GUPTA, J. - (1.) IN this case vide order dt. 28. 5. 97 show cause notice was ordered to be issued and the record of the trial court was ordered to be summoned. While so issuing notice, the proceeding pending in the learned court below was stayed till further orders. Thereafter, after service was effected, vide order dt. 25. 4. 98 the revision petition was admitted. Then when the matter came up for consideration of the stay petition, vide order dt. 3. 4. 2000 the record of the main execution petition was also requisitioned. After receipt of the record the case was finally taken up on 27. 7. 2000 and that day with the consent of the learned counsel for the parties instead of considering the stay petition, the main revision itself was taken up for hearing which was concluded on 1. 8. 2000.
(2.) BY this revision the decree holder assails the order of the learned Executing Court dt. 28. 3. 97 whereby the learned court below dismissed the petitioner's application filed under Sec. 11 read with Sec. 141 and 151 C. P. C. holding that the objection petition filed by the present non-petitioners is not barred by principles of constructive res judicata. The case has a chequered history even for the purposes of decision of the present controversy which cannot be avoided from being briefly recapitulated. It is way back on 31. 10. 80, unfortunately for the petitioner, a decree for eviction happened to be passed against one Shivdas s/o Shri Narayandas Ji Sad. This decree was put in execution in the year 1981 vide Execution Petition No. 16 of 1981, as the things had it the original judgment-debtor Shivdas expired and the house came into possession of the person named in the present execution application being Shanti widow of Shri Shivdas, Om Prakash S/o Shri Shivdas, Shyama S/o Shri Shivdas, Bhanwari W/o Shri Ganeshdas, Lala S/o Ganesh Das, Chinu S/o Shri Ganesh Das who according to the decree-holders were the legal representatives and heirs of the judgment debtor Shivdas and in the possession of the decreed premises, consequently the present execution application was filed by the petitioner on 10. 4. 89. On filation of this execution, vide order dt. 21. 4. 89 notices were ordered to be issued against the persons sought of the proceeded against, under Order 21 Rule 22 C. P. C. fixing 28. 7. 89 as the next date. On this date Shir Vijay Singh Choudhary entered appearance on behalf of Ramesh, then on 17. 11. 89 Shri Choudhary filed Vakalatnama on behalf of some more judgment debtor and gave undertaking to file Vakalatnama on behalf of some more judgment debtor and gave undertraining to file vakalatnama on behalf of the rest of the judgment-debtors. The case thereafter went on being adjourned from dates after dates for filing Vakalatnama, and so also for reply to the said notice under Order 21, Rule 22 C. P. C. However, when no reply was filed, on 22. 2. 91 warrant under Order 21, Rule 35 C. P. C. was ordered to be issued. Thereafter on 12. 7. 91 one Shri S. M. Singhvi appeared for the judgment-debtor and wanted time to file reply. However on the next date again nobody appeared for judgment-debtor and the warrant was ordered to be issued for delivery of possession. It was on 22. 4. 1993 that a part of the decree was executed, inasmuch as some part of the premises were physically delivered to the judgment-debtor.
(3.) IT so further happened that a regular civil suit was filed by some of the judgment-debtors inter alia seeking to contend the property to be their ancestral property and attempted to trace the title by giving the pedigree table. In that suit temporary injunction applications were also filed then civil misc. appeals were also filed on behalf of the widow and sons of Ganeshdas which appeals were dismissed on 26. 9. 96. Against dismissal, a revision petition was filed before this Court being S. B. Civil Revision Petition No. 999 of 1996, wherein at admission stage and without notice to the present petitioner, vide order dt. 27. 11. 96. This Court (Hon'ble R. R. Yadav, J.) purported to accept the innocuous request of the petitioners therein, to allow to withdraw the suit as well as the revision petition with a liberty to file an objection under Sec. 47 C. P. C. Accordingly it was directed that in case an application for withdrawal of the suit is moved under Order 23 C. P. C. before the trial court, it shall be withdrawn with liberty to the revisionist to file objection under Sec. 47 C. P. C. IT was also ordered that when an objection is filed by the revisionist before the Executing Court u/s. 47 C. P. C. relating to execution, discharge and satisfaction of the decree, the Executing Court would be at liberty to pass appropriate orders on merits. IT is despite this order that the revisionist therein neither filed application for withdrawal of the suit nor filed objections u/s. 47 C. P. C. , with the result that the petitioner decree holder was obliged to move an application to the Executing Court to proceed with the execution, and thereupon the learned Executing Court on 27. 1. 1997 found that despite expiry of about two months neither the plaintiff has withdrawn the suit nor any objection u/s. 47 C. P. C. has been filed and therefore ordered possession warrant to be issued for execution of the rest of the decree. IT is thereupon that on 19. 2. 1997 that the five persons being the widow and sons of Shri Ganeshdas (hereafter referred to as the descendants of Ganeshdas) filed the objection petition purporting to be u/s. 47 C. P. C. Thereupon the present petitioner on 24. 2. 1997 submitted the present application contending that in view of non filing of objections in response to the notice under Order 21 Rule 22 C. P. C. , the objections raised in the present objection petition are barred by the principles of constructive res judicata. Other grounds of constructive res judicata were also taken, which I need not go into for the present purposes. To this application a reply was filed on 3. 3. 1997 contending that the objectors were wrongly impleaded as judgment debtors, as neither they nor their predecessor Ganeshdas was a party to the suit, decree was only against Shri Shivdas while the objectors are not the heirs of Shivdas thus the objectors are neither judgment debtors nor the decree can proceed against them. It is on this basis that the contention of constructive res judicata was controverted. It was also contended that considering totality of the circumstances this Court in the aforesaid revision has advised and directed the objectors to file the present objection petition. Accordingly it is not open to the decree-holder to object to this objection, and even in the guise of the constructive res judicata. Reference was also made to the previous litigation referred o above. It was also given out that the suit is withdrawn on 18. 2. 1997 and since no time frame was provided in the order of this Court, mere delay in withdrawal of the suit cannot be projected against the objectors. Learned court below in the impugned order held that since this Court in the order dt. 27. 11. 966 had permitted that after withdrawal of the original suit the objectors will be free to file objection petition which will be decided on merits and therefore it is not barred by principles of res judicata. ;