[ad_1]
Jharkhand High Court
Lakhrajo Devi vs The Tata Iron And Steel Company Limited on 30 June, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
( 2025:JHHC:17124 )
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 227 of 2025
Lakhrajo Devi, aged about 86 years, daughter of late Ayodhya Sahu,
resident of Sonari by side of Domohani Road, Old Sonari baste, Town
Jamshedpur, P.O. and P.S. Sonari, District-Singhbhum East (Jharkhand)
......... Petitioner
-VERSUS-
1. The Tata Iron and Steel Company Limited, having its registered office
at Bruce Street Fort Bombay and its works and place business at
Jamshedpur, P.O. and P.S. Bistupur, Town Jamshedpur, District-
Singhbhum East
2. The State of Jharkhand through Deputy Commissioner, Singhbhum,
Town Jamshedpur, District Singhbhum East
....... Opposite Parties
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
For the Petitioner : Mr. Kundan Kumar Ambastha, Advocate
Md. Asdul Wahab, Advocate
Mr. Sumit Kumar, Advocate
Mr. Anurag Chandra, Advocate
For the O.P. No.1 : Mr. Amitabh Prasad, A.C. to Mr. G.M. Mishra
For the O.P. No.2 : Mr. Sachin Kumar, A.C. to S.C.-I
05/Dated: 30/06/2025
Heard Mr. Kundan Kumar Ambastha, learned counsel for the
petitioner, Mr. Amitabh Prasad, learned counsel for the O.P. No.1 and Mr.
Sachin Kumar, learned counsel for the O.P. No.2
2. This petition has been filed under Article 227 of the Constitution
of India for setting aside order dated 30.01.2023 passed by the learned Civil
Judge (Junior Division)-I, Jamshedpur in Execution Case No. 42 of 1993.
3. Mr. Kundan Kumar Ambastha, learned counsel for the petitioner
submits that O.P. No.1 i.e. Tata Iron and Steel Company Limited had filed Title
Suit No. 203 of 1971 in the court of learned Second Additional Munsif,
Jamshedpur, East Singhbhum against the Ayodhya Sahu since deceased, the
father of the petitioner praying for a declaration of title and recovery of
possession with respect to the Schedule-A property. He submits that the
Defendant Ayodhya Sahu since deceased, father of the petitioner appeared and
contested the suit by filing written statement on various ground including
1
( 2025:JHHC:17124 )
acquisition of title by adverse possession. He submits that the learned Second
Additional Munsif, Jamshedpur, District East Singhbhum by terms of judgment
and decree dated 07.01.1976 dismissed the suit holding that Ayodhya Sahu had
acquired the title by adverse possession. He then submits that Opposite Party
No.1 i.e. Tata Iron and Steel Company Limited being aggrieved by above
judgment and decree had filed Title Appeal No. 06/15 of 1976-77 in the court
of learned Second Additional Sub-Judge at Jamshedpur which was allowed on
31.08.1978 contained in annexure-2. He further submits that the father of the
petitioner herein being aggrieved by judgment and decree passed in Title
Appeal No. 06/15 of 1976-77 had filed Second Appeal No. 194/1978 (R). He
submits that the High Court by terms of judgment and decree dated
16.05.1985 modified the decree and it has been held that the Opposite Party
No.1 i.e. The Tata Iron and Steel Company Limited cannot be granted decree of
recovery of possession but only the State of Bihar was entitled to recovery of
possession. He submits that the Opposite Party No.1 i.e. The Tata Iron and
Steel Company Limited had filed Execution Case No. 81 of 1980 in the court of
learned Munsif at Jamshedpur. The learned Munsif at Jamshedpur by terms of
order dated 06.03.1992 dismissed the Execution Case and held that Execution
Case No. 81 of 1980 was not maintainable in view of the judgement passed in
Second Appeal No. 194 of 1978 (R). He further submits that the Opposite
Party No.1-Tata Iron and Steel Company Limited had filed C.R. No. 114 of 1992
(R) against the order dated 06.03.1992 before the High Court which was
further dismissed by order dated 15.07.1992. He submits that the State of
Bihar had executed a lease of deed on 01.08.1985 and same was registered on
06.08.1985 in favour of the Tata Iron and Steel Company Limited. The State of
Jharkhand renewed the indenture of lease dated 20.08.2005 and has further
extended the lease with retrospective effect from 01.01.1985 for a further
terms of 30 years which is valid up to 31.12.2025. He further submits that in
Execution Case No. 42 of 1993, the petitioner filed objection challenging the
2
( 2025:JHHC:17124 )
maintainability of the Execution Case which was rejected on 09.02.2005. He
submits that the petitioner herein filed W.P. (C) No. 1662 of 2005 before the
High Court against the order dated 09.02.2005 passed by the learned Second
Additional Munsif, Jamshedpur in Execution Case No. 42 of 1993. He submits
that the High Court by order 19.05.2020 has been pleased to set aside order
dated 09.02.2005 passed by learned Second Additional Munsif, Jamshedpur in
Execution Case No. 42 of 1993 and matter was remanded back to the learned
Executing Court to pass a fresh order in accordance with law relating to res
judicata. He submits that thereafter the learned court has been pleased to
decide the same that Execution Case is not barred by principles of res-
judicata. He further submits that it has been wrongly held by the learned
Executing Court that Tata Iron & Steel Company Limited has filed the instant
execution case as transferee of decree. He submits that once the execution
case was dismissed it was barred by res-judicata and in view of that the
learned court has wrongly passed the said order. To buttress this argument he
relied in the case of " Dipali Biswas and others Vs. Nirmalendu
Mukherjee and others" reported in 2021 0 AIR (SC) 4756. He refers to
para 37 of the said judgment which is quoted hereinbelow;-
"37. The appellants cannot be allowed to raise the issue
relating to the breach of Order XXI, Rule 64 for the following reasons:
(i) A judgment-debtor cannot be allowed to raise objections as to the
method of execution in instalments. After having failed to raise the issue
in four earlier rounds of litigation, the appellants cannot be permitted to
raise it now;
(ii) As we have pointed out elsewhere, the original judgment-debtor
himself filed a petition under Section 47, way back on 02.09.1975. What
is on hand is a second petition under Section 47 and, hence, it is barred
by res judicata. It must be pointed out at this stage that before Act 104
of 1976 came into force, there was one view that the provisions of
Section 11 of the Code had no application to execution proceedings. But
under Act 104 of 1976 Explanation VII was inserted under Section 11 and
it says that the provisions of this Section shall apply to a proceeding for
the execution of a decree and reference in this Section to any suit, issue
or former suit shall be construed as references to a proceeding for the
execution of the decree, question arising in such proceeding and a former
proceeding for the execution of that decree;
(iii) Even in the 5th round, the appellants have not pointed out the lay of
the property, its dimensions on all sides and the possibility of dividing the
same into two or more pieces, with a view to sell one or more of those
pieces for the realisation of the decree debt,
(iv) The observations in paragraph 4 of the order of the High Court dated
3
( 2025:JHHC:17124 )
20.12.1990 in С.О.No.2487 of 1987 that, "none of the parties shall have
any claim whatsoever as against the applicant in respect of the purchased
property which shall be deemed to be his absolute property on and from
the expiry of 15th December, 1980", has attained finality;
(v) Section 65 of the Code says that, "where immovable property is sold
in execution of a decree and such sale has become absolute, the property
shall be deemed to have vested in the purchaser from the time when the
property is sold and not from the time when the sale becomes absolute".
The sale of a property becomes absolute under Order XXI, Rule 92(1)
after an application made under Rule 89, Rule 90 or Rule 91 is disallowed
and the court passes an order confirming the same. After the sale of an
immovable property becomes absolute in terms of Order XXI, Rule 92(1),
the Court has to grant a certificate under Rule 94. The certificate has to
bear the date and the day on which the sale became absolute. Thus a
conjoint reading of Section 65, Order XXI, Rule 92 and Order XXI, Rule 94
would show that it passes through three important stages (other than
certain intervening stages). They are, (i) conduct of sale; (ii) sale
becoming absolute; and (iii) issue of sale certificate. After all these three
stages are crossed, the 4th stage of delivery of possession comes under
Rule 95 of Order XXI. It is at this 4th stage that the appellants have
raised the objection relating to Order XXI, Rule 64. It is not as if the
appellants were not aware of the fact that the property in entirety was
included in the proclamation of sale. Therefore, the claim on the basis of
Order XXI, Rule 64 was rightly rejected by the High Court."
4. Relying on the said judgment, he submits that once the petition is
already decided rest judicata will apply. On the same line he further relied the
judgment of Kerala High Court in the case of " K.A. Sukumaran Vs. Keral
Permanent Benefit Fund Limited" reported in (2011) 0SCC (ker) 122.
He refers to para 12 of the said judgment which is as under:-
" 12. As per the order dated 18.5.2010, the court below negatived
the contention of the petitioner that sale of a portion of item 2 would be
sufficient to satisfy the decree debt. That order was not challenged by the
petitioner. Even in the present Original Petition, there is no case that the
order dated 18.5.2010 was erroneous. Res judicata applies not only to
suits but to execution proceedings as well. Explanation VII to Section 11
of the Code of Civil Procedure provides that the provisions of the Section
shall apply to a proceeding for the execution of a decree. Therefore, a
matter which was heard and finally decided in the execution proceedings
would bind the parties in another Execution Petition or at a later stage of
the same execution proceedings. That the principle of res judicata would
apply to different stages of the same proceedings is well settled. (See
Satyadhyan Ghosal and others v. Deorajin Debi and another (AIR 1960 SC
941); Prahlad Singh v. Col. Sukhdev Singh (AIR 1987 SC 1145);
Jayalakshmi v. Shanmugham (1987 (2) KLT S.N.Case 67 Page 47.) It is
true that a decision in the execution proceeding on the question of value
of the property, as such, may not constitute res judicata at a later stage
of the execution proceedings where the question arises whether the value
of the property has undergone change. In Govinda Bhat v. Sham Bhat
(2000 (1) KLT 278), it was held that finding in an earlier suit on the
question of value of arecanut and the question that the rate prevailing in
a particular area should be taken into account, would not constitute res
judicata in a later suit between the same parties. It was held:
"That will not act as res judicata, because on a later stage, because of
the market fluctuations and due to innovative technologies in the field of
production, the price may vary in either direction."
4
( 2025:JHHC:17124 )
In the present case, there is no case for the petitioner that there is
change in the value of the property or that the value of the property has
gone up. In the objection filed in 2009, he stated that the estimated
value of the property would be 25 lakhs. In the objection filed in 2010
also he reiterated that contention. Of course, in the second objection, he
contended that the centage value of the property would be Rupees One
lakh. Even if the centage value of the property is higher, that need not
necessarily represent the market value of a larger extent. The
petitioner/judgment debtor is the owner of the property. He knew the
value of the property better than the court. He stated that the estimated
value of the property would be 25 lakhs. That was the price which he
stated earlier also. Therefore, there was no change of circumstances
warranting a change in the order passed by the court below. If so, the
order dated 18.5.2010 would operate as res judicata barring the
petitioner from raising the same contention which was raised by him and
repelled by the executing court earlier. Sufficient safeguards have been
made by the court below for protecting the interests of the judgment
debtor. The contentions put forward by the judgment debtor are bereft of
bona fides. There is no ground to interfere with the order passed by the
court below.
Accordingly, the Original Petition is dismissed."
5. Relying on the above judgement he submits that the learned
court has wrongly decided the said issue and in that view of the matter the
impugned order may kindly be set aside.
6. Per contra, Mr. Sachin Kumar, learned counsel for the Opposite
Party-State submits that the learned court has rightly passed the order as
Tata Iron & Steel Company Limited is said to be the transferee of the land in
question and res judicata will not apply in view of the fact that on technicality
earlier execution case was dismissed.
7. Mr. Amitabh Prasad, learned counsel for the O.P. No.1-Tata Iron &
Steel Company Limited submits that the learned court has rightly held that res
judicata will not apply as on the technicality the earlier execution case was
dismissed and present execution case has been filed by the Tata Iron & Steel
Company Limited in the capacity of transferee of land in question and in view
of that the learned court has rightly decided the same in favour of Tata Iron &
Steel Company Limited as res judicata will not apply. He relied in the case of
" R.M. Sundaram @ Meenakshisundaram Vs. Sri Kayarohanasamy and
Neelayadhakshi Amman Temple(through its Executive Officer),
Nagapattinam, Tamil Nadu" reported in 2022 SCC Online SC 888. He
refers to para 35 to 39 of the said judgment which is as under:-
5
( 2025:JHHC:17124 )
" 35. This Court in Sheodan Singh v. Daryao Kunwar (SMT) has laid down
that the following conditions must be satisfied to constitute a plea of res
judicata:
"(1) The matter directly and substantially in issue in the subsequent suit or
issue must be the same matter which was directly and substantially in
issue in the former suit;
(ii) The former suit must have been a suit between the same parties or
between parties under whom they or any of them claim;
(iii) The parties must have litigated under the same title in the former suit;
(iv) The court which decided the former suit must be a court competent to
try the subsequent suit or the suit in which such issue is subsequently
raised; and
(v.) The matter directly and substantially in issue in the subsequent suit
must have been heard and finally decided by the court in the first suit.
Further Explanation 1 shows that it is not the date on which the suit is
filed that matters but the date on which the suit is decided, so that even if
a suit was filed later, it will be a former suit if it has been decided earlier.
In order therefore that the decision in the earlier two appeals dismissed by
the High Court operates as res judicata it will have to be seen whether all
the five conditions mentioned above have been satisfied."
36. General principle of res judicata under Section 11 of the Code contains
rules of conclusiveness of judgment, but for res judicata to apply, the
matter directly and substantially in issue in the subsequent suit must be
the same matter which was directly and substantially in issue in the former
suit. Further, the suit should have been decided on merits and the decision
should have attained finality. Where the former suit is dismissed by the
trial court for want of jurisdiction, or for default of the plaintiff's
appearance, or on the ground of non-joinder or mis-joinder of parties or
multifariousness, or on the ground that the suit was badly framed, or on
the ground of a technical mistake, or for failure on the part of the plaintiff
to produce probate or letter of administration or succession certificate
when the same is required by law to entitle the plaintiff to a decree, or for
failure to furnish security for costs, or on the ground of improper
valuation, or for failure to pay additional court fee on a plaint which was
undervalued, or for want of cause of action, or on the ground that it is
premature and the dismissal is confirmed in appeal (if any), the decision,
not being on the merits, would not be res judicata in a subsequent suit.
The reason is that the first suit is not decided on merits.
37. In the present case, the suit filed in 1981 for appointment of the
receiver for preparing an inventory of the suit jewellery was not decided
on merits but was dismissed on the ground that the respondent had
prayed for mandatory injunction and had not made a prayer for
declaration of title. Thus, the suit was dismissed for technical reasons,
which decision is not an adjudication on merits of the dispute that would
operate as res judicata on the merits of the matter. Further, to succeed
and establish a praver for res judicata, the party taking the said prayer
must place on record a copy of the pleadings and the judgments passed,
including the appellate Judgment which has attained finality. In the
present case, the appellant did not place on record a copy of the appellate
judgment and it is accepted that the second appeal filed by the
respondent was dismissed, giving liberty to the respondent to file a fresh
suit with a prayer of declaration of title/endowment in respect of the suit
jewellery. The liberty granted was not challenged by the appellant. The
right to file a fresh suit to the Temple, therefore, should not be denied.
The bar of constructive res judicata/Order II Rule 2 of the Code is not
attracted.
38. The plea of constructive res judicata/Order II Rule 2 of the Code also
fails as the cause of action in the first suit filed in 1981 was limited and
predicated on account of the failure of the appellant to open the locks of
the safe and the main door of the Kudavaral, the keys of which were
available with the appellant and required joint operation. Here again, the
party claiming and raising the plea of constructive res judicata/Order II
6
( 2025:JHHC:17124 )
Rule 2 of the Code must place on record in evidence the pleadings of the
previous suit and establish the identity of the cause of actions, which
cannot be established in the absence of record of judgment and decree
which is pleaded to operate as estoppel. In this regard, we would like to
refer to judgment of this Court in Gurbux Singh v. Bhoorala wherein it has
been observed:
“In order that a plea of a Bar under Order 2 Rule 2(3) of the Civil
Procedure Code should succeed the defendant who raises the plea must
make out; (1) that the second suit was in respect of the same cause of
action as that on which the previous suit was based; (2) that in respect of
that cause of action the plaintiff was entitled to more than one relief; (3)
that being thus entitled to more than one relief the plaintiff, without leave
obtained from the Court omitted to sue for the relief for which the second
suit had been filed. From this analysis it would be seen that the defendant
would have to establish primarily and to start with, the precise cause of
action upon which the previous suit was filed, for unless there is identity
between the cause of action on which the earlier suit was filed and that on
which the claim in the latter suit is based there would be no scope for the
application of the bar. No doubt, a relief which is sought in a plaint could
ordinarily be traceable to a particular cause of action but this might, by no
means, be the universal rule. As the plea is a technical bar it has to be
established satisfactorily and cannot be presumed merely on basis of
inferential reasoning. It is for this reason that we consider that a plea of a
bar under Order 2 Rule 2 of the Civil Procedure Code can be established
only if the defendant files in evidence the pleadings in the previous suit
and thereby proves to the Court the identity of the cause of action in the
two suits.
Just as in the case of a plea of res judicata which cannot be
established in the absence on the record of the judgment and decree
which is pleaded as estoppel, we consider that a plea under Order 2 Rule
2 of the Civil Procedure Code cannot be made out except on proof of the
plaint in the previous suit the filing of which is said to create the bar. As
the plea is basically founded on the identity of the cause of action in the
two suits the defence which raises the bar has necessarily to establish the
cause of action in the previous suit. The cause of action would be the facts
which the plaintiff had then alleged to support the right to the relief that
he claimed.”
39. Reiterating the above principle, this Court in Virgo Industries (Eng.)
Private Limited v. Venturetech Solutions Private Limited observed that:
“The object behind the enactment of Order 2 Rules 2(2) and (3) CPC is not
far to seek. The Rule engrafts a laudable principle that
discourages/prohibits vexing the defendant again and again by multiple
suits except in a situation where one of the several reliefs, though
available to a plaintiff, may not have been claimed for a good reason. A
later suit for such relief is contemplated only with the leave of the court
which leave, naturally will be granted upon due satisfaction and for good
and sufficient reasons.
The cardinal requirement for application of the provisions contained in
Order 2 Rules (2)2 and (3), therefore, is that the cause of action in the
later suit must be the same as in the first suit.”
8. Relying on the above judgment he submits that res judicata will
not apply in view of that the learned court has rightly passed the impugned
order.
9. In view of above submissions of the learned counsel for the
parties, it transpires that Tata Iron and Steel Company Limited instituted the
7
( 2025:JHHC:17124 )
suit being Title Suit No. 203 of 1971 which was decreed in favour of the
father of the petitioner vide judgement dated 07.01.1976. Against the said
judgment, Tata Iron and Steel Company filed Title Appeal No. 06/15 of 1976-77
which was allowed. Second Appeal No. 194/1978 (R) filed by the father of the
petitioner was disposed of modifying the order of the first appellate court to
the effect that only State of Bihar is entitle for recovery of possession.
Subsequently, Execution Case No. 81 of 1980 was instituted by Tata Iron &
Steel Company Limited which dismissed on the ground that that decree is not
in favour of Tata Iron & Steel Company Limited. Civil Revision No. 114 of 1992
(R) filed by Tata Iron & Steel Company Limited was dismissed by order dated
15.07.1992. In Execution Case No. 42 of 1993, objection filed by the petitioner
has been rejected vide 09.02.2005 which was challenged before this Court in
W.P. (C) No. 1662 of 2005 which was allowed remanding the matter to the
executing court to decide the issue of res judicata afresh. Pursuant to that the
learned court has been pleased to decide the said issue by order dated
30.01.2023 against that the petitioner herein has filed the present petition.
10. Only question to decide in this case is as to whether the
second execution case filed by Tata Iron & Steel Company Limited is barred by
principle of res judicata or not. It is well settled that for deciding the issue of
res judicata the tests prescribed in the case of ” Sheodan Singh V. Daryao
Kunwar (SMT)” reported in AIR 1966 SC 1332 has to be taken into
consideration. That aspect has been further considered by the Hon’ble
Supreme Court in the case of ” R.M. Sundaram @ Meenakshisundaram”
(supra) relied by the learned counsel for the Tata Iron & Steel Company
Limited.
11. So far the case in hand is concerned, in the second appeal first
appellate court judgment was modified to the effect that State of Bihar can
execute the degree. In this background only in the first execution case filed by
the Tata Iron & Steel Company Limited and learned court has been pleased to
8
( 2025:JHHC:17124 )
dismiss the same. In that view of the matter it is an admitted position that only
on technical ground the learned executing court has dismissed the first
execution case. It is further an admitted position that the land in question was
transferred by deed of lease in favour of Tata Iron & Steel Company Limited
which was valid till 31.12.2025. Subsequently second execution case was filed
being Execution Case No. 42 of 1993 and the learned court considering all
these aspects held that on the technicalities the earlier execution case was
dismissed and now the TISCO in the capacity of transferee of decree and the
State of Bihar which is represented by Deputy Commissioner, East Singhbhum
was also an applicant as transferee of decree and found that execution case is
not barred by res judicata. The fact of the first execution being dismissed will
not preclude to file second execution case in the light of Order XXI Rule 16 of
C.P.C as provision is there to transfer the property. Reference may be made to
the case of “Jagan Singh and Company Vs. Ludhiana Improvement
Trust and others” reported in (2024) 3 SCC 308 wherein para 32 the
Hon’ble Supreme Court has held as under:-
“32. The fact of the first execution petition being
dismissed as not satisfied will not, in our view, preclude filing of the
second execution petition giving details of the property. In those
proceedings also the respondent Trust chose to absent itself. The
execution proceedings have to proceed in accordance with the
various stages as envisaged under Order 21 of the said Code and
those stages were duly followed.”
12. Once decree holder transfers his interest in the decree by a deed
of assignment the transferee can move for execution of the decree despite a
subsequent adjustment under rule 2 between the original decree holder and
the judgment debtor as has been held by the Hon’ble Supreme Court in the
case of “Dhani Ram Gupta and Another Vs. Lala Sri Ram and Another“
reported in (1980) 2 SCC 162 wherein para 4 it has been held as under:-
“4. We are unable to read Order 21, rule 16 as furnishing any foundation
for the basic assumption of the learned counsel for the respondent that
property in a decree does not pass to the transferee under the assignment
until the transfer is recognised by the court. Property in a decree must
pass to the transferee under a deed of assignment when the parties to the
deed of assignment intend such property to pass. It does not depend on
the court’s recognition of the transfer. Order 21, rule 16 neither expressly9
( 2025:JHHC:17124 )nor by implication provides that assignment of a decree does not take
effect until recognized by the court. It is true that while Order 21, rule 16
enables a transferee to apply for execution of the decree, the first proviso
to Order 21, rule 16 enjoins. that notice of such application shall be given
to the transferor and the judgment-debtor and that the decree shall not be
executed until the court has heard their objections, if any, to its execution.
It is one thing to say that the decree may not be executed by the
transferee until the objections of the transferor and the judgment-debtor
are beard, it is an altogether different thing to say that the assignment is
of so consequence until the objections are heard and decided. The
transfer as between the original decree-holder and the transferee is
effected by the deed of assignment. If the judgment-debtor has notice of
the transfer, he cannot be permitted to defeat the rights of the transferee
by entering into an adjustment with the transferor. If the judgment-debtor
has no notice of the transfer and enters into an adjustment with the
transferor before the transferee serves him with notice under Order 21,
rule 16 the judgment-debtor is protected. This in our view is no more than
plain good sense. In Dwar Buksh Sirkar v. Fatik Jali‘, the decree-holder
represented to the Court that the judgment-debtor bad satisfied the
decree by payment and wanted his execution applicaton to be disposed of
accordingly. Before satisfaction could be recorded a transferee of the
decree from the original decree-holder intervened and claimed that
satisfaction could not be recorded as there was a valid transfer of the
decree in his favour prior to the alleged payment by the judgment-debtor
to the original decree-holder. The argument before the High Court was
that the assignee could not prevent the recording of the satisfaction of the
decree as he had not filed an execution application and got the
assignment in his favour recognized. The High Court of Calcutta observed:
The only provision in the Code referring expressly to the assignment of a
decree is contained in Section 232, and that no doubt contemplates a case
in which the assignee applies for execution. In such a case the court may,
if it thinks fit, after notice to the decree-holder and the judgment-debtor,
allow the decree to be executed by the assignee. If, however, there is an
assignment pending proceedings in execution taken by the decree-holder,
I see nothing in the Code which debars the Code from recognising the
transferee as the person to go on with the execution. The recognition of
the court is no doubt necessary before he can execute the decree, but it is
the written assignment and not the recognition which makes him the
transferee in law. The omission of the transferee, if it was an omission, to
make a formal application. for execution, was merely an error of
procedure and does not affect the merits of the case. It is argued for the
respondent that the transferee’s title was not complete as express notice
of the transfer had not been given to the judgment debtor. As already
observed, the transfer, as between transferor and the transferee, is
effected by the written assignment. If the judgment-debtor had no notice
of the transfer and being otherwise unaware of it paid the money to the
decree-holder, the payment was, of course, a good payment, and he
cannot again be held liable to the transferee.
We express our agreement with the observations made by the Calcutta
High Court.”
13. In the light of two judgments of the Hon’ble Supreme Court and
the facts of the present case it cannot be said that the execution case is barred
by res judicata as the first execution case was dismissed on the point of
technicalities and in the light of Order XXI Rule 16 C.P.C. the said land is
transferred to Tata Iron & Steel Company Limited and subsequently second
10
( 2025:JHHC:17124 )
execution case has been filed. The second execution is well maintained and
the learned court has rightly passed the order. There is no illegality in the
impugned order.
14. The judgment relied by Mr. Ambastha in the case of Dipali
Biswas(supra) is concerned, in that case dispute was not there of
subsequent transfer or transferee of the decree. The dispute was there of
deciding of section 47 C.P.C. petition which was earlier rejected and
subsequently second petition was filed in the light of that Hon’ble Supreme
Court has held that the same is barred by res judicata. The facts of the present
case is otherwise as has been discussed hereinabove.
15. In the case of K.A. Sukumaran (supra) , on merit the first
execution case was decided and subsequently second execution case was filed
in the light of that background the Kerala High Court has been pleased to hold
that the case was barred by res judicata and as has been discussed
hereinabove so the present case is concerned, the facts are and in view of
above this judgment is not helping the petitioner as has been discussed
hereinabove.
16. In view of above facts, reasons and analysis this Court finds that
there is no illegality in the impugned order. Accordingly, this petition is
dismissed. Pending I.A, if any, stands dismissed.
( Sanjay Kumar Dwivedi, J.)
Satyarthi/A.F.R.
11
[ad_2]
Source link