BISWANATH SAHOO Vs. MANOJ TANMAY MOHAN

JUDGEMENT

(1.) Petitioners as plaintiffs filed C.S.No. 52/2004 in the Court of Civil Judge (Senior Division), Bhubaneswar, inter alia, praying as follows:-

(2.) The opposite party-defendants before filing written statement before the Court below, filed a petition under Order 7, Rule 11 of the Civil Procedure Code with a prayer to reject the plaint on the ground that the predecessors in interest of the defendants had filed Original Suit No. 161/83 for declaration of right, title and interest in respect of the suit property and for recovery of possession thereof and for permanent injunction against the plaintiffs and the said suit was decreed on contest. The appeal filed against the said judgment and decree, being T.A.No. 4/13 of 1989-90, was also dismissed. In Second Appeal, being No. 108/1995, the concurrent judgment and decree passed by both the Courts below were confirmed by this Court.

(3.) According to the opposite party-defendants during pendency of the Title Appeal the decree passed by the trial Court was sought to be executed in Execution Case No. 131/1995 and the said Execution Case, though stayed initially, proceeded after dismissal of the Second Appeal and the defendants took delivery of possession of the suit lands in presence of the judgment debtors, i.e. the present petitioners, and in presence of witnesses. As possession of the lands was taken over during execution of a decree, objection, if any, ought to have been raised in the said execution case itself under Section 47 of the Code of Civil Procedure. Having not done so, the present petitioners are estopped from filing the present fresh suit for declaration of right, title and interest.