SAJJAN SINGH Vs. NADEALI

JUDGEMENT

(1.) THIS is an execution appeal. The appellants wet e the tenants of the respondent firm M/s Nadeali and Brothers. They were sued for eviction and arrears of rent in the Court of second Additional District Judge, Bhopal. A decree was passed against them. They then preferred an appeal before the High Court which was registered as First Appeal No. 171 of 1975. They prayed for stay of the execution and the Court stayed the execution in so far as eviction part of the decree was concerned subject to the appellants depositing Rs. 23,000/ - and odd, due as arrears of rent and damages upto the date of the order i. e. 9 -12 -1975, within a month, failing which the stay was to stand vacated automatically. The appellants deposited Rs. 23,409.50 Nps. towards rent and damages due upto August, 1975. The stay was, therefore confirmed on further condition that the appellants deposited rent from September, 1975, to March, 1976, by 1st of April, 1976. and thereafter continued to deposit rent on the 15th of each succeeding month.

(2.) THE execution of the decree in so far as the eviction of the judgment debtors is concerned, remains stayed. But the respondent decree holder proposes to withdraw the money deposited by the judgment debtors towards rent and mesne profits. The judgment debtors appellants have raised objections to the executability of the decree even in so far as it relates to rent and mesne profits. Those objections have been overruled by the executing Court and hence this appeal.

(3.) SUCH a plea was raised before the trial Court and the same was overruled. (See Paras 27, 28 and 29 of the Judgment in Civil suit No. 1 -A of 1973 dated the 30th August, 1975), The finding that the suit was maintainable even though the firm stood dissolved, is a subject matter of a challenge in First Appeal No. 171of 1975, and so long the finding is not set aside, the executing Court has no power to go behind the finding. The trial Court which is the executing Court as well, is bound by the finding earlier recorded in the trial. The rule of res judicata operates.