Does Res judicata apply to execution proceedings?

Question: Does Res judicata apply to execution proceedings?

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Answer

The principle of res judicata has been laid down in Section 11 of the Civil Procedure Code, as under:

“11. Res judicata— No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”

Prior to the addition of Explanation VII to the above section by an amendment with effect from 01.02.1977, the aforesaid legal provision did not specifically say that the principle of res judicata applies to execution proceedings also. However, it had been held (even prior to 1977) that the general principles of res judicata would be applicable to execution proceedings also.

For example, in the case of Mohanlal Goenka v. Benoy Kishna Mukherjee, 1953 SCR 377: AIR 1953 SC 65, it was held by the Supreme Court that a decision in the previous execution case between the parties that the matter was not within the competence of the executing court even though erroneous is binding on the parties.

Similarly, in the case of Prem Lata Agarwal v. Lakshman Prasad Gupta, (1970) 3 SCC 440: AIR 1970 SC 1525, the Supreme Court held that:

“The principle of res judicata applies to execution proceedings. The judgment-debtors in the present case did not raise any objection as to limitation in regard to the execution of the decree before the Civil Judge at Allahabad. On the contrary, the judgment-debtors asked for setting aside the sale on the basis of revival of execution proceedings.

The revival of execution was not challenged and the judgment-debtors are thereby barred by the principle of res judicata from questioning directly or indirectly the order, dated 13th May 1950, reviving the execution proceedings.”

Subsequently, by Act 104 of 1976 (with effect from 01.02.1977), Section 11 of the CPC was amended and Explanation VII was added, to specifically lay down that the principle of res judicata was applicable to execution proceedings also. This Explanation is as under:

“Explanation VII.— The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, the question arising in such proceeding and a former proceeding for the execution of that decree.”

Thus, there should be no doubt that the principle of res judicata is applicable to execution proceedings also.

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