Savitri Malhotra vs Ram Nath Malhotra
1995 Latest Caselaw 863 Del

JUDGMENT

S.K. Mahajan, J.

(1) On 29th October, 1971, a decree was passed in S.No.275/67 for possession by partition of portion of house No.J-III/67, Lajpat Nagar, New Delhi shown red in the plan with appurtenances to the constructed portion comprising 3' 6" wide passage running on North -Western side of the aforesaid constructed portion and the open space towards the South-East of the constructed portion shown by letters A, B, C, D, E, F, and P, Q, R, S on the plan which formed part of the portion allotted to the plaintiff on the basis of family arrangement dated 24th July, 1966.

(2) Execution petition was filed on 19th September, 1981 for execution of the said decree. Notice of the execution petition was directed to be issued to Mr.R.N.Malhotra, judgment debtor, who appeared in person in Court on 20th October, 1981 and was allowed time to file the reply. Unfortunately, before reply could be filed, he died on 4th November, 1981. On 25th November, 1981, the Court directed notice to be issued to the legal heirs of the judgment debtor, returnable on 7th December, 1981. The notices were served upon the legal heirs of the deceased judgment debtor on 5th December, 1982. It appears that before the said notices were served upon the legal heirs, Smt.Santosh Malhotra, widow of the judgment debtor, by means of a sale deed, transferred the whole of the property bearing No.J-III/30, Lajpat Nagar, New Delhi to Shri Dhan Raj Gupta and possession of first floor of the property was also given to him. On 20th November, 1981, the Court was informed that no decree had been framed in the suit and the decree holder was directed to file a certified copy of the decree sheet. On 18th January, 1982, non-judicial stamp papers of Rs.300.00 were filed by counsel for the decree holder for preparing the decree. By an order dated 1st February, 1982, the Court gave a direction that office should assess the quantum of stamp duty payable for preparing the decree sheet and that in case the stamp papers which had been filed by the decree holder were in order, the decree sheet should be prepared.

(3) The legal representatives of the deceased judgment debtor were substituted on 28th July, 1982 and on 5th November, 1982, warrants of possession were issued returnable on 15th December,1982.

(4) E.A.67/83 was filed on 28th March, 1983 by the decree holder requesting for issue of warrants of possession against Mr.Dhan Raj Gupta who was in actual possession of the property. On 5th July, 1983, E.A.67/83 was dismissed in default. On an application having been made by the decree holder for restoration of E.A.No.67/83, the Court, by order dated 19th July, 1984, restored the said application and fresh warrants of possession were directed to be issued, returnable on 17th August, 1984. Mr.Dhan Raj Gupta appears to have obstructed the execution of the warrants of possession and, consequently, E.A.No.232/84 under Order 21 Rule 97 was filed by the decree holder. The objector, Mr.Dhan Raj Gupta, filed reply to the said application. The plea taken in the reply by Mr.Dhan Raj Gupta was that he was the bonafide purchaser of the property for valuable consideration and had no knowledge of any disputes relating to the property or of the passing of the decree. It is stated that the decree holder had no right to take possession of the property from him and he had every right to obstruct the decree holder from taking possession as he was in lawful possession of the property and was not bound by any decree passed against Mr.R.N.Malhotra. It was stated that the decree could not be executed against him for the reasons stated in the objection petition which he wanted to be read as his reply under Order 21 Rule 101 CPC. The objections taken in the said reply were that :-

A.THEobjector was bonafide purchaser for valuable consideration.

B.THEproperty has been duly entered into the records of Land & Development Office in the name of objector.

C.AFTERthe purchase of the property, the objector and members of his family are in complete occupation and possession of the same.

D.BYhis conduct, the decree holder was estopped from taking possession from the objector as he was assured that the property was free from all encumbrances and was not the subject matter of any dispute in any court of law and the decree holder did not object to the sale of the property to the objector and even otherwise did not bring to the knowledge of the objector that the property, being sold, was the subject matter of some litigation.

E.THEexecution was in collusion with Mrs.R.N.Malhotra as the decree holder did not file the execution for more than ten years after passing of the decree.

F.THEdecree cannot be executed as the property cannot be enjoyed without the passage which was formed a part of the decree.

G.AFTERpurchase, the objector has constructed one and a half storied house spending huge amount on its construction and decree holder did not raise any objection even to that construction at any time.

(5) Additional objections were taken by way of E.A.61/85 by the objector objecting to the execution of the decree on the ground that the objections were restored on 16th July, 1984 after they had been dismissed in default and the said objections will be deemed to have, therefore, been filed after 12 years of the passing of the decree and, consequently, the decree was not executable and that no notice as required under Rule 22 of the Order 21 had been issued by the Court.

(6) The Court considered the objections filed by Mr.Dhan Raj Gupta and by a detailed order passed on 18th November, 1985, the said objections were dismissed and the decree holder was directed to be put in possession by issue of fresh warrants of possession. Appeal filed against the said judgment was dismissed by the Division Bench on 31.1.1986 and a special leave petition filed in Hon'ble the Supreme Court of India was dismissed as withdrawn on 19.2.1986. The objector also filed a review application E.A.58/86 which was dismissed by this Court and an appeal filed against the said order on the review application was also dismissed by the Division Bench.

(7) That was not the end of the matter as decree holder has till date not been able to get possession in execution of the decree passed in his favor in 1971 and the execution has been pending since 1981. Mrs.Savitri Malhotra, W/o. Shri Charanjit Malhotra, who had filed the execution petition also died on 13th October, 1989 and on an application filed by her legal heirs, they were brought on record by order dated 7th November, 1990. On 4th July, 1994 the objector filed E.A.No.178/94 under Section 47 of the Code of Civil Procedure stating, inter alia, that the decree was not executable for the following reasons : -

1.THATthe decree had not been inscribed or drawn on stamp papers and the decree having been drawn on a plain paper was a nullity.

2.THATthe stamp papers filed by the decree holder on 18th January, 1982 had not been used and the decree was still drawn on a plain paper and the stamp papers had only been placed but not have been used for inscribing the decree.

3.THEstamp papers have not been signed by the decree holder but had been signed by the lawyers and the stamp papers had not been cancelled.

4.THEExecution application has not been signed and verified nor instituted under the authority of the decree holder Ms.Savitri Malhotra.

5.THATMs.Savitri Malhotra in any case had given her consent for sale of the property to Dhan Raj Gupta.

(8) Similar objections under Order 47 were filed by the judgment debtor bearing No.EA.177/94. Reply has been filed by the decree holder to the said objections under Section 47 of the CPC.

(9) Lengthy arguments have been advanced by the counsel for the parties.

(10) Mr. Puri has referred to the provisions of Section 35 of the Stamp Act in support of his contention that no instrument which has not been stamped properly can be admitted in evidence. He has also referred to me Rule 7 of the Rules framed under the Stamp Act, according to which sufficient part of the instrument has to be written on the stamp paper before plain paper is used to write the instrument. Under Section 13 of the Stamp Act, every instrument written upon papers stamped with impressed stamp shall be written in such manner that the stamp may appear on the face of the instrument and cannot be used or applied to any other instrument. Under Section 15, every instrument written in contravention of the Section 13 shall be deemed to be unstamped. The contention of Mr. Puri, therefore, is as the decree sheet is only on plain papers and the stamp papers provided by the decree holder had been placed along with the decree, this decree is a nullity and no execution on the basis of the said decree can take place. He has referred to a judgment of Lahore High Court reported as Gopimal Vs. Vidyawanti, 1942 Lahore 260 as well as Dilbagh Rai Vs. Tika Devi, 1932 Lahore 249 to support his contention that decree not drawn on the stamp paper is not executable. It is contended that in Mst.Shahabai Begum Vs. Mst.Pukhraj Begam, it was held that the decree cannot be executed till it was engrossed on stamp paper and in Shankar Balwant Lokhande Vs. Chandrakant Shankar Lokhande and Another reported as it is held by the Supreme Court that even if it was the Court's mistake that the decree has not been engrossed on a properly filed stamp paper, the same cannot be executed.

(11) In Shanker Balwant Lokhande Vs. Chandrakant Shankar Lokhande & Another reported as , the point for consideration before the Supreme Court was as to whether a final decree which has not been properly stamped can at all be executed or not and Hon'ble the Supreme Court held that after passing of a preliminary decree for partition, the decree cannot be made effective without a final decree. The question for consideration before the Supreme Court was as to when the limitation begins to run for filing an application to pass final decree on stamp papers. In that case an order was made on 19th April, 1958 directing the preparation of a final decree and it was on 14th August, 1975 that an application was filed before the Trial Court to accept non judicial stamps to pass a final decree. An objection was taken by the respondent pleading the bar of limitation under the Limitation Act of 1908. The Trial Court overruled the objection and allowed the application on 3rd February, 1976 holding that the application was not barred by limitation. In first appeal, learned single Judge of the High Court held that limitation began to run from the date when the direction was given to pass final decree and since the application was filed after the expiry of period of limitation counted from that date, the same was barred by limitation. The Division Bench dismissed the appeal in liming and this is how the matter has been heard by the Supreme Court in the Special Leave Petition. It was in these circumstances that the Supreme Court held as under : - "QUESTION is whether the aforesaid view is correct? Since the decree is one which is prior to the Limitation Act, 1963, we are to look to the provisions contained in the Limitation Act, 1908, (for short "the old Act"), for deciding the controversy. Article 182 of the First Schedule to the old Act envisages that "for the execution of a decree or order of any civil court not provided for by Article 183 or by Section 48 of Cpc, the period of limitation of three years begins to run from the date the final order was passed on an application made in accordance with law to the proper court for execution, or to take some step in aid of execution of the decree or order". Explanation I provides that where the decree or order has been passed severally in favor of more persons than one, distinguishing portions of the subject-matter as payable or deliverable to each, the application mentioned in Note 5 of the article shall take effect in favor only of such of the said persons or their representatives as it may be made by. But where the decree or order has been passed jointly in favor of more persons than one, such application, if made by any one of more of them, or by his or their representatives, shall take effect in favor of them all".

(12) Therefore, it would be clear that where decree or order has been passed jointly against more persons than one, the application shall take effect against them all, even if it is made by one or more. It is seen that the preliminary decree is a declaration of the rights of the parties with a charge on the properties to be allotted and a Commissioner is required to be appointed for partition of certain specified properties. Therefore, as envisaged in sub-rule (2) of the Rule 18 of Order 20, it was only a preliminary decree declaring the rights of the parties with power to the court to give further directions in that behalf. It is settled law that more than one final decree can be passed. With the passing of the final decree in respect of the share of the first respondent, the rights of the parties in respect of other properties have not been crystallized and no final decree dividing the properties by metes and bounds was passed nor any application was made to divide the properties in terms of the shares of the parties declared in the preliminary decree."

(13) It was further held by the Supreme Court that mere giving of directions to supply stamp paper for passing final decree did not amount to passing a final decree. It was in this context that the Supreme Court held that : -

"UNTIL the final decree determining the rights of the parties by metes and bounds is drawn up and engrossed on stamped paper(s) supplied by the parties, there is no executable decree. In this behalf, it is necessary to note that Section 2(a) of the Bombay Stamp Act, 1958, as amended by the local Act, provides that a decree of civil court is required to be stamped as per Article 46 in Schedule I, Section 34 thereof lays down that "no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon,registered or authenticated by any such person or by any public officer unless such instrument is duly stamped".

"THEREFORE,executing court cannot receive the preliminary decree unless final decree is passed as envisaged under Order 20, Rule 18(2). After final decree is passed and a direction is issued to pay stamped papers for engrossing final decree thereon and the same is duly engrossed on stamped paper(s), it becomes executable or becomes an instrument duly stamped. Thus, condition precedent is to draw up a final decree and then to engross it on stamped paper(s) of required value. These two acts together constitute final decree, crystallizing the rights of the parties in terms of the preliminary decree."

(14) In this judgment itself while setting aside the judgment of the High Court, Hon'ble the Supreme Court had directed the Trial Court to first pass a final decree and then to engross the same on stamp papers already supplied by the parties and if further stamp papers were needed, reasonable time should be given to supply the same. It is not understood, as to how the said judgment can in any manner help the objector to support his contention that the decree having not been engrossed on a stamp paper cannot be executed at all.

(15) Further argument of Mr.Puri is that even assuming that it is a proper decree, the decree holder did not have right to execute the same till such time the decree was prepared on the stamp paper and in this case decree was not prepared on stamp papers but they were simply placed Along with the decree. Secondly, as admittedly in this case, stamp papers were provided only on 18th January, 1982 and decree was prepared on 1st February, 1982, the execution application filed on 19.9.1981, according to Mr.Puri, was premature and all proceedings taken pursuant to the said application before even preparation of the decree will be considered to be non-est and without jurisdiction.

(16) In my opinion, the argument raised by Mr. Puri is without any basis. The Courts are meant for giving substantial justice to the parties and a document cannot be made invalid merely because the same has not been drawn on stamp paper. The Court will not make itself a party to be involved in technicality so as to deny justice to the parties. The duty of the party is only to file the stamp papers for preparation of the decree and then it is the duty of the office to prepare a decree or to place them along with the decree. The idea of writing on the stamp paper,as provided by Rule 7, is only to avoid misuse of the stamp paper. The rule even otherwise is not mandatory but is only directory. It does not mean that a document which has been written on a plain paper and the stamp papers which are required to be used for writing the document are crossed and made a part of the said document, is a useless document or cannot be relied upon at all merely because the document is not written on the face of the stamp papers.

(17) In Mauloi Rafiuddia Vs. Syed Latif Ahmed, 7 Indian Cases 94, where decree holder had filed court fee stamps, in place of non-judicial stamps which are required for preparation of the decree and when in the execution, an objection was taken by the defendant that the decree could not be executed, as the same was not drawn upon non- judicial stamp papers, the trial court allowed the objection, Division Bench of the Calcutta High Court, in appeal, held that it is a fit case where the Court should exercise its inherent jurisdiction to allow the plaintiff to file non- judicial stamp papers which would then be defaced and attached to the decree already drawn up and that would be sufficient to validate the decree with retrospective effect from the date when it was drawn up. This judgment was followed in Jogesh Chander Bandopadhyay Vs. Mohini Mohan Ghosh where a Division Bench held that where a decree was not drawn up on a non-judicial paper and on the order of the Court non-judicial papers were annexed and defaced and the name of the parties and the cause title was put down, the decree was entirely in order with retrospective effect from the date when it was drawn up and could be executed. In this judgment itself, the Calcutta High Court held that no fresh notice under Order 21 Rule 22 was required to be given to the judgment debtor where he has appeared in the course of the execution and had objected to the execution of the decree.

(18) In Rameshwar Prasad Vs. Narayan Das, , it is held that the Stamp Act was a fiscal measure enacted to secure revenue for the State and it was not enacted to arm the litigant with a weapon of technicality. There would be sufficient compliance of Section 13 of the Act if the evidence of cancellation or utilisation is such that the same sheet cannot be applied to any other instrument. A just claim could not be defeated merely because the writing of the instrument ended on the first sheet of the paper(stamp) and the second sheet has been crossed with signatures of the executant provided the evidence satisfies the Court that the second sheet was, in fact, used at the very time when the instrument was drawn. The expression "such instrument shall be written on each sheet so used" in Rule 7 thus include within its meaning the lines drawn cancelling the sheet with signatures of the executant put thereon indicative of utilisation of the papers.

(19) In Hindustan Steel Limited Vs. Dilip Construction Company Air 1969 Supreme Court 1238, it was held that the Stamp Act was a fiscal measure enacted to secure revenue for the State on certain classes of the instruments and was not enacted to arm a litigant with weapon of technicality to meet the case of his opponent. The stringent provisions of the Act are conceived in the interest of the revenue. Once that object was secured, according to law, the party seeking his claim on the instrument will not be defeated on the ground of the initial defect in the instrument.

(20) In Full Bench Judgment of the Lahore High Court reported as Gopimal Vs. Voidiyawanti Air 1941 Lahore 260, it was held that "WHERE a partition decree was drawn up without proper stamp and the executing Court without objection proceeded to execution, there was no lack of inherent jurisdiction in the executing Court to act upon the decree, that is to execute it but there is an illegality or error affecting its jurisdiction in proceeding to act upon a decree which the statutory bar provided by Section 35 forbids it from doing. Once the proper stamp was supplied, the validity of the decree would date back to the decree and, therefore, the execution application instead of being struck off might proceed as from that date. But this would not validate the proceedings that had taken place before the stamp papers were supplied. Those proceedings would still be without jurisdiction in the sense that the Court was barred by statute from proceeding in the way it did without a proper stamp and, therefore, proceedings were without any legal justification".

Relying upon this last sentence, Mr. Puri has argued that the proceedings which had been taken prior to the decree having been drawn upon a stamp paper were void and as such the decree holder had no right to proceed with the matter. I am afraid, the interpretation given by Mr. Puri is not correct.

(21) In Chloride and Exide Batteries Vs. Smt.Umawati , the aforesaid sentence had come up for consideration and it was held that the last two sentences in the quotation from the judgment of Dalip Singh,J. were erroneous as they contradicted the previous sentences where it is said that "Once the proper stamp was supplied, the validity of the decree would date back to the date of the decree and, therefore, the execution application instead of being struck off might proceed as from that date." It was further held that under Order 20 Rule 7 Cpc, the decree shall bear the date the day on which the judgment was pronounced and when the Judge has satisfied himself that the decree has been drawn up in accordance with judgment, he shall sign the decree. According to this Judgment, the said rule created a fiction and since the decree is required to bear the same date as the judgment, it must be deemed to have been passed on the same date and the consequences ensuing from the fiction must be accepted without demur. Giving full effect to the fiction, the Court concluded that after the partition, decree was drawn up and signed on stamp papers in August 1974, that is, almost three years after the passing of the judgment, the decree holder must be deemed to have become the owner as from the date of the judgment i.e. 21st December, 1971.

(22) In a judgment of the Allahabad High Court reported as Ganesh Prasad Vs. Mst.Makhana, Air 1948 Allahabad 375, it was held that when by supply of the requisite stamps, the validity of the decree would date back to the date of the decree, the validity of the execution proceedings under that decree taken prior to the supply of the requisite stamps could hardly be questionned. The payment of stamp duty validated not only the decree but also the proceedings taken thereunder.

(23) In view of the above, I am of the opinion that there is no invalidity in the decree merely because the stamp papers have been placed along with the decree and the decree has not been inscribed upon the stamp papers. The decree holder has full right to execute this decree and there cannot be any exception to the same.

(24) Now, coming to the second contention of Mr. Puri that the decree was still not executable because the family settlement and the plan should have been made part of the decree and unless the things mentioned in the family settlement had been done, the decree could not be executed.

(25) To appreciate this contention of the objector, it will be necessary to see the decree itself. By judgment dated 29th October, 1971, the Court had passed a decree for possession by partition in favor of the plaintiff and against the defendant in terms of para 28(c) of the plaint in respect of the portion of the house No.J- III/30, Lajpat Nagar, New Delhi shown red in plan marked 'X' attached to the plaint and the appurtenances of the constructed portion which also go with the constructed portion comprised of a 3'-6" wide passage running on the north-western side of the aforesaid constructed portion of the open space towards the south-east of the constructed portion from particularly shown by letters a, b, c, d, e, f and p, q, r, s on the plan attached and which forms part of the portion allotted to the plaintiff on the basis of the family arrangement. The contention of Mr.Puri is that the family arrangement was not made a part of the decree, the decree cannot be executed. From the judgment, I find that it is not the family arrangement which has been made a part o the decree, it is only the plan which has been made part of the decree. The decree itself is clear and no further interpretation or clarification to interpret the decree is required. On a bare reading of the decree, it shows that decree in terms of para 28 (c) of the plaint has been passed and the same has to be executed in the manner mentioned in the plan. Nothing further was required to be done by the plaintiff/decree holder pursuant to the passing of the said decree. I, therefore, hold that the plaintiff was not required to perform any act to enable him to execute the decree. Family settlement has not been made a part of the decree and, therefore, there was no necessity of the decree holder to do anything allegedly mentioned in the family settlement.

(26) It is next contended by Mr.Puri that the plan has not been made a part of the decree. In the judgment it is mentioned that the plaintiff is entitled to possession in terms of para 28(c) of the plaint in respect of the portion shown red in the plan marked 'X' and attached to the plaint. I find that this plan which has been marked 'X' is available on the court file. Naturally, this plan which is available on the Court file and marked as 'X' is a part of the decree. In case, a certified copy of the said plan has not been supplied to the objector Along with certified copy of the decree, it will not mean that the said plan does not form part of the decree. I, therefore, hold that the plan marked 'X' was a part of the decree and possession has to be given to the plaintiff in terms of the said plan.

(27) It is next argued by Mr.Puri that the objections were dismissed in default and were restored only on 16th July, 1984 and, therefore, the objections will be deemed to have been filed only on the date of restoration and the said date being after 12 years after passing of the decree, the decree could not be executed being barred by limitation. There is a fallacy in the arguments of Mr.Puri. Firstly, the objections were not dismissed in default on 5th July, 1983. What had been dismissed on the said date was execution application No.67/83. this application was for issue of warrants of possession against the objector who was actually in possession of the property. On an application having been filed by the decree holder, the said application E.A.No.67/83 was restored on 19th July, 1984. Secondly, even assuming for the sake of arguments that the execution application was dismissed on 5th July, 1983 on the restoration of the execution application, in my opinion, it will relate back to the date when it was originally filed. I cannot accept the arguments of the objector that execution application would be deemed to have been filed on the date when the same was restrored. In my opinion, the execution application is not barred by limitation.

(28) It is next contended by Mr.Puri that a fraud had been played upon the Court in as much as the plan which is alleged to be a part of the family settlement was not filed in court and the decree had been obtained by suppressing the said plan. The argument is that mere non-production of the plan which was a part of the family settlement and on the basis of which the suit was filed, will amount to a fraud played upon the Court. Reliance for the same has been placed upon the judgment reported as S.P.Chengalaraya Naidu Vs. Jagannath, . The Supreme Court in the said case has held that a litigant who approaches the court is bound to produce all the documents executed by him which are relevant to the litigation and if he suppresses a vital document in order to gain advantage on the other side, then he would be guilty of playing fraud on the Court as well as on the opposite party. In my opinion, the said judgment is of no help to the objector. As I have already held above, the plan had been filed Along with the suit and it was nobody's objection that the plan which had been filed Along with the suit ws not in accordance with the plan which formed part of the family settlement and the plaintiff was not entitled to a decree on the basis of said plan. It was after a contested litigation that the Court passed a decree of possession in favor of the plaintiff of the portion shown red in the plan attached with the plaint. The decree does not say that the possession has to be given in terms of the plan which form part of family settlement. In my opinion, no document which was relevant to the suit had been withheld by the plaintiff and there is no question of any fraud having been played upon the Court by the plaintiff.

(29) It has lastly been contended by Mr.Puri that the execution application has not been signed by the decree holder and consequently the decree cannot be executed. The original execution application has been signed by one Mr.Surinder Gaud describing himself as the constituted attorney of the decree holder. The decree holder had filed an application on 5th August, 1984 under Section 151 Civil Procedure Code for issue of warrants of possession by breaking open the doors and locks of the premises. The said application was duly signed by the decree holder and supported by her affidavit. Another application was filed under Order 21 Rule 97 wherein it is mentioned that the execution application No.103/81 have been filed by the decree holder claiming possession of the property in question. In reply to the said application, the present objector did not refute the averment that execution application No.103/81 had not been filed by the decree holder. Additional objections were filed by the objector to the said application under Order 21 Rule 97 and even in these objections it was not said that the execution application has not been filed by the proper person for and on behalf of the objector. No issue at any time had been raised about the incompetency of the person filing the execution application. In my opinion, the plea which is now sought to be taken by the objector in his application under Section 47 of the execution of the decree that the execution application has not been signed by a proper person is not only barred by the principles of res-judicata but it is too late a stage now to contend that the original application was not filed by a competent person which is now pending for the last about 14 years. It is no doubt true that an application has to be filed by the decree holder or by a person authorised by her on her behalf, however, unless an objection is taken about the competency of the person filing the execution application, there will be no need to prove by the decree holder that the person who had filed the objections was duly authorised by her. In case, such an objection had been taken, the decree holder could have filed some document to prove that the person filing the execution application was duly authorised by her to file such an execution. Moreover, Mrs.Savitri Malhotra who had filed this execution died on 13th October, 1989 and this objection about the execution application having not been signed by an authorised person on her behalf has been taken for the first time on 4th July, 1994 in EA.No.178/94, much after the death of Mrs.Savitri Malhotra. She, therefore, had no opportunity to explain whether the person who had signed the application was authorised by her or not. In my opinion, the objections about the competency of the person who has filed the execution application for and on behalf of judgment debtor ought to have been taken by the objector in his objections to the application under Order 21 Rule 97 CPC. The objector did not take any such plea in the said objections and the same were dismissed by the court by order dated 18th November, 1985. Appeal filed against the said order was also dismissed and even the Special Leave Petition filed in the Supreme Court was dismissed as withdrawn. Even the review application was dismissed by a Division Bench on 13th January, 1986. In none of these proceedings, the objector had taken the objection of competency of the person filing the execution application and I am, therefore, of the considered opinion that this objection which is now sought to be raised is clearly barred by principles of resjudicata.

(30) MR.SAHAI has also contended that the present application under Section 47 of the Code of Civil Procedure, filed by the objector, is otherwise barred by the principles of res-judicata in as much as all those objections which have now been taken by the objector as well as judgment debtor could have been taken by them in their application under Order 21 Rule 97 being EA.No.62/85. According to Mr.Sahai, any matter which might and ought to have been made a point of defense in the earlier application under Order 21 Rule 97, will be deemed to have been a matter directly and substantially in issue in this objection petition under Section 47 of the Code of Civil Procedure. According to Mr.Sahai, as this objection was not taken in objections to the application under Order 21 Rule 97, the present objection under Section 47 are barred by principles of res-judicata. Reliance for this has been placed by Mr.Sahai upon a judgment reported as Mohan Lal Vs. Vinod wherein it has been held that principles of constructive res-judicata apply even in execution proceedings.

(31) As I have already held on merits that the present application under Section 47 is not maintainable and is liable to be dismissed, I need not go into this question as to whether this application is barred by principles of res-judicata.

(32) It has lastly been contended by Mr.Puri that this decree had to be interpreted in a manner so as to give access to the objector to the passage marked as 'A', 'B', 'C', 'D', 'E' and 'F' as without this passage it would not be possible for him to enjoy the property given to his predecessor under the family settlement on the basis of which the decree has been passed in favor of the decree holder. In terms of the decree, possession of the portion shown red in the plan, attached to the plaint, had been given to the decree holder. The said portion comprises dining-cum-drawing room, bed room, a box, a lavatory and a kitchen. It is contended that executing court has the jurisdiction to interpret the decree though it has no powers to go beyond its terms. The contention, therefore, is that the decree has to be interpreted in a manner so as to give effect to the same and in case, the possession of the passage is given to the decree holder, there will be no way for the judgment debtor/objector to use the portion which has been given to him by way of the family arrangement and consequently the decree should not be executed by giving this passage to the decree holder.

(33) Decree passed in favor of the decree holder is decree for possession in terms of para 23 (c) of the plaint in respect of the portion of the house shown as red in the plan marked as 'X' attached to the plaint. In plan 'X', I find that 3'-6" wide passage has not been shown red. This passage is only appurtenant to the red portion shown in the plan. The only interpretation, therefore, which can be given to the decree, is that this 3'-6" wide passage was to be used in common by the parties as it was appurtenant not only to the portion of the plaintiff but also to portion belonging to the defendant as well. Objector having purchased the property from the judgment debtor will be bound by the decree.

(34) In view of the above discussions, the objections filed by the objector as well as by the judgment debtor are dismissed.