Dr. Ghanshyam
Jaiswal Vs. Kamal Singh [1996] INSC 278 (16 February 1996)
Ramaswamy,
K.Ramaswamy, K.G.B. Pattanaik (J)
CITATION:
1996 SCC (3) 54 JT 1996 (5) 542 1996 SCALE (2)596
ACT:
HEAD NOTE:
O R D
E R
Leave
granted.
Though
the respondent has been served by dasti, he is not appearing either in person
or through counsel. The facts are eloquent. In a suit for ejectment filed on April 5, 1984, the respondent had entered into a
compromise on foot of which the decree for eviction was granted after recording
the compromise and evidence. The respondent did not deliver the possession of
the demised property in terms of the compromise decree. Therefore, the
appellant was constrained to lay execution for possession of the property. In
the first round of litigation, the respondent had challenged under section 47
of the C.P.C impugning the validity of the compromise decree which was turned
down by the executing Court. The High Court dismissed W.P. No.2849 of 1994 by
order dated August 19,
1994. Again the
respondent laid another objection under Section 47 contending that the decree
is vague and incapable of being executed. That was turned down by the executing
Court on September 30,
1994.
Against
that, the respondent filed a revision in the High Court. The High Court in the
impugned order allowed the revision by order dated June 21, 1995 in C.R. No.1252/94 since the counsel for the appellant had
reported no instructions.
The
only question is: whether the respondent is entitled to raise the plea of
vagueness? Having entered into the compromise and suffered a decree on foot of
compromise and also having raised the plea of non-executability of the
compromise decree and having become unsuccessful, he is precluded by
constructive res judicata of might and ought in Explanation VI to Section 11,
to raise any other plea of the executability of the decree. The High Court,
therefore, was clearly in error in allowing the revision and setting aside the
Execution Application.
The
appeal is accordingly allowed. The order of the High Court is set aside. The
appellant is at liberty to have the decree executed with the assistance of the
police. No costs.
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