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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Judgment reserved on:

05.09.2012

Judgment pronounced on: 12.09.2012

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CS(OS) 2329/2011 & IA No.15091/2011 (under Order 39 Rule 1&2

CPC)

KHUSHI RAM

..... Plaintiff

Through:

Mr. B.B. Gupta, Advocate

versus

CHARANJIT KAUR SAHNI & ANR.

..... Defendants

Through:

Mr. Prashanta Verma, Advocate for

Defendant no.1

CORAM:

HON'BLE MR. JUSTICE V.K.JAIN

V.K. JAIN, J.

1.

The defendant no.1 before this Court, namely Smt. Charanjit Kaur Sahni

filed a suit against Shri Subhash Rathi and M/s Som Motors for possession of the

property bearing number CN-5, 34/22, Bawana Road, Samaipur Badli, Delhi-110

052 on the ground that they were tenants under her and the tenancy had been

terminated vide notice dated 28.12.2007. A decree for possession of the aforesaid

property was passed by the learned Additional District Judge, Delhi in that suit, on

23.05.2009. The plaintiff before this Court namely Shri Khushi Ram and one Ms.

Suman, who is defendant no.3, in this suit filed objections during execution of the

aforesaid decree. Shri Khushi Ram claimed to have purchased 800 sq. yards of land

situated in property bearing number 34/22 in the Revenue Estate of Village

Samaipur near Badli Extension in the year 1979. He alleged that Subhash Rathi,

defendant no.2 in this suit, had illegally trespassed upon his property and on his

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objecting to it, Shri Subhash Rathi vacated the said property. He further alleged

that the said property was then let out by him to Ms. Suman, defendant no.3 in the

present suit. He alleged also that the decree holder Smt. Charanjit Kaur Sahni was

trying to take possession of the said property from Smt. Suman, The objector,

accordingly sought recall of the warrants of possession issued by the Executing

Court.

2.

The learned Civil Judge before whom the objections were filed, vide order

dated 9.9.2011 held that there was collusion between the objector and the judgment

debtors. The objections were dismissed being devoid of any merits.

3.

Now this suit has been filed by Shri Khushi Ram seeking injunction against

his dispossession from the said land measuring 800 sq. yards. He has also sought

declaration that the warrants issued in Execution Case No.74/2009 are not

executable against his property.

4.

IA No.15091/2011 has been filed by the plaintiff Shri Khushi Ram seeking

interim protection during pendency of this suit.

5.

Section 11 of the Code of Civil Procedure, to the extent it is relevant,

provides that no Court shall try any suit or issue in which the matter directly and

substantially in issue has been directly and substantially in issue in a former suit

between the same parties, or between parties under whom they or any of them

claim, litigating under the same title, in a Court competent to try such subsequent

suit or the suit in which such issue has been subsequently raised, and has been

heard and finally decided by such Court. Explanation VII to this Section, provides

that the provisions of this section shall apply to a proceeding for the execution of a

decree and reference in this section to any suit, issue or former suit shall be

construed as references, respectively, to proceedings for the execution of the

decree, question arising in such proceeding and a former proceeding for the

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execution of that decree. Explanation VIII provides that an issue heard and finally

decided by a Court of limited jurisdiction, competent to decide such issue, shall

operate as res judicata in as subsequent suit, notwithstanding that such Court of

limited jurisdiction was not competent to try such subsequent suit or the suit in

which such issue has been subsequently raised.

6.

The philosophy behind the doctrine of res judicata is that an issue or point

which has been decided and has attained finality, should not be allowed to be

reopen and re-agitated. The doctrine aims at gi