- (1.) Hardit Singh, petitioner filed a suit for possession against Surinder Nath and others respondent 1 to 3 being Suit No. 157 of 1962 of Court of the Subordinate Judge, 1st Class Delhi for the recovery of possession and mesne profits with respect to a Portion of Plot No. 7 Block No. 3 Original Road, Paharganj, New Delhi. The Suit was decreed by the trial court on 31st July, 1961. The first appeal was dismissed on 21st December, 1971 and the second appeal, R.S.A. No. 21 of 1972, Surinder Nath v. Hardit Singh etc. was dismissed by this court of 12th January, 1979. The petitioner on 11th August, 1978 filed a execution application for taking possession. When he went to the site he was resisted on 28th July, 1979. The petitioner decree-holder therefore on 23rd August, 1979 filed an application under order 21 rules 35 and 98 of the Code of Civil Procedure for grant of police aid. The decree-holder alleged that he was being resisted by Surinder Nath, judgment debtor, his associates, Manohar Lal, Darshan Kumar and Hindustan Glass & Plywood Co., Paharganj, New Delhi. Notice was issued. Respondent No. 4 Hindustan Glass & Plywood Co., a partnership firm allegedly consisting of Darshan Kumar and Smt. Lila Wati filed reply dated 11th October, 1979 alleging that the said firm was lawful tenant and occupant under the decree holder for more than 15 years, that it was in possession in its own rights as tenant, that its possession was not through the judgement debtors, that in a suit filed by the objectors against Delhi Development Authority decree was passed restraining it from dispossessing the objectors except by due process of law. It appears that the decree-holders did not file any reply to the reply of the objectors i.e. respondent No. 4. The executing court on 5th November, 1979 framed the following issues : 1. Whether the objectors M/s Hindustan Glass and Plywood Co. and Shri Manohar Lal are in possession of the disputed property in their own right directly under the Decree-holder as a tenant (O.P. Objector). 2. Whether the objectors are the associates of J.D. and are bound by the decree against J.D. (O.P.D.H.) 3. Whether the application of the D.H. under Order 21 rule 35 and 98 is maintainable ? (O.P. Objector) 4. Whether the objectors are in possession of the property in their own right for more than 12 years and have got possession and title adversely, if so, to what effect ? (O.P. Objector). 5. To what relief the Decree-holder is entitled against objectors ?" The objections were adjourned for evidence. The decree-holder on 7th November, 1979 filed an application claiming that the objectors have no right to file the objections and that warrant to possession be issued. This application dated 4th December, 1979. The decree-holder filed another application dated 10th December, 1979, alleging that the objectors had previously filed suit No. 226 of 1975 against Delhi Development Authority and the decree-holder for injunction alleging that the objectors were tenants under the decree-holder which suit was withdrawn against the decree-holder on 5th May, 1976 and the court of the subordinate Judge passed the order deleting his name from the suit. The decree-holder prayed that objection were not maintainable and warrant of possession be issued. The executing court dismissed this application. The decree-holder filed two more applications dated 13th January, 1981 and 20th January, 1981 which were also dismissed by the impugned order dated 1st May, 1982. It has been held by the executing court that the objections raised by the objectors-respondent No. 4 could not be decided without recording evidence. The claim of the decree-holder was that the objections were not maintainable and therefore the prayed for the issue of warrant of possession.
(2.) Learned counsel for the decree-holder submits that on 8th May, 1975 the objectors-respondent No. 4 filed Suit No. 226 of 1975 for permanent injunction alleging that they were tenants under the decree-holder since prior to 1964, that they were threatened to be dispossessed by the decree-holder and the Delhi Development Authority. The decree-holder in his written statement date 12th January, 1976 pleaded that the objectors were never tenants under him and it was also pleaded that the judgment debtor was in possession of the property in question. On 5th May, 1976 counsel for the objectors in that suit for injunction made the following statement : "I give up defendant No. 2".
(3.) The Subordinate Judge passed the following order on 5th May, 1976 : "In view of the statement of the counsel of the plaintiff the name of Shri Hardit Singh defendant No. 2 is deleted from the pleadings. Counsel for the defendant No. 1 requests for adjournment on the ground that the comments from the Department have not been received. Request is allowed. Fix 13.6.1976 for filing of written statement and reply by defendant No. 1" Learned counsel for the decree-holder submits that the objectors filed that suit for injunction which was withdrawn by them without any leave to file a fresh suit on the same cause of action. His argument is that under Order 23 rule 1(4) of the Code of Civil Procedure the objectors-respondent No. 4 are debarred from instituting any fresh proceedings with respect to the same subject matter i.e. their claim that they are tenants in a portion of the suit property. He further submits that the executing court framed issues on 5th November, 1979 but ignored this material fact and that if the objections were not maintainable in view of Order 23 rule 1(4) of the Code of Civil Procedure there was no necessity of recoding nay evidence. He submits that it was on account of this plea to the decree-holder that various application were made before the executing court to bring to its notice about the facts of the institution of the aid suit for permanent injunction and their giving up the decree-holder as defendant of that suit. Learned counsel for respondent No. 4 objectors on the other hand submits that in earlier suit for injunction the claim of the objectors that they were tenants under the decree-holder was never heard and decided. He further submits that the objections cannot be decided without affording an opportunity to lead evidence. He further submits that Order 23 rule 1(4) of the Code of Civil Procedure is not applicable to proceedings in execution of a decree, as provided in Order 23 rule 4 of the Code of Civil Procedure. Rule 4 of Order 23 of the Code provides that nothing in this order shall apply to any proceedings in execution of a decree or order. The decree-holder took out execution. He was resisted at the site. Objections have been filed on behalf of the objectors. These objections require evidence an therefore it does not appear that warrant of possession can be issued without the decision of the objections. Learned counsel for the decree-holder submits that in view of Order 23 rule 1(4) of the Code of Civil Procedure objections are not maintainable. This provision prohibits the filling of a fresh suit in respect of the same subject matter. Further rule 4 of Order 23 provides that Order 23 does not apply to proceedings in execution. In other words, the decree-holder cannot take advantage of Order 23 rule 1(4) of the Code. Learned counsel for the decree-holder then submits that these objections were barred by principles of res judicata. The principles of res judicata will not apply to the facts of this case. The objectors filed their suit for injunction but the disputes raised therein were never heard and decided by the court. On the contrary the claim was given up against the decree-holder. I, therefore, do not find any prima facie bar regarding maintainability of the objections filed on behalf on behalf of respondent No. 4 Hindustan Glass & Plywood Co. I do not find any infirmity in the impugned order of the executing court. I, therefore, dismiss this revision petition but with no order as to costs.;