Sharada Sanghi vs. Asha Agarwal .

REPORTABLE
2026 INSC 292
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2609 OF 2013


SHARADA SANGHI & ORS. … APPELLANTS


VS.


ASHA AGARWAL & ORS. … RESPONDENTS



J U D G M E N T



DIPANKAR DATTA, J.

T HE A PPEAL
th
1. This civil appeal, by special leave granted on 14 March, 2013, assails
st 1
the judgment and decree dated 21 October, 2010 passed by the
2
High Court of Andhra Pradesh at Hyderabad of dismissal of a second
3
appeal preferred by the appellants, thereby affirming the judgment
th
and decree of the first appellate court dated 17 January, 2007.
Signature Not Verified
Digitally signed by
rashmi dhyani pant
Date: 2026.03.25
15:55:02 IST
Reason:

1
impugned judgment
2
High Court
3
Second Appeal No. 620 of 2007
1


4
Appellants were directed to seek their remedies by way of a separate
civil suit.

F ACTUAL B ACKGROUND
2. Facts giving rise to the present appeal, shorn of unnecessary details,
are these.
5
2.1 Appellants instituted a suit seeking specific performance of an
th
agreement for sale dated 15 December, 1986 in respect of
the northern portion of an immovable property bearing
6
Municipal No. 3-6-99 , situated at Himayat Nagar,
Hyderabad before the Senior Civil Judge, City Civil Court,
7
Hyderabad .
2.2 The suit property allegedly belonged to Smt. Amatul Wahab

th
Jaffernnisa Begum, who died on 25 January, 1983. Upon her
demise, her only son, Abdul Mujeeb Mahmood, succeeded to
the property. While in possession thereof, he entered into the
8
agreement for sale with the appellants for a consideration of
Rs. 4,25,000/- in respect of a portion admeasuring
approximately 685 square yards.
9
2.3 Trigger for the suit for specific performance and possession
was the alleged failure on the part of Abdul Mujeeb Mahmood -

4
plaintiffs in the original suit
5
O.S. No. 329 of 1988
6
suit property
7
Trial Court
8
said agreement
9
specific performance suit
2


the defendant - to perform his obligations under the said
agreement.
th
2.4 By judgment and decree dated 28 October, 1998, the Trial
Court decreed the specific performance suit, directing the
appellants to deposit the balance consideration and further
directing execution of the sale deed through court in the event
of default by the defendant. The decree attained finality.
2.5 Appellants thereafter initiated Execution Petition No. 37 of
1999 before the executing court. A sale deed was executed
th
through court on 25 January, 2001, and warrants for delivery
of possession were issued. Delivery of possession commenced
through the process of court.
2.6 At that stage, the respondents 1 to 3 (who were not parties to
10
the specific performance suit) filed an application under Order
11
XXI Rules 99 to 101, Code of Civil Procedure, 1908 asserting
independent title and possession over portions of the same
th
property on the basis of sale deeds dated 5 July, 1990 and
th
20 July, 1990, purportedly executed by one Mir Sadat
12
Ali acting through a General Power of Attorney holder. It was
claimed that Mir Sadat Ali had derived title pursuant to an
alleged oral gift made in his favour by the original owner, Smt.
Amatul Wahab Jaffernnisa Begum. It was vigorously claimed

10
objection petition
11
CPC
12
GPA
3


13
that the appellants had instituted two suits seeking
cancellation of the said sale deeds; however, the said suits
th
came to be dismissed for default on 18 October, 1996 and
th
27 October, 1998 respectively. Not only that, proceedings
initiated thereafter for restoration of the two suits also met the
same fate. Since the appellants accepted the orders of
dismissal, the issue as to legality and validity of the sale deeds
by which the respondents 1 to 3 claimed to have acquired title
attained finality.
2.7 The said respondents also asserted that they were bona fide
purchasers for value; that the decree passed in the specific
performance suit was not binding upon them as neither their
vendors nor they were parties to such suit; and that the
execution proceedings were vitiated by fraud. They sought
protection of possession and consequential reliefs.
2.8 The objection petition was contested by the appellants. The
executing court conducted a detailed enquiry, permitting the
parties to adduce oral and documentary evidence. Issues
relating to title, possession, authority of the alleged vendor,
validity of documents and prior litigation were examined.
th
2.9 By an order dated 30 January, 2006, the executing court
dismissed the objection petition, recording findings that the
said respondents had failed to establish any valid or

13
O.S. Nos. 892 and 893 of 1990
4


independent title; that the alleged power of attorney and oral
gift were not proved; that municipal and revenue records
supported the appellants’ case; and that the respondents 1 to
3 were not entitled to resist execution of the decree.
2.10 Aggrieved by dismissal of their objection petition, the
14
respondents 1 to 3 preferred an appeal before the Additional
15
Chief Judge, City Civil Court, Hyderabad . Vide judgment and
th
decree dated 17 January 2007, the Appellate Court allowed
the appeal and set aside the order of the Executing Court. The
Appellate Court held that since the respondents were not
parties to the specific performance suit and claimed
independent title, the decree passed therein was not operative
against them, and that the appellants were required to institute
a separate suit to establish their rights as against the
respondents.
2.11 Appellants carried the decree in the above-referred second
appeal before the High Court, raising substantial questions of
law relating to the scope and effect of adjudication under Order
XXI Rules 99 to 101, CPC.
J UDGMENT OF THE A PPELLATE C OURT
3. The Appellate Court framed the following points for consideration:

14
C.M.A. No. 15 of 2006
15
Appellate Court
5


i. Whether the petitioners have right and title to the petition schedule property
and have right to resist the execution proceedings taken out by the respondents
1 to 3 in view of the dismissal of OS No 892 of 1990 and OS No 893 of 1990?

ii. Whether the petitioners are bound by the Decree in favour of the respondents
1 to 3 in the OS No 329 of 1988, in which the execution proceedings are taken
up?

iii. To what relief?

4. It is not necessary to delineate here what the detailed findings were,
which the Appellate Court returned. Suffice it is for the present case
to note the answers to the aforesaid questions.
5. While answering the first point, the Appellate Court proceeded to hold
that dismissal of O.S. Nos. 892 and 893 of 1990 for default and the
subsequent applications seeking restoration of the said two suits also
having been dismissed for default, such dismissal had become final
and “it operates as resjudicata under Sec 11 CPC against the
respondents” .
6. We also find the following passage from the Appellate Court’s
judgment:
"Res judicata pro veritate accipitur" is the full maxim which has, over the years,
shrunk to mere "res judicata". Section 11 CPC contains the rule of
conclusiveness of the judgment which is based partly on the maxim of Roman
jurisprudence "interest reipublicae ut sit finis litium" (it concerns the State that
there be an end to law suits) and partly on the maxim "nemo debit bis bis vexari
pro una et eadem cause" (no man should be vexed twice over for the same
cause). The section does not affect the jurisdiction of the court but operates as
a bar to the trial of the suit or issue, if the matter in the suit was directly and
substantially in issue (and finally decided) in the previous suit between the same
parties litigating under the same title in a court, competent to try the subsequent
suit in which such issue has been raised.
*
In the present case, the respondents did not claim all the reliefs that are
essential for affective ( sic , effective) adjudication of their claim in OS No 329 of
1988 and hence, cannot be permitted to raise the same plea now.
6



*
The respondents having allowed the suits to be dismissed for default and having
allowed te ( sic, the) dismissal to become final, tries to get the same relief by
executing the decree against the petitioners, though themselves or their
purchasers are parties to the said decree. …

7. On the second point, the Appellate Court held that:
In view of my findings in Point No 1, the petitioners are not bound by the decree
in OS No 329 of 1988. The respondents have to necessary file a fresh suit against
the petitioners, seeking their relief. The Trial Court has erred in appreciating the
material on record and arrived at an erroneous conclusion. The order and
.
Decree of the Trial Court are liable to be set aside

I MPUGNED J UDGMENT
8. The impugned judgment is short and cryptic, which could have led to
grant of leave. It dismissed the second appeal at the admission stage
holding that no substantial question of law arose for consideration. The
High Court affirmed the view of the Appellate Court that the decree in
the specific performance suit was not binding on the respondents 1 to
3 and that the appellants must seek their remedies by way of a
separate suit.
S UBMISSIONS OF THE A PPELLANTS
9. Mr. Huzefa Ahmadi, learned senior counsel appearing for the
appellants, contended that both the Appellate Court as well as the High
Court fell into manifest error in interfering with the well-reasoned order
of the Executing Court.
10. Developing his submissions, Mr. Ahmadi urged that the sale deeds
th th
dated 5 July, 1990 and 20 July, 1990, purportedly executed in
7


favour of the respondents 1 to 3, were clearly hit by the doctrine of lis
pendens embodied in Section 52 of the Transfer of property Act, 1882
since the specific performance suit was pending on the date of such
transfers. According to him, any alienation made during the pendency
of the suit could not defeat the rights flowing from the eventual decree.
11. Mr. Ahmadi next submitted that the courts below committed a serious
jurisdictional error in allowing the application preferred by the
respondents 1 to 3 under Order XXI Rule 101 of the CPC and, yet,
directing the appellants to institute a separate suit. Such a direction,
it was argued, runs contrary to the express scheme of Order XXI Rules
97 to 101, CPC which confers ample power upon the executing court
to adjudicate all questions relating to right, title or interest in the
property arising between the parties, or even “any person” resisting
delivery of possession, whether or not bound by the decree. Reliance
16
was placed on the decision of this Court in Shreenath v. Rajesh , to
buttress the proposition that a party ought not to be driven to a
separate suit once such adjudicatory power is available in execution.
Paragraphs 11 and 13, to which our attention was drawn, reads thus:
11. So, under Order 21 Rule 101 all disputes between the decree-holder and any
such person is to be adjudicated by the executing court. A party is not thrown out
to relegate itself to the long-drawn-out arduous procedure of a fresh suit. This is
to salvage the possible hardship both to the decree-holder and the other person
claiming title on their own right to get it adjudicated in the very execution
proceedings. We find that Order 21 Rule 35 deals with cases of delivery of
possession of an immovable property to the decree-holder by delivery of actual
physical possession and by removing any person in possession who is bound by
a decree, while under Order 21 Rule 36 only symbolic possession is given where

16
(1998) 4 SCC 543
8

12. Inviting our notice to the findings recorded by the Executing Court, Mr.
Ahmadi submitted that the respondents 1 to 3 had failed to establish
any semblance of right, title or interest in the suit property. He
emphasized that their claim rested upon the sale deeds executed by a
GPA holder of one Mir Sadat Ali. The latter, in turn, claimed title on the
strength of an alleged oral gift. He argued that such oral gift was a
mere afterthought which was neither registered, nor proved through
cogent evidence, nor supported by examination of any attesting
witness. Significantly, in O.S. No. 671 of 1991, a competent court had
9


declared that no such oral gift had been made in favour of Mir Sadat
Ali. That decree having attained finality, Mir Sadat Ali could not have
conveyed any valid title, nor could he have authorised execution of
sale deeds through a GPA. The original sale deeds and the power of
attorney were, in any event, not produced before the court.
13. Elaborating further, Mr. Ahmadi submitted that under Mohammedan
law, a valid gift requires (i) a clear declaration by the donor, (ii)
acceptance by the donee, and (iii) delivery of possession. In the
present case, none of these essential ingredients stood satisfied. The
original owner admittedly continued in possession; hence, the very
basis of the respondents’ claim was legally untenable.
14. It was further submitted that dismissal of O.S. Nos. 892 and 893 of
1990 for default could not operate as res judicata , the suits having not
been adjudicated on merits. In any event, no plea of res judicata had
been raised by the respondents in accordance with law.
15. Lastly, it was urged that in a suit for specific performance, only the
parties to the contract are necessary parties. The High Court,
according to Mr. Ahmadi, erred in proceeding on the premise that since
the respondents or their alleged vendors were not parties to the
specific performance suit, the decree therein would not bind them.
Such reasoning, he submitted, overlooks both the doctrine of lis
pendens and the settled principle that a transferee pendente lite is
bound by the decree passed in the suit.
10


16. Resting on the aforesaid submissions, Mr. Ahmadi prayed that upon
setting aside of the judgments of the Appellate Court and the High
Court, the executing court’s judgment be restored.
S UBMISSIONS OF THE R ESPONDENTS
17. Mr. Raval, learned senior counsel, appearing on behalf of the
respondents 1 to 3, advanced elaborate submissions in support of the
impugned judgment.
18. Mr. Raval submitted that the respondents have been in settled
possession of the suit property since 1990 by virtue of registered sale
deeds. The validity of these sale deeds had already been put in issue
by the appellants in earlier proceedings and the challenge thereto did
not succeed. Appellants having allowed those proceedings to lapse and
attain finality, cannot now be permitted to reopen the same issues in
the guise of execution proceedings. His submissions, in substance, are
as follows:
18.1 The contention of the appellants that the sale of the property
in favour of the respondents is hit by the doctrine of lis pendens
is misconceived. The doctrine operates only against the parties
to the suit and those claiming under them. Neither the
respondents nor their vendors were parties to the proceedings
in O.S. No. 329 of 1988, nor do they claim through any of the
defendants therein. In such circumstances, the doctrine has no
application and cannot be invoked to invalidate the
respondents’ purchase.
11


18.2 Reliance placed by the appellants on Order XXI Rule 102, CPC
is equally misplaced. The provision contemplates a situation
where a judgment debtor transfers the property after the
institution of the suit to a person who thereafter obstructs
execution. In the present case, the respondents did not derive
title from the judgment debtor. Their title flows from
independent registered sale deeds. The foundational
requirement for invoking the rule is, therefore, absent.
18.3 Appellants themselves had instituted two independent suits,
O.S. No. 892 of 1990 and O.S. No. 893 of 1990, seeking to
challenge and set aside the very sale deeds under which the
respondents claim title. Both suits, however, were dismissed
for default, and even the applications filed for their restoration
were dismissed. In view of Order IX Rule 9, CPC, the appellants
are barred from instituting a fresh proceeding on the same
cause of action. Having failed to pursue the remedies they
themselves invoked, the appellants must be taken to have
abandoned the challenge to the sale deeds and cannot now
attempt to question their validity indirectly in execution.
18.4 Having regard to the above, the principles of res judicata,
constructive res judicata and issue estoppel are clearly
attracted. Appellants consciously chose their remedy, initiated
proceedings and then allowed them to be dismissed. The law
does not permit a litigant to reopen issues which have already
12


been concluded or which ought to have been pursued in earlier
proceedings.
19. Mr. Raval further contended that the present execution proceedings

themselves are misconceived. The execution petition has been filed on
the strength of the decree passed in O.S. No. 329 of 1988. However,
the decree does not contain any operative direction for delivery of
possession. In the absence of such a decree, a proceeding seeking
possession through execution is unsustainable.
20. It was also urged that the appellants have not approached the Court
with clean hands. While prosecuting O.S. No. 329 of 1988, they failed
to disclose the existence of the registered sale deeds executed in
favour of the respondents, though they were fully aware of them. More
significantly, even after instituting O.S. No. 892 of 1990 and O.S. No.
893 of 1990 seeking cancellation of those very sale deeds, the
appellants did not inform the trial court in the earlier suit about the
pendency of these proceedings. This, according to the respondents,
amounts to suppression of material facts.
21. Lastly, it was submitted that the appellants have also placed reliance
upon a decree passed in O.S. No. 679 of 1991. However, that decree
was passed against a person who had already died before the
judgment was pronounced. A decree against a dead person is a nullity
in the eye of law and has no legal effect. Such invalidity can be raised
at any stage, including in collateral or execution proceedings. Reliance
13


placed by the appellants on such a decree is, therefore, wholly
untenable.
22. It was, accordingly, prayed that the appeal be dismissed.
I SSUES I NVOLVED
23. Having noted the factual canvas and the arguments advanced on
behalf of the parties, the following issues fall for determination:
A. Whether the Appellate Court was right in returning the finding that
the claim of the appellants was hit by res judicata and the High Court
was right in affirming such finding?
B. Whether the conduct of the appellants is such that the same would
disentitle them to any relief?
NALYSIS
A
24. Our answers to the issues ought to be prefaced by a brief reference to
certain relevant facts once again.
25. In the present case, it is not in dispute that while the specific
performance suit was pending adjudication, the appellants instituted
O.S. Nos. 892 and 893 of 1990 seeking cancellation of the sale deeds
in favour of the respondents 1 to 3 and their vendors in respect of the
very same subject property. In those suits, it was specifically averred
in paragraph 4 that the appellants had entered into the said agreement
and had already instituted the specific performance suit, which was
pending consideration. It was further pleaded that they were forcibly
th
dispossessed by the respondents 1 to 3 and their vendor on 07 July,
14


th th
1990, and that the sale deeds dated 05 July, 1990 and 20 July,
1990 were concocted documents. What the appellants themselves
asserted was that effective relief in the specific performance suit could
not be granted unless the defendants’ title was negatived and
possession restored.
26. At the cost of repetition, the subsequent course of proceedings in O.S.
Nos. 892 and 893 of 1990 is also necessary to be taken note of. Both
suits ultimately came to be dismissed for default.
27. The record reveals that O.S. No. 892 of 1990 was transferred to
another court and notice of such transfer had been duly served upon
the advocate on record for the appellants. To contest the suit, a written
statement was filed by the defendants therein. However, there was
non-appearance on behalf of the appellants resulting in the suit being
th
dismissed for default on 18 October, 1996.
28. As regards O.S. No. 893 of 1990, the record indicates that it was not
transferred and continued before the same Court. In that suit as well,
a written statement had been filed. Nonetheless, owing to the
th
appellants’ non-appearance, it too was dismissed for default on 27
October, 1998. The material fact remains that O.S. No. 893 of 1990,
th
pending before the Trial Court, was dismissed for default on 27
th
October, 1998 - a day prior to the decree dated 28 October, 1998

being passed in the specific performance suit.

15


N OT R ES J UDICATA
29. At the outset, we record our inability to concur with the reasoning of
the Appellate Court, which has since been affirmed by the High Court,
that dismissal of a suit for default would, by itself, operate as res
judicata within the meaning of Section 11, CPC to bar adjudication of
proceedings initiated by the appellants for execution.
30. Section 11 postulates that the matter must have been “heard and
finally decided”. Dismissal of a suit for default, not being a decision on
merits, cannot ordinarily be regarded as a final adjudication so as to
attract the strict application of Section 11, CPC.
31. Issue-A is thus answered in favour of the appellants.
C ONDUCT OF THE A PPELLANTS
32. Though res judicata is not applicable here, we find the Appellate Court
to have referred to the maxim nemo debet bis vexari, si constet curiae
quod sit pro una et eadem causa . With this principle in mind coupled
with the fact that the relief of specific performance, as it stood prior to
17
the 2018 Amendment of the Specific Relief Act, 1963 , was
discretionary in nature (based on equitable principles and
considerations of fairness, good faith, and the conduct of the parties),
we move forward to examine whether the case of the appellants falter
on application of these principles.

17
1963 Act
16


18
33. According to Black’s Law Dictionary , the said maxim means that no
one ought to be twice troubled, if it appears to the court that it is for
one and the same cause of action. In simple terms, once a dispute
relating to a particular cause has been brought before a competent
court, the same party cannot be allowed to raise the very same issue
again in another proceeding (emphasis ours) or at a later stage. The
rule is meant to prevent repeated litigation over the same matter and
to ensure finality in judicial decisions. It protects parties from being
subjected to multiple proceedings based on the same cause. As we
read and understand the maxim, it is different from res judicata in the
sense that its application in a given situation does not require a
decision on merits to be rendered in the earlier round of proceedings
before the court.
19
34. In S.C.F. Finance Co. Ltd. v. Masri and another (No.3) , the Court
of Appeal reiterated that where a litigant, having had the opportunity
to establish a case, declines to proceed and submits to dismissal, he
may, save in exceptional circumstances, lose the right to agitate the
same issue in subsequent proceedings. The principle succinctly stated
is that a party who has had the opportunity of proving a fact in support
of his claim and chooses not to rely on it, cannot thereafter seek to
raise it before another tribunal. Elaborating the principle and placing
20
reliance on Khan v. Goleccha International Ltd , it was held thus:

18
Seventh Edition
19
[1987] 2 WLR 81
20
[1980] 1 WLR 1482
17


First, for the general principle ( Ord v Ord [1923] 2 KB 432 at 439, [1923] All ER
Rep 206 at 210 per Lush J; I need not narrate the facts): “The words 'res judicata'
explain themselves. If the res—the thing actually or directly in dispute—has
been already adjudicated upon, of course by a competent Court, it cannot be
litigated again. There is a wider principle, to which I will refer in a moment, often
as covered by the plea of res judicata, that prevents a litigant from relying on a
claim or defence which he had an opportunity of putting before the Court in the
earlier proceedings and which he chose not to put forward …” I turn straight to
the wider principle ([1923] 2 KB 432 at 443, [1923] All ER Rep 206 at 212): ‘The
maxim 'Nemo debet bis vexari' prevents a litigant who has had an opportunity of
proving a fact in support of his claim or defence and chosen not to rely on it from
afterwards putting it before another tribunal. To do that would be unduly to
harass his opponent, and if he endeavoured to do so he would be met by the
objection that the judgment in the former action precluded him from raising that
contention. It is not that it has been already decided, or that the record deals
with it. The new fact has not been decided; it has never been in fact submitted to
the tribunal and it is not really dealt with by the record. But it is, by reason of the
principle I have stated, treated as if it had been’.
*
Finally, Brightman LJ dealt with an argument put forward that, while an order by
consent at first instance founded on an admission made by one party could lead
to res judicata, an order by consent on appeal dismissing the appeal could not
on the ground that an appellate court could not properly interfere with the
decision of an inferior court without proper judicial consideration. Brightman LJ
continued ([1980] 2 All ER 259 at 267, [1980] 1 WLR 1482 at 1491):
“I refer back to what Lush J said in Ord v Ord [1923] 2 KB 432 at 443, [1923]
All ER Rep 206 at 212: The maxim 'Nemo debet bis vexari' prevents a litigant
who has had an opportunity of proving a fact in support of his claim or
defence and chosen not to rely on it from afterwards putting it before
another tribunal’. In this case [the plaintiff] had his opportunity, in support
of his appeal on the previous occasion, of establishing that money was
lent. He chose not to establish that position. His counsel got up in court
and deliberately abandoned it. So it seems to me that he loses his right of
establishing that same position before another tribunal.”
35. In this context, reliance may also be placed upon Barber v.
21
Staffordshire County Council , wherein it was observed that an
order dismissing proceedings, even without a detailed consideration
on merits, may, in appropriate circumstances give rise to estoppel, if

21
[1996] 2 All ER 748 (CA)
18


a party having put forward a positive case declines to pursue it and
allows the matter to be dismissed. The Court emphasised that such
dismissal is not a mere administrative act but a judicial determination
capable of attracting estoppel.
36. The Latin maxim referred above was recently considered by this Court
22
in Amruddin Ansari (Dead) Through Lrs v. Afajal Ali in the
context of Section 11 CPC, emphasizing that an issue once finally
decided by a competent court cannot be reopened. While that
interpretation was in the strict statutory sense, the peculiar facts of
the present case and the conduct of the parties justify a broader
application of the maxim to uphold finality and prevent repeated
litigation on shifting grounds. Such a purposive approach is consistent
with comparative jurisprudence, including S.C.F. Finance Co. Ltd.
(supra) and Barber (supra).
37. We now proceed to apply the above discussed principles to the present
case. It is undisputed that the appellant instituted the specific
performance suit in the year 1988, when the field was governed by
the unamended provisions of the 1963 Act. Two years later, they
instituted the two suits (O.S. Nos. 892 and 893 of 1990) for
cancellation of the sale deeds, which were allowed by the appellants
to be dismissed for default.
38. The dismissal of both suits (O.S. Nos. 892 and 893 of 1990), in such
situation, despite the issues raised therein being central to the dispute

22
2025 SCC OnLine SC 912
19


over title and possession of the subject property, is a material
circumstance which cannot be overlooked while assessing the overall
conduct of the appellants. These proceedings were not incidental or
collateral; they directly concerned the competing claims over the suit
property. Though the dismissal was not on merits but on account of
non-prosecution, the rival claims remained undetermined because of
the appellants themselves.
39. Once a suit is dismissed for default owing to the absence of the plaintiff
but when the defendant is present, the legal consequences
under Order IX Rule 8, CPC come into operation. In such a situation,
the remedy available to the plaintiff is circumscribed by Order IX Rule
9 of CPC, which expressly bars the institution of a fresh suit on the
same cause of action. The only course open to such a plaintiff is to
seek restoration of the earlier suit by demonstrating sufficient cause
for his absence on the date of dismissal.
40. It is further borne out that even the restoration applications, one of
which was filed admittedly after a significant delay of 308 days,
ultimately came to be dismissed for default and the orders passed
therein have attained finality. In course of the restoration proceedings
arising out of O.S. No. 893 of 1990, the appellants had moved an
application to bring on record the legal heirs of Mir Sadat Ali; however,
no effective steps were taken to pursue the matter to its logical
conclusion. The cumulative effect of these events is that the appellants
not only permitted the original suits to be dismissed for default but
20


also allowed the restoration proceedings to meet the same fate. Such
repeated non-prosecution cannot be simply brushed aside as a lack of
initiative to carry proceedings forward; on the contrary, it manifests
that the appellants intended to steal a march (over the defendants in
such suits) by resorting to dubious methods, deliberately avoiding
direct proceedings and instead securing orders through proceedings
wherein they were not parties.
41. It is clear as daylight that the very institution of the said suits by the
appellants demonstrates their awareness of the claim of the
respondents 1 to 3 in respect of the suit property. The defence that
the respondents 1 to 3 had raised was also within the knowledge of
the appellants, since the written statements in the suits had been filed
by the former. Having derived clear knowledge of the competing
claims, surfacing from the pleadings, the appellants cannot later claim
ignorance or treat them as unimportant. It becomes apparent that the
appellants were aware of the legal title claimed by the respondents 1
to 3 and despite such knowledge, chose not to implead either them or
their vendors as parties in the specific performance suit. This omission,
coupled with the failure to properly pursue the earlier suits or seek
their restoration after dismissal by pursuing further remedy available
in law, is a relevant circumstance while assessing the bona fides and
overall conduct of the appellants.
42. In this backdrop, it becomes important to emphasize that the
increasing influx of litigation appears to be driven less by a pursuit of
21


justice and more by an attempt to delay proceedings, harass
opponents, and consume valuable judicial time. The judicial process is
designed to resolve genuine disputes and not facilitate repetitive or
frivolous claims. Parties who initiate or persist in vexatious or frivolous
proceedings must remain mindful that such conduct risks facing
judicial disapproval and may warrant appropriate orders, including
dismissal with costs, so as to prevent abuse of the process of the court.
43. Contextually, it is apposite to refer to S.P. Chengalvaraya Naidu v.
23
Jagannath , where this Court touched upon the obligation on the
part of a plaintiff to come to court with clean hands and held that a
person, who's case is based on falsehood, has no right to approach the
court; he can be summarily thrown out at any stage of the litigation.
44. This Court in Satluj Jal Vidyut Nigam v. Raj Kumar Rajinder
24
Singh considered a somewhat similar situation in the light of
principles of estoppel, acquiescence and waiver. It was observed that
a party cannot be permitted to take inconsistent stands in successive
proceedings after having abandoned an earlier plea and allowing it to
attain finality.
45. While a dismissal for default may not constitute res judicata in the
strict sense under Section 11, CPC, the conduct of the appellants in
abandoning the earlier suits, after having raised a positive case
therein, attracts the broader principles akin to nemo debet bis vexari,

23
(1994) 1 SCC 1
24
(2019) 14 SCC 449
22


si constet curiae quod sit pro una et eadem causa . A litigant who set
the ball rolling for decision on an issue later elects not to pursue it
cannot be permitted to revive the same dispute at a later stage,
particularly in collateral or execution proceedings, and that too by
seeking to obtain an order behind the back of the contestants.
46. To permit such a course would be to allow an abuse of the judicial
process. The maxim interest republicae ut sit finis litium reminds us
that it is in the public interest that litigation must come to an end.
Courts cannot allow parties to reopen or indirectly challenge issues
which they have chosen not to pursue earlier.
47. Quite apart, it would also not be unfair to criticise the conduct of the
appellants as amounting to an abuse of the process of the court.
Having allowed their earlier challenge to the sale deeds to attain
finality, they cannot now seek to reopen the same issue in execution.
Such attempt is impermissible. The process of the court cannot be
used to revive what has already been consciously abandoned. This
position stands squarely covered by the decision of this Court in K.K.
25
Modi v. K.N. Modi , wherein it was authoritatively held that re-
litigation of an issue already raised, or capable of being raised,
constitutes an abuse of process, even if the strict requirements of res
judicata are not satisfied. This Court held thus:
43. The Supreme Court Practice 1995 published by Sweet & Maxwell in
paragraphs 18/19/33 (p. 344) explains the phrase “abuse of the process of the
court” thus:

25
(1998) 3 SCC 573
23

(emphasis ours)
48. In the exercise of equitable jurisdiction, this Court cannot ignore such
conduct where a party plays fast and loose with the court. Allowing
proceedings touching upon title to be dismissed for default, while
24


continuing to pursue relief in another proceeding concerning the same
property, raises concerns as to procedural fairness. Equity frowns upon
selective prosecution. A party cannot act recklessly with the judicial
process, invoking it as per his convenience and abandoning it when
inconvenient, only to resurrect advantage in execution.
49. A profitable reference can also be made to Order XXIII Rule 1, CPC
where the underlying principle is that when a plaintiff once institutes
a suit in a court and thereby avails of a remedy given to him under
law, he cannot be permitted to institute a fresh suit in respect of the
same subject matter again after abandoning the earlier suit or by
withdrawing it except with the permission of the court to file a fresh
suit. Reliance may be placed on Sarguja Transport Service v. State
26
Transport Appellate Tribunal , where this Court explained that
such a bar does not arise from Section 11, CPC (since there is no
“hearing and final decision”), but from public policy embedded in Order
XXIII Rule 1 thereof. The object is to prevent a litigant from repeatedly
invoking the court’s jurisdiction on the same cause of action,
abandoning the proceeding when it suits him, and then re-agitating
the same matter again. This Court therein held as follows:
7. The Code as it now stands thus makes a distinction between “abandonment”
of a suit and “withdrawal” from a suit with permission to file a fresh suit. It
provides that where the plaintiff abandons a suit or withdraws from a suit
without the permission, referred to in sub-rule (3) of Rule 1 of Order XXIII of the
Code, he shall be precluded from instituting any fresh suit in respect of such
subject-matter or such part of the claim. The principle underlying Rule 1 of Order
XXIII of the Code is that when a plaintiff once institutes a suit in a court and
thereby avails of a remedy given to him under law, he cannot be permitted to

26
(1987) 1 SCC 5
25


institute a fresh suit in respect of the same subject-matter again after
abandoning the earlier suit or by withdrawing it without the permission of the
court to file fresh suit. Invito beneficium non datur — the law confers upon a man
no rights or benefits which he does not desire. Whoever waives, abandons or
disclaims a right will loose it. In order to prevent a litigant from abusing the
process of the court by instituting suits again and again on the same cause of
action without any good reason the Code insists that he should obtain the
permission of the court to file a fresh suit after establishing either of the two
grounds mentioned in sub-rule (3) of Rule 1 of Order XXIII. The principle
underlying the above rule is founded on public policy, but it is not the same as
the rule of res judicata contained in Section 11 of the Code which provides that
no court shall try any suit or issue in which the matter directly or substantially in
issue has been directly or substantially in issue in a former suit between the
same parties, or between parties under whom they or any of them claim,
litigating under the same title, in a court competent to try such subsequent suit
or the suit in which such issue has been subsequently raised, and has been
heard and finally decided by such court. The rule of res judicata applies to a case
where the suit or an issue has already been heard and finally decided by a court.
In the case of abandonment or withdrawal of a suit without the permission of the
court to file a fresh suit, there is no prior adjudication of a suit or an issue is
involved, yet the Code provides, as stated earlier, that a second suit will not lie
in sub-rule (4) of Rule 1 of Order XXIII of the Code when the first suit is withdrawn
without the permission referred to in sub-rule (3) in order to prevent the abuse of
the process of the court.
(emphasis ours)

50. It would, thus, be contrary to public policy too, as enunciated in
Sarguja Transport Service (supra), to permit the appellants to reap
the benefits of the decree for its execution against the respondents 1
to 3 and have them dispossessed from the property.
51. We, therefore, answer issue-B against the appellants.
C ONCLUSION
52. In the absence of any exceptional circumstance, the appellants stand
precluded to reap the benefit of the decree through execution
proceedings having chosen not to pursue O.S. Nos. 892 and 893 of
26


1990. The same was rightly interdicted and thwarted by the Appellate
Court.
53. In view of the foregoing discussion, and notwithstanding our
reservations with regard to certain aspects of the reasoning assigned
by the Appellate Court and the cryptic nature of the impugned
judgment of the High Court, we are in agreement with the ultimate
conclusion reached by the Appellate Court, which has finally been
affirmed by the High Court.
54. Having regard to the conduct of the appellants, the finality attached to
the earlier proceedings, the settled principles of law discussed above
and the utter abuse of the process of court on their part, we are of the
considered opinion that no case is made out for interference.
55. The impugned judgment is, thus, upheld but for reasons other than
those assigned therein. As a sequel thereto, the appeal fails and is
dismissed. Parties shall, however, bear their own costs.
56. Pending application(s), if any, stand disposed of.


………………………….……………J.
(DIPANKAR DATTA)



…………………..……………………J.
(AUGUSTINE GEORGE MASIH)
New Delhi,
March 25, 2026.

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