The principle of res-judicata applies to execution proceedings, and the cause of action for a proceeding has no relation to the character or relief prayed by the Plaintiff or the Defendant.

By this application under Order VII Rule 11 CPC the Defendant seeks rejection of the plaint on the plea of res-judicata. The objection of the Defendant is that in earlier suit for partition filed between the parties a decree was passed on 7th August, 1981 and thereafter the Plaintiffs filed the execution petition belatedly which was dismissed. The Appeal against the order of dismissal of the said execution petition was also dismissed and the same has attained finality till the Hon’ble Supreme Court. Since the execution of the decree passed has already been declined, the Plaintiffs in the garb of the present suit, seeking possession of the property, cannot re-agitate the issues which have been finally set at rest. The relief of possession was sought earlier as well and thus the same is barred by res-judicata. Reliance is placed on T. Arivanandam vs. T.V. Satyapal and another, 1977 (4) SCC 467; United Commercial Bank Ltd. vs. Okara Grain Buyers Syndicate Ltd. and another, 1968 (3) SCR 396.

2. Learned counsel for the Plaintiffs/non-applicants on the other hand contends that the dismissal of the execution petition has no bearing on the present suit and the same is maintainable in its present form. In the earlier suit a decree of partition was sought as the co-owner which right has been determined by this Court and the predecessor in interest of the Plaintiffs has been held to be the owner of the particular portion. Thus, after the decree passed in the earlier suit, the Defendant/applicant becomes an unauthorized occupant in the suit premises, giving a right to the Plaintiffs to seek possession. The present suit is based on a different cause of action as the earlier claim was based on the Plaintiff’s right as co-owner and now it is based on the title. For the purpose of invoking the plea of res-judicata, the cause of action is required to be seen. Reliance is placed on Ajit Chopra vs. Sadhu Ram and others, 2000 (10) SCC 114. By virtue of the decree, the Plaintiffs have become the exclusive owners of the property as held in Swaroop Narain Laxminarain and another vs. Mst. Bhanwar Kunwar Bai and another, AIR 1967 MP 152. Though the remedy may have extinguished but the right of the Plaintiffs does not get extinguished. The earlier decree only defines the rights of the party and did not hand over the possession. Thus the issue in the present suit did not arise in the earlier suit. Further the earlier suit was disposed of on compromise and was not decided on the merits. No issues were framed. The possession in the suit property was not decided. Further the execution petition was dismissed not on merits but due to the technical reason of delay. Hence there is no merit in the present application and the same be dismissed.

3. I have heard learned counsel for the parties and perused the record.

4. The present suit is for the possession of the portion marked in red in the site plan with the plaint as situated in premises bearing No. 4, Hailey Road, New Delhi-110001 for an area admeasuring approximately 128 sq. yards (hereinafter referred to as ‘suit property’). Late Shri Hari Das Sood, father of the Plaintiffs herein filed a suit being Suit No. 314 of 1967 for partition of the joint and immovable property, that is, 4, Hailey Road, New Delhi against Dr. Chiranji Lal Sood, his younger brother and grandfather of the applicant/Defendant herein. The said Suit No. 314 of 1967 was decreed on 7th August, 1981 partitioning and demarcating the respective shares of Shri Hari Das Sood and Dr. Chiranji Lal Sood. In terms of the said decree, the suit property fell to the share of the Plaintiffs’ predecessor, that is, late Shri Hari Das Sood. The Plaintiffs sought execution of the decree dated 7th August, 1981 which execution petition was dismissed as time barred. Even the appeals filed were dismissed by this court and the Supreme Court. Thus the issue before this Court is whether the dismissal of the execution petition seeking execution of t