EXECUTIVE ENGINEER Vs. UMASHAKTI CONSTRUCTION COMPANY

JUDGEMENT

(1.) THE present appeal arises against the order dated 05.05.2009 passed by the learned Additional Senior Civil Judge in Special Execution Proceeding No. 29 of 2003, whereby he has ordered for execution of the judgment and the decree of the trial Court in Special Civil Suit No. 203 of 1990 read with the judgment and the order dated 14.08.2003 passed by this Court in F.A. No. 1464 of 2003 arising from the judgment and the decree of the Trial Court.

(2.) THE short facts of the case are that, suit for the recovery of the amount of Rs. 4,67,556/- was filed being Special Civil Suit No. 203 of 1990 before the Civil Court. THE Civil Court, ultimately, after hearing both the sides at the conclusion of the trial, allowed the suit and decreed for an amount of Rs. 2,10,883/- with the interest at the rate of 9% per annum. THE appellant herein ? the State of Gujarat carried the matter before this Court for challenging the legality and validity of the judgment and the decree of the trial Court in the proceedings of First Appeal No. 1464 of 2003 and the said appeal came to be dismissed by this Court on 14.08.2003 and at the time of dismissal, this Court vide para 8, directed the appellant therein to clear the dues of the respondent within a period of three months from the date of the order i.e. from 14.08.2003. Since the amount was not paid, execution proceedings were filed being Special Execution Proceeding No. 29 of 2003 before the Executing Court. THE objection was raised by the appellant herein in the execution proceedings that the trial Court had no jurisdiction to pass the decree contending that the decree was nullity. THE Executing Court, vide order dated 05.05.2009 impugned in the present appeal, dismissed the objection and directed the defendant to pay the amount as per the Execution Application. Under the circumstances, the present appeal before us.

(3.) WE may observe that once the judgment and the decree was passed and the same was challenged before this Court in the proceeding of First Appeal No. 1464 of 2003, all contentions which ought to have been argued or raised on behalf of the appellant herein in the said First Appeal, are deemed to have been concluded once the said judgment and the decree is confirmed by this Court. Had the appellant any grievance against the judgment of this Court in F.A. No. 1464 of 2003, nothing prevented the appellant to carry the matter before the higher forum. But, such a course has not been adopted. Under the circumstances, the judgment and the decree in the very subject matter being binding, the contention of nullity cannot be entertained in view of the principle of constructive res judicata.