Delhi High Court
Atul Chhabra & Anr. vs Satpal Gugnani & Ors. on 21 July, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 682/2014
% 21st July, 2014
ATUL CHHABRA & ANR. ......Petitioners
Through: Mr. A.P.S. Jadaun, Advocate.
VERSUS
SATPAL GUGNANI & ORS. ...... Respondents
Through: Ms. Preeti Machan, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
Caveat No.592/2014
1. Counsel appears for the caveator. Caveat stands discharged.
C.M. No.11501/2014 (exemption)
2. Exemption allowed subject to just exceptions.
C.M. stands disposed of.
C.M.(M) No.682/2014 Page 1 of 4
+ C.M. (M) No.682/2014 and C.M. No.11502/2014 (stay)
3. On 17.7.2014, I have dismissed a petition being C.M (M)
No.339/2014 which was filed by the stated owners of the suit property to
favour the present petitioner/judgment debtor with the following order:-
"1. No one appears for the petitioners. This case was first listed on
4.4.2014 when at the request of the counsel petitioners the same was
renotified for today making it clear that there is no stay of the
impugned order.
2. Today no one was present on the first call. No one is present even
on the second call although it is 4.25 PM.
3. This petition under Article 227 of the Constitution of India impugns
the order dated 4.1.2014 by which warrants of possession were issued
in favour of the decree-holder.
4. It may be noted that eviction decree has been confirmed right till
the Supreme Court.
5. Petitioner nos. 1 and 2 claim to be the co-owners who have sold
their rights to petitioner nos. 3 and 4 who are the judgment debtors and
consequently objections are being raised to execution of the decree.
6. The Supreme Court in the case of India Umbrella Manufacturing
Co. & Others Vs.Bhagabandei Agarwalla (Dead) by Lrs. Smt. Savitri
Agarwalla & Ors. 2004(3) SCC 178 has held that rights with respect to
eviction petition are crystallized as on the date of filing of the petition
and subsequent events cannot frustrate the eviction petition and a co-
owner has no right to withdraw the consent which was granted at the
date of filing of the petition.
7. In view of the above, it is clear that the present petition is an abuse
of the process of law, and the same is therefore dismissed."
C.M.(M) No.682/2014 Page 2 of 4
4. The basic grievance of the petitioners/judgment debtors is that
the eviction petition could not proceed because the co-owners/sisters were
not parties to the eviction petition.
5. Besides the fact that it is settled law that a co-owner can file an
eviction petition, this issue was or ought to have been raised in the main
eviction proceedings so that it is decided in the main eviction proceedings,
and which eviction proceedings have attained finality right till the Supreme
Court inasmuch as the eviction petition had been decreed against the
petitioners and confirmed by the dismissal of the SLP of the present
petitioners.
6. The provision of Section 11 of Code of Civil Procedure,
1908(CPC) read with Explanation IV thereof deals with the principle of
constructive res judicata. All aspects which might or ought to have been
urged in the main petition, if not taken as a ground of defence or attack, are
deemed to have been decided in the main proceedings and cannot be raised
by means of objections in the execution proceedings.
7. Order 21 Rule 102 CPC provides that objections cannot be filed
by transferee pendente lite. If objections cannot be filed by persons who are
transferees penente lite, and which is on the principle that a decree binds the
defendant and all persons who claim through the defendant, surely the
C.M.(M) No.682/2014 Page 3 of 4
defendant in a suit (and a respondent in the eviction proceedings such as the
present petitioner) cannot file objections to execution of the decree.
8. In view of the above, there is no merit in the petition and the
same is therefore dismissed with costs of Rs.10,000/-. Costs be paid within
four weeks from today.
JULY 21, 2014 VALMIKI J. MEHTA, J.
Ne
