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2005 DIGILAW 190 (PNJ)

Attar Singh v. Hargyan (Died) thru. LRs.

2005-02-02

M.M.KUMAR

body2005
JUDGMENT M.M. Kumar, J. - The is plaintiffs Code of Civil Procedure, 1908 (for brevity, the Code) challenging concurrent findings of facts recorded by both the Courts below. It has been concurrently found by both the Courts that dismissal of the application filed by the plaintiff-appellants raising objections before the executing Court to the execution of judgment and decree dated 15.3.1961 in favour of the defendant-respondents would operate as res judicata under Section 11 read with Explanation VII of the Code. There are other findings by both the Courts below holding that the suit filed by the plaintiff-appellant Rattan Singh (since deceased and now represented by his legal representatives) against the defendant-respondent No. 1 Hargyan (since deceased and now represented by his legal representatives) was not filed by a person competent and authorised to do so. 2. Brief facts of the case are that one Sarupi entered into an agreement of sale of his land measuring 88 kanals 19 marlas with defendant-respondent No. 1 Hargyan on 20.7.1959 for a consideration of Rs. 35,500/-. An amount of Rs. 3,000/- as earnest money was paid to her. Sarupi failed to honour the agreement which led to the filing of a Civil Suit No. 43 of 1961 by Hargyan defendant-respondent No. 1 with a prayer for possession by way of specific performance of agreement to sell dated 20.7.1959. It was alleged that the defendant-respondent No. 1 was not in sound financial position to meet litigation expenses which led to an oral agreement. Defendant-respondent No. 1 Hargyan entered into an oral agreement with plaintiff-appellant Rattan Singh which stipulated that half of the litigation expenses would be borne by him in prosecuting the suit of the plaintiff-appellant. There was a further covenant to the effect that in case the suit was to be decreed in favour of the defendant-respondents, then half share of the total land which was subject matter of agreement to sell dated 20.7.1959 had to be sold to the plaintiff- appellant for an amount of Rs. 17,750/-. The amount of Rs. 17,750/- is half of the amount of Rs. 35,000/- for which the agreement of sale had been entered into by defendant-respondent Sarupi on 20.7.1959. An amount of Rs. 1,500/- was paid as earnest money by the plaintiff-appellant. The suit was decreed on 15.3.1961. 3. On 8.4.1961 another agreement between the plaintiff-appellant and the defendant-respondents took place which is Ex. 17,750/- is half of the amount of Rs. 35,000/- for which the agreement of sale had been entered into by defendant-respondent Sarupi on 20.7.1959. An amount of Rs. 1,500/- was paid as earnest money by the plaintiff-appellant. The suit was decreed on 15.3.1961. 3. On 8.4.1961 another agreement between the plaintiff-appellant and the defendant-respondents took place which is Ex. P-2 and accordingly an amount of Rs. 16,250/- was paid which was the balance amount in respect of the share of the plaintiff-appellant. In token of receipt of the aforementioned amount, document Ex. P-3 was executed by the defendant-respondents. On 11.4.1961 the defendant-respondents deposited in the Court an amount of Rs. 32,500/- seeking execution of the judgment and decree dated 15.3.1961 for the purposes of executing the sale-deed. However, vendor Sarupi filed a Regular Second Appeal before this Court. This Court granted stay of execution of the decree for specific performance. As a consequence, the defendant-respondents withdrew the amount of Rs. 32,500/- that was deposited in the Court as the balance consideration for execution of the sale-deed in pursuance to the judgment and decree dated 15.3.1961. Out of this amount, Rs. 11,000/- was paid back by the defendant-respondents to the plaintiff-appellant. On 14.7.1972, the appeal filed by vendor Sarupi was dismissed by this Court. As the judgment and decree for possession by way of specific performance had attained finality, the execution proceedings were initiated by the defendant-respondents. On 24.11.1972 defendant-respondents re-deposited the amount of Rs. 32,500/- with the Court for execution of the sale-deed in pursuance to the judgment and decree dated 15.3.1961. 4. During the pendency of execution proceedings initiated by defendant- respondents, the plaintiff-appellants filed an application on 14.5.1974 asserting that the sale-deed in favour of the defendant-respondents to the extent of 1/2 share alone could be executed because of agreement between the plaintiff-appellant and the defendant-respondents to that effect. In sum and substance the executing Court addressed itself on the following two issues :- (a) Whether the applicant (plaintiff-appellant) Rattan Singh received Rs. 11,000/- in full and final satisfaction of the entire amount paid by him to the [defendant-respondent] who was the decree-holder ? If so, to what effect ? OP (DH). (b) Whether the applicant (plaintiff-appellant) is estopped from filing this application by this acts, conduct, omission, laches and acquiescence ? OP (DH). 5. 11,000/- in full and final satisfaction of the entire amount paid by him to the [defendant-respondent] who was the decree-holder ? If so, to what effect ? OP (DH). (b) Whether the applicant (plaintiff-appellant) is estopped from filing this application by this acts, conduct, omission, laches and acquiescence ? OP (DH). 5. After recording evidence of the parties and following detailed procedure prescribed for holding trial, the application filed by the plaintiff-appellant was dismissed by order dated 25.9.2976 (Ex. D-1). The operative part of the order passed by the executing Court while dismissing the application of the plaintiff-appellant reads as under :- "In the instant case, the decree of the lower Court merged into that of the Honble High Court and was one indivisible. It could not, therefore, be divided into two as has been sought by the applicant/through the present application. In case the applicant had purchased the rights of the decree- holders to the extent of half as alleged, there are no reasons as to why he would take back the amount of Rs. 11,000/- which according to the decree- holders is in full and final satisfaction of the claim of the applicant. Be that as it may, by no stretch of imagination the document Ex. A-1 can be held to be either a deed of transfer or assignment. This issue is, accordingly, determined against the applicant. xx xx xx xx xx xx xx xx "..... Under the circumstances, it is proved on the evidence on record that Rattan received the sum of Rs. 11,000/- in respect of full and final satisfaction of his claim. This issue is determined in favour of the decree- holders, accordingly. xx xx xx xx xx xx xx xx In view of my findings on issues 1 and 2, above, it can safely be held that the applicant is estopped from filing this application by his own acts and conduct. Having already received the sum of Rs. 11,000/- with respect to full and final satisfaction of his entire claim, it does not now lie in his mouth to agitate that he be also joined to execute the decree along with the decree-holders. This issue is, accordingly, determined in favour of the decree holders." As a consequence, sale-deed in respect of the entire land was executed in favour of defendant-respondent No. 1 Hargyan on 10.5.1977. 6. This issue is, accordingly, determined in favour of the decree holders." As a consequence, sale-deed in respect of the entire land was executed in favour of defendant-respondent No. 1 Hargyan on 10.5.1977. 6. The plaintiff-appellant filed a suit on 24.1.1978 from which instant appeal has arisen seeking specific performance of the agreement to sell dated 8.4.1961 (Ex. P-2) against defendant-respondent No. 1 Hargyan. Both the Courts below have come to the conclusion that order dated 25.9.1976 (Ex. D-1) passed by the executing Court on the application filed by the plaintiff-appellant would operate as res judicata. The Appellate Court further held that the suit was not filed by a competent person, namely, Bharta because he was found not authorised to file the suit on behalf of Rattan Singh with whom the agreement dated 8.4.1961 was entered into. The Appellate Court has still further held that had there been no res judicata available, the suit of the plaintiff- appellant would have been decreed for specific performance of the agreement dated 8.4.1961. The findings of the trial Court on the issue of res judicata were mainly based on plain reading of Section 11, Explanation VI of the Code. After discussing various judgments of different High Courts on which reliance was placed by counsel for the plaintiff-appellant and distinguishing the same, the lower Appellate Court affirmed the findings of the trial Court on the issue concerning res judicata which was styled as issue No. 8. The findings are discernible from paragraph 16 of the impugned judgment which reads as under :- "....... In the instant case, as aforesaid, the former proceedings were also commenced by Rattan Singh who purports to be the plaintiff in the suit giving rise to this appeal and said Rattan Singh is bound by the order Ex. D-1 passed therein which he alleged to (have) become conclusive by not assailing the correctness thereof in superior Court. It thus emerges that the finding under issue No. 8 recorded by the learned trial Judge in the judgment under appeal that Rattan Singh received Rs. 11,000/- in full and final satisfaction of his claim under the agreement Ex. P-2 and that he is estopped from filing the suit amounts to res judicata. That finding is consequently affirmed." On issue Nos. 11,000/- in full and final satisfaction of his claim under the agreement Ex. P-2 and that he is estopped from filing the suit amounts to res judicata. That finding is consequently affirmed." On issue Nos. 1 to 3 concerning the entitlement of the plaintiff-appellant for specific performance of the agreement dated 8.4.1961 and his readiness and willingness to perform his part of the contract including cancellation thereof, the learned lower Appellate Court came to the conclusion that the palintiff-appellant was entitled to specific performance of the contract. In fact it modified the findings of the learned trial Court which had disposed of those issues in view of the conclusion that principle of res judicata under issue No. 8 was applicable. Holding that the general principle is to order specific performance unless legal and equitable considerations justify its denial, the learned lower Appellate Court found that there was no such circumstance brought on the record which may warrant denial of the relief of specific performance. 7. On the issue as to whether the suit was filed within time and whether it was instituted by a duly authorised person and whether the plaintiff-appellant was estopped from filing the suit under issue Nos. 5 to 7, it was found that Bharta had no authority to institute the suit on behalf of Rattan Singh plaintiff-appellant because the special power of attorney dated 22.7.1970 (Ex. P-1) executed by Rattan Singh did not delegate any power to him to institute the suit from which the instant appeal has arisen. He has only permitted him to defend the suit which had been filed against him. Accordingly, the suit was found to be instituted by Bharta without any authority as is evident from the perusal of concluding portion of paragraph 20. The suit has been found to be within limitation as is evident from the reading of concluding portion of paragraph 21. However, in view of the finding that order dated 25.9.1976 (Ex. D-1) being between the same parties, it was to operate as res judicata and the suit was dismissed. 8. Mr. Hemant Sarin, learned counsel for the plaintiff-appellants has argued that the principle of res judicata would not be applicable to the instant case because the plaintiff-appellants were not a party to the judgment and decree dated 15.3.1961 which was affirmed by this Court by dismissing the appeal on 14.7.1972. 8. Mr. Hemant Sarin, learned counsel for the plaintiff-appellants has argued that the principle of res judicata would not be applicable to the instant case because the plaintiff-appellants were not a party to the judgment and decree dated 15.3.1961 which was affirmed by this Court by dismissing the appeal on 14.7.1972. The learned counsel has highlighted and emphasized the expression a former suit between the same parties used in Section 11 read with Explanation VII of the Code, to substantiate his argument that until and unless a suit has been filed by either of the two parties, earlier in any point of time and there was a determination of the rights of the parties, only then the filing of the suit from which instant appeal has arisen would be barred by the application of principle of res judicata. The learned counsel has submitted that once the issue of res judicata is decided in favour of the plaintiff-appellant, then there is no impediment in passing a decree in his favour because the lower Appellate Court has categorically held that in the absence of application of principle of res judicata, the suit of the plaintiff-appellant deserves to be decreed by directing specific performance of the agreement dated 8.4.1961 (Ex. P-2). 9. With regard to the other issue that the suit was not filed by a competent person, the learned counsel has submitted that the suit was originally filed by Bharta in the name of his father Rattan Singh who had authorised Bharta to file the suit by executing a special power of attorney Ex. P-1. However, during the pendency of the suit, Rattan Singh died and Bharta along with his brothers and sisters was impleaded as legal representatives or Rattan Singh without any objection by the defendant-respondents. According to the learned counsel the question of competence of Bharta to file the suit paled into insignificance after the death Rattan Singh. 10. Mr. P-1. However, during the pendency of the suit, Rattan Singh died and Bharta along with his brothers and sisters was impleaded as legal representatives or Rattan Singh without any objection by the defendant-respondents. According to the learned counsel the question of competence of Bharta to file the suit paled into insignificance after the death Rattan Singh. 10. Mr. V.K. Jain, learned counsel for the defendant-respondents has argued that order dated 25.9.1976 rejecting the objections of the plaintiff-appellant in the execution proceedings of decree dated 15.3.1961 would operate as res judicata because the issues raised there are directly and substantially in issue which have been raised under Order 21 Rule 101 read with Rule 103 of the Code, the proceedings before the executing Court has to be considered as suit and as order passed by the executing Court would acquire the status of a decree. According to the learned counsel, once the objections have been filed under Order 21 Rules 97 and 99 of the Code, then filing of a separate suit is barred as is evident from perusal of Order 21 Rule 101 of the Code and any order passed on such objections has to be treated as a decree by virtue of the provisions of Section 103 of the Code. 11. I have pondered over the submissions made by learned counsel for the parties and have also perused record. In my view first question which requires determination in this case is the nature of proceedings initiated by the plaintiff-appellants before the executing Court and the legal provisions which would be applicable to those proceedings that ended in passing of order dated 25.9.1976 (Ex. D-1). The plaintiff-appellants had filed objections before the executing Court on 4.5.1974 when the defendant-respondents sought execution of the decree in their favour for possession by way of specific performance of the agreement dated 20.7.1959. The plaintiff-appellants asserted in their objections that the defendant-respondents on 8.4.1961 by the agreement had assigned/transferred his rights in the decree in his favour to the extent of half share for a sum of Rs. 17,750/-. The afore-mentioned objections were contested by the defendant-respondents-decree-holders. The executing Court framed as may as six issues and both the parties led their evidence. The objections raised by the plaintiff-appellants were dismissed vide order dated 25.9.1976. 17,750/-. The afore-mentioned objections were contested by the defendant-respondents-decree-holders. The executing Court framed as may as six issues and both the parties led their evidence. The objections raised by the plaintiff-appellants were dismissed vide order dated 25.9.1976. The basic issue answered while rejecting those objections is that no subsisting right survived in favour of the plaintiff-appellants in pursuance to the assignment/transfer flowing from the agreement in writing entered between the parties on 8.4.1961 because the plaintiff-appellants had received Rs. 11,000/- in full and final satisfaction of the entire amount paid by him to the defendant-respondents who was a decree holder. Although no provision has been mentioned in order dated 25.9.1976 (Ex. D-1) yet it appears that the objections raised by the plaintiff-appellants were considered as the one filed under Order 21 Rule 97 read with Rules 101 and 103 of the Code. For the sake of convenience the afore-mentioned rules are reproduced which read as under :- "XXI. Execution of decrees and orders Rule 97. Resistance or obstruction to possession of immovable property. - (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. (2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. ............. 101. Questions to be determined. - All questions (including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application shall be determined by the Court dealing with the application, and not by a separate suit for this purpose. The Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. ............. 103. Orders to be treated as decrees. The Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. ............. 103. Orders to be treated as decrees. - Where any application has been adjudicated upon under Rule 98 or 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree." A conjoint reading of the afore-mentioned rules would reveal that all objections relating to right, title or interest in the property arising between the parties to a proceedings on an application filed under Rule 97 or their representatives are required to be determined by the executing Court and no separate suit for that purpose is competent. The use of expression any person is deliberate to include all those who have any right, interest or claim in the property covered by a decree. Rule 101 has employed a non- obstante clause by postulating that the executing Court would be deemed to have jurisdiction to decide all the questions despite anything to the contrary contained in the law the time being in force. 12. The aforementioned provisions came up for consideration of the Supreme Court in the case of Shreenath and another v. Rajesh and others, 1998(4) SCC 543. Keeping in view the principle of interpretation of Procedural Law, it has been observed that in case more than one interpretation is possible, then the one which curtails the procedure without eluding justice is to be preferred because procedural law is always subservient and is in aid of justice. The question raised was whether the third party in possession of a property claiming independent right as a tenant under the party to a decree under execution could resist such decree by seeking adjudication of his objections under Order 21 Rule 97 of the Code. The answer given is in affirmative and the expression any person used in Order 21 Rule 97 of the Code has been construed liberally even to include a stranger. The aforementioned view of their Lordships reads as under :- "10. Under sub-clause (1) Order 21 Rule 35, the executing Court delivers actual physical possession of the disputed property to the decree- holder and, if necessary, by removing any person bound by the decree who refuses to vacate the said property. The aforementioned view of their Lordships reads as under :- "10. Under sub-clause (1) Order 21 Rule 35, the executing Court delivers actual physical possession of the disputed property to the decree- holder and, if necessary, by removing any person bound by the decree who refuses to vacate the said property. The significant words are by removing any person bound by the decree. Order 21 Rule 36 conceives of immovable property when in occupancy of a tenant or other person not bound by the decree, the Court delivers possession by fixing a copy of the warrant in some conspicuous place of the said property and proclaiming to the occupant by beat of drum or other customary mode at some convenient place, the substance of the decree in regard to the property. In other words, the decree-holder gets the symbolic possession. Order 21 Rule 97 conceives of resistance or obstruction to the possession of immovable property when made in execution of a decree by "any person". This may be either by person bound by the decree, claiming title through the judgment-debtor or claiming independent right of his own including a tenant not party to the suit or even a stranger. A decree-holder, in such a case, may make an application to the executing Court complaining such resistance for delivery of possession of the property. Sub-clause (2) after 1976 substitution empowers the executing Courts when such claim is made to proceed to adjudicate upon the applicants claim in accordance with the provisions contained hereinafter. This refers to Order 21 Rule 101 (as amended by 1976 Act) under which all questions relating to right, title or interest in the property arising between the parties under Order 21 Rule 97 or Rule 99 shall be determined by the Court and not by a separate suit. By the amendment, one has not to go for a fresh suit but all matters pertaining to that property even if obstruction by a stranger is adjudicated and finally given even in the executing proceedings. We find the expression "any person" under sub-clause (1) is used deliberately for widening the scope of power so that the executing Court could adjudicate the claim made in any such application under Order 21 Rule 97. We find the expression "any person" under sub-clause (1) is used deliberately for widening the scope of power so that the executing Court could adjudicate the claim made in any such application under Order 21 Rule 97. Thus by the use of the words "any person" it includes all persons resisting the delivery of possession, claiming right in the property, even those not bound by the decree, including tenants or other persons claiming right on their own, including a stranger. 11. So, under Order 21, Rule 101 all disputes between the decree- holder and any such person is to be adjudicated by the executing Court. A party is not thrown out to relegate itself to the long-drawn-out arduous procedure of a fresh suit. This is to salvage the possible hardship both to the decree-holder and the other persons claiming title on their own right to get it adjudicated in the very execution proceedings........" Similar view has been expressed by the Supreme Court in the cases of Bhanwar Lal v. Satya Narain, 1995(1) SCC 6 and Babu Lal v. Raj Kumar, 1996(3) SCC 154. The Supreme court in Shreenaths case (supra) also considered the question as to whether the legal position was the same before the amendment of 1976 and the objections of a stranger to the decree whether in possession or not in possession were required to be considered by the executing Court under Order 21 Rule 97 of the Code. Holding that even before 1976 amendment, the executing Court was under obligation to consider such objections including the one raised by a stranger to the decree observed as under :- "13. So far sub-clause (1) of Rule 97 the provision is the same but after the 1976 Amendment all disputes relating to the property made under Rules 97 and 99 are to be adjudicated under Rule 101, while under unamended provision under sub-clause (2) of Rule 97, the executing Court issues summons to any such person obstructing possession over the decretal property. After investigation under Rule 98 the Court puts back a decree-holder in possession where the Court finds obstruction was occasioned without any just cause, while under Rule 99 where obstruction was by a person claiming in good faith to be in possession of the property on his own right, the Court has to dismiss the decree-holders application. After investigation under Rule 98 the Court puts back a decree-holder in possession where the Court finds obstruction was occasioned without any just cause, while under Rule 99 where obstruction was by a person claiming in good faith to be in possession of the property on his own right, the Court has to dismiss the decree-holders application. Thus even prior to 1976, right of any person claiming right on his own or as a tenant, not party to the suit, such persons right has to be adjudicated under Rule 99 and he need not fall back to file a separate suit. By this, he is saved from a long litigation. So a tenant or any person claiming a right in the property on the own, if resists delivery of possession to the decree-holder, the dispute and his claim has to be decided after the 1976 Amendment under Rule 97 read with Rule 101 and prior to the amendment under Rule 97 read with Rule 99. However, under the old law, in case order is passed against the person resisting possession under Rule 97 read with Rule 99 then by virtue of Rule 103, as it then was, he was to file a suit to establish his right. But now after the amendment one need not file suit even in such cases as all disputes are to be settled by the executing Court itself finally under Rule 101. 14. We find that both either under the old law or the present law, the right of a tenant or any person claiming right on his own of the property in case he resists, his objection under Order 21 Rule 97 has to be decided by the executing Court itself." It is appropriate to mention that Rules 101 and 103 of Order 21 of the Code were amended by Section 72 of CPC (Amendment) Act, 1976 which was made applicable w.e.f. 1.2.1977. The amendment made in 1977 was intended by the legislature to enlarge the field of applicability of the rules of res judicata and to further avoid multiplicity of litigation. In this regard, the observations made by the Supreme Court in the case of Church of South India Trust Assn. v. Telugu Church Council, 1996(2) SCC 520 may profitably be relied upon. In this regard, the observations made by the Supreme Court in the case of Church of South India Trust Assn. v. Telugu Church Council, 1996(2) SCC 520 may profitably be relied upon. The rule of res judicata is founded on considerations of public policy and that it is in the interest of public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction. It is also in public interest that individual should not be vexed twice over the same litigation. The amendment made in the Code in 1976 indicates an intention of the legislature to enlarge the field of applicability of the rules of res judicata. Coming to the facts of the present case, it is evident that the executing Court had held complete trial while deciding the objections raised by the plaintiff-appellant which culminated in the passing of the order dated 25.9.1976 (Ex. D-1). 13. Moreover, the additions made in Rules 101 and 103 would be deemed to be retrospective in its application as no saving clause has been inserted by the legislature in Section 72 CPC (Amendment) Act, 1976. It is retrospective to the extent it applied to the disputes pending before the Courts. The suit from which the instant appeal has arisen, was filed on 24.1.1978 and earlier order Ex. D-1 is dated 25.9.1976 which is set up as a defence by the defendant- respondents to any fresh adjudication of the issue which had already been settled between the parties by that order. The aforementioned legal position is clear from the judgment of the Supreme Court in the case of Rajasthan SRTC v. Poonam Pahwa, 1997(6) SCC 100. If a provision of statute is unconditionally omitted or added without a saving clause then such an omission or addition is considered to be retrospective in its application and effect. Considering the aforementioned proposition in the context of Section 115 of the Code concerning revision, the Supreme Court in the case of Shiv Shakti Cooperative Housing Society v. Swaraj Developers, 2003(6) SCC 659 has held as under :- "If a provision of statute is unconditionally omitted without a saving clause in favour of the pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, there is no scope for granting it afterwards. There is modification of this position by application of Section 6 of the General Clauses Act or by making special provisions. Operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in the statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of the pending proceedings, then it can be reasonably inferred that the intention of the legislature is that the pending proceedings shall continue but a fresh proceeding for the same purpose may be initiated under the new provision." Similar view has been taken by the Supreme Court in the case of Rajindera Kumar v. Kalyan, 2000(8) SCC 99 wherein it has been held that procedural laws always operate retrospectively unless there is any provision made to the contrary. 14. It is further significant to point out that no argument has been advanced by learned counsel for the parties concerning retrospective application of Order 21 Rules 101 and 103 of the Code and, therefore, it would be safe to proceed on the assumption that the application of those provisions has not been disputed. Even otherwise there is over-whelming support for the aforementioned view as is evident from various judgments of the Supreme Court to which reference has been made in the preceding paras. 15. In view of the above discussion, it is evident that the objections filed by the plaintiff-appellants were the one filed under Order 21 Rule 97 of the Code and their decision has to be treated as a judgment and decree in view of the provisions of Rules 101 and 103. 16. It has further been held that such decision by the executing Court after the CPC (Amendment) Act, 1976 has to be considered as final and cannot be reopened by filing a fresh suit. In this regard reference may be made to the observations of the Supreme Court in the case of Ghasi Ram and others v. Chet Ram and others, 1998(6) SCC 200 : "Now, under the amended provisions all questions, including right, title, interests in the property arising between the parties to the proceedings under Rule 97, have to be adjudicated by the executing Court itself and not left to be decided by way of a fresh suit........ The word "conclusive" appearing in Rule 103 indicates that it creates a presumption in favour of facts relating to rights to property as well as legality of the matter stated in the order. Such an order passed under Rule 98 is not subject to any further enquiry in any other proceeding, except by bringing a fresh suit under Rule 103. Thus, in view of the conclusiveness attached to the order passed by the executing Court on an application filed under Rule 97, which is subject to result of a suit, if any, filed under Rule 103, is not assailable in any other proceedings. In case no suit is filed under Rule 103, the order passed under Rule 98 is final between the parties." Once the afore-mentioned conclusion is reached then the question arises for consideration is whether the order dated 25.9.1976 (Ex. D-1) would finally conclude the rights of the parties so as to restrain them from raising the same issue by filing a separate suit. It is not well settled that provision made in Rules 97 to 103 is a complete Code in itself. According to Rule 101 no separate suit is maintainable in respect of the right, interest or title of a party and no question relating to the property is required to be settled by the executing Court by treating the objections as a suit under Rule 101. The decision on such objections is also regarded as a decree under Rule 103. The controversy has been answered by the Supreme Court in the case of Bhanwar Lal v. Satyanarain, 1995(1) SCC 6. The expression "any person" used in Rule 97 has been interpreted to mean that the decree-holder is entitled to make an appropriate application even under Rule 97 against a third party to have his obstruction removed and an enquiry thereon could be undertaken. The same view has been reiterated by the Supreme Court in the case of Babu Lal v. Raj Kumar, 1996(3) SCC 154. The observations of their Lordships in this regard read as under :- "It would, therefore, be clear that an adjudication is required to be conducted under Order 21, Rule 98 before removal of the obstruction caused by the objector or the appellant and a finding is required to be recorded in that behalf. The observations of their Lordships in this regard read as under :- "It would, therefore, be clear that an adjudication is required to be conducted under Order 21, Rule 98 before removal of the obstruction caused by the objector or the appellant and a finding is required to be recorded in that behalf. The order is treated as decree under Order 21, Rule 103 and it shall be subject to an appeal. Prior to 1976, the order was subject to suit under 1976 amendment to C.P.C. that may be pending on the date the commencement of the amended provisions of CPC was secured. Thereafter, under the amended Code, right of suit under Order 21, Rule 63 of old Code has been taken away. The determination of the question of the right, title or interest of the objector in the immovable property under execution needs to be adjudicated under Order 21 Rule 98 which is an order and is a decree under Order 21 Rule 103 for the purpose of appeal subject to the same conditions as to an appeal or otherwise as if it were a decree. Thus, the procedure prescribed is a complete Code in itself. Therefore, the executing Court is required to determine the question, when the appellants had objected to the execution of the decree as against the appellants who were not parties to the decree for specific performance." 17. On principle as well as on precedent it has become absolutely clear that the order dated 25.9.1976 (Ex. D-1) is conclusive in so far as the findings on the rights of the plaintiff-appellants to seek specific performance of an agreement dated 8.4.1961 is concerned. The principle of res judicata as envisaged by Section 11 read with explanation VII would fully apply to the instant case as the question in issue raised in the suit has been directly and substantively in issue in the execution proceedings. Order dated 25.9.1976 Ex. D-1 was passed on the objections filed by the plaintiff-appellants. Those objections have to be considered as a suit under Rule 101 as no independent suit would be competent and the order dated 25.9.1976 has to be considered as a decree under Rule 103 of the Code. Order dated 25.9.1976 Ex. D-1 was passed on the objections filed by the plaintiff-appellants. Those objections have to be considered as a suit under Rule 101 as no independent suit would be competent and the order dated 25.9.1976 has to be considered as a decree under Rule 103 of the Code. It is well settled that the principles of res judicata apply even to the execution proceedings provided the previous order is between the same parties and in respect of the same issues. In this regard reliance may be placed on the views of the Supreme Court in the case of Ameena Amma v. Sundaram Pillai, 1994(1) SCC 743 and Sushil Kumar Mehta v. Gobind Ram Bohra, 1990(1) SCC 193. In view of the above, the view taken by the Courts below is liable to be upheld and the appeal filed by the plaintiff-appellants has to be dismissed. Accordingly the appeal fails and the same is dismissed. However, there shall be no order as to costs. Appeal dismissed.