Hardit Singh vs Surinder Nath and others

Sultan Singh, J.—Hardit Singh, petitioner filed a suit for possession against Surinder Nath and others respondents 1 to 3 being Suit No. 157 of 1962 of the Court of the Subordinate Judge, 1st Class, Delhi for the recovery of possession and mesne profits with respect to a portion of Plot No. 7 Block No. 3 Original Road, Paharganj New Delhi. The suit was decreed by the trial Court on 31st July, 1961. The first appeal was dismissed on 21st Dec, 1971 and the second appeal, R.S.A. No. 21 of 1972 Surinder Nath v. Hardit Singh was dismissed by this Court on 12th Jan., 1979. The petitioner on 11th Aug., 1978 filed an execution application for taking possession. When he went to the site he was resisted on 28th July, 1979. The petitioner-decree-holder therefore on 23rd Aug., 1979 filed an application under O. 21, Rr. 35 and 98 of the Civil P.C. for grant of police aid. The decree-holder alleged that he was being resisted by Surinder Nath, judgment-debtor, his associates, Manohar Lal, Darshan Kumar and Hindustan Glass and Plywood Co. Paharganj, New Delhi. Notice was issued. Respondent No. 4 Hindustan Glass and Plywood Co., a partnership firm allegedly consisting of Darshan Kumar and Smt. Lila Wati filed reply dated 11th Oct., 1979 alleging that the said firm was a lawful tenant and occupant under the decree-holder for more than 15 years, that it was in possession in its own rights as tenant, that its possession was not through the judgment-debtors, that in a suit filed by the objectors against Delhi Development Authority a decree was passed restraining it from dispossessing the objectors except by due process of law. It appears that the decree-holder did not file any reply to the reply of the objectors i.e. respondent No. 4. The executing Court on 5th Nov., 1979 framed the following issues:

Whether the objectors M/s. Hindustan Glass and Plywood Co. and Shri Manohar Lal are in possession of the disputed property in their own right directly under the decree-holder as a tenant (O.P. Objector).

Whether the objectors are the associates of J.D. and are bound by the decree against J.D. (O.P.D.H.)

Whether the application of the D.H. under Order 21, Rules 35 and 98 is maintainable? (O.P. Objector)

Whether the objectors are in possession of the property in their own right for more than 12 years and have got possession and title adversely, if so, to what effect? (O.P. Objector).

To what relief the decree-holder is entitled against objectors ?

The objections were adjourned for evidence. The decree-holder on 7th Nov., 1979 filed an application claiming that the objectors have no right to file the objections and that warrant of possession be issued. This application was dismissed by order dated 4th Dec, 1979. The decree-holder filed another application dated 10th Dec, 1979, alleging that the objectors had previously filed Suit No. 226 of 1975 against Delhi Development Authority and the decree-holder for injunction alleging that the objectors were tenants under the decree-holder which suit was withdrawn against the decree-holder on 5th May, 1976 and the Court of the Subordinate Judge passed the order deleting his name from the suit. The decree-holder prayed that objections were not maintainable and warrant of possession be issued. The executing Court dismissed this application. The decree-holder filed two more applications dated 13th Jan., 1981 and 20th Jan., 1981 which were also dismissed by the impugned order dated 1st May, 1982. It has been held by the executing Court that the objections raised by the objectors-respondent No. 4 could not be decided without recording evidence. The claim of the decree-holder was that the objections were not maintainable and therefore he prayed for the issue of warrant of possession.

Learned counsel for the decree-holder submits that on 8th May, 1975 the objectors-respondent No. 4 filed Suit No. 226 of 1975 for permanent injunction alleging that they were tenants under the decree-holder since prior to 1964, that they were threatened to be dispossessed by the decree-holder and the Delhi Development Authority. The decree-holder in his written statement dated 12th Jan., 1976 pleaded that the objectors were never tenants under him and it was also pleaded that the judgment-debtor was in possession of the property in question. On 5th May, 1976 counsel for the objectors in that suit for injunction made the following statement:

I give up defendant No. 2.

The Subordinate Judge passed the following order on 5th May, 1976:

In view of the statement of the counsel of the plaintiff the name of Shri Hardit Singh defendant No. 2 is deleted from the pleadings. Counsel for the defendant No. 1 requests for adjournment on the ground that the comments from the Department have not been received. Request is allowed. Fix 13-6-1976 for filing of written statement and reply by defendant No. 1.

Learned counsel for the decree-holder submits that the objectors filed the suit for injunction which was withdrawn by them without any leave to file a fresh suit on the same cause of action. His argument is that under Order 23, Rule 1 (4) of the Civil P.C. the objectors-respondent No. 4 are debarred from instituting any fresh proceedings with respect to the same subject matter i.e. their claim that they are tenants in a portion of the suit property. He further submits that the executing Court framed issues on 5th Nov., 1979 but ignored this material fact and that if the objections were not maintainable in view of O. 23, R. 1 (4) of the Civil P.C. there was no necessity of recording any evidence. He submits that it was on account of this plea of the decree-holder that various applications were made before the executing Court to bring to its notice about the facts of the institution of the said suit for permanent injunction and their giving up the decree-holder as defendant of that suit. Learned counsel for respondent No. 4 objectors on the other hand submits that in earlier suit for injunction the claim of the objectors that they were tenants under the decree-holder was never heard and decided. He further submits that the objections cannot be decided without affording an opportunity to lead evidence. He further submits that Order 23, Rule 1 (4) of the Civil P.C. is not applicable to proceedings in execution of a decree, as provided in O. 23, R. 4 of the Civil P.C. Rule 4 of Order 23 of the Code provides that nothing in this order shall apply to any proceedings in execution of a decree or order. The decree-holder took out execution. He was resisted at the site. Objections have been filed on behalf of the objectors. These objections require evidence and therefore it does not appear that warrant of possession can be issued without the decision of the objections. Learned counsel for the decree-holder submits that in view of Order 23, Rule 1 (4) of the Civil P.C. objections are not maintainable. This provision prohibits the filing of a fresh suit in respect of the same subject matter. Further Rule 4 of O. 23 provides that O. 23 does not apply to proceedings in execution. In other words, the decree-holder cannot take advantage of Order 23, Rule 1 (4) of the Code. Learned counsel for the decree-holder then submits that these objections were barred by principles of res judicata. The principles of res judicata will not apply to the facts of this case. The objectors filed their suit for injunction but the disputes raised therein were never heard and decided by the Court. On the contrary the claim was given up against the decree-holder. I, therefore, do not find any prima facie bar regarding maintainability of the objections filed on behalf of respondent No. 4 Hindustan Glass and Plywood Co. I do not find any infirmity in the impugned order of the executing Court. 1, therefore, dismiss this revision petition but with no order as to costs.

It has been bought to my notice by the learned counsel for the decree-holder that the suit was filed in 1962 and the second appeal was decided by this Court in 1979 and the decree-holder has not been able to take possession of the premises. The executing Court is directed to expedite the disposal of the objections dated 11th Oct., 1979, filed by respondent No. 4. It has also been brought to my notice that the decree-holder has not filed any reply to the reply of the objectors. The decree-holder is permitted to file his reply to the reply dated 11th Oct., 1979 before the executing Court and if any issue arises after the filing of the reply the executing Court will frame the same.

Reply dated 11th Oct., 1979 to the decree-holder''s application under O. 21, R. 35 of the Code is in fact objections against execution, and therefore it is necessary that the decree-holder should give a reply to these objections. Parties are directed to appear before the executing Court on 3rd September, 1982.