DEEPAK KUMAR SINHA Vs. BINAY KUMAR SINHA

JUDGEMENT

(1.) Heard.

(2.) Mr. Satya Narayan Prasad, learned Counsel, appearing for the Petitioner, submitted that without considering the Petitioner's objection, the impugned orders have been passed. He further submitted that the suit was dismissed and in the appellate court, the suit was decreed only with respect to the agreement dated 1.4.1989 (Ext. A) which related to only 4 Decimals of land and not the suit property described as 4 Kathas and 4 Dhurs in the Plaint. He also referred to the order of the second appellate court. He further submitted that the said judgment was affirmed up to the Supreme Court. He relied on a judgment reported in, 2000 (3) PLJR 525.

(3.) On the other hand, Mr. P. K. Prasad, learned senior counsel, appearing for the Plaintiffs/decree holders/ Respondents, submitted that the averments made in the plaint clearly referred to the 'suit property' which was described in the Schedule thereof measuring 4 Kathas and 4 Dhurs, but it was never contested by the judgment debtor/ Petitioner that the suit property has been wrongly described/Rather, the parties contested the case in the courts treating the 'suit property' as described in the Schedule of the Plaint. He further submitted that now the Petitioner is trying to create confusion showing one sentence of the judgment passed by the lower appellate court in which it was said that- "the Plaintiff's suit" for specific performance of contract on the basis of Ext. 8 dated 1.4.1989 must be decreed" and few sentences from the order passed by this Court in Second Appeal. He also submitted that the objections in question are barred by constructive res judicata, as no such objections were raised in the earlier objection petition filed by the judgment debtor/ Petitioner under Section 47 Code of Civil Procedure., which was rejected by order dated 8.6.2004 by the executing court. He relied on the judgments reported In , AIR 1962 Pat 72 : AIR 1969 Pat 21.