REVTI DEVI v. KHIALI RAM — 1967 DIGILAW 74 (DEL)

S. N. Andley J. ( 1 ) THIS is an Execution Second Appeal against the order dated 7th February, 1964 of the Senior Subordinate Judge Delhi passed in Appeal No. 176 of 1963. The facts which have given rise to this appeal are stated hereinafter. ( 2 ) THE appellant Revti Devi occupies a portion of house No. 481, Gali Shish Mahal, Bazar Sita Ram, Delhi, which belongs to Kahyali Ram and Dal Chand, respondents Nos. 1 and 2. Basanti Devi is the owner of the contiguous house bearing No. 482. Basanti Devi brought a sdit (No. 32 of 1958) against respondents Nos. I and 2 and ths appellant for a perpetual injunction restraining them from interfering with her right to build a wall which was denoted in the site plan filed in the suit. The proposed wall would have covered a passage which, according to the appellant, is her only means of egress from house No. 481. This suit was dismissed by the trial Court, but the Senior Subordinate Judge, Delhi, allowed the appeal. In allowing the appeal, the Senior Subordinate Judge, observed:- "under the circumstances, the decision of the learned trial Sub Judge, is set aside and the plaintiffs suit is decreed. It is further laid down that the defendants be restrained from interfering in the construction of the wall ABC shown in the site plan. Ex. P/1 A perpetual injunction in this behalf is issued against them. Ths defendants are given 15 days time to open the new door in house No. 481 for the passage of respondent No. 3". ( 3 ) A decree was prepared in accordance with the judgment with the result that the decree, in addition to giving relief to Basanti Devi, granted relief to the present appellant also, which relief has been construed in proceedings before the trial Court as amocunting to a right of the present appellant to have a new door opened in house No. 481. ( 4 ) AFTER the decree was passed, the appellant made an application for execution of that part of the decree, which gave her a right against respondents Nos. 1 and 2 for a new door in house No. 481 for her pass age. Respondents Nos. ( 4 ) AFTER the decree was passed, the appellant made an application for execution of that part of the decree, which gave her a right against respondents Nos. 1 and 2 for a new door in house No. 481 for her pass age. Respondents Nos. 1 and 2 filed objections to this application lor execution by the appellant pleading, inter alia, that the appellant, being merely a co-defendant in the aforesaid suit (No. 32 of 1958) could not be granted a decree as she had not asked for such a decree. These objctions were dismissed by the executing Court -on 13th June, 1962 whereby the executing Court held that the appellant was entitled to execute the decree. Against this order, respondents Nus. 1 and 2 filed an appeal (M. C. A. No. 102 of 1962) which was dealt with by Mr. G. R. Luthra, then Additional Senior Sub Judge, Delhi. By his judgment dated l6th March, 1963, Mr. Luthra dismissed the appeal. The. result of this judgment of the Additional Senior Sub Judge also was that the appellant was held entitled to execute the decree by a direction against respondents Nos. I and 2 to open a new door in house No. 481 for her passage. Mr. Patney, learned counsel for the appellant, informs me that respondents Nos. I and 2 did not tile any appeal against this judgment dated 16th March, 1963 of the learned Additional Senior Sub Judge, Delhi. ( 5 ) IN spite of the dismissal of their appeal, respondents Nos. 1 and sfiled fresh objections in the executing Court taking the grounds similar to those which had been disposed of earlier by the executing Court and by the Additional Senior Sub Judge, Delhi in appeal as stated above. These objections were again dismissed by the executing Court on 22nd October, 1963 Respondents Nos. 1 and 2 again filed an appeal, (Appeal No. 176 of 19 (3) in the Court of the Senior Subordinate Judge at Delhi. This time this appeal came to be dealt with by Mr. K. S Sidhu, who was the Senior Sub Judge at Delhi at that time. He allowed the appeal by his judgment dated 7th February, 1964, which is under appeal. This time this appeal came to be dealt with by Mr. K. S Sidhu, who was the Senior Sub Judge at Delhi at that time. He allowed the appeal by his judgment dated 7th February, 1964, which is under appeal. He has really gone into the validity of the decree which was passed by the appellate Couit and has held that no decree could be passed in favour of the appellant, who was a defendant in the suit against her co-defendants. A plea was taken before him that the question whether a decree could or could not be passed in favour of the appellant against respondents Nos. 1 and 2 was res-judicata between the parties as the objections and the appeal filed by respondents Nos. I and 2 had been dismissed earlier wherein it had been held that a decree had been validly passed in favour of the appellant against respondents Nos. 1 and 2 and that she was entitled to execute the same. The learned Senior Sub Judge has repelled this objection on the ground that in spite of such a finding, respondents Nos. I and 2 were not precluded from raising a question which is a pure question of law and which is apparent on the face of the record. He further held that the question related to the existence and validity of the decree sought to be executed and it could be demonstrated that the decree did not exist in the eye of law. ( 6 ) I do not think that the learned Judge was right in going behind the decree. The subsequent objection could not be entertained because of the fact that the previous objections which raised the same contentions were overruled by the executing Court and the consideration of the subsequent objections was barred by the principles of res-judicata. ( 7 ) IT may be that the previous objections were dismissed on a wrong application of the law, but a mere erroneous decision would not entitle the Court in subsequent proceedings to reopen the question. The position is well established that the principles of constructive res-judicata are applicable to execution proceedings. It has been held by the i Supreme Court in Mohanlal Goenka v. Benoy Kishna Mukherjee, that "even an erron^ouj decision on a question of law operate? as res-judicata between the parties to it. The position is well established that the principles of constructive res-judicata are applicable to execution proceedings. It has been held by the i Supreme Court in Mohanlal Goenka v. Benoy Kishna Mukherjee, that "even an erron^ouj decision on a question of law operate? as res-judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res-judicata. A decision in the previous execution case between the parties that the matter was not within the competence of the executing Court even though erroneous is binding on the parties". ( 8 ) IN my view, the rule of res judicata clearly applies to this case and the learned Senior Subordunate Judge was wrong in going into the question whether a proper or correct decree had been passed in the face of the previous order of the executing C mrt on the objections of respondents Nos. 1 and 2 and the decision of th. Additional Senior Sub Judge Delhi, in the appeal filed by respondents Nos. 1 and 2. ( 9 ) I would, therefore, allow the appeal and set aside the order appealed against. Parties shall hear their own costs. The file shall be sent to ths Senior Subordinate Judge, Delhi. The parties, who are present here, are directed to appear before the Senior Subordinate Judge, Delhi, on 24th April, 1967 when he will assign the execution case to a Subordinate Judge for taking further proceedings in the matter.