response to the notice duly served on him, should be regarded as not having that effect……..”
Mr. M. C. Shah also relied on another decision of the Madras High Court reported in Balakrishnayya v. Lingarao, AIR 1943 Mad 449. The Madras High Court in that case took the view that where there is an order passed by the executing Court directing the decree-holder to file sale papers in regard to certain items of property, it must be deemed to involve determination by the Court that the decree was capable of execution and operated as res judicata notwithstanding the fact that there was no express decision on the point and the execution petition was ultimately dismissed as not pressed. These two decisions of the Madras High Court clearly lay down that the principle of constructive res judicata applies in execution proceedings and that even if an ex parte order is made by a Court at some stage of the execution proceedings, such ex parte order would operate as constructive res judicata in regard to contentions which might and ought to have been urged against the making of such ex parte order. According to these two decisions the applicability of the principle of constructive res judicata is not confined to the case where a party appears but dose not take up a contention which he might and ought to have taken up but also extends to a case where a party does not appear and as a result an ex parte order is made against him in execution proceedings.
5. “The same principle, I find, is affirmed in the judgment of Das J., in Aswini Kumar v. Karamat Ali, AIR 1948 Cal 165. In that case a notice was served on the judgment-debtor under Order XXI, Rule 22, calling open him to show cause why the decree should not be executed against him. The judgment-debtor did not appear in pursuance of the notice and the Court directed the decree-holder to take further steps in the matter of execution of the decree and to file process and costs. The judgment-debtor thereafter sought to raise a contention against the execution of the decree and the learned Judge held that the order made by the Court on the notice under Order XXI, Rule 22 operated as constructive res judicata and that it was not open to the judgment-debtor to raise such contention at a subsequent stage of the execution proceedings after the making of the order on the notice under Order XXI, Rule 22. This decision is directly on all fours’ with the present case and on principle the reasoning of this decision appears to me to be correct and apart from the decision of the High Court of Bombay to which I shall presently refer, I do not see why I should not follow this decision. The learned Judge of the Calcutta High Court in arriving at this decision followed a previous decision of the Privy Council reported In Mungul Pershad v. Grija Kant, 8 Ind App 123 (PC). This decision of the Privy Council clearly ppplies the principle of res judicata to execution proceedings and if the principle of res judicata applies to execution proceedings so as to bar at a subsequent stage of the execution proceedings any contentions actually heard and disposed of at an earlier stage of the execution proceedings. I do not see any reason why the principle of constructive res judicata should not apply so as of bar any contentions which might and ought to have been raised at an earlier stage of the execution proceedings. There is no distinction in principle between actual res judicata and constructive res judicata. In one case the contention is actually heard and decided while in the other case it is deemed to have been heard and decided. But the underlying principle ‘is the same namely that a party should not be allowed to agitate in subsequent proceedings questions which were either, dually raised or might and ought to have been raised by such party in previous proceedings. There must be finality of litigation and a party should not be permitted to have a second round of litigation, it is, therefore, clear that though this decision of the Privy Council was based on actual res judicata in regard to contentions actually heard and disposed of at an earlier stage of the execution proceedings, the ratio of this decision must apply equally in regard to constructive res judicata so as to preclude a party from raising at a subsequent stage of the execution proceedings contentions which as might and ought to have raised at an earlier stage of the execution proceedings. . The teamed Judge of the Calcutta High Court was, therefore, in my opinion, right in deciding in the manner he did, founding himself upon this decision of the Privy Council.
6. Mr. M. C. Shah next referred me to a decision of a Division Bench of the Assam High Court reported in Alimiuddin v. Budheswar, AIR 1951 Assam 75. in this case the learned. Judges of the Assam High Court followed the decisions of the Madras and Calcutta High Courts mentioned above in preference to the decision of the Allahabad High Court in Genda Lal v. Hazari Lal, AIR 1936 AH 21 and held that where the judgment-debtor fails to appear in response to a notice under Order XXI, Rule 22 and the executing Court orders execution to proceed, the judgment-debtor appearing in response to a notice for settlement of the terms of the sale of the property cannot object to the execution of the decree on the ground that a previous execution application made by the judgment-creditor, being time-barred, the present application was liable to be dismissed. The learned Judges came to the collusion that the order passed on the notice under Order XXI, Rule 22 operates as constructive res judicata and that the judgment-debtor cannot subsequently contend, on any ground which was available to him at the date of the order, that the decree should not be executed against him, such contention being barred by constructive res judicata.
7. As against these decisions of the Calcutta, Madras and Assam High Courts, Mr. C.G. Shastry relied upon a decision of the Bombay High Court reported in Mittasaheb Hirama v. Gurunath Hanmant, 45 Bom LR 519: (AIR 1943 Bom 252). The learned Judges of the Bombay High Court in this case reviewed all the previous decisions of the High Court of Bombay on the point and came to the conclusion that there was no real authority for the proposition that the principle of constructive res judicata cannot be applied to execution proceedings but that that principle should be applied with great caution in execution proceedings. On the facts of the case before them, the learned Judges held that the principle of constructive res judicata should not be applied and they accordingly took the view that though the judgment-debtor had omitted to appear in response to the notice under Order XXI, Rule 22, he was not precluded from contending at a subsequent stage of the execution proceedings that there was a partial adjustment of the decree. The main ground which weighed with the learned Judges in refusing to apply the principle of constructive res judicata to the ‘facts of the case before them was that the judgment-debtor “had no direct notice of the point and therefore no opportunity to raise it” at the stage of the notice under Order XXI, Rule 22 since the notice under Order XXI, Rule 22 did not specify the amount sought to be recovered from the judgment-debtor and the only matter in respect of which the judgment-debtor was required to show cause by the notice under Order XXI, Rule 22 was why the decree should not be executed. Now if I may say so, with the greatest respect, this was obviously a correct ground, for it is apparent that the excitability of the decree did not depend upon the question as to what was the correct amount due by the judgment-debtor to the decree-holder under the decree and the only matter in issue in the notice under Order XXI Rule 22 being whether the execution of the decree should proceed, the contention as regards the correct amount due by the judgment-debtor to the judgment-creditor under the decree could not be said to be a contention which might and ought to have been urged by the judgment-debtor in answer to the notice under Order XXI, Rule 22 so as to attract the applicability of the principle of constructive res judicata in regard to such contention. This decision of the High Court of Bombay was, therefore, manifestly right in so far as it held that the principle of constructive res judicata did not debar the judgment-debtor from contending at any subsequent stage of -the execution proceedings that there was a partial adjustment of the decree. But the purpose for which Mr. C.G. Shastry relied on this decision was different. Mr. C.G. Shastry relied on this decision for the principle enunciated by it in regard to the application of the doctrine of constructive res judicata to execution proceedings. Now Mr. C.G. Shastry is right in his contention that this decision does lay down that the principle of constructive res judicata does not necessarily apply in all cases in execution proceedings and that there is a discretion in the Court whether or not to apply it in a particular case and that the discretion to apply it must be exercised with great caution. But the word “caution” seems to me to be a word of very vague import and with the greatest respect to the learned Judges who decided this case, I do not see how the word “caution” furnished any guide to the Court in deciding whether or not the principle of constructive res judicata should be applied in any particular case in execution proceedings. Can the application of the principle of constructive res judicata in execution proceedings depend upon so vague a thing as caution to be used by the Court? But even apart from the vagueness of this test, I do not see any reason on principle why any distinction should be made between one set of circumstances and another in execution proceedings for the purpose of the application of the principle of constructive res judicata. The underlying principle behind constructive res judicata does not warrant the making of any such distinction. The principle of constructive res judicata is applied, as pointed out above, on the basis that a contention which might and ought to have been raised in an earlier proceeding or at a previous stage of the same proceeding cannot be permitted to be raised in a later proceeding or at a subsequent stage of the same proceeding because it must be deemed to have been decided by the order made on the earlier proceeding or at the previous stage of the same proceeding. Now If the principle of constructive res judicata applies to execution proceedings, as conceded by Mr. C.G. Shastry, in a case where the judgment-debtor appears in answer to the notice under Order XXI Rule 22 and raises some contentions against the execution of the decree but does not raise other contentions, it is difficult to see why the principle of constructive res judicata should not apply when the judgment-debtor fails to appear and as a result of such failure does not raise contentions against, the execution of the decree which he might and ought to have raised by appearing in answer to the notice under Order XXI, Rule 22. The negligence of the judgment-debtor to raise contentions which he might and ought to have raised in answer to the notice under Order XXI, Rule 22, is the same, if not greater, in the case where he does not appear as in the case where he appears and omits to raise contentions against the execution of the decree. If the principle of constructive res judicata applies in one case, there is on principle no reason why it should not equally apply in the other. I therefore, find myself unable with the greatest respect to the learned Judges who decided the Bombay case to follow the principle laid down in that ease. In my view the principle of constructive res judicata applies to execution proceedings in all cases without any qualification such as the one sought to be laid down by this decision of the Bombay High Court.
8. But whatever be my view, I would have been bound to follow this decision of the Bombay High Court and I would have respectfully followed it had it not been for the fact that I find that a contrary view has, been taken by the Privy Council and the Supreme Court. The decision of the Privy Council is reported in Shivraj Gopalji v. Ayyissa Bi, AIR 1949 PC 302. In that case the appellant applied for execution of the decree against certain properties of the respondents. The respondents objected to the execution of the decree against those properties on the ground that by reason of a certain judgment of the High Court of Madras, these properties belonged to a certain Tavazhi and could not be attached. The executing Court upheld the objection of the respondents on the ground urged by them and rejected the prayer for attachment of these properties. There was an appeal from the order of the executing Court to the High Court of Madras but the appeal was dismissed by the High Court of Madras. The appellant thereafter filed a fresh application for execution for the attachment of the right, title and interest of the respondents in the same properties! The appellant relied on the provisions of Mappilla Marumakkallayam Act, 1938, by virtue of which the- appellant alleged that the respondents had separate interests in the properties. The respondents objected to the application for execution on the ground that the matter was res judicata between the parties. The respondents contended that in the earlier execution proceedings the appellant could have raised a plea that the respondents had separate interests in the properties which could be attached under his decree but the plea was not raised through his own default and the execution was dismissed and the dismissal, therefore, operated as constructive res judicata in the subsequent execution proceedings adopted against the respondents. The matter was carried in appeal to the Privy council and the Privy Council upheld this contention urged on behalf of the respondents. Lord Simonds delivering the judgment o( the, Privy Council observed :
“The judgment of the Court, which consisted of Horwill and Koman JJ. was based solely on the ground that the plea of res judicata was a valid one. Taking’ the view from which their Lordships do not dissent that the plea, being a plea in law, was open in the appellate Court, though it had not been pressed in the ‘lower Court, the learned Judges expressed the opinion that it succeeded. ‘Mo doubt’ they said, the ground now urged that the assignee-decree-holder could proceed against the tavazhi properties under the Mappilla Marumakkattayam Act was not dealt with on merits in those previous proceedings, but that is a point which the ‘appellant could have raised in his petition in those proceedings and lie failed to do so. We are of opinion therefore that the dismissal of the execution petition filed in 1940 operates as res judicata in the present case.” With these observations their Lordships fully concur. The Act of 1938 had come into operation (if that is a relevant fact) before the earlier petition was filed. Through his own default the appellant did not raise whatever plea he could found upon It until it was too late to do so. Apart from the provisions of Section 11, Civil P. C., it would be contrary to principle see Ram Kirpal Shukul v. Rup Kuari, 11 Ind App 37 : ILR 6 All 269 (PC), to allow him in fresh proceedings to renew the same claim viz., that the properties in question were properties of the respondents liable to attachment or, as he would now put it, that the respondents had sever able interests in the properties which are liable to attachment, mere because he neglected at the proper stage in previous proceedings to support that claim by an argument of which he now wishes to avail himself. . ” The Privy Council thus applied the principle of constructive res judicata in execution proceeding without any qualification or reservation. The reason which commended itself to the Privy Council for the application of the principle of constructive res judicata was that If a party does not through his own default raise whatever plea he can in a previous proceeding, he cannot be permitted to raise the same plea in a subsequent proceeding merely because he neglected at the proper stage in the previous proceeding to raise the plea of which he subsequently wants to avail himself. Now this reason would apply equally whether the party appears at the hearing of the previous proceedings and omits to raise a certain plea or whether the party does not appear at the hearing of the previous proceeding and, therefore, does not raise the plea, lam, therefore of the opinion that according to this decision of the Privy Council the principle of constructive res judicata must apply to the execution proceeding without any qualification of reservation such-as the one laid down by the High Court of Bombay in 45 Bom LR 519 : (AIR 1943 Bom 252) (supra), provided of course that the requisite conditions for the applicability of the principle ace satisfied.
9. The Supreme Court has also laid down in clear and unmistakable terms in Mohanlal v. Benoy Krishna, AIR 1953 SO 65 that the principle of constructive res iudicata applies to execution proceedings. As observed by Ghutam Hasan J., in that case “that the principle of constructive res judicata is applicable to execution proceedings is no longer open to doubt. See Ananda Kumar v. Sheikh Madan, 38 Cal W. N. 141: (AIR 1934 Cal 472) and ‘Mahadeo Prasad v. Bhagwat Narain Singh, AIR 1938 Pat 427.”
10. Having regard to these decisions of, tha privy Council and the Supreme Court, I must refuse to follow] the decision of the High Court of Bombay in 45 Bom LR’ 519 L (AIR 1943 Bom 252) (supra) even though that is a decision of a Division Bench of the Bombay High Court. 1, therefore, take the view that if the necessary conditions are satisfied the principle of constructive res judicata applies to execution proceedings in all cases without any discretion in the Court whether or not to apply the same having regard to the facts and circumstances of a particular case. This being the position it is clear that the executing Court having made the order on the notice under Order XXI, Rule 22, directing issue of warrant for attachment, it was not open to the applicant to raise at a subsequent stage of the proceedings any con-ditions against the execution of the decree. All the contentions which the applicant wanted to raise by filing his written statement related to the execution of the decree and were contentions which might and ought to have been urged by him in answer to the notice under Order XXI, Rule 22. These contentions were barred by constructive res Judicata as a result of the order made by the executing Court on the notice under Order XXI, Rule 22 and the executing Court was, therefore, right in rejecting the application of the applicant to raise these contentions in answer to the execution of the decree.
11. The result, therefore, is that the Revision Application fails and will be dismissed. There will be no order as to costs.
