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Judgment
R.M.S. Khandeparkar, J.—This is a Revision Application against the Order dated 18th December, 1997 passed in Execution Application No. 16/1993/C by the Civil Judge, Junior Division, Margao. By the impugned Order, the Executing Court has dismissed the application filed by the petitioners u/s 47 read with Order 21, Rule 29 and Section 151 of C.P.C.
The facts in brief relevant for the decision are that the Respondent herein filed Regular Civil Suit No. 89 of 1968 in the Civil Court at Margao for eviction of the petitioner from the suit premises. The suit was decreed by the Trial Court on 29.4.1986 and the decree was confirmed by the lower Appellate Court in Regular Civil Appeal No. 43 of 1986 on 13.12.1991. The Second Appeal No. 9/92 filed in the matter was also dismissed by this Court by its Judgment and decree dated 2.2.1993. Consequently the Respondent filed the execution application being the proceedings No. 16/93/C. The execution of the decree was sought to be objected to by the petitioners by filing an application in terms of Section 47 of C.P.C. The objections were on the ground that the Petitioners are the mundkars in respect of the suit premises and, therefore, entitled for protection from eviction under the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 hereinafter called as ''the Mundkars Act'', and that therefore, the decree obtained from Civil Court for their eviction is not executable against them. The plea of mundkarship sought to be raised by the petitioners against the Respondent was rejected by the Trial Court by its order dated 28th April, 1995.
It appears that thereafter on 24.8.1995 the Petitioner herein filed art application u/s 8A of the Mundkar Act, before the Mamlatdar of Selected which was registered as Mundkar Case No. 12 of 1995. Meanwhile, pursuant to the rejection of objections sought to be raised by the Petitioner for execution of the application, the Executing Court issued a warrant of possession regarding the suit premises in favour of the respondents. Thereafter on 12.2.1997 the Petitioner filed an application u/s 5 of the Mundkar Act for injunction against the Respondent from dispossessing the Petitioners from the suit premises. Simultaneously, the Petitioners also filed an application u/s 47, Order 21, Rule 29 read with Section 151 of C.P.C. in the eviction proceedings objecting the execution of the decree on the ground that the petitioner having filed the application u/s 8(A) of the Mundkar Act before the Mamlatdar they are entitled to raise the plea of mundkarship and therefore the execution of decree for eviction by the Civil Court cannot be enforced till the proceedings u/s 8A are finally disposed of. The said application has been dismissed by the Court by the impugned Order.
Shri Pangam, learned Advocate appearing for the petitioners, submitted that the Executing Court erred in dismissing the application filed by the petitioners solely on the ground of the Judgment of the Mamlatdar in the matter of injunction u/s 5 of the Mundkar Act. He further submitted that the Executing Court ought to have considered that in view of the decision in the matter of Xantaram Babani Xete Curtorkar and Anr v. Vishnu Babani Xete Curtorkar and Anr. 1989(2) G.L.T. 167, the Petitioners are entitled to raise plea of mundkarship in the execution proceedings pursuant to filing of the application before the Mamlatdar u/s 8(A) for the declaration of mundkarship. The fact that the Petitioner has filed such an application u/s 8(A) for declaration of mundkarship is not being in dispute, applying the law laid down in Xantaram Babani Xete Curtorkar and Anr. v. Vishnu Babani Xete Curtorkar and Anr. (supra) it would not be permissible for the Executing Court to dismiss the plea of mundkarship and to refuse to stay the execution proceedings.
Shri S. D. Lotlikar, learned Advocate appearing for the Respondent, submitted that the petitioner had already raised objection to execution of the decree on the ground that they are entitled to raise the plea of mundkarship and such objection was rejected by order dated 28.4.1995 by the Trial Court after hearing the parties and the petitioners had not reacted in any manner to the said Order and therefore the petitioners are not entitled to raise a similar objection by filing another application u/s 47 of C.P.C. in the same proceedings. He further submitted that the ratio of the decision relied upon by the petitioner has no application to the case in hand.
Upon hearing the learned Advocates and on perusal of record, it is seen that undisputedly the suit was filed in the year 1968 for eviction of the petitioner. The Mundkar Act, came into force in the year 1976, i. e. with effect from 12th March, 1976. The decree of the Civil Court was passed on 29.4.1986. The appeal against the decree was dismissed in 1991. The second appeal was dismissed in 1993. At no point of time the petitioners had raised plea of mundkarship during the entire proceedings of the civil suit and appeals therein. It was only after filing of the execution proceedings that an attempt was made to raise such a plea by raising objection to the execution of the decree. Such an attempt to obstruct the execution of decree by the Petitioner was proved futile in view of the Order dated 28.4.1995 passed by the Executing Court. It is not in dispute that the said Order of the Executing Court was not challenged in any manner in the higher Court by the Petitioners. It is also not in dispute that an attempt was made to raise plea of mundkarship by way of objections to the execution of the decree and the same was dealt with by the Executing Court by its Order dated 28.4.1995, and it was not challenged by the petitioner at any time. In those circumstances, the point which arises for consideration in the present matter is whether the Petitioner was entitled to file another application for objecting execution of the decree in the same proceedings on the same grounds on which the earlier application was rejected by the Executing Court in the same proceedings. It is not in dispute that the application which was filed objecting the execution for decree and which was disposed of by order dated 28.4.1995 was on the ground that the Petitioner is not entitled to raise the plea of mundkarship. The only distinguishing factor in the impugned Order that has been brought to my notice by the learned Advocate is that at the time when the order dated 28.4.1995 was passed, the application of the petitioner u/s 8-A of the Mundkar Act, was not filed before the Mamlatdar, whereas, the objections on the ground of plea of mundkarship raised now is subsequent to the filing of the application u/s 8-A of the Mundkar Act, by the petitioner. However, the learned Advocate was unable to point out any provisions under the Mundkar Act which can empower the petitioner to raise such plea as a matter of right before the Executing Court and obstruct the execution of a decree only on the ground that the petitioner has filed an application u/s 8-A of the Mundkar Act, as the same is pending for disposal.
It is not the pendency of such an application that can give a right to a party to obstruct the execution of a decree of his eviction lawfully obtained from the Civil Court. It must be basically a plea of mundkarship that is required to be raised by the party. A party can be said to have raised a plea of mundkarship only when the plea discloses basic ingredients of mundkarship in his favour in the application raising objections for execution on the ground of plea of mundkarship in respect of the suit premises. Admittedly, the application filed by the petitioners does not disclose any of the ingredients of mundkarship in favour of the petitioners and as such the impugned Order though has been passed on the ground different than what could have been, that by itself, would not be justification for interference once it is held that the final decision arrived at is not incorrect.
As has been held by the Apex Court in various judgments, the principles of res judicata can be applicable in the same proceedings at different stages. Once the application seeking to object the execution of the decree on the ground that the petitioner is entitled to raise the pica of mundkarship was rejected by order dated 28.4.1995 and the petitioner had not reacted in any manner against the said order, by applying the principle of res judicata , the petitioner would not be entitled to cause any obstruction to the execution of the decree on the same ground on which the earlier application for obstruction of decree was filed and rejected. In other words, the judgment-debtor cannot seek to avoid the execution of decree on the plea of mundkarship which was earlier sought to be raised but was rejected and the judgment-debtor had not reacted in any manner against such order. Successive application u/s 47 of C.P.C. on the same ground with the sole intention to delay the execution of a lawful decree is to be certainly discouraged.
In this view of the matter, the Revision Application is liable to be rejected and is hereby accordingly dismissed. Rule is discharged. The petitioner to pay costs of Rs. 500/- to the respondent.