Deepak Kumar Sinha vs Binay Kumar Sinha and Others

R.K. Merathia, J.

I.A. No. 1419 of 2010

Heard.

As prayed on behalf of Petitioner, the name of deceased Respondent No. 3 Savitri Devi is deleted.

The I.A. No. 1419 stands disposed of.

W.P. (C) No. 4663 of 2007

This writ petition has been filed against the order dated 10.5.2007, passed by learned Sub-Judge-IX, Ranchi in Misc. Case No. 1 of 2005,

rejecting the petition filed on behalf of Defendant/judgment debtor/ Petitioner u/s 47 of the Code of Civil Procedure.

Mr. Satya Narayan Prasad, learned Counsel, appearing for the Petitioner, submitted that without considering the Petitioner''s objection, the

impugned orders have been passed. He further submitted that the suit was dismissed and in the appellate court, the suit was decreed only with

respect to the agreement dated 1.4.1989 (Ext. A) which related to only 4 Decimals of land and not the suit property described as 4 Kathas and 4

Dhurs in the Plaint. He also referred to the order of the second appellate court. He further submitted that the said judgment was affirmed up to the

Supreme Court. He relied on a judgment reported in 2000 (3) PLJR 525.

On the other hand, Mr. P. K. Prasad, learned senior counsel, appearing for the Plaintiffs/decree holders/ Respondents, submitted that the

averments made in the plaint clearly referred to the ''suit property'' which was described in the Schedule thereof measuring 4 Kathas and 4 Dhurs,

but it was never contested by the judgment debtor/ Petitioner that the suit property has been wrongly described/Rather, the parties contested the

case in the courts treating the ''suit property'' as described in the Schedule of the Plaint. He further submitted that now the Petitioner is trying to

create confusion showing one sentence of the judgment passed by the lower appellate court in which it was said that- ""the Plaintiff''s suit"" for

specific performance of contract on the basis of Ext. 8 dated 1.4.1989 must be decreed"" and few sentences from the order passed by this Court in

Second Appeal. He also submitted that the objections in question are barred by constructive res judicata, as no such objections were raised in the

earlier objection petition filed by the judgment debtor/ Petitioner u/s 47 Code of Civil Procedure., which was rejected by order dated 8.6.2004 by

the executing court. He relied on the judgments reported In Baijnath Prasad Sah Vs. Ramphal Sahni and Another,

In reply, Mr. Satya Narayan Prasad submitted that as the objections, raised in the present objection, were not raised in earlier objection,

principle of constructive res judicata will not apply.

After hearing the parties and going through the records it appears that the parties contested the suit, and the appeals, treating the property

described in the Schedule of Plaint, as the ''suit property''. The objection now raised was not raised by the Petitioner in the earlier objection

petition filed during pendency of the second appeal in this Court, though such objections were available to him at that time. It appears that apart

from the objection of pendency of the second appeal in this Court, several other objections were raised by the Petitioner against execution of

decree, but the present objection- that the suit property as per Ext. 8 dated 1.4.1989 is 4 Decimals and not 4 Kathas and 4 Dhurs- was not

raised. Thus apparently the present objections are barred by constructive res judicata.

In the facts and circumstances of the case, no grounds are made out for interference with the impugned order in exercise of power conferred

under Article 227 of the Constitution of India. Accordingly this writ petition is dismissed. However, no costs. All the I. As. filed also stand

disposed of.