Full Judgment Text
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PETITIONER:
DR. GHANSHYAM JAISWAL
Vs.
RESPONDENT:
KAMAL SINGH
DATE OF JUDGMENT: 16/02/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
1996 SCC (3) 54 JT 1996 (5) 542
1996 SCALE (2)596
ACT:
HEADNOTE:
JUDGMENT:
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
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High Court is set aside. The appellant is at liberty to have
the decree executed with the assistance of the police. No
costs.