LAL BEHARI LAL Vs. CHAUBEY GULZARI LAL

JUDGEMENT

(1.) This is an application in revision by a decree-holder Lal Behari Lal against an order dated 17 March 1934 passed by an additional Munsif on an application of the opposite party, Gulzari Lal, under Order 21, Rule 100, Civil P.C.Lal Behari Lal held a decree against one Lalloo for possession of a house and the Amin went to obtain possession in execution of the decree and the objection in question was made. The Court held an enquiry and in its order it states: I have not allowed any oral evidence to be led by the parties as there is sufficient documentary evidence in the execution file itself and on the record.

(2.) The Court then held that it was satisfied that the objector had been wrongfully dispossessed of the property and the objection was allowed. In the revision the first ground taken is that the Court acted illegally and with material irregularity in the exercise of its jurisdiction in not allowing the applicant to adduce oral evidence in support of his case, that is, the applicant desired to produce oral evidence that the judgment-debtor and not the objector was in possession. Learned counsel for the opposite party has attempted to justify the order of the lower Court by reference to two rulings Sardhari Lal V/s. Ambika Pershad (1888) 15 Cal. 521 and Najimunnissa Bibi V/s. Nacharuddin Sardar 1924 Cal. 744. These rulings merely say that the procedure of investigation in an objection of this nature either under the rule in question or under Rules 60 and 61, Order 21, is of a summary nature and it is not prescribed how far the investigation should go. The rulings afford no justification for the order of the lower Court refusing to hear oral evidence.

(3.) Learned Counsel for the opposite party then attempted to uphold the order of the lower Court allowing the objection of Gulzari Lal on the ground that the matter was res judicata in his favour. This ground had not been taken before the lower Court. The alleged res judicata arose, it is said, out of an order on 22nd December 1932. This order purports to deal with an application by the decree-holder and states that the application is not against the judgment-debtor but is against a third party and is therefore not maintainable and is dismissed. There was no consideration in this order as to whether the judgment-debtor or the third party, if that third party was Gulzari Lal, was in possession. Accordingly it does not appear to me that there was any decision of that issue which would amount to res judicata under Section 11, Civil P.C., as that section requires that the issue should be heard and finally decided before it amounts to resjuddcaita. I see no ground on which the order of the lower Court can be upheld and accordingly I set, it aside and remand the case to the lower Court for disposal according to law, that is, the lower Court will allow the parties to produce whatever evidence they desire, oral or documentary, and will then dispose of the matter. Costs are allowed to the applicant in revision. Costs in the lower Court will abide the result. The court-fee of this Court will be returned to, the applicant in revision.