RATAN CHAND Vs. SHANKER LAL

JUDGEMENT

(1.) THIS revision petition is directed against the order dated September 13, 1989, passed by the Munslf and Judicial Magistrate, Banner, by which the learned Munsif dismissed the application under Order 21 rule 97 C.P.C. filed by the petitioner on the ground of res judicata.

(2.) PLAINTIFF -petitioner filed a suit for possession of the disputed premises against Shanker Lal on the basis of the title in the Court of the Munsif, Bikaner. That suit, filed by the plaintiff, was decreed by the learned Munsif by its decree and judgment dated September 11, 1979. Dissatisfied with the decree and judgment passed by the learned Munsif and Judicial Magistrate, Bikaner, the judgment -debtor preferred an appeal before the learned District Judge, Bikaner. In the appeal, no stay was granted by the learned District Judge in favour of the judgment -debtor (appellant). During the pendency of the appeal before the learned District Judge, Bikaner, the decree -holder moved an application under Order 21 rule 97 C.P.C. for the execution of the decree. That application, filed by the petitioner, was dismissed by the learned lower Court on the ground of limitation. The petitioner did not file any appeal or revision against that -order and that order has become final. Subsequently the decreeholder took -out a fresh warrant of possession and again filed an application under Order 21 Rule 97 C.P.C. This, application was dismissed by the Executing Court on the ground of res judicata. Dissatisfied with the order dated January 31, 1983, passed by the learned Munsif, dismissing the application under Order 21 Rule 97 C.P.C. filed by the decree -holder, the decree -holder preferred an appeal before the learned District Judge, Bikaner, who, by his order dated November 2, 1983, allowed the appeal filed by the decree -holder and set -aside the judgment dated January 31, 1985, passed by the learned Munsif, Bikaner. Aggrieved with the order dated November 2, 1985, passed by the learned District Judge, Chhotu Lal judgment -debtor preferred a revision petition before this Court. This Court allowed the revision petition by its judgment dated February 3, 1987, and set -aside the order passed by the learned District Judge, Bikaner, and held that the decree -holder while facing with an obstruction, may instead of applying under Order 21 rule 97 C.P.C, take recourse of the remedy by way of filing a suit for declaration and possession and without having taken recourse to that remedy and having failed in that, he cannot turn down that he is not bound by the adverse decision. After the judgment of this Court in the revision petition, the appeal filed by the judgment -debtor was allowed by the learned District Judge vide its judgment dated 13.7.1987. On the basis of this decree, passed by the learned District Judge, Bikaner, in appeal, the petitioner again moved an application under Order 21 Rule 97 C.P.C. and that application was dismissed by the learned Munsif by its order dated 13.9.1989. It is against this order that the present revision petition has been filed by the petitioner.

(3.) I have considered the rival submissions made by the learned Counsel for the parties and perused the order passed by the Court below as. well as the record of the case.