Revti Devi vs Khiali Ram And Ors.
1967 Latest Caselaw 65 Del

JUDGMENT

1. This is an execution Second Appeal against the order dated 7th February 1964 of the Senior subordinate Judge at Delhi passed in appeal no. 176 of 1963. The facts which have given rise to this appeal are stated hereinafter.

(2) The appellant Rewati Devi occupies a portion of house No. 481 Gali Shis Mahal, Baar Sita Ram, Delhi which belongs to Khayali Ram and Dal Chand, respondents No.1 and 2. Basanti Devi is the owner of the contiguous house bearing No.482. Basanti Devi brought a suit (No.32) of 1958) against respondents No.1 and 2 and the appellant for a perpetual injunction restraining them from interfering with her right to build a wall which was dentoed in the site plan filed in the suit. The proposed wall would have covered a passage which, according to the appellant, is her only means of egress from house No. 481. This suit was dismissed by the trail court, but the Senior Subordinate Judge, Delhi, allowed the appeal.

In allowing the appeal, the senior Subordinate Judge, observed-

"Under the circumstances, the decision of the learned trial sub-Judge, is set aside and the plaintiffs suit is decreed. It is further laid down that the defendants be restrained from interfering in the construction of the wall Abc shown in the site plan, Ex. P/1. A perpetual injection in this behalf is issued against them. The defendants are given 15 days time to open the new door in house No. 481 for the passage of respondent No.3".

(3) A decree was prepared in accordance with the judgment with the result that the decree in addition to giving relief to Basanti Devi, granted relief to the present appellant also which relief has been construed in proceedings, before the trail Court as amounting to a right of the present appellant to have a new door opened in house No.481.

(4) After the decree was passed the appellant made an application for execution of that part of the decree, which gave her a right against respondents No.1 and 2 for a new door in house No.481 for her passage. Respondents No.1 and 2 filed objections to this application for execution by the appellant pleading inter alia, that the appellant, being merely co-defendant in the aforesaid suit (No.32 of 1958) could nto be granted a decree as she had nto asked for such a decree. These objections were dismissed by the executing held that the appellant was entitled to execute the decree. Against this order, respondents Nos. 1 and 2 filed an appeal, (M.C.A. No. 102 of 1962) which was dealt with by Mr. G.R. Luhra, then Additional Senior sub Judge, Delhi. By his judgment dated 16th March, 1963, Mr. Luthra dismissed the appeal.

The result of this judgment of the Additional senior Sub judge also was that the appellant was held entitled to execute the decree by a direction against respondents No. 1 and 2 to open a new door in house No. 481 of her passage. Mr. Patney, learned Counsel for No.1 and 2 did nto file any appeal against this judgment dated 16th March, 1963 of the learned Additional Senior Sub judge, Delhi.

(5) In spite of the dismissal of their appeal respondents No. 1 and 2 filed fresh objections in the executing court making the grounds similar to those which had been disposed of earlier by the executing Court and by the additional Senior Sub judge, Delhi in appeal as stated above. These objections were again dismissed by the executing Court on 22nd October, 1963. Respondents No. 1 and 2 again filed on appeal (Appeal No. 176 of 1963) in the Court of the Senior Subordinate Judge at Delhi. This times this appeal came to be dealt with by Mr. K.S. Sidhu, who was the Senior Sub Judge at Delhi at that time. He allowed the appeal by his judgment dated 7th February, 1964, which is under appeal. He has really gone into the validity of the decree which was passed by the appellate Court and has held that no decree could be passed in favor of the appellant who was a defendant in the suit against her codefendants.

A plea was taken before him that the question whether a decree could or could nto be passed in favor of the appellant against respondents No. 1 and 2 was res judicial between the parties as the objections and the appeal filed by respondents No. 1 and 2 had been dismissed earlier wherein it had been held that a decree had been validly passed to favor of the appellant against respondents No 1 and 2 and that she was entitled to execute the same. The learned senior Sub judge has applied this objection on the ground that inspite of such a finding respondents No. 1 and 2 were nto precluded from raising a question which is a pure question of law and which is apparent on the face of the record. He further held that the question related to the existence and validity of the decree sought to be executed and it could be demonstrated that this decree did nto exist in the eye of law.

(6) I do nto think that the learned Judge was right in going behind the decree. The subsequent objection could nto be entertained because of the fact that the previous objection which raised the same contentions were on overruled by the executing court and the consideration of the subsequent objections was barred by the principles of res judicata.

(7) It may be that the previous objections were dismissed on a wrong application the law, but a mere erroneous decision would nto entitle the court in subsequent proceedings to reopen the question. The position is well established that the principles of constructive resjudicata are applicable to execution proceedings. It has been held by the Supreme court in Mohanlal Goenka v Benoy Krishna Mukherjee, , That " Even an erroneous decision on a question of law operates as res judicata between the parties to it. The correctness or toherwise of a judicial decision has no bearing upon the question whether or nto it operated as res judicate. A decision in the previous execution case between the parties that the matter was nto within the competence of the executing Court even though erroneous is binding on he parties".

(8) In my view, the rule of res judicate clearly applies, to this case and the learned senior subordinate Judge was wrong in going into the question where a proper or correct decree had been passed in the face of the previous order of the executing Court on the objections of respondents No. 1 and 2 and the decision of the additional Senior Sub Judge Delhi, in the appeal filed by respondents No. 1 and 2.

(9) I would, therefore, allow the appeal and set aside the order appealed against. Parties, shall bear their own costs. The file shall be sent to the Senior subordinate Judge, Delhi. The parties, who are present here, are directed to appeal before the Senior Subordinate Judge, Delhi, on 24th April, 1967, when he will assign the execution case to a subordinate Judge for taking further proceedings in the matter.

(10) Appeal allowed.