The petitioners contend that the decree of partition is vague because it
does not specifically accept one of the two proposals for partition by
metes and bounds of plots no.14 & 15 from the report of the
commissioner. In my considered opinion there was no need for the trial
court, at the time of passing of the final decree to select one of the
options from the commissioner's report. The purpose of appointment of
commissioner was to find out the possible and feasible ways of actual
partition of the two plots of land with minimum disturbances of the
petitioner's structures thereon. The respondents themselves desired so.
The commissioner in his report could come out with two options to
divide the properties. While passing the final decree the trial court did
not find any difficulty in respect of either of the options. It therefore
left the exercise of selection of the option to the stage of the execution.
That does not render the decree vague. It only gives an opportunity to
the decree holders to select one of the two options for execution of the
decree while limiting the modes of execution to the two options only.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.647 OF 2012
1. Shri Prakash Balkrishna Naik
V/S
1. Shri Surendra Balkrishna NaikDATE : 30th APRIL, 2013
Rule. Made returnable forthwith. By consent, the petition is
taken on board for final hearing. Heard the Counsel.
2.
The petitioners herein are the judgment debtors in Special Civil
Suit No.85/1984 filed by the respondents for partition of the property
2
that had been jointly purchased by petitioner no.1 and respondent no.1 in
the year 1969. Petitioner no.1 and respondent no.1 are the real brothers.
Petitioner no.2 and respondent no.2 are their respective wives.
3.
The suit property “Madant” consists of plot no.51 admeasuring
532 square metres and plots no.14 and 15, together admeasuring 2040
square metres. The petitioners have their house at plot no.51. On a
portion of the other two plots they have established a workshop for
barge building business and allied works.
In view of the existing
structures on the suit property, the respondents in extreme fairness, while
seeking partition of the property in the suit, offered to sell their share in
plot no.51 to the petitioners and to have the other two plots so divided
by metes and bounds, as far as possible, that the portion over which the
workshop is situate would fall to the share of the petitioners.
4.
Despite admitted position as regards the title of the suit property
and the structures standing thereon the petitioners contested the suit by
filing written statement. The parties led evidence in the suit. More than
twelve years after its filing, i.e. on 10th December, 1996, preliminary
decree was passed in the suit declaring that both the sides have equal
share in the suit property. For the purpose of actual partition, the trial
Court appointed Commissioner with a direction to him to (i) assess
3
value of the property of plot no.51 and give an option to both the sides
to purchase the land or an option to sell it by public auction and; (ii)
partition the remaining two plots by metes and bounds as far as possible,
in such a way that the workshop established for barge building and other
structures located on the property shall be located in the half portion to
be allotted to the petitioners.
5.
The petitioners challenged the preliminary decree by preferring
First Appeal No.49/1997 before this Court and sought stay of its
execution. By the interim order dated 18th September, 1997 this Court
directed that the trial Court could go ahead with the hearing of the suit
for partition without carrying out actual partition of the property. In
terms of the interim order the trial Court proceeded to hear the partition
suit and appointed Mr. P.C. Gupta, an engineer from Public Works
Division as Commissioner for ascertaining the value of plot no.51 and
suggestions for division of plots no.14 and 15. The Commissioner
submitted two reports dated 29th October, 1999 (exhibit 58) and 31st
March, 2000 (exhibit 61) to the trial Court in respect of the two sets of
properties.
The report at exhibit 61 suggested two proposals for
partition of plots no.14 & 15 along with two plans of partition for
approval of the Court. The reports of the Commissioner were objected
to by the petitioners by filing their objections. The trial Court by its
4
order dated 14th September, 2001 dismissed the objections and accepted
and confirmed the report of the Commissioner. It however, did not
specify the proposal from the report at exhibit 61 which was accepted.
With acceptance of the proposals the trial Court proceeded to pass final
decree on the same day. The final decree was referred to this Court
during the pendency of First Appeal No.49/1997. The First Appeal
came to be disposed of by the order dated 22nd March, 2004 rejecting the
Commissioner's report at exhibit 58 and remanded the matter to the trial
Court for revaluation of plot no.51 under Section 3 of the Partition Act.
The preliminary decree was modified to that extent.
6.
The trial Court then appointed engineer Mr. Moniz as a
Commissioner for partition of plot no.51. The Commissioner submitted
his report dated 21st July, 2004 which was accepted by the trial Court by
its order dated 8th August, 2005 and the suit was disposed off with that
order. The petitioners then preferred First Appeal No.306/1985 to this
Court and sought stay of execution of the decree. By the order dated
12th July, 2006 this Court stayed the decree on condition that the
petitioners deposited in this Court a sum of Rs.2,50,000/- (Rupees two
lacs fifty thousand only) within a period of fifteen days. The petitioners
have complied with that order. In the meantime, there was amendment
to Goa Civil Courts Act, 1965. In view of the amendment to Section 22
5
read with Section 20A of the Act, the appeal was required to be
transferred to the District Court. The appeal was accordingly transferred
to the District Court and re-registered as Regular Civil Appeal
No.174/2010. The District Court by its judgment and decree dated 7 th
January, 2011 dismissed the Regular Civil Appeal.
The petitioners
challenged the order by preferring Second Appeal before this Court in
respect of the property at plot no.51. The Second Appeal was disposed
of by the judgment and order dated 25th August, 2011.
7.
During the period 2004 to 2011 the respondents had filed four
applications for modification of the decree to the trial Court for
approving the first proposal of commissioner's report.
applications were dismissed by the trial Court.
All the
Then they filed
execution proceedings being Special Execution No.1/2008 in the trial
Court. The petitioners raised objection to the execution proceedings
raising several contentions including that the final decree had been
passed during the pendency of the appeal before this Court against the
preliminary decree.
The trial Court accepted the objections and
dismissed the execution proceedings by its order dated 17th June, 2009.
It held that the application for modification of the final decree with
regard to partition of the other two plots filed by the respondents was yet
to be decided and the final decree had been passed pending the decision
6
of this Court in the appeal against the preliminary decree. The execution
application was thus dismissed on the ground of it being premature. The
respondents then sought review of that order and after failing in the
review application challenged that order vide Miscellaneous Civil
Appeal No.13/2009 to the District Court.
By its order dated 9 th
December, 2010 the District Court dismissed the appeal.
8.
In the meantime, the application filed by the respondents for
correction of the decree was heard and disposed of by the trial Court by
its order dated 29th June, 2011 holding that an application for
modification of the final decree was not maintainable. The respondents
then preferred second execution application bearing no.2/2012. The
petitioners resisted the execution by contending that the same was not
maintainable in view of dismissal of the earlier execution application
and that the execution application was barred by res-judicata or
principles analogous thereto. The trial Court by its order dated 9 th July,
2012 dismissed the petitioners' objections and directed them to make
payment of Rs.96,000/- (Rupees ninety six thousand only) to the
respondents with a further direction for appointment of commissioner to
carry out the demarcation and execute the decree of partition. It further
directed the petitioners to demolish their southern boundary wall and the
steel structures that had been put up subsequent to the preliminary
7
decree. The petitioners carried the order to the District Court by filing
Miscellaneous Civil Appeal No.20/2012.
The District Court was
pleased to dismiss the appeal by its order dated 4 th July, 2012. The order
of the trial Court in the second execution application and the order of the
District Court upholding the order of the trial Court have been impugned
in the present petition.
9.
By this petition the petitioners seek to contend that the impugned
judgments are perverse since they have been passed ignoring the
findings given earlier that the decree dated 14 th September, 2001 was not
executable in respect of plots no.14 & 15 since the final decree does not
specify the proposal of the commissioner that had been accepted.
It is
also contended that the issues that had been earlier decided having been
raised in the second execution application were barred by the principles
of res judicata.
According to the petitioners dismissal of the first
execution application and upholding of that order by the District Court
attained finality as the respondents did not challenge the same in the
superior courts.
The petitioners claim that execution of the decree
would take away their source of livelihood and income by demolishing
the structure of shipyard, workshop building and the saw mills.
10.
The order of the trial court impugned herein is an exhaustive
8
order. The trial Court is seen to have considered all the objections to the
second application
for execution and held that the same were not
maintainable. As regards the first objection raised of the decree dated
14th September, 2001 not having attained finality on account of
noncompliance by the respondents of the directions issued by this Court
in the second appeal in respect of plot no.51, the trial Court noted that
the execution application was not in respect of plot no.51. It noted that
the preliminary decree gave the modes in which the partition was to be
effected. This decree has been confirmed by the final decree wherein
reports of the commissioner were accepted by the Court. The petitioners
though preferred an appeal against the final decree they had restricted it
to plot no.51. Thus the final decree of the trial court in respect of plots
no.14 & 15 has been accepted by the petitioners. The second objection
was that the final decree was not specific. The trial Court found that the
shares of the parties having been ascertained in the preliminary decree,
which is confirmed by the final decree there could be no substance in the
objection. The next objection considered was of maintainability of the
second execution application after dismissal of the first application. The
trial Court found that the earlier application for execution being
dismissed on the ground of being premature the respondents were not
debarred from filing fresh application for second part of the decree
which had attained finality. The petitioners had next raised the question
9
of interpretation of the final decree before the executing court
contending that the decree does not specify the proposal of the
commissioner that has been accepted. The trial court once again found
that the petitioners had not preferred any appeal against acceptance of
the report in respect of plots no.14 and 15. Further the final decree had
been passed after consideration of the objections to the report of the
commissioner. Therefore no objection could be raised in the execution
application.
Moreover the first part of the decree in terms of
commissioner's report at exhibit 58 for plot no.51 was already executed
in compliance with the directions of this Court and what had remained
was execution of second part of the decree in terms of exhibit 61 in
respect of plots no.13 & 14. In the facts of the case, the trial Court
opined that the objections raised by the petitioners was nothing but
dilatory tactics adopted by them.
11.
The District Court confirmed the order of the trial Court accepting
its reasoning that dismissal of the first execution application was only on
the ground that it was premature and hence it could not debar the decree
holders from filing the second execution application in respect of the
second part of the decree which had attained finality.
12.
The two grounds that have been urged now before this Court are
10
that; (i) the second application for execution is barred by res-judicata,
and (ii) the final decree is inexecutable on the account of being vague.
13.
Mr. Menezes submits that the courts below failed to appreciate
that the second application for execution was not maintainable as it was
barred by the principle of res-judicata or principles analogous to res-
judicata. For the significance of the principle of res-judicata he relies
upon the decision of the Apex Court in the case of Hope Plantations
Ltd. V/s. Taluk Land board, Peermade and Another reported in (1199)
5 SCC 590 and the decision of the Karnataka High Court in the case of
Abdul Sattar & Ors. V/s. Gurlingayya & Anr. reported in IV (2002)
CLT 426. He points out that it has been held by the Apex Court that the
principle of res-judicata is based on public policy and justice. It is a
branch of a law of estoppel which prevents the parties from litigating the
same question again and again despite a decision thereon. Further one
of the purposes of estoppel is to work justice between the parties. Mr.
Ramani, the learned Counsel for the respondents submits per contra that
since the dismissal of the first execution application was on the ground
of it being premature the question of res-judicata does not arise.
14.
The principle of re-judicata recognised under Section 11 Civil
Procedure Code becomes applicable only on satisfaction of the
conditions
prescribed
therein
which
conditions
are
absolutely
mandatory. One of the conditions is that the issue or the question or the
cause which is claimed to be barred by the re-judicata has been finally
decided by the earlier Court. In the facts of this case it is not necessary
to go into the other conditions of Section 11 Civil Procedure Code.
As
already seen earlier the first application for execution was held to be
premature in view of the pendency of the application for modification of
the decree as also pendency of the appeal against the preliminary decree.
Once the application was found to be premature there could be no
consideration of it on merits. Resultantly any question or issue raised
therein remained to be finally decided. Therefore the bar of res-judicata
under Section 11 Civil Procedure Code would not get attracted to the
second application for execution. Since the application was held to be
premature, any observations on merits, even if made in the order, can be
of no consequence. The same will have to be ignored for the purpose of
deciding whether the second application for execution is barred by the
principles of res-judicata. In these circumstances, in my opinion there is
no substance in the argument that the application for execution is barred
by the principles of res-judicata.
15.
There can be no substance in the second ground of objection also.
The petitioners contend that the decree of partition is vague because it
12
does not specifically accept one of the two proposals for partition by
metes and bounds of plots no.14 & 15 from the report of the
commissioner. In my considered opinion there was no need for the trial
court, at the time of passing of the final decree to select one of the
options from the commissioner's report. The purpose of appointment of
commissioner was to find out the possible and feasible ways of actual
partition of the two plots of land with minimum disturbances of the
petitioner's structures thereon. The respondents themselves desired so.
The commissioner in his report could come out with two options to
divide the properties. While passing the final decree the trial court did
not find any difficulty in respect of either of the options. It therefore
left the exercise of selection of the option to the stage of the execution.
That does not render the decree vague. It only gives an opportunity to
the decree holders to select one of the two options for execution of the
decree while limiting the modes of execution to the two options only.
16.
It is unfortunate that in the absence of any real defence to the suit
for partition of the property that was admittedly jointly purchased by the
parties, the petitioners have successfully dragged the proceedings for the
last more than 28 years, thereby preventing respondents from enjoying
the fruits of the purchase. The trial court therefore has rightly observed
that the objections raised by the petitioners are nothing but the dilatory
13
tactics adopted by them in execution of decree of partition.
17.
For the reasons set out above the petition is dismissed with costs.
The petitioners shall pay costs quantified at Rs.25,000/- (Rupees twenty
five thousand only) to the respondents within a period of eight weeks
from today.
18.
At the request of Mr. Menezes, interim order dated 12th
September, 2012 passed in the petition is extended for a period of eight
weeks from today, to enable the petitioners to challenge the order before
the higher forum.
SMT. R.P. SONDURBALDOTA, J. - See more at: http://www.lawweb.in/#sthash.orlaHP46.dpuf
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does not specifically accept one of the two proposals for partition by
metes and bounds of plots no.14 & 15 from the report of the
commissioner. In my considered opinion there was no need for the trial
court, at the time of passing of the final decree to select one of the
options from the commissioner's report. The purpose of appointment of
commissioner was to find out the possible and feasible ways of actual
partition of the two plots of land with minimum disturbances of the
petitioner's structures thereon. The respondents themselves desired so.
The commissioner in his report could come out with two options to
divide the properties. While passing the final decree the trial court did
not find any difficulty in respect of either of the options. It therefore
left the exercise of selection of the option to the stage of the execution.
That does not render the decree vague. It only gives an opportunity to
the decree holders to select one of the two options for execution of the
decree while limiting the modes of execution to the two options only.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.647 OF 2012
1. Shri Prakash Balkrishna Naik
V/S
1. Shri Surendra Balkrishna NaikDATE : 30th APRIL, 2013
Rule. Made returnable forthwith. By consent, the petition is
taken on board for final hearing. Heard the Counsel.
2.
The petitioners herein are the judgment debtors in Special Civil
Suit No.85/1984 filed by the respondents for partition of the property
2
that had been jointly purchased by petitioner no.1 and respondent no.1 in
the year 1969. Petitioner no.1 and respondent no.1 are the real brothers.
Petitioner no.2 and respondent no.2 are their respective wives.
3.
The suit property “Madant” consists of plot no.51 admeasuring
532 square metres and plots no.14 and 15, together admeasuring 2040
square metres. The petitioners have their house at plot no.51. On a
portion of the other two plots they have established a workshop for
barge building business and allied works.
In view of the existing
structures on the suit property, the respondents in extreme fairness, while
seeking partition of the property in the suit, offered to sell their share in
plot no.51 to the petitioners and to have the other two plots so divided
by metes and bounds, as far as possible, that the portion over which the
workshop is situate would fall to the share of the petitioners.
4.
Despite admitted position as regards the title of the suit property
and the structures standing thereon the petitioners contested the suit by
filing written statement. The parties led evidence in the suit. More than
twelve years after its filing, i.e. on 10th December, 1996, preliminary
decree was passed in the suit declaring that both the sides have equal
share in the suit property. For the purpose of actual partition, the trial
Court appointed Commissioner with a direction to him to (i) assess
3
value of the property of plot no.51 and give an option to both the sides
to purchase the land or an option to sell it by public auction and; (ii)
partition the remaining two plots by metes and bounds as far as possible,
in such a way that the workshop established for barge building and other
structures located on the property shall be located in the half portion to
be allotted to the petitioners.
5.
The petitioners challenged the preliminary decree by preferring
First Appeal No.49/1997 before this Court and sought stay of its
execution. By the interim order dated 18th September, 1997 this Court
directed that the trial Court could go ahead with the hearing of the suit
for partition without carrying out actual partition of the property. In
terms of the interim order the trial Court proceeded to hear the partition
suit and appointed Mr. P.C. Gupta, an engineer from Public Works
Division as Commissioner for ascertaining the value of plot no.51 and
suggestions for division of plots no.14 and 15. The Commissioner
submitted two reports dated 29th October, 1999 (exhibit 58) and 31st
March, 2000 (exhibit 61) to the trial Court in respect of the two sets of
properties.
The report at exhibit 61 suggested two proposals for
partition of plots no.14 & 15 along with two plans of partition for
approval of the Court. The reports of the Commissioner were objected
to by the petitioners by filing their objections. The trial Court by its
4
order dated 14th September, 2001 dismissed the objections and accepted
and confirmed the report of the Commissioner. It however, did not
specify the proposal from the report at exhibit 61 which was accepted.
With acceptance of the proposals the trial Court proceeded to pass final
decree on the same day. The final decree was referred to this Court
during the pendency of First Appeal No.49/1997. The First Appeal
came to be disposed of by the order dated 22nd March, 2004 rejecting the
Commissioner's report at exhibit 58 and remanded the matter to the trial
Court for revaluation of plot no.51 under Section 3 of the Partition Act.
The preliminary decree was modified to that extent.
6.
The trial Court then appointed engineer Mr. Moniz as a
Commissioner for partition of plot no.51. The Commissioner submitted
his report dated 21st July, 2004 which was accepted by the trial Court by
its order dated 8th August, 2005 and the suit was disposed off with that
order. The petitioners then preferred First Appeal No.306/1985 to this
Court and sought stay of execution of the decree. By the order dated
12th July, 2006 this Court stayed the decree on condition that the
petitioners deposited in this Court a sum of Rs.2,50,000/- (Rupees two
lacs fifty thousand only) within a period of fifteen days. The petitioners
have complied with that order. In the meantime, there was amendment
to Goa Civil Courts Act, 1965. In view of the amendment to Section 22
5
read with Section 20A of the Act, the appeal was required to be
transferred to the District Court. The appeal was accordingly transferred
to the District Court and re-registered as Regular Civil Appeal
No.174/2010. The District Court by its judgment and decree dated 7 th
January, 2011 dismissed the Regular Civil Appeal.
The petitioners
challenged the order by preferring Second Appeal before this Court in
respect of the property at plot no.51. The Second Appeal was disposed
of by the judgment and order dated 25th August, 2011.
7.
During the period 2004 to 2011 the respondents had filed four
applications for modification of the decree to the trial Court for
approving the first proposal of commissioner's report.
applications were dismissed by the trial Court.
All the
Then they filed
execution proceedings being Special Execution No.1/2008 in the trial
Court. The petitioners raised objection to the execution proceedings
raising several contentions including that the final decree had been
passed during the pendency of the appeal before this Court against the
preliminary decree.
The trial Court accepted the objections and
dismissed the execution proceedings by its order dated 17th June, 2009.
It held that the application for modification of the final decree with
regard to partition of the other two plots filed by the respondents was yet
to be decided and the final decree had been passed pending the decision
6
of this Court in the appeal against the preliminary decree. The execution
application was thus dismissed on the ground of it being premature. The
respondents then sought review of that order and after failing in the
review application challenged that order vide Miscellaneous Civil
Appeal No.13/2009 to the District Court.
By its order dated 9 th
December, 2010 the District Court dismissed the appeal.
8.
In the meantime, the application filed by the respondents for
correction of the decree was heard and disposed of by the trial Court by
its order dated 29th June, 2011 holding that an application for
modification of the final decree was not maintainable. The respondents
then preferred second execution application bearing no.2/2012. The
petitioners resisted the execution by contending that the same was not
maintainable in view of dismissal of the earlier execution application
and that the execution application was barred by res-judicata or
principles analogous thereto. The trial Court by its order dated 9 th July,
2012 dismissed the petitioners' objections and directed them to make
payment of Rs.96,000/- (Rupees ninety six thousand only) to the
respondents with a further direction for appointment of commissioner to
carry out the demarcation and execute the decree of partition. It further
directed the petitioners to demolish their southern boundary wall and the
steel structures that had been put up subsequent to the preliminary
7
decree. The petitioners carried the order to the District Court by filing
Miscellaneous Civil Appeal No.20/2012.
The District Court was
pleased to dismiss the appeal by its order dated 4 th July, 2012. The order
of the trial Court in the second execution application and the order of the
District Court upholding the order of the trial Court have been impugned
in the present petition.
9.
By this petition the petitioners seek to contend that the impugned
judgments are perverse since they have been passed ignoring the
findings given earlier that the decree dated 14 th September, 2001 was not
executable in respect of plots no.14 & 15 since the final decree does not
specify the proposal of the commissioner that had been accepted.
It is
also contended that the issues that had been earlier decided having been
raised in the second execution application were barred by the principles
of res judicata.
According to the petitioners dismissal of the first
execution application and upholding of that order by the District Court
attained finality as the respondents did not challenge the same in the
superior courts.
The petitioners claim that execution of the decree
would take away their source of livelihood and income by demolishing
the structure of shipyard, workshop building and the saw mills.
10.
The order of the trial court impugned herein is an exhaustive
8
order. The trial Court is seen to have considered all the objections to the
second application
for execution and held that the same were not
maintainable. As regards the first objection raised of the decree dated
14th September, 2001 not having attained finality on account of
noncompliance by the respondents of the directions issued by this Court
in the second appeal in respect of plot no.51, the trial Court noted that
the execution application was not in respect of plot no.51. It noted that
the preliminary decree gave the modes in which the partition was to be
effected. This decree has been confirmed by the final decree wherein
reports of the commissioner were accepted by the Court. The petitioners
though preferred an appeal against the final decree they had restricted it
to plot no.51. Thus the final decree of the trial court in respect of plots
no.14 & 15 has been accepted by the petitioners. The second objection
was that the final decree was not specific. The trial Court found that the
shares of the parties having been ascertained in the preliminary decree,
which is confirmed by the final decree there could be no substance in the
objection. The next objection considered was of maintainability of the
second execution application after dismissal of the first application. The
trial Court found that the earlier application for execution being
dismissed on the ground of being premature the respondents were not
debarred from filing fresh application for second part of the decree
which had attained finality. The petitioners had next raised the question
9
of interpretation of the final decree before the executing court
contending that the decree does not specify the proposal of the
commissioner that has been accepted. The trial court once again found
that the petitioners had not preferred any appeal against acceptance of
the report in respect of plots no.14 and 15. Further the final decree had
been passed after consideration of the objections to the report of the
commissioner. Therefore no objection could be raised in the execution
application.
Moreover the first part of the decree in terms of
commissioner's report at exhibit 58 for plot no.51 was already executed
in compliance with the directions of this Court and what had remained
was execution of second part of the decree in terms of exhibit 61 in
respect of plots no.13 & 14. In the facts of the case, the trial Court
opined that the objections raised by the petitioners was nothing but
dilatory tactics adopted by them.
11.
The District Court confirmed the order of the trial Court accepting
its reasoning that dismissal of the first execution application was only on
the ground that it was premature and hence it could not debar the decree
holders from filing the second execution application in respect of the
second part of the decree which had attained finality.
12.
The two grounds that have been urged now before this Court are
10
that; (i) the second application for execution is barred by res-judicata,
and (ii) the final decree is inexecutable on the account of being vague.
13.
Mr. Menezes submits that the courts below failed to appreciate
that the second application for execution was not maintainable as it was
barred by the principle of res-judicata or principles analogous to res-
judicata. For the significance of the principle of res-judicata he relies
upon the decision of the Apex Court in the case of Hope Plantations
Ltd. V/s. Taluk Land board, Peermade and Another reported in (1199)
5 SCC 590 and the decision of the Karnataka High Court in the case of
Abdul Sattar & Ors. V/s. Gurlingayya & Anr. reported in IV (2002)
CLT 426. He points out that it has been held by the Apex Court that the
principle of res-judicata is based on public policy and justice. It is a
branch of a law of estoppel which prevents the parties from litigating the
same question again and again despite a decision thereon. Further one
of the purposes of estoppel is to work justice between the parties. Mr.
Ramani, the learned Counsel for the respondents submits per contra that
since the dismissal of the first execution application was on the ground
of it being premature the question of res-judicata does not arise.
14.
The principle of re-judicata recognised under Section 11 Civil
Procedure Code becomes applicable only on satisfaction of the
conditions
prescribed
therein
which
conditions
are
absolutely
mandatory. One of the conditions is that the issue or the question or the
cause which is claimed to be barred by the re-judicata has been finally
decided by the earlier Court. In the facts of this case it is not necessary
to go into the other conditions of Section 11 Civil Procedure Code.
As
already seen earlier the first application for execution was held to be
premature in view of the pendency of the application for modification of
the decree as also pendency of the appeal against the preliminary decree.
Once the application was found to be premature there could be no
consideration of it on merits. Resultantly any question or issue raised
therein remained to be finally decided. Therefore the bar of res-judicata
under Section 11 Civil Procedure Code would not get attracted to the
second application for execution. Since the application was held to be
premature, any observations on merits, even if made in the order, can be
of no consequence. The same will have to be ignored for the purpose of
deciding whether the second application for execution is barred by the
principles of res-judicata. In these circumstances, in my opinion there is
no substance in the argument that the application for execution is barred
by the principles of res-judicata.
15.
There can be no substance in the second ground of objection also.
The petitioners contend that the decree of partition is vague because it
12
does not specifically accept one of the two proposals for partition by
metes and bounds of plots no.14 & 15 from the report of the
commissioner. In my considered opinion there was no need for the trial
court, at the time of passing of the final decree to select one of the
options from the commissioner's report. The purpose of appointment of
commissioner was to find out the possible and feasible ways of actual
partition of the two plots of land with minimum disturbances of the
petitioner's structures thereon. The respondents themselves desired so.
The commissioner in his report could come out with two options to
divide the properties. While passing the final decree the trial court did
not find any difficulty in respect of either of the options. It therefore
left the exercise of selection of the option to the stage of the execution.
That does not render the decree vague. It only gives an opportunity to
the decree holders to select one of the two options for execution of the
decree while limiting the modes of execution to the two options only.
16.
It is unfortunate that in the absence of any real defence to the suit
for partition of the property that was admittedly jointly purchased by the
parties, the petitioners have successfully dragged the proceedings for the
last more than 28 years, thereby preventing respondents from enjoying
the fruits of the purchase. The trial court therefore has rightly observed
that the objections raised by the petitioners are nothing but the dilatory
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tactics adopted by them in execution of decree of partition.
17.
For the reasons set out above the petition is dismissed with costs.
The petitioners shall pay costs quantified at Rs.25,000/- (Rupees twenty
five thousand only) to the respondents within a period of eight weeks
from today.
18.
At the request of Mr. Menezes, interim order dated 12th
September, 2012 passed in the petition is extended for a period of eight
weeks from today, to enable the petitioners to challenge the order before
the higher forum.
SMT. R.P. SONDURBALDOTA, J. - See more at: http://www.lawweb.in/#sthash.orlaHP46.dpuf
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