RAMESH KUMAR & ANR. vs B S OJHA & ANR.

CM Appl. No. 41204/2017 (Exemption)

Exemption allowed, subject to all just exceptions.

CM stands disposed of.

Ex.F.A. 26/2017 and CM Appl. No. 41203/2017 (stay)

By this execution first appeal, the appellants/objectors

impugn the order of the executing court dated 02.11.2017 which has

dismissed the objections filed by the appellants/objectors.

The objections were filed by the appellants/objectors on

the ground that they are in possession of a room on the terrace and a

garage of the suit property and that in the guise of execution of the

decree the appellants/objectors are being dispossessed of their

aforesaid portions which do not form part of the judgment and decree

being executed.

Admittedly what is being executed is the judgment and

decree dated 19.01.2015. This decree is with respect to Flat No. 96,

Mandakini Enclave, Alaknanda, New Delhi-110019 consisting of one

drawing-cum-dining room, three bed rooms, kitchen, two bathrooms

excluding the garage. The decree therefore will be executed in terms of

what is decretal property and once the case of the appellants/objectors is

that they are in possession of such portions of the property which

portions are not the subject matter of the decree then the

appellants/objectors cannot file objections in the execution petition,

inasmuch as, the objections can only be filed by persons who are in

possession of the decretal property and they claim independent title over

the decretal property. In the objections which are filed, and for which

procedure is prescribed under Order XXI Rule 96 to Rule 103 CPC,

issues arise of independent title with respect to the suit/decretal property

and not with respect to any portion/a particular property which is not the

subject matter of the decree. The objections therefore were not

maintainable and as there does not arise any issue of an independent title

with respect to the decretal property, and in case appellants/objectors

were apprehensive that they had rights in a different property/properties

which is not the subject matter of the judgment and decree dated

19.1.2015, and they were being illegally dispossessed under the subject

decree for portions/area/property which is not covered under the decree,

then the appellants/objectors had to file a suit and they would have no

locus standi to file objections in execution.

I may note that appellants/objectors had earlier filed a suit,

but for some reason that suit was not pursued and said to be dismissed in

default, and I may note that dismissal in default does not operate as a res

judicata under Section 11 CPC. Also because of Order XXI Rule 101

CPC there is no bar in filing of a suit, inasmuch as, bar under Order XXI

Rule 101 CPC only applies with respect to the suit/decretal property and

not to a totally separate property which is not covered in the judgment

and decree which is being executed.

In view of the above discussion, the appellants/objectors

have no locus standi to file the objections. Dismissed.