Judgment Debtor Can’t Raise Objections In Instalments; Res Judicata Applicable To Execution Proceedings

Case: Dipali Biswas and others versus Nirmalendu Mukherjee and others

Coram: Justices Hemant Gupta and V Ramasburmanian

Case no.: C.A 4557/2012

Court Observation: “A judgment­-debtor cannot be allowed to raise objections as to the method of execution in instalments. After having failed to raise the issue in four earlier rounds of litigation, the appellants cannot be permitted to raise it now”

“What is on hand is a second petition under Section 47 and, hence, it is barred by res judicata. It must be pointed out at this stage that before Act 104 of 1976 came into force, there was one view that the provisions of Section 11 of the Code had no application to execution proceedings. But under Act 104 of 1976 Explanation VII was inserted under Section 11 and it says that the provisions of this Section shall apply to a proceeding for the execution of a decree and reference in this Section to any suit, issue or former suit shall be construed as references to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree”

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Keywords

Judgment Debtor, Res Judicata, Execution Proceedings