USMAN Vs. VIKRAM

JUDGEMENT

(1.) By this Revision Petition under Section 115 of CPC, the defendants No. 2 to 13 have approached this court challenging the order of the Trial Court dated 21.03.2017, whereby the petitioner's application under Order 7 Rule 11 of the CPC for rejection of the plaint has been dismissed.

(2.) Learned counsel appearing for the petitioner placing reliance upon the judgement of the Supreme Court in the matter of NSS Narayana Sarma and others Vs. M/s. Goldstone Exports (P) Ltd. and others reported in AIR 2002 SC 251 has submitted that since the present suit has been filed to resist the execution of decree passed in earlier suit being CS No.321 A/1995, therefore, respondent (plaintiff) is required to file the objection under Order 21 Rule 97 of the CPC in the execution proceedings and the separate suit is not maintainable. In this regard he has also placed reliance upon Single Bench judgment in the matter of Mohd. Ayub Khan Vs. Ashif Ali and others reported in 2012(2) MPLJ 693.

(3.) Opposing the prayer, learned counsel for the respondents has submitted that the subject matter of the property in the present suit is different from the earlier suit and such a disputed question of fact cannot be decided while hearing application under Order 7 Rule 11 of the CPC and that the Trial Court has not committed any error in rejecting the application.In support of his submission he has placed reliance upon the judgment of the Supreme Court in the matter of Popat and Kotecha Property Vs. State Bank of India Staff Association reported in 2006(I) MPWN Note No.10 and the judgment of this Court in the matter of Union Bank of India Vs. Ravindra Phanse and others reported in 2007(4) MPLJ 492.