AJAYKUMAR KAMALAKANT PATHAK Vs. RAMCHANDRA MADARI KATKAMWAR
HIGH COURT OF BOMBAY
Ajaykumar Kamalakant Pathak
Ramchandra Madari Katkamwar
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Shalini Phansalkar Joshi, J. -
(1.) In this revision application, some interesting question of law relating to application of the provisions of res judicata, as provided under Order XII of Code of Civil Procedure, are raised.
(2.) The revision is directed against the order passed by the 7th Jt. Civil Judge, Sr. Dvn. Nagpur in Spl. C.S.No.2 of 2015 thereby rejecting the application filed under Order VII Rule 11(d) read with Section 11 of the CPC. The said application was filed by the present applicant who is defendant in the suit, contending inter alia that the suit is barred by principle of res judicata, since the issue directly and substantially in issue between the same parties was already adjudicated and decided in earlier suit bearing Spl. C.S. No.1423 of 2011.
(3.) Brief facts, which are necessary, for deciding this revision can be stated as follows :
Respondent plaintiff has purchased flat No.11 of Pankaj Apartment, Khare town, Dharampeth from Pankaj Prabha Cooperative Housing Society Ltd. by registered sale deed dated 19/12/2006. Since prior to purchase of the said flat, respondent was residing therein since 1999. Initially the flat was allotted by said Society to one Ashok Jatiram Barve. However, Ashok Barve never resided in the said flat. The President of the Society mortgaged Pankaj Apartment with Maharashtra State Finance Corporation. As Ashok Barve was unable to pay the loan amount, respondent paid the same to the President of the Society and in lieu thereof purchased the said flat. However meanwhile Maharashtra State Finance Corporation had attached and sealed the said property along with the articles therein on 24/02/2004. Thereafter the ExPresident of the Society cleared the dues of Maharashtra State Finance Corporation on 11/11/2005. Thus property came into possession of the society and the keys thereof were handed over to the new President with the consent of one Diwakar Patne, Sudhakar Tidke and the Recovery Officer of the said Finance Company.;
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