(1.) Bhim Singh respondent obtained a decree for possession of one-half of the house located on the northern side against Umed Singh on July 30, 1970, on the basis of compromise. He took out execution of the same. On August 24, 1972, Umed Singh filed an objection petition hereinafter called the first objection petition under Section 47, Civil Procedure Code (hereinafter referred to as the Code). He raised various objections therein claiming that the decree was inexecutable. He also prayed that during the pendency of the first objection petition the execution proceedings should be stayed. Umed Singh had also instituted a suit for perpetual injunction restraining Bhim Singh from executing the decree. On December 2, 1972, the learned Subordinate Judge, who was seized of the execution as well as the aforesaid suit, passed an order declining to stay the execution proceedings and directing that the first objection petition filed by Umed Singh on August 24, 1972, be appended to the suit which had been filed by him (Umed Singh). Umed Singh carried appeal against that order but the same was dismissed by the District Judge, Rohtak, on June, 1973. On October 5, 1973, Umed Singh filed another objection petition (hereinafter called the second objection petition) under Section 47 of the Code. He raised various grounds therein alleging that the decree was inexcutable. He also prayed for stay of the execution proceedings. The executing Court summarily dismissed the second objection petition on the ground that the first objection petition was pending, and also declined to stay the execution proceedings. Umed Singh carried appeal but the same was dismissed by the learned Additional District Judge, Sonepat. Hence, he came to this Court in second appeal.
(2.) It is not disputed that the first objection petition has not so far been decided on merits and the same is pending in that situation, the approach of the executing Court that the second objection petition was barred by the rule of constructive res-judicata appears to be incorrect. When the first objection petition has not been decided on merits, the rule of res-judicata cannot be invoked. I can agree with the Court below that the second objection petition may not be entertainable on the same grounds which were taken by Umed Singh in the first objection petition. Therefore, the executing Court could not proceed to hear the grounds taken in the second objection petition which were identical to those which had been raised in the objection petition by virtue of Section 10 read with Section 141 of the Code. The second objection petition, therefore, could have been stayed till the decision of the first objection petition so far as the grounds raised by Umed Singh in both the objection petitions were identical. If there was any ground taken by Umed Singh in the second objection petition which was other than the one taken in the first objection petition, the question as to whether the second objection petition was maintainable for the decision of that ground could have been decided when the executing Court proceeded to decide the second objection petition on merits. Therefore, I feel that dismissal of the second objection petition summarily by the executing Court was not warranted and the Appellate Court too was not justified in maintaining that order. In these premises this appeal has to be allowed.
(3.) Consequently, I allow this appeal, set aside the impugned order and direct that the second objection petition should be kept alive till the decision of the first objection petition. The executing Court would be well advised to detach the first objection petition from the suit instituted by Umed Singh and proceed to decide the same on merits and should wait till the decision of the suit filed by Umed Singh, especially when it (the executing court) had declined to stay the execution proceedings. The second objection petition should be kept pending till the decision of the first objection petition. In case it is so advised by law it (the second objection petition) would be disposed of after the decision of the first objection petition on merits. Though there is no appeal or revision against the order dated December 2, 1972 which had been confirmed by the District Judge, the executing Court may see to the desirability to reconsider the matter with regard to the stay of proceeding in the execution.