Res Judicata applies to a subsequent suit and does not apply to applications in execution - Res Judicata is made applicable to execution proceedings is that a party should not been titled to reagitate a question once decided.

Citation

AIR 1954 MADRAS 1

MADRAS HIGH COURT

(Principal Seat at MADRAS)

KRISHNASWAMI NAYUDU , J.

A.A.O. No. 667 of 1949, (against order of Sub-Judge, Tenali, D/- 21 -9 -1949, in A.S. No. 22 of

1949.) D/- 13 - 2 - 1953

Gummadi Appayya and others Appellants v. Gavini Venkataratnam Respondent

(A)Civil P.C. (5 of 1908), S.11, O.21 R.22, O.21 R.23 - Execution proceedings.

Execution petition filed, more than three years from date of final order on previous execution - Decree-

holder relying on an alleged uncertified payment by judgment-debtor for saving bar of limitation -

Court ordering issue of notice to judgment-debtor under O. 21, R. 22 subject to question of limitation

- Subsequently Court ordering arrest of judgment-debtor - Held that since the notice under O. 21, R.

22 does not contain any particulars mentioned in the execution petition, the judgment-debtor must

be deemed to have no knowledge of the contents of the petition or the question to be decided and an

order of arrest after such notice in the absence of the judgment-debtor or any objection by him did not

amount to any adjudication on the question of limitation and therefore the principle of constructive

res judicata could not be applied so as to preclude the judgment-debtor from raising the question of

limitation in subsequent execution AIR 1936 All 21 (FB), Rel. on.

 (Paras 5 , 6 , 9 , 10) 

Anno : C. P.C., S. 11, N. 23.

(B)Civil P.C. (5 of 1908), S.11 - Execution proceedings.

Section 11 in terms applies to a subsequent suit and does not apply to applications in execution. But

the principle of it has been extended to execution applications on the basis that an order at one stage

of the proceeding in a suit would be binding on the parties at a subsequent stage of the same suit,

the execution proceeding being considered as a later stage of the suit itself, and it is not therefore S.

11 as such that is made applicable, but the principle of estoppel by judgment that has been applied

to execution proceedings, the purpose being to avoid, a question once decided being agitated again

in a subsequent proceeding. The principle of 'res judicata' as enacted in S. 11 cannot be extended

indiscriminately and with all its implications to execution proceedings. The dominant purpose with

which the principle of S. 11 is made applicable to execution proceedings is that a party should not be

entitled to reagitate a question once decided.

 (Para 6) 

Desirability of amending Civil P.C. so as to make principle of res judicata applicable to execution

proceedings pointed out.

 (Para 12) 

Anno : Civil P.C., S. 11 N. 23.

Cases Referred Chronological Paras

(A) ('31) AIR 1931 Mad 381 : 128 Ind Cas 455

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