JAGIR SINGH Vs. SHAM LAL

JUDGEMENT

(1.) FACTS giving rise to this revision petition are that Sham Lal respondent instituted a suit for specific performance of contract of sale dated January 3, 1971. executed in his favour by Mehar Singh. The Petitioner Jagir Singh as mortgagee and his brother Raminder Singh as subsequent vendee were impleaded as defendants alongwith the original promissor Mehar Singh. The suit was dismissed by the trial Court on December, 10, 1973. The lower appellate Court reversed the judgment and decree of the trial Court on May 19, 1975, and passed a decree for specific performance against the promissor Mehar Singh. In R. S. A. No. 1078 of 1975 filed against the judgment and decree of the lower appellate Court, the decree was modified to the extent that the subsequent vendee Raminder Singh was also directed to join in signing the deed of conveyance in favour of the decree-holder by order dated September 23, 1983. According to the contract of sale, Mehar Singh, the original owner, agree 1 to sell two parts of a house described as house No, 195, situate at Manimajra for Rs. 4,803/ -. Rs. 300/- had been received by him at the time of the agreement Rs. 1,500/- were to be paid at the time of execution of the sale deed and Rs. 3,000/were left with the vendee for payment to the mortgagee Jagir Singh. In the suit filed by Sham Lal, no specific prayer was made that the property be redeemed from the mortgagee Jagir Singh on payment of Rs. 3,000/ -. On October 4, 1985, the decree holder Sham Lal took out execution of the decree for specific performance. Under orders of the executing Court, the reader of the Senior Subordinate Judge executed sale deed dated November 18, 1985 on behalf of Mehar Singh and Raminder Singh and in favour of the decree-holder. The execution application was dismissed as fully satisfied. A second appli- cation for execution was made on April 11, 1986, in which the decree- holder claimed actual possession of the property covered by the sale deed. The executing Court issued warrant for actual possession. Jagir Singh filed objections on August 4, 1986, to the effect that there was no prayer for actual possession in the suit, that no decree for delivery of possession had been passed against him and that the property continued to be under mortgage with him and had not been redeemed according to law at any stage. The executing Court dismissed the objections by order dated October 19, 1987. Aggrieved by the order, Jagir Singh has preferred this revision.

(2.) MR. S. K. Aggarwal, learned counsel for the petitioner, has raised the following contentions :-

(3.) MR. Arun Jain, learned counsel for the respondents, had controverted all these contentions and has mainly relied on Babu Lal v. M/s. Hazari Lal Kishori Lal, A. I. R. 1982 S. C. 818. He has further contended that Jagir Singh had fought the litigation upto the High Court and the principle of constructive res judicate operated against him with regard to all pleas which he might or ought to have taken in the suit.