1. Suit for ejectment — Compromise decree for eviction — Failure to deliver possession — Execution proceedings — Objections under Section 47, CPC. (Para 1 )
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1996 Supreme(SC) 410
1996(2) SUPREME 657
SUPREME COURT OF INDIA
K. Ramaswamy & G. B. Pattanaik, JJ.
Dr. Ghanshyam Jaiswal -Appellant
versus
Kamal Singh -Respondent
Civil Appeal No. 3795 of 1996
(Arising out of SLP (C) No. 24767/95)
Decided on 16-2-1996
Important Points
A party who has previously challenged the validity and executability of a compromise decree under Section 47 of the CPC and failed is precluded by constructive res judicata, under Explanation VI to Section 11, from raising subsequent pleas regarding the decree's vagueness or executability.
Subject
Civil Law - Execution of Decree
Act Referred
Headnote
Civil Procedure Code, 1908-Section 11 Explanation VI-Constructive res judicata-Eviction decree in compromise-Execution-Objections impugning validity of compromise decree-Dismissed-Another objection that decree was vague and incapable of being executed held barred by constructive res judicata-High Court fell in error in setting aside execution application.
Held : Having entered into the compromise and suffered a decree on foot of compromise and also having raised the plea of non-executability of the compromise decree and having become unsuccessful, he is precluded by constructive res judicata of might and ought in Explanation VI to Section 11, to raise any other plea of the executablility of the decree. The High Court, therefore, was clearly in error in allowing the revision and setting aside the Execution Application. (Para 2)
Judgement Key Points
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Table of Contents
2. Whether a party can raise a plea of vagueness regarding a compromise decree after previously failing to challenge its validity in execution proceedings. (Para 1 , 2 )
3. A party who unsuccessfully challenged the executability of a compromise decree is precluded from raising subsequent pleas regarding the decree's executability. (Para 2 )
4. Constructive res judicata under Explanation VI to Section 11, CPC, precludes raising pleas that might and ought to have been raised in previous proceedings. (Para 2 )
5. Appeal allowed — High Court order set aside — Decree execution permitted with police assistance. (Para 3 )
6. Can a party raise a plea of vagueness against a compromise decree after a previous challenge to its validity was rejected?
No. A party who has entered into a compromise, suffered a decree, and unsuccessfully challenged its executability is precluded from raising further pleas, such as vagueness, regarding the executability of that decree. (Para 2 )
7. What is the effect of constructive res judicata under Explanation VI to Section 11 of the CPC?
It precludes a party from raising any plea in subsequent proceedings that might and ought to have been raised as a ground of attack or defense in the previous proceeding. (Para 2 )
ORDER
Leave granted.
Though the respondent has been served by dasti, he is not appearing either in person or through counsel. The facts are eloquent. In a suit for ejectment filed on April 5, 1984, the respondent had entered into a compromise on foot of which the decree for eviction was granted after recording the compromise and evidence. The respondent did not deliver the possession of the demised property in terms of the compromise decree. Therefore, the appellant was constrained to lay execution for possession of the property. In the first round of litigation, the respondent had challenged under Section 47 of the C.P.C. impugning the validity of the compromise decree which was turned down by the executing Court. The High Court dismissed W.P. No. 2849 of 1994 by order dated August 19, 1994. Again the respondent laid another objection under Section 47 contending that the decree is vague and incapable of being executed. That was turned down by the executing Court on September 30, 1994. Against that, the respondent filed a revision in the High Court. The High Court in the impugned order allowed the revision by order dated June 21, 1995 in C.R. No. 1252/94 since the counsel for the appellant had reported no instructions.
2. The only question is : whether the respondent is entitled to raises the plea of vagueness ? Having entered into the compromise and suffered a decree on foot of compromise and also having raised the plea of non-executability of the compromise decree and having become unsuccessful, he is precluded by constructive res judicata of might and ought in Explanation VI to Section 11, to raise any other plea of the executablility of the decree. The High Court, therefore, was clearly in error in allowing the revision and setting aside the Execution Application.
3. The appeal is accordingly allowed. The order of the High Court is set aside. The appellant is at liberty to have the decree executed with the assistance of the police. No costs.
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