YOGESH KHANNA, J.

1. The appellant lays a challenge to the order dated November 19, 2013 allowing IA No.8034/2011. The plaint has been rejected holding that the issue raised in the plaint operates as a res-judicata.

2. Admitted facts are that Late Hari Chand and Dr.Chiranji Lal (brothers) were the owners of 1/3rd share with possession separated in property bearing Municipal No.4, Hailey Road, New Delhi.

3. During his life time Hari Dass sought partition of the property held in his name and his brother, in which suit he claimed possession. Registered as CS (OS) 314/1967, on August 10, 1972 a preliminary decree was passed declaring Hari Dass as 1/3rd share holder and the remainder 2/3rd in Dr.Chiranji Lal. A final decree for partition was passed on August 07, 1981 in which the shares of the two brothers was separated.

4. Execution of the decree sought in the year 1994 terminated in a decision rendered by the Supreme Court holding that the execution petition, being filed beyond 12 years of the decree, was barred by limitation and the result therefore was Hari Dass not being able to obtain possession of the separated share in the property assigned to him.

5. The appellants are the legal heirs of late Hari Dass. They instituted a suit seeking possession of the portion assigned to their father in the final decree passed on August 07, 1981. The defendant is the grandson of late Dr.Chiranji Lal. It is the case of the appellants that they sue on title and claim possession on the plea that the defendant is in unauthorized occupation of the property in respect whereof possession is claimed.

6. In the written statement filed the plea of the defendant is that possession cannot be regained on account of the earlier verdict in Execution Petition No.72/1994 that the execution of the decree is barred by limitation. As per the defendant the earlier verdict operates as res-judicata. IA No.8304/2011 was filed by the defendant invoking Order 7 Rule 11 of the Code of Civil Procedure.

7. The learned Single Judge has accepted the plea of the defendant.

8. The short questions thus arose are – (a) if this suit is filed merely to execute the decree dated August 07, 1981 which otherwise had become barred by time; and (b) if the plaint in CS(OS) No.2363/2008 discloses a separate and a continuous cause of action as alleged.

9. Admittedly, a suit to execute a decree in a former suit does not lie because of Section 47 of the Code of Civil Procedure. If the decree is not executed within the limitation prescribed, the law of limitation comes into play. As was held in the decision report as AIR 1921 Allahabad 369 Ramanand v. Jai Ram & Ors where a decree for preemption could not be executed within limitation, a suit for redemption on the basis of the decree was held to be not maintainable, a view which was reaffirmed in the decision reported as AIR 1922 Pat 407 Sovani Jena V. Bhima Ray where a decree passed in a suit for possession was not executed and to recover the possession of the subject property a second suit was filed by the plaintiff on the strength of the earlier decree. Similarly in the decision reported as AIR 1970 P&H 509 Mal Singh & Ors. V. Mohinder Singh, where a decree for preemption was passed requiring the plaintiff to pay to the defendant Rs.10,000/- resulting in the plaintiff paying the money but not executing the decree within the period of limitation. Second suit based on the earlier decree was held to be not maintainable.

10. In the decision reported as ILR (1900) 23 Mad 629 Kutti Ali V. Chindan & Anr a suit for possession was decreed but the plaintiff did not execute the decree within limitation. The possession in the suit was sought on the relationship of landlord and tenant. A second suit was held maintainable wherein possession was sought because the suit was not enforcing the earlier decree. The status of the defendant continued to be that of a tenant and if a ground was available to gain possession, the Court held that the s