- (1.) THIS is a judgment-debtors' appeal under the Letters Patent from the judgment of a teamed Single Judge given in E. S. A. No. 494 of 1960. The sole ground in this appeal has rested on the applicability of the doctrine of res judicata to the facts of this case.
(2.) THE plaintiffs, who are the respondents in this appeal, had obtained a declaratory decree impugning sale of land measuring 11 bighas 10 biswas and 5 biswansis in favour of the appellants. Later on, the plaintiffs instituted a suit for possession of this area specifying the field numbers and obtained a decree for possession on 10th April, 1954. While the suit was pending before the trial Court, proceedings for consolidation of holdings in the village of the parties were going on. When the decree was obtained by the plaintiffs for the specific field numbers, the holdings had been put in the common pool for purposes of repartition and consolidation. On the conclusion of the consolidation of holdings, the original field numbers had disappeared and on repartition different lands in lieu of the original field numbers were allotted. In their execution application, the decree-holders had specified the original field numbers in respect of which they had obtained decree for possession. The Kanungo submitted a report that the original field numbers had lost their identity on account of consolidation and the possession could not, therefore, be delivered of the actual areas Indicated by the field numbers. The kanungo in his report, however, suggested that the executing Court might order that the decree be executed against the Judgment-debtors In respect of the land allotted to them on consolidation of holdings equivalent in value to the field numbers which were the subject-matter of the decree. On 29th July, 1954, the executing Court passed a brief order in the presence of Kirpa Singh, a decree-holder, and his counsel that possession, could not be delivered as, according to the report of the Kanungo, the particular land in respect of which decree had been passed on account of consolidation has come into hotch-pot and the land demarcated originally by the specified field numbers could not be separated. The executing Court then observed that decree-holders' counsel had referred to the advice of the Kanungo that possession of land of equal value may be delivered to the decree-holders. The executing Court, remarking that this could not be done in law "aisa Kanunan Nahin Ho Sakta Hai," dismissed the execution application.
(3.) THE decree-holders did not challenge the order in appeal but were advised to institute a regular suit for possession with respect to the land allotted to the judgment-debtors on repartition. On 29th October, 1954, a suit was filed seeking possession of land of equal value out of the area allotted on repartition on consolidation of holdings to the judgment-debtors. It is not necessary to refer to all the defences taken. The objection which prevailed with the trial Court was that, in view of the provisions of Section 47 of the Code of Civil Procedure, a suit was not competent as the matter In suit related to execution, discharge, or satisfaction of the decree dated 10th April, 1954. On 26th April, 1955, the trial Court held that though the suit was not competent, but treated the petition of plaint as an application for execution of Ihe decree under Section 47 of the Code of Civil procedure. On this course having been adopted, the judgment-debtors raised an objection that the execution application was barred by the rule of res judicata in view of the previous decision of the executing Court dated 29th July, 1954. This objection of the Judgment-debtors was not entertained by the executing Court and the judgment-debtors' appeal was dismissed by the District Judge on 10th february, 1950. The second appeal in this Court before the teamed Single Judge met with the same fate.;