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2005 DIGILAW 78 (JK)

Anil Khajuria v. Avinash Chander & 12 Ors.

2005-03-24

S.K.GUPTA

body2005
This revision is directed against the judgment and order dated 17.9.2003 propounded by Sub Registrar, Jammu, in execution proceedings whereby the plea taken by the petitioner, one of the judgment debtors, in his objections regarding the maintainability of execution proceedings on the ground that the decree is a nullity being hit by the principle of resjudicata, has been declined and the objections over-ruled. Facts relevant for the disposal of this revision taken from record, in brief, may be noticed. A decree for permanent injunction, restraining the defendants/judgment debtors from interfering with or demolishing or damaging the suit wall or closing the ventilators and passages of the demise premises with a further order to pay Rs. 500/- as compensation to the plaintiff on account of damages caused to the suit wall, passed on 10.12.1988 , however, came to be modified by the IInd Additional District Judge, Jammu, in his order dated 24.09.1994. The decree, however, was not fully satiated and only release of damages has been satisfied, and decree pertaining to relief of mandatory injunction was yet to be satisfied. In a petition seeking execution of a part of the decree, which still remain unsatisfied, show cause notices were issued to the judgment debtors as to why they should not be put to civil prison for non compliance of the decree. Mr. Anil Khajuria, one of the judgment debtors, however, filed objections and assailed the execution of the decree on the ground that it is a nullity being hit by the principle of resjudicata alongwith other objections on merits. The Executing Court, however, found that such plea having not been taken in the suit by way of defence, the principle of constructive resjudicata would apply and the judgment debtors are estopped from raising this objection in the execution proceedings and held unsustainable vide impugned order which became the subject matter of challenge in this revision. I have heard the learned counsel appearing for the respective parties and also perused the relevant provision of law touching the matter in controversy meticulously. The spinal question that falls for consideration in this revision is as to whether execution is barred by section 11 of the CPC, if the suit was so, but no plea was raised in defence or issue struck in the trial proceedings. The spinal question that falls for consideration in this revision is as to whether execution is barred by section 11 of the CPC, if the suit was so, but no plea was raised in defence or issue struck in the trial proceedings. It is not in dispute that the plea of resjudicata has not been raised by pleadings or issues in the suit. Further resjudicata must be expressly pleaded and if it is not, it will be deemed to have been waived. Such a plea, if not raised at the earliest in the Court, cannot be agitated later. The Court may also decline to go into the question of resjudicata on the ground that it had not been properly raised by pleadings or in the issues, particularly in the issues. In Narasamma v. Venkataratnam 1965 A.A.P. 12, the High Court of Andhra Pradesh held that the opening words of section 11 required that the issue as to resjudicata should be tried at the earlier stage of the suit and not at the end along with the rest of the issues. The question of resjudicata is a mixed question of law and fact and can be allowed to be raised at later stage if it does not involve a fresh investigation of facts. Where the defendants omit to plead and prove resjudicata, and the Court investigates and decides matters already concluded between the parties without knowing about such a decision, the decision is not void, for want of jurisdiction. Plea of resjudicata is one which might be, and ought to be, raised as a defence and established, in order to operate as a bar in the exercise of jurisdiction to try and dispose of the matter subsequently. Otherwise, later decision will prevail and the plea of resjudicata itself will be barred by constructive resjudicata and the later decision (though overlooking the bar of resjudicata alone), will prevail. It is further apt to point out that plea of resjudicata does not involve pure question of fact but it involves mixed question of fact and law, and consequently the factual foundation necessary for raising the plea of law must have been laid in the pleadings and in the issues. It is further apt to point out that plea of resjudicata does not involve pure question of fact but it involves mixed question of fact and law, and consequently the factual foundation necessary for raising the plea of law must have been laid in the pleadings and in the issues. Consequently, a party cannot be allowed to raise the plea of resjudicata for the first time in execution proceedings with regard to its maintainability on the basis that the decree is void and inexecutable passed in the suit which is barred by principle of resjudicata when the party has not raised this plea earlier. In that event by application of principle of constructive resjudicata the judgment debtors would be declined to raise such a plea in the execution proceedings. The contention raised by Mr. D.S. Thakur, petitioners counsel, in view of the settled position of law does not merit acceptance being factually frail and legally infirm. The order impugned drawn by the trial court, in my view, does not suffer from any illegality or probable irregularity to warrant interference in revision. Consequently, the revision possessing no merit, is dismissed. Record shall be remitted back to the trial court forthwith where the parties are directed to cause their appearance on.