BARKAT ALI & ANR. versus BADRI NARAIN (D) BY LRS.

Citation: [2008] 2 S.C.R. 512 · Decided: 06-02-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed

Judgment (excerpt)

A 
B 
[2008] 2 S.C.R. 512 
BARKAT ALI & ANR. 
II. 
BADRI NARAIN (0) BY LRS. 
(Civil Appeal No. 1383 of 2002) 
FEBRUARY 6, 2008 
(DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.) 
Code of Civil Procedure, 1908 - ss.11,47 and Or.21, ~ 
rr. 22, 23, 24 -
Res judicata -" Constructive res judicata -
c Objections filed by judgment debtor after issuance of warrant 
of attachment - Held: Cannot be entertained by Executing 
Court as the same is barred by principles of constructive res 
judicata - Where a judgment-debtor has an opportunity to raise 
an objection which he could have raised but failed to take and 
0 allowed the preliminary stage to come to an end for taking up 
the matter to the next stage for attachment of property and 
sale of the property under Or.21, r.23, the judgment-debtor 
thereafter cannot raise such objections subsequently and 
revert back to earlier stage of proceedings unless the order 
i-· 
resulting in termination of preliminary stage which amounts to 
E a decree is appealed against and order is set aside or modified 
- Principles of res judicata not only apply in respect of separate 
proceedings but the general principles also apply at the 
subsequent stage of the same proceedings. 
F 
After issuance of warrant of attachment, objections 
were filed by the judgment-debtor pleading that the ~ 
execution proceedings were barred by time. The 
Executing Court held that since after completing 
preliminaries of issuing notice, no objection has been filed 
G inspite of the service under Order 21, Rule 22 of the CPC 
and the Court had proceeded to next stage of execution 
H 
for attaching the property under Order 21, Rules 23 and ~· , 
24 of CPC, any objection raised subsequent thereto 
cannot be entertained being barred by principles of 
512 
I 
f 
BARKAT ALI & ANR. v. . SADRI NARAIN (D) BY LRS. 
513 
)' 
constructive res judicata. Against dismissal of the A 
objections, an appeal was preferred before the High Court 
which was dismissed. 
The question which arose for consideration in the 
present appeal is whether the objections filed, after the 
B 
.. 
warrant of attachment was issued, could not be 
.. 
entertained by the Executing Court as the same was 
~ 
barred by principles of constructive res judicata. 
Dismissing the appeal, the Court 
HELD: 1.1. Order 21, Rule 22 CPC culminates in end c 
of one stage before attachment of the property can take 
place in furtherance of execution of decree. The 
proceedings under Order 21, Rule 23 can only be taken if 
the executing Court either finds that after issuing notice, 
under Order 21, Rule 21 the judgment-debtor has not D 
raised any objection or if such objection has been raised, 
t .. 
the same has been decided by the Executing Court. Sub 
rule (1) as well as sub rule (2) under Order 21, Rule 22, 
operates simultaneously on the same field. Sub rule (1) 
operates when no objection is filed. Then the Court E 
proceeds and clears the way for going to the next stage 
of the proceedings namely attachment of the property and 
if the Court finds objections. on record then it decides the 
objections in the first instance and thereafter clears the 
way for taking up the matter for attachment of the property F 
if the objections have been overruled. Whether the order 
is made under sub rule (1) or sub rule (2), it has the effect 
of determining the preliminary stage before the attachment 
process is set in motion. In this background, the order of 
the Court to proceed with attachment on finding that no G 
objection has been raised also operates as an order 
~-.,. 
deciding the preliminary stage of the execution 
proceedings and operates as if the judgment-debtor has 
no objection to file. If thereafter, the judgment-debtor 
wants to raise an objection in the same proceedings in H 
514 
SUPREME COURT REPORTS 
[2008] 2 S.C.R. 
A the absence of any modification of order passed under 
Order 21, Rule 22 sub rule (1) or (2), he has to take recourse 
to get rid of the order by way of appeal. There is no dispute 
and it has not been agitated that the order for proceeding 
by the judgment under Order 21, Rule 22 amounts to a 
B decree under Section 47 of CPC and it is appealable as a 
decree i.e. to say it is not an appeal against the interim 
order but an appeal against the decree which is provided 
against the final order. It means that at the different stages 
of the execution, orders passed by the executing court 
c have attained finality unless they are set aside by way of 
a

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