Gopal Singh v. Jai Singh — 1977 DIGILAW 320 (ALL)

JUDGMENT P. Krishen, M. - This is a review application against the order dated June 18, 1971 passed in Revision No. 165(z) of 1965-66 district Aligarh which was against the order of the Additional Commissioner, Agra dated Mar. 25, 1966 passed in a case under section 202 of the U.P.Z.A and L.R. Act. 2. Briefly stated the facts of the case are that Gopal Singh and others filed a suit for ejectment of Raghubir Singh and other from the land in suit under section 202 of the U.P.Z.A. and L.R. Act. After considering the evidence of the parties the trial court dismissed the suit on May 29, 1956 Gopal Singh and others filed an appeal against the order dated May 29, 1956 which was dismissed by the appellate court on May 9, 1956. Aggrieved by this order Gopal Singh and others filed a second appeal which was allowed and the suit was decreed by the Board. The writ petition filed against the Board's order was rejected on May 1, 1963. On April 28, 1964, plaintiffs applied for execution of the decree. Raghubir Singh and others defendants objected on July 6, 1965. The objection was rejected. On May 11, 1965 Gopal Singh and others, plaintiffs, moved an application for delivery of possession. Raghubir Singh and others, defendant filed objections saying that the plots have been changed during consolidation operations. The decree was in respect of certain specific plots but the decree holders wanted to get execution against certain other plots which cannot be allowed unless the decree is amended. After considering the evidence of the parties the trial court rejected the objections. Jai Singh and others went in appeal before the Additional Commissioner who allowed the appeal, set aside the order of trial court and held that the decree having become barred no execution of it by ejectment of the defendants could be ordered. Gopal Singh and others went in revision against the said order of the Additional Commissioner before the Board. The revision was rejected by me on June 18, 1971. Gopal Singh and others have now come in review against may order dated June 18, 1971. 3. I have heard the learned counsel for the parties and gone through the orders of the courts below. 4. The revision was rejected by me on June 18, 1971. Gopal Singh and others have now come in review against may order dated June 18, 1971. 3. I have heard the learned counsel for the parties and gone through the orders of the courts below. 4. It was argued on behalf of the applicants that the sole point on which the execution of the decree was refused by the Additional Commissioner and the Board was that the execution application filed on April 28, 1964 was treated as time barred. This view is contrary to the evidence on record. The suit for ejectment was decreed by the Board on July 10/24, 1961. Against this order a writ petition No. 3564 of 1961 was filed by Raghubir Singh and others before the Hon'ble High Court and the execution of the decree was stayed. This stay order was vacated on May vacated on May 1, 1963 when the writ petition was dismissed by the Hon'ble High Court. The execution application was moved on April 28, 1964. The period of one year for filing the application for execution of the decree will run after the vacation of the stay order passed in the writ petition and as such the application for execution of decree was well within time. Besides, in the Additional Commissioner's order dated March 18, 1966 as well as in the Board's order dated June 18, 1971 the date of vacation of stay order has been incorrectly mentioned as May 1, 1962 instead of May 1, 1963. It is an error apparent on the face of the record and due to this both the courts have incorrectly held that the execution application was filed beyond time. The learned counsel further urged that the trial court by the order dated July 6, 1964 has rejected the objections which were filed by the Judgment debtors against the execution application. This order of the trial court was not challenged by them by way of appeal or revision. This order, therefore, become final and operated as res judicata. The learned counsel lastly urged that the plea of limitation was not raised by the judgment debtors in their objections which they ought to have raised. They cannot, therefore, raise it subsequently as the same is barred by principles of constructive res judicata. This order, therefore, become final and operated as res judicata. The learned counsel lastly urged that the plea of limitation was not raised by the judgment debtors in their objections which they ought to have raised. They cannot, therefore, raise it subsequently as the same is barred by principles of constructive res judicata. In support of his contention of learned counsel relied on A.I.R. 1962 Patna 72 wherein it has been laid down that the doctrine of constructive res judicata applied to execution proceedings. 5. In reply the learned counsel for the opposite party urged that the writ is in independent proceedings and is in discontinuation of the suit. The Hon'ble High Court in a case reported in 1973 A.L.J. 295 have held that the writ is not in continuation of the suit and the orders of the tribunal of the Board do not merge into the order the Hon'ble High Court in the writ petition. The Hon'ble High Court in the writ petition only say that the order is correct or incorrect. They do not pass the order on merits of the case. The executable orders would be the order of the Board of Revenue dated July 10/24, 1961 and the period of limitation of one year will run from this date and not from May 1, 1963 when the writ petition was dismissed and the stay order was vacated. However, under Section 15 of the Limitation Act the period during which the execution of the decree was stayed by the Hon'ble High Court will be excluded. The execution application moved on April 28, 1964 was clearly time barred. The learned Additional Commissioner and the Board were perfectly justified holding that the execution application moved by Gopal Singh and others was time barred. There is no illegality in their orders. The learned counsel further urged that the trial court has only rejected the objections filed by the judgment debtors. He has said nothing in respect of execution of the decree. Simply rejection of the objections will not operate as res judicata. The plea of res judicata can only be taken if the dismissal order in respect of the objections is analogous to a decree of a suit. He has said nothing in respect of execution of the decree. Simply rejection of the objections will not operate as res judicata. The plea of res judicata can only be taken if the dismissal order in respect of the objections is analogous to a decree of a suit. A mere dismissal of the objection without any direction regarding execution proceedings cannot act as res judicata and cannot debar the judgment debtors from raising the plea which might have been taken in the objections. In support of his contention the learned counsel relied on the ruling reported in A.I.R. 1936 Alld. 21. The learned counsel lastly urged that the question of law can be raised at any state of the proceedings. 6. I have considered the arguments put forward by the learned counsel for the parties. It is correct that the point of limitation can always be raised at any stage of the proceedings. The opposite partly were, therefore, justified in raising the question of limitation at appellate stage but the view of the opposite party that the Hon'ble High Court in a writ petition can only suggest that the order is correct or incorrect and they cannot pass any order or look into the merits of the case is incorrect. The Hon'ble High Court in their decision reported in A.I.R. 1955 Alld. 557 have held that the power of the High Court to issue a writ of certiorari is not confined to the grounds where the subordinate court has acted without jurisdiction or in excess of its jurisdiction but also on the ground that there is an error of law apparent on the face of the record. They have further held therein that if the court finds that the reasons are manifestly wrong on a question of law and the conclusions arrived at by the courts below are apparently erroneous, then it is open to the High Court to exercise its jurisdiction under Article 226 of the Constitution and quash such a decision. In view of this the order of the Board against which a writ petition was filed was not a final order. The Hon'ble High Court have got jurisdiction to quash the order of the Board and as such the order of the Hon'ble High Court under Article 226 of the Constitution will be treated as final. In view of this the order of the Board against which a writ petition was filed was not a final order. The Hon'ble High Court have got jurisdiction to quash the order of the Board and as such the order of the Hon'ble High Court under Article 226 of the Constitution will be treated as final. The limitation will, therefore, start from the date of decision of the Hon'ble High Court. The Hon'ble High Court in the present case dismissed the writ petition on May 1, 1963 and as such the limitation of one year for moving the application for execution of the decree will start from May 1, 1963 and not from the date of decision of the Board dated July 10/24, 1961. The execution application moved on April 26, 1964 was, therefore, within time. The Board as well as the Additional Commissioner have incorrectly held that the application moved for execution of the decree was time-barred. These orders are bad in law and should be set aside. Moreover the date of decision of the writ petition given in the Additional Commissioner's order and the Board's order under review is June 1, 1962 when in fact the writ petition was dismissed on May 1, 1963. This is an error on the face of the record. 7. In the result, I allow the review application, set aside the Additional Commissioner's order dated March 5, 1966 and that of the Board dated June 18, 1971 and upload the order of the trial court dated May 22, 1965.