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ALLAHABAD HIGH COURT (LUCKNOW BENCH)
ANIL KUMAR, J.
Mohd. Saeed (Adult) – Appellant
Vs.
Munnu Khan (Died) Through Smt. Asgari Khatoon and others – Respondent
Single Appeal No. 2412 of 2014
Decided On : 24/04/2014
res judicata - Execution of Decree - Order 21, Rule 106, C.P.C. - AIR 1974 Patna 327, AIR 1985 Orissa 178, AIR 2005 SC 3460, 2013 (1) JCLR 573 (All), AIR 1976 Patna, 69 - The court discussed the principles of res judicata and the maintainability of a second execution application when the first application has been dismissed in default. It emphasized the importance of the matter being heard and finally decided on merits in the former suit, and cited relevant case laws to support its decision.
Fact of the Case:
The deceased filed a suit for specific performance of contract, which was allowed by judgment and decree. After the death of the respondent, the appeal was dismissed as stands abated. The decree holder filed execution applications, and the present writ petition was filed by the judgment debtor, challenging the maintainability of the second execution application.
Finding of the Court:
The court found that the second execution application moved by the decree holder is maintainable as the first application had been dismissed in default and not decided on merit. It dismissed the writ petition, stating that the judgments cited by the petitioner's counsel were not applicable in the case.
Issues: The main issue was the maintainability of the second execution application under Order 21, Rule 106, C.P.C. and the application of the principles of res judicata.
Ratio Decidendi: The court held that for res judicata to apply, the matter must have been heard and finally decided on merits in the former suit. It emphasized the importance of the matter being decided on merit and cited relevant case laws to support its decision.
Final Decision: The writ petition lacked merit and was dismissed by the court.
Heard Sri Brijesh Kumar Saxena, learned counsel for the petitioner, Sri Zainul Abidin, learned counsel for the respondents and perused the record.
2. With the consent of learned counsel for the parties, the present writ petition is being heard at the admission stage.
3. Facts, in brief, of the present case are that Munna Khan, now deceased, filed a suit for specific performance of contract against Smt. Raskhe Muneer, registered as Regular Suit No. 90 of 1980 (Munna Khan v. Smt. Rashke Muneer before the court of Civil Judge, Mohanlalganj, Lucknow, allowed by judgment and decree dated 30.11.1981.
4. Aggrieved by the said judgment and decree Smt. Rashke Muneer had filed first appeal before this Court as pauper bearing First Appeal No. 200 (F) of 1983 (pauper) (Smt. Rashke Muneer v. Munnao Khan). During the pendency of appeal Smt. Rashke Muneer died issue less and by order dated 10.7.2002 appeal filed by the Smt. Rashke Muneer was dismissed as stands abated.
5. In view of the said facts, Munna Khan decree holder had filed execution application for execution of decree before the Civil Judge, Mohanlalganj (S.D.) Lucknow, registered as Execution case No. 9 of 2002 (Munna Khan v. Smt. Rashke Muneer) on 15.9.2006 dismissed in default.
6. Subsequently, decree holder filed second execution application before the executing court registered as Execution Case No. 5/ of 2009 (Munna Khan v. Rashke Muneer) in which objection has been filed by the petitioner on 7.1.2012 regarding maintainability of second execution application.
7. By order dated 30.4.2012 the executing court rejected the objection of the petitioner. Aggrieved by the said order, petitioner filed a civil revision, registered as Civil Revision No. 200 of 2012 (Mohd Saeed v. Munna Khan). By order dated 9.1.2014, revisional court dismissed the revision. In view of the said factual background, present writ petition has been filed by Mohd Saeed, judgment debtor.
8. Sri B. K. Saxena, learned counsel for the appellant while challenging the impugned order submits that once the first execution application has been dismissed in default so second application moved by the decree holder is not maintainable as per the provisions under Order 21, Rule 106, C.P.C. In this regard, he placed reliance on the following judgment:
1. Rani Krishnawati v. Suresh Mohan Thakur and another, AIR 1974 Patna 327.
2. Govinda Chandra Tripathy and another v. Pal Hira Purchase Ltd., AIR 1985 Orissa 178.
3. Damodaran Pillai and others v. South Indian Bank Ltd., AIR 2005 SC 3460.
9. Accordingly, it is submitted by learned counsel for the petitioner that impugned order dated 30.4.2012 passed by executing court/ Civil Judge (S.D) Mohanlalganj, Lucknow thereby rejecting the objection of the petitioner in regard to maintainability of second execution application moved by decree holder as well the order dated 9.1.2014 passed by Revisional Court being contrary to law, liable to be set aside.
10. Sri Zainul Abidin, learned counsel for the respondents while supporting the impugned judgments submits that there is no bar under section 11, C.P.C. To move second application for execution by decree holder when his first application has been dismissed in default. He further submits that even if first application moved by decree holder has been dismissed for want prosecution thus not decided on merit, in that circumstances, he can move second application for execution of the decree which has been granted in his favour as such there is no legal impediment in the way of decree holder as per the provisions as provided under Order 21, Rule 106, CPC. In support of his arguments, he has placed reliance on the following judgments:
1. Chheddi Singh alias Chhedda Singh (Since deceased) and others v. Sukkhi Singh, 2013 (1) JCLR 573 (All)
2. Tarni Prasad Sinha v. Lachuman Sahu, AIR 1976 Patna, 69.
11. Accordingly, he submits that present writ petition liable to be dismissed.
12. In order to decide the controversy involved in the present case, it wi
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