KIRTI PARDEEP SOOD Vs. KESHAV SOOD

JUDGEMENT

(1.) By this application under Order VII Rule 11 CPC the Defendant seeks rejection of the plaint on the plea of res-judicata. The objection of the Defendant is that in earlier suit for partition filed between the parties a decree was passed on 7th August, 1981 and thereafter the Plaintiffs filed the execution petition belatedly which was dismissed. The Appeal against the order of dismissal of the said execution petition was also dismissed and the same has attained finality till the Hon'ble Supreme Court. Since the execution of the decree passed has already been declined, the Plaintiffs in the garb of the present suit, seeking possession of the property, cannot re-agitate the issues which have been finally set at rest. The relief of possession was sought earlier as well and thus the same is barred by res-judicata. Reliance is placed on T. Arivanandam vs. T.V. Satyapal and another, 1977 4 SCC 467; United Commercial Bank Ltd. vs. Okara Grain Buyers Syndicate Ltd. and another, 1968 3 SCR 396.

(2.) Learned counsel for the Plaintiffs/non-applicants on the other hand contends that the dismissal of the execution petition has no bearing on the present suit and the same is maintainable in its present form. In the earlier suit a decree of partition was sought as the co-owner which right has been determined by this Court and the predecessor in interest of the Plaintiffs has been held to be the owner of the particular portion. Thus, after the decree passed in the earlier suit, the Defendant/applicant becomes an unauthorized occupant in the suit premises, giving a right to the Plaintiffs to seek possession. The present suit is based on a different cause of action as the earlier claim was based on the Plaintiff's right as co-owner and now it is based on the title. For the purpose of invoking the plea of res-judicata, the cause of action is required to be seen. Reliance is placed on Ajit Chopra vs. Sadhu Ram and others, 2000 1 SCC 114. By virtue of the decree, the Plaintiffs have become the exclusive owners of the property as held in Swaroop Narain Laxminarain and another vs. Mst. Bhanwar Kunwar Bai and another, 1967 AIR(MP) 152 Though the remedy may have extinguished but the right of the Plaintiffs does not get extinguished. The earlier decree only defines the rights of the party and did not hand over the possession. Thus the issue in the present suit did not arise in the earlier suit. Further the earlier suit was disposed of on compromise and was not decided on the merits. No issues were framed. The possession in the suit property was not decided. Further the execution petition was dismissed not on merits but due to the technical reason of delay. Hence there is no merit in the present application and the same be dismissed.

(3.) I have heard learned counsel for the parties and perused the record.