SRI VAISHNAV BRAHMIN TRUST JODHPUR Vs. RAMESH CHANDRA

JUDGEMENT

(1.) IN this case vide order dt. 28. 5. 97 show cause notice was ordered to be issued and the record of the trial court was ordered to be summoned. While so issuing notice, the proceeding pending in the learned court below was stayed till further orders. Thereafter, after service was effected, vide order dt. 25. 4. 98 the revision petition was admitted. Then when the matter came up for consideration of the stay petition, vide order dt. 3. 4. 2000 the record of the main execution petition was also requisitioned. After receipt of the record the case was finally taken up on 27. 7. 2000 and that day with the consent of the learned counsel for the parties instead of considering the stay petition, the main revision itself was taken up for hearing which was concluded on 1. 8. 2000.

(2.) BY this revision the decree holder assails the order of the learned Executing Court dt. 28. 3. 97 whereby the learned court below dismissed the petitioner's application filed under Sec. 11 read with Sec. 141 and 151 C. P. C. holding that the objection petition filed by the present non-petitioners is not barred by principles of constructive res judicata.

(3.) IT so further happened that a regular civil suit was filed by some of the judgment-debtors inter alia seeking to contend the property to be their ancestral property and attempted to trace the title by giving the pedigree table. In that suit temporary injunction applications were also filed then civil misc. appeals were also filed on behalf of the widow and sons of Ganeshdas which appeals were dismissed on 26. 9. 96. Against dismissal, a revision petition was filed before this Court being S. B. Civil Revision Petition No. 999 of 1996, wherein at admission stage and without notice to the present petitioner, vide order dt. 27. 11. 96. This Court (Hon'ble R. R. Yadav, J.) purported to accept the innocuous request of the petitioners therein, to allow to withdraw the suit as well as the revision petition with a liberty to file an objection under Sec. 47 C. P. C. Accordingly it was directed that in case an application for withdrawal of the suit is moved under Order 23 C. P. C. before the trial court, it shall be withdrawn with liberty to the revisionist to file objection under Sec. 47 C. P. C. IT was also ordered that when an objection is filed by the revisionist before the Executing Court u/s. 47 C. P. C. relating to execution, discharge and satisfaction of the decree, the Executing Court would be at liberty to pass appropriate orders on merits. IT is despite this order that the revisionist therein neither filed application for withdrawal of the suit nor filed objections u/s. 47 C. P. C. , with the result that the petitioner decree holder was obliged to move an application to the Executing Court to proceed with the execution, and thereupon the learned Executing Court on 27. 1. 1997 found that despite expiry of about two months neither the plaintiff has withdrawn the suit nor any objection u/s. 47 C. P. C. has been filed and therefore ordered possession warrant to be issued for execution of the rest of the decree. IT is thereupon that on 19. 2. 1997 that the five persons being the widow and sons of Shri Ganeshdas (hereafter referred to as the descendants of Ganeshdas) filed the objection petition purporting to be u/s. 47 C. P. C.