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High Court Of Delhi
REVTI DEVI - Appellant
Versus
KHIALI RAM - Respondent
. 37-D of 1964
Decided On : 04/12/1967
EXECUTION OF DECREE - RES JUDICATA - SUBSEQUENT OBJECTIONS - BARRED BY RES JUDICATA - C. P. C., 1908, S. 11 - DECREE PASSED IN FAVOUR OF A DEFENDANT AGAINST CO-DEFENDANT - VALIDITY - CANNOT BE CHALLENGED IN SUBSEQUENT EXECUTION PROCEEDINGS.
Fact of the Case:
The appellant, a co-defendant in a suit for injunction, was granted a decree against her co-defendants for a new door in their house for her passage. The co-defendants filed objections to the execution of the decree, which were dismissed by the executing Court and the Additional Senior Sub Judge on appeal. However, the Senior Subordinate Judge allowed a subsequent appeal by the co-defendants, holding that no decree could be passed in favor of the appellant against them.
Finding of the Court:
The court held that the subsequent objections filed by the co-defendants were barred by the principles of res judicata, as the previous objections raising the same contentions had been overruled by the executing Court and the Additional Senior Sub Judge. The court further held that the learned Senior Subordinate Judge was wrong in going into the question of the validity of the decree in the face of the previous orders of the executing Court and the Additional Senior Sub Judge.
Issues: Whether the subsequent objections filed by the co-defendants were barred by the principles of res judicata.
Ratio Decidendi: The court held that the principles of constructive res judicata are applicable to execution proceedings and that even an erroneous decision on a question of law operates as res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata.
Final Decision: The court allowed the appeal, set aside the order appealed against, and directed the parties to appear before the Senior Subordinate Judge for further proceedings in the matter.
( 1 ) THIS is an Execution Second Appeal against the order dated 7th February, 1964 of the Senior Subordinate Judge Delhi passed in Appeal No. 176 of 1963. The facts which have given rise to this appeal are stated hereinafter.
( 2 ) THE appellant Revti Devi occupies a portion of house No. 481, Gali Shish Mahal, Bazar Sita Ram, Delhi, which belongs to Kahyali Ram and Dal Chand, respondents Nos. 1 and 2. Basanti Devi is the owner of the contiguous house bearing No. 482. Basanti Devi brought a sdit (No. 32 of 1958) against respondents Nos. I and 2 and ths appellant for a perpetual injunction restraining them from interfering with her right to build a wall which was denoted in the site plan filed in the suit. The proposed wall would have covered a passage which, according to the appellant, is her only means of egress from house No. 481. This suit was dismissed by the trial Court, but the Senior Subordinate Judge, Delhi, allowed the appeal. In allowing the appeal, the Senior Subordinate Judge, observed:-
"under the circumstances, the decision of the learned trial Sub Judge, is set aside and the plaintiffs suit is decreed. It is further laid down that the defendants be restrained from interfering in the construction of the wall ABC shown in the site plan. Ex. P/1 A perpetual injunction in this behalf is issued against them. Ths defendants are given 15 days time to open the new door in house No. 481 for the passage of respondent No. 3".
( 3 ) A decree was prepared in accordance with the judgment with the result that the decree, in addition to giving relief to Basanti Devi, granted relief to the present appellant also, which relief has been construed in proceedings before the trial Court as amocunting to a right of the present appellant to have a new door opened in house No. 481.
( 4 ) AFTER the decree was passed, the appellant made an application for execution of that part of the decree, which gave her a right against respondents Nos. 1 and 2 for a new door in house No. 481 for her pass age. Respondents Nos. 1 and 2 filed objections to this application lor execution by the appellant pleading, inter alia, that the appellant, being merely a co-defendant in the aforesaid suit (No. 32 of 1958) could not be granted a decree as she had not asked for such a decree. These objctions were dismissed by the executing Court -on 13th June, 1962 whereby the executing Court held that the appellant was entitled to execute the decree. Against this order, respondents Nus. 1 and 2 filed an appeal (M. C. A. No. 102 of 1962) which was dealt with by Mr. G. R. Luthra, then Additional Senior Sub Judge, Delhi. By his judgment dated l6th March, 1963, Mr. Luthra dismissed the appeal. The. result of this judgment of the Additional Senior Sub Judge also was that the appellant was held entitled to execute the decree by a direction against respondents Nos. I and 2 to open a new door in house No. 481 for her passage. Mr. Patney, learned counsel for the appellant, informs me that respondents Nos. I and 2 did not tile any appeal against this judgment dated 16th March, 1963 of the learned Additional Senior Sub Judge, Delhi.
( 5 ) IN spite of the dismissal of their appeal, respondents Nos. 1 and sfiled fresh objections in the executing Court taking the grounds similar to those which had been disposed of earlier by the executing Court and by the Additional Senior Sub Judge, Delhi in appeal as stated above. These objections were again dismissed by the executing Court on 22nd October, 1963 Respondents Nos. 1 and 2 again filed an appeal, (Appeal No. 176 of 19 (3) in the Court of the Senior Subordinate Judge at Delhi. This time this appeal came to be dealt with by Mr. K. S Sidhu, who was the Senior Sub Judge at Delhi at that time. He allowed the appeal by his judgment dated 7th February, 1964, which is under appeal. He has really gone into the validity of the decree which was passed by the appellate Couit and has held that no decree could be passed in favou
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