Shree Chandrashekhar, J. - (1.) Aggrieved of order, dated 06.05.2017 in Execution Case No.08 of 1997, whereby objection filed by the judgment-debtor/ petitioner under Order XXI, Rule 23(2) of C.P.C. has been rejected, the petitioner has approached this Court.
(2.) Briefly stated, Title Suit No.152 of 1990 was instituted by Kamta Prasad and his wife Radha Devi. In the suit, Kailash Pati Prasad Lal and his son Dipak Kumar Sinha (present petitioner) were arrayed as defendant Nos.1 & 2. The suit was instituted for a decree of specific performance of agreements dated 24.8.1981, 1.4.1989 and 21.9.1990. A decree of perpetual injunction against the defendants restraining them from disturbing their possession was also sought by the plaintiffs. The suit was dismissed on contest vide judgment and order dated 19.04.1993 and the decree was sealed and signed on 29.04.1993, against which the plaintiffs preferred Title Appeal No. 68 of 1993. This appeal was allowed on 06.12.1996 and consequently, Title Suit No.152 of 1990 stood decreed in respect to agreement to sale, dated 1.4.1989 and 21.9.1990. This order was taken in appeal being Second Appeal No.11 of 1997(R). The following substantial questions of law were formulated by the court; "(1) Whether on the prayers being made in suit of the plaintiffs, there was any scope of the 1st Appellate Court to pass a decree for specific performance of the agreement dated 1.4.1989 as there were subsequent events? (2) Whether even if taking for granted that Ext.3 dated 21.9.1990 was arrived at, when there was no subsisting interest of the defendant No.1 over the suit property then also whether the plaintiff can get equitable relief on Ext.8 on the existence of Ext.3 dated 21.9.1990?"
(3.) Finally, by an order, dated 17.09.2004, the second appeal 3 stood dismissed on contest with cost. Special Leave Petition bearing S.L.P.(C) No.1374 of 2005, which was preferred by the legal heirs of defendant No.1 against the final order in second appeal, was dismissed on 31.01.2005. The plaintiffs instituted Execution Case No. 8 of 1997, in which the defendants/judgment-debtors filed their objection under Section 47, C.P.C., raising several objections including, that execution in respect of 4 katha 4 dhurs land would be beyond the decree passed in Title Appeal No.68 of 1993. Accordingly, Misc. Case No. 01 of 2005 was instituted, which, however, was dismissed on 10.05.2007. Against this order passed in Misc. Case No. 01 of 2005, the petitioner came to this Court in W.P.(C) No. 4663 of 2007, however, without success. The writ petition was dismissed by an order dated 17.9.2010 mainly on the ground that the second application under Section 47, C.P.C. was barred by constructive resjudicata. It is pertinent to mention that during the pendency of second appeal, the judgment-debtors had filed objection under section 47, C.P.C. which was rejected on 08.06.2004. In the execution case, after a notice was issued to the judgment-debtors, the petitioner filed objection under Order XXI, Rule 23(2), C.P.C. on 01.08.2007. Five years thereafter, he filed a supplementary- affidavit to objection dated 01.08.2007 raising additional objections to the execution. By an order, dated 6.5.2017, petitioner's objections have been rejected. This is the order against which the petitioner has approached this Court.;