JUDGMENT - ASHOK AGARWAL, J.:---The Execution Application of the appellant decree holder having been dismissed, the decree - holder has filed the present appeal. She had filed Special Civil Suit No. 13 of 1966 for partition and separate possession in respect of half share in the property left behind by her deceased husband Gangadhar wherein the judgement-debtor, the brother of Gangadhar had other half share. On the 31st January, 1967 a preliminary decree was passed whereunder she was held to be entitled to half share and the judgement-debtor was held to be entitled to the other half. When she filed the present Darkhast, Notice under Order 21, Rule 22 was issued and the judgement -debtor resisted the said Darkhast contending that in Special Civil Suit No. 5 of 1969 filed by Gangubai and Rakhamabai, the sisters of Gangadhar, it was held that each of them had 1/3rd share whereas the judgement-debtor in the present Darkhast 1/3rd share. In view of the subsequent decree to which the decree- holder was a party, the decree - holder was not entitled to execute the decree in her previous Special Civil Suit No. 13 of 1966. The said contention of the present judgement-debtor having found favour with the Executing Court, the Darkhast of the appellant came to be dismissed and it is in these circumstances that the present appeal has been filed.

2. The question that arises for determination in the present appeal is whether the decree obtained in Special Civil Suit No. 13 of 1966 can be rendered nugatory without the same having been set aside in appeal merely on account of a decree passed in a subsequent collateral suit in respect of the same property contained in the previous decree. In my view, in order to render the earlier decree inoperative, it is not necessary that it should be reversed or superseded by proceedings arising out of the same case. On the other hand, it may be collaterally superseded and rendered ineffective even by some ulterior and independent proceedings, and this position has been upheld by the Judicial Committee of the Privy Council in (Sharma Purshad v. Hurro Purshad)1, 10 Moor. Ind. App. 203 ( P.C.). The same principle was affirmed in (Naganna v. Venkatapayya)2, A.I.R. 1923 P.C. page 167. What is material is that the parties to the first decree must also be parties to the subsequent proceedings so that the decision in such subsequent proceedings may be binding on them. The rights and liabilities covered by the decree must also have been considered and adjudicated upon in the subsequent proceedings. Where there have been two adjudications binding on the same parties in respect of the same right, the later adjudication has to prevail over the earlier one. The parties to the earlier suit being parties to the later suit also, they are bound by the decree in the later suit, which has in effect superseded, though not in express terms, the decree in the earlier suit. It cannot be said that so long as the earlier decree has not been reversed or superseded in express terms Executive Court is bound to enforce that decree. When the existence of the later decree having the effect of superseded the earlier decree is brought to the notice of the Executive Court, it is bound to realise that the earlier decree has become inoperative and unenforceable and thus refuse to execute it. It follows, therefore, that the Executing Court was right in rejecting the Darkhast of the appellant.

3. In the result, I find no merit in the present appeal and the same is dismissed. In view of the facts and circumstances of the case, there shall be no order as to costs.

Appeal dismissed.

-----

Click Here to Read the rest of this document