ABDUL SATTAR AND OTHERS Vs. GURLINGAYYA AND ANOTHER

JUDGEMENT

(1.) THIS revision petition is filed by the Petitioners/obstructors questioning the correctness of the order passed by the Learned Civil Judge (Junior Division) and JMFC and Basavakalyan in E.P. No. 6 of 91 dated 13.02.2002 rejecting the application filed under Section 151 read with Section 47 Code of Civil Procedure for the reasons recorded by it in the impugned order and they have sought for setting aside the same urging various legal contentions.

(2.) LEARNED Senior Counsel Mr. V. Tarakaram placed strong reliance upon the Division Bench judgment of this Court reported in Paramound Industries Vs. C.M. Malliga, ILR (1991) KAR 254 , that the Petitioners who are the obstructors, not parties to the Original Suit No. 128 of 1980, which decree was sought to be executed by the decree holder, the first Respondent herein have got right of objection to execute the decree though they are not parties to the decree by filing an application under Order 21, Rule 97 Code of Civil Procedure, which application requires to be enquired into by following the procedure contemplated under Sub -rule (1) of Rule 98 read with Section 101 Code of Civil Procedure as if it is an original suit. Further Learned Senior Counsel placed strong reliance upon the judgment of the Apex Court reported in Brahmdeo Chaudhary, Adv. Vs. Rishikesh Prasad Jaiswal and another, AIR 1997 SC 856 at paragraphs 5, 6, 8 and 9 in support of the proposition that if the obstructors obstruct the execution of the decree by filing an application before their dispossession from the property, the Executing Court is duty bound to treat that application as if it is an original suit and their rights and title claimed in the application shall be determined as provided under the said provisions of Code of Civil Procedure. That has not been done in the instant case. Therefore it is not a deemed decree under Rule 103 and it is not an appealable order. Hence, this revision petition is maintainable and it requires to be allowed, as the Executing Court failed to discharge its statutory duty in rejecting the application and further erred in holding that execution petition is maintainable.

(3.) LEARNED Counsel Mr. D.L.N. Rao appearing on behalf of the Caveator's Counsel Mr. Shivakumar Kalloor submits that the application in which impugned order is passed operates as res -judicata, having regard to the undisputed fact that at the instance of the Petitioners on the similar contentions raised in their earlier application before the Executing Court, the said Court has rejected their application vide its order dated 11.11.1992 after considering the rival contentions urged by the parties holding that the obstruction made by the Petitioners are wholly untenable in law. The said order was challenged before this Court. This Court has rejected the revision petition referred to supra. Similar application, after lapse of 10 years is filed by them and sought to obstruct the execution of the decree by the decree holder. Therefore it is urged that the principle of res judicata under Section 11 Code of Civil Procedure with all force applicable to the facts of the present case placing reliance upon the judgment of the Apex Court reported in AIR 1977 SC 392 Y.B. Patil and Ors. v. Y.L. Patil. In support of the submission, he has placed reliance on three judge bench judgment of the Apex Court reported in Hope Plantations Ltd. Vs. Taluk Land Board, Peermade and Anr., JT (1998) 7 SC 404 . at para 26, wherein the Apex Court has laid down the principles of estoppel and resjudicata after extensively considering the relevant provisions of Code of Civil Procedure and Evidence Act. Further it is held that "Plea of estoppel can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings, once an order made in the course of the proceeding becomes final, it would be binding at the subsequent stage of the proceeding." Therefore, on these grounds, the learned Counsel for the first Respondent submits that the revision petition is liable to be rejected.