Holding

Objections raised after the issuance of a warrant of attachment are barred by constructive res judicata; the order under Order XXI Rule 22 is deemed a decree and can be challenged only by appeal.

Summary

The decree holder obtained a decree against the judgment debtor in a mortgage suit and filed successive execution applications. In the latest execution, after notice and adjournments, the court found no objections and ordered attachment of property under Order XXI Rule 22, proceeding to issue a warrant on 21 September 1972. The judgment debtor then filed objections after the warrant was issued, claiming the execution was time-barred. The executing court dismissed the objections, holding that once the preliminary stage under Order XXI Rule 22 is concluded and the court moves to attachment (Rule 23), the order functions as a decree and any later objection is barred by the principle of constructive res judicata. The Supreme Court affirmed this view, stating that such objections must be raised by appealing the order, not by re‑litigating at the same stage. Consequently, the appeal was dismissed.

Issues considered

Whether objections filed after the issuance of a warrant of attachment can be entertained by the executing court or are barred by the principle of constructive res judicata under Order XXI of the CPC.

Legislation cited

Code of Civil Procedure, 1908s. 11, s. 47

Subjects

res judicataconstructive res judicataexecution of decreewarrant of attachmentOrder XXI CPCpreliminary stageappealcivil procedure

Judgment

[2008] 2 S.C.R. 512

A BARKAT ALI & ANR.
II. I
f
BADRI NARAIN (0) BY LRS.
(Civil Appeal No. 1383 of 2002)
FEBRUARY 6, 2008
B
(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
allowed the preliminary stage to come to an end for taking up
0
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
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
H 512
-
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
. warrant of attachment was issued, could not be B
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
appeal before the higher forum. Otherwise they bind the
parties at the subsequent stage of the execution
proceedings so that the smooth progress of execution is
not jeopardized and the stage which reached the finality
by dint of various orders of Order 21, operates as res
0
judicata for the subsequent stage of the proceedings.
Since the order passed at different stage itself operates
as a decree and is appealable as such, the same cannot
be challenged in appeal against subsequent orders also,
because appeal against an order passed under Order 21,
E Rule 22 does not amount to appeal against order at initial
stage, but amounts to a decree finally determining the
question. That is why no appeal against orders made
unde,r Order 21 has been provided under Order 43. In this
background, where a judgment-debtor has an
F opportunity to raise an objection which he could have
raised but failed to take and 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
Order 21, Rule 23 whi~h fell within the above principle,
G the judgment-debtor thereafter cannot raise such
objections subsequently and revert back to earlier stage
of proceedings unless the order resulting in termination •
of preliminary stage which amounts to a decree 'is
appealed against and order is set aside or modified.
H [Para 7] [517-E, i=;··G; 518-A-H; 519-A, BJ
BARKAT ALI & ANR. v. SADRI NARAIN (D) BY LRS. 515
[PASAYAT, J.]

1.2. The principles of res judicata not only apply in A
respect of separate proceedings but the general
principles also apply at the subsequent stage of the same
proceedings and the same Court is precluded to go into
that question again which has been decided or deemed
to have been decided by it at an early stage. [Para 8] 8
[519-8, C]
.. ~ Arjun Singh v. Mahindra Kumar and Ors. AIR 1964 SC
993 and Sat}'adhyan Ghosal and Ors. v. Smt. Deorajin Debi
and Anr. (AIR) 1960 SC 94 - relied on.
c
CIVIL APPELLATE JURISDICTION : Civil Appeal
No.1383 of 2002
From the final Judgment and Order dated 26.07.2000 of
the High Court of Judicature for Rajasthan at Jodhpur in DB
Civil Special Appeal No. 15 of 1981. D
Puneet Jain, Christi Jain, Piyush Jain, H.D. Thanvi and
~ . Sushil Kumar Jain for the Appellants.
The Judgment of the Court was delivered by
E
Dr. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to
the order passed by a Division Bench of the Rajasthan High
Court at Jodhpur dismissing the special appeal filed under
Section 18 of the Rajasthan High Court Ordinance 1949 (in short
'Ordinance') against judgment of learned Single Judge dated
""'t 16.1.1981 in SB Civil Misc. first appeal no.5/75. F

2. Background facts in a nutshell are as under:
The respondents are legal representatives of the decree
holder Badrinarain and the appellants are the legal
representatives of the judgment-debtor Abdul Ghani. The said G
,. ....,_
. Badrinarain obtained a decree against Abdul Ghani in a
mortgage suit on 11.5.1952 in which an amount of Rs.11, 194.25/
- was determined as payable by the said Abdul Ghani from the
date of final decree. Successive execution applications were
filed for recovering the said sum. First application for execution H
'i'.
516 SUPREME COURT REPORTS [2008] 2 S.C.R.

A was filed on 7 .10.1952 in which proceedings the decree was
partially satisfied. The proceedings ended on 21.12.1956. The
second execration resulted in further partial satisfaction. The
said execution terminated on 25.9.1957. The third execution
application which was filed on 20th May 1958 resulted in further
B partial satisfaction of the decree and the said proceedings
ended on 6.8.1960. The present execution application for the
recovery of remainder sum was filed on 30th January, 1971. The
notice of the application was issued to all the appellants and
another son who was reported to be dead by the process server.
c The appellant No.1 accepted service on behalf of appellant Nos.2
& 3, who were then minors. The notice was served on 20.4.1972
for hearing on 3.6.1972. An appearance was filed by the counsel
on 3.6.1972, who sought time to file objections which was
granted and the proceedings were adjourned to 5.8.1972. On
5.8.1972, again adjournment was sought which was granted
0
and the case was adjourned to 12.8.1972. On 12.8.1972 also,
the proceedings could not proceed further because the learned
Presiding Judge was on leave and the case was adjourned to
16.9.1972. On 16.9.1972, the Court finding that no objections
have been filed till then by the judgment-debtors, the decree
E holder was directed to file expense for carrying out attachment
within five days on the submission of which the warrants of
attachment could be issued and the proceedings were
adjourned to 21.9.1972. The attachment warrant was not issued
prior to 21.9.1972. On finding that expenses for attachment has
F been filed, the executing Court ordered for the issuance of
warrant of attachment on 21.9.1972. After issuance of warrant
of attachment, the objections were filed by the appellant on
21.9.1972 pleading inter alia that the execution proceedings
were barred by time and that amount for which the execution
G was sought was also not correctly stated. The executing Court
found that since after completing preliminaries of issuing notice
and finding that no objection has been filed in spite of the service
under Order XXI Rule 22 of the Code of Civil Procedure, ·1908
(in short 'CPC') and the Court had proceeded to next stage of
H execution for attaching the property under Order XXI Rules 23
BARKAT ALI & ANR. v. BADRI NARAIN (0) BY LRS. 517
[PASAYAT, J.]

and 24 of C.P.C., any objection raised subsequent thereto A
cannot be entertained being barred by principles of constructive
res judicata. Against the dismissal of the objections dated
16.11.1972 by order dated 13.7.1974, an appeal was, preferred
before the High Court which has been dismissed by the Learned
Single Judge by judgment dated 16.1.1981. The Learned Single B
Judge found that the objections filed on 16.11.1972, after the
warrant of attachment was issued, could not be entertained by
~ the executing Court as the same was barred by principles of
constructive res judicata. Ancillary issues raised by the Learned
Counsel for the appellant were also found to be not sustainable c
and the appeal was dismissed.
3. As noted above, learned Single Judge found that the
objection filed after issuance warrant of attachment could not
be entertained by the executing Court as the same was barred
by principles of constructive res judicata. D
4. The same contention was raised before the Division
Bench which did not find any substance.
5. Learned counsel for the appellant reiterated the stand
taken before the learned Single Judge and the Division Bench. E
6. There is no appearance on behalf of the respondent.
7. Order XX.I Rule 22 CPC culminates in end of one stage
before attachment of the property can take place in furtherance
of execution of decree. The proceedings under Order XX.I Rule F
23 can only be taken if the executing Court either finds that after
issuing notice, under Section XX.I Rule 21 the judgment-debtor
has not raised any objection or if such objection has been raised,
the same has been decided by the executing Court. Sub rule
(1) as well as sub rule (2) under Order XX.I Rule 22, operates G
simultaneously on the same field. Sub rule (1) operates when
no objection is filed. Then the Court 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 H
·~·

518 SUPREME COURT REPORTS [2008) 2 S.C.R.

A thereafter clears the way for taking up the matter for attachment
of the property 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
B Court to proceed with attachment on finding that no 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
c proceedings in the absence of any modification of order passed
under Order XXI 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 XXI Rule 22 amounts
to a decree under Section 47 of CPC and it is appealable as a
0
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 have attained finality unless
they are set aside by way of appeal before the higher forum.
E Otherwise they bind the parties at the subsequent stage of the
execution proceedings so that the smooth progress of execution
is.not jeopardised and the stage which reached the finality by
dint of various orders of the Order XXI, operates as res judicata
for the subsequent stage of the proceedings. Since the order
F passed at different stage itself operates as a decree and is
appealable as such, the same cannot be challenged in appeal
against subsequent orders also, because appeal against an
order passed under Order XXI Rule 22 does not amount to
appeal against order at initial stage, but amounts to a decree
G finally determining the question. That is why no appeal against
orders made under Order XXI has been provided under Order
43. In this background, where a judgment-debtor has an I '
opportunity to raise an objection which he could have raised
but failed to take and allowed the preliminary stage to come tc
H an end for taking up the matter to the next stage for attachment
BARKAT ALI & ANR. v. SADRI NARAIN (D) BY LRS. 519
[PASAYAT, J.]

of property and sale of the property under Order XXI Rule 23 A
which fell within the above principle, the judgment-debtor
thereafter cannot raise such objections subsequently and
revert back to earlier stage of proceedings unless the order
resulting in termination of preliminary stage which amounts
to a decree is appealed against and order is set aside or B
modified.
8. The 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 also and the
same Court is precluded to go into that question again which C
has been decided or deemep to have been decided by it at an
early stage.
9. In Arjun Singh v. Mahindra Kumar and Ors. (AIR 1964
SC 993) it was observed as follows:
D
"Scope of principle of res judicata is not confined to what
is contained in Section 11 but is of more general
application. Again, res judicata could be as much
applicable to different stages of the same suit as to
findings on issues in different suits ..... Where the E
principles of res judicata is invoked in the case of the
different stages of proceedings in the same suit, the
nature ·of the proceedings, the scope of the enquiry which
the adjectival law provides, the decision being reached,
as well as the specific provisions made on matters F
touching such decision are some of the material and the
relevant factors to be considered before the principle is
held applicable."
10. In Satyadhyan Ghosa/ and Ors. v. Smt. Deorajin Debi
and Anr. (AIR 1960 SC 941) it was observed as follows: G
''The principle of res judicata applies also as between two
stages in the same litigation to this extent that a court,
whether the Trial Court or a Higher Court having at an
earlier stage decided a matter in one way will not allow
H
520 SUPREME COURT REPORTS [2008] 2 S.C.R.

A the parties to re-agitate the matter again at a subsequent
stage of the same proceedings."
11. Above being the position, the High Court was justified
in dismissing the special appeal and in confirming the order of
learned Single Judge. The appeal is without merit, deserves
8 dismissal, which we direct.
B.B.B. Appeal dismissed.