In spite of service of notice - failure to raise such objection it was not permissible for the judgment-debtor to raise such objection at a later stage - It amounts to constructive res judicata.
How doctrine of constructive res judicata is applicable to execution of decree?
As per provisions of Order XXI Rule 23(1) of the Code, on receiving notice issued under provisions of Order XXI Rule 22 (1) of the Code the judgment-debtor can show cause as to why the decree in question should not be executed. In other words it is open for the judgment-debtor to appear pursuant to the show cause notice and contest the executability of the decree. It is undisputed that such notice was issued to the judgment-debtor and that no objection was raised to the executability of the decree. On account of failure to raise such objection it was not permissible for the judgment-debtor to raise such objection at a later stage. The Division Bench in Laxman Bala Surve and ors. (supra) has held in clear terms that if despite notice issued under provisions of Order XXI Rule 22 of the Code the judgment-debtor fails to appear and show cause against the execution, the Court is bound under Rule 23(1) to order execution. That order would operate as constructive res judicata against the judgment-debtor even at the subsequent stage of the execution proceedings. This position of law has been affirmed in Barkat Ali and anr. (supra). It is thus clear that failure to raise any objection to the executability of the decree thereafter precludes the judgment-debtor from raising such objection.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Writ Petition No. 1210 of 2018
Decided On: 17.04.2018
Mahadeo Vs. Anandrao
Hon'ble Judges/Coram:
A.S. Chandurkar, J.
Citation: 2018(5) MHLJ 727
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