A transferee pendente lite cannot maintain an application under Order XXI Rule 97 CPC, and the executing court must prioritize res judicata objections before proceeding.

JUDGMENT :

Rohit Ranjan Agarwal, J.

1. Heard Ms. Rama Goel Bansal, learned counsel for petitioner and Sri Arvind Srivastava, learned counsel for respondents.

2. This writ petition under Article 227 of Constitution of India has been filed assailing the order dated 05.08.2024 passed by Additional District Judge, Court No. 1, Jhansi in Civil Revision No. 59 of 2024.

3. Facts, in brief, leading to filing of present petition are that one Malti Devi was the original owner of property in question. She had sold 1.8 Acres of land to one Roop Chand Jain, which includes the property in dispute. On 03.12.1976 Roop Chand Jain carved out different plots from the property purchased by him and sold one part to one Sushila Kumari, wife of Ram Narayan. In the sale deed plot number was mentioned as ‘767’.

4. Similarly, on 20.05.1979 Urmila Jain purchased an area of 9 decimal of plot no. 776 from Malti Devi. She also purchased plot nos. 771, 770, 772, 773, 774, 775, 768 and 766 total measuring 2.5 Acres. Sushila Kumari expired some time in the year 1986, she was survived by her husband Ram Narayan Verma and sons Naveen Prakash, Anand Prakash, Ratnesh Verma and Rajesh Verma. Urmila Jain filed a suit for permanent injunction on 28.01.1991 which was registered as Suit No. 33 of 1991 against Ram Narayan and his sons in respect of plot no. 776 and 771. On 30.01.1991 Ram Narayan filed an affidavit that Smt. Sushila Kumari had purchased part of plot no. 767 measuring 25 x 50 feet and 25 x 50 feet. The trial court had granted temporary injunction in favour of Urmila Jain and restrained the defendants from interfering in peaceful possession of plaintiff in respect of plot no. 776 and 771.

5. On 21.01.1991 a correction deed/titimma was executed by Power of Attorney holder of Roop Chand Jain in favour of Ram Narayan and plot no. 767 was changed to 776. On 16.04.1991 Ram Narayan alongwith his sons filed Suit No. 151 of 1991 for relief of permanent injunction against Prakash Chand Jain, Kailash Chand Jain and Urmila Jain in respect of plot no. 21, 22 and over plot no. 776. An application for grant of temporary injunction was moved which was rejected by the trial court, against which a miscellaneous appeal was preferred by Ram Narayan which was dismissed on 17.05.2000. Both, the Original Suit No. 33 of 1991 and 151 of 1991 were clubbed together. During pendency of both the suits, Ram Narayan executed a sale deed in respect of property in dispute in both the suits to one Smt. Santosh Awasthi on 12.01.2001. Smt. Santosh Awasthi got map sanctioned from Jhansi Development Authority on 23.01.2002.

6. Original Suit No. 33 of 1991 filed by Urmila Jain was decreed on 14.10.2003, while the suit filed by Ram Narayan being Suit No. 151 of 1991 was dismissed. Ram Narayan filed Civil Appeal No. 96 of 2003 against the judgment dated 14.10.2003. The said appeal was dismissed on 13.04.2010. Urmila Jain on 16.12.2010 filed Execution Case No. 40 of 2010, in the said execution case Smt. Santosh Awasthi filed an impleadment application on 17.01.2011. The said application was dismissed in default on 04.08.2012, a recall application was moved which was again dismissed on 18.09.2013. Another recall application was moved on 19.10.2013 to recall the order dated 18.09.2013 which was rejected on merits on 22.01.2014.

7. Petitioner, Smt. Santosh Awasthi, on 21.07.2010 instituted Suit No. 341 of 2010 for the same relief for which Suit No. 151 of 1991 was filed by Ram Narayan. The said suit was dismissed on 20.09.2022. During pendency of Suit No. 341 of 2010 petitioner Smt. Santosh Awasthi filed application under Order XXI Rule 97 CPC which was registered as Misc. Case No. 6 of 2014. The said application was contested by Urmila Jain, who filed her objections on the ground of maintainability of the same. On 16.05.2024 trial court framed issue in regard to res judicata but observed that the issue of res judicata will be decided at the final stage after completing all the evidences of parties. Agg