BISWANATH BANERJEE Vs. DEBENDRA CHANDRA DOLUI

JUDGEMENT

(1.) 1. In a suit filed by judgment-debtor agaisnt the decree-holder, upon an application for injunction restraining the decree-holder from executing the decree passed in the earlier suit, the learned Court granted injunction restraining the appellant/decree-holder in the earlier suit from executing the decree (TEx No. 2 of 1981). This order is under challenge in this appeal. The Title Suit No. 56 of 1966 for eviction and recovery of possession on the ground of termination of the lease on efflux of time travelled through a long-drawn see-saw process up to the Apex Court and ultimately the decree for eviction stood affirmed. Apart from the present plaintiff-respondent, there were other judgment-debtors against whom the decree stood executed.

(2.) Mr. Sudhis Dasgupta, the learned Senior Counsel appearing for the appellant, raised a question that the interest of the judgment-debtor, if any, can be asserted only through the provisions contained in section 47 of the Code of Civil Procedure (CPC) in the execution itself and not by a separate suit and that the attempt to establish a new right on the alleged independent and separate cause of action giving rise to fresh issues are mere camouflage and would not escape the mischief of res judicata if the foundation on which the subsequent suit was instituted appears to be the ground on which the plaintiff-respondent could have defended the earlier suit. According to Mr. Dasgupta, such defence was already taken and negatived as would be apparent from the records, particularly from the order dated 22nd June, 1995 passed in C.O. No. 2477 of 1994 by Mr. Justice Tarun Chatterjee (as His Lordship then was). Therefore, the injunction could not have been granted and the order should be set aside.

(3.) Mr. Mrinmoy Bagehi, the learned Counsel for the plaintiff-respondent, on the other hand, contends that once a decree has been partly executed and the rest has not been executed and the judgment-debtor have been allowed to remain in possession, then the decree becomes satisfied. Such decree can no more be executed. The second point he has urged is that the subsequent suit is based on altogether different cause of action and different grounds, which in no manner could be agitated in the earlier suit. As such the issues framed, to which our attention has been drawn, are all fresh issues and had never been decided between the parties in the earlier suit. Therefore, the principle of res judicata cannot be attracted in the present case. Thus, according to him, the question involved does not come within the purview of section 47 so as to preclude the plaintiff-respondent from thrashing out its right through a separate suit. In the circumstances, he prays that the appeal be dismissed.