Bombay High Court
Rasika W/O Krishnadas Tulsidas And Ors. vs Mount Mary Vaikunta Co-Op. Housing ... on 5 December, 2002
Equivalent citations: 2003(2)MHLJ420
Author: V.C. Daga
Bench: V.C. Daga
JUDGMENT V.C. Daga, J.
1. The source of this appeal is the order passed by the City Civil Court, Bombay dated 22nd December, 1997 in Execution Application No. 696 of 1994 arising out of judgment and decree passed in Short Cause Suit No. 1548 of 1989, whereby the appellants and respondent Nos. 2 to 6 (original defendant Nos. 1 to 8) were directed to execute necessary conveyance within three months from the date of the said impugned order, failing which, the Registrar of the City Civil Court was directed to execute the required conveyance in favour of the respondent No. 1 herein (the original plaintiff/decree holder).
THE FACTS
2. Facts giving rise to the present appeal in nutshell are as under:
The original plaintiff (respondent No. 1 herein) Mount Mary Vaikunta Cooperative Housing Society Limited, (hereinafter referred to as "plaintiff society" for short) had filed a Short Cause Suit bearing No. 1548 of 1989 against ten defendants i.e. present appellant Nos. 1 to 3 and respondent Nos. 2 to 8. All of them are parties to this appeal. The defendant No. 9 was one of the partners of the defendant No. 10, a partnership firm. The defendant Nos. 2 to 8 are the heirs of one Late Shri Madhavdas, the original owner of the plot of land in question.
3. It was the case of the plaintiff-society that the original land/plot owner Late Madhavdas, presently represented by his heirs defendant Nos. 1 to 8, had agreed to assign the suit land to the defendant No. 9, who intended to develop the same. The defendant No. 9 put this project for development in his partnership firm, namely; the defendant No. 10. The said partnership firm, the defendant No. 10, thereafter, developed this plot of land and constructed a building and the various persons, who purchased flats in the said building, were put in possession of their respective flats sold to them. The plaintiff-society was formed by the purchasers of such flats.
4. The society after its formation and registration in accordance with law filed a suit for declaration that the plaintiff-society had acquired flats in the said building with further declaration that the defendant No. 10 was liable to obtain assignment of the land from the defendant Nos. 1 to 8 and, in turn bound to convey the suit land in favour of the plaintiff-society. The plaintiff-society had also sought declaration that the said society and its members were in possession of the land and the building. Based on the pleading in the plaint and the reliefs prayed therein; the suit came to be registered. The suit summonses were issued to the respective defendants calling upon them to put their appearance and defence, if any.
5. It is not in dispute that each defendant was served with the suit summons. It is also not in dispute that none of them had appeared before the trial court to contest the suit. It is also not in dispute that the suit came to be decreed 'ex parte' long back in the year 1992. It is also not in dispute that none of the defendants applied for setting aside the said 'ex parte' decree. None of them challenged the said decree in appeal.
6. The defendant No. 10 having constructed building consisting of seven floors, with total 28 flats (residential apartments), entered into an agreement with several persons (flat purchasers) for sale of flats for the price set out in the respective agreements. The agreement with the flat purchasers i.e. the members of the plaintiff society inter alia; provided that the builders (defendant No. 10) would form a co-operative society and would only collect ground rent from the members until management of the property is handed over to the society. In the said agreement, it was further provided that after handing over the management to the society, defendant No. 10 would cease to collect the outgoings. The purchasers had also agreed to become members of the society. The builder had also agreed to get necessary assignment of the land with the building in favour of the society either directly or upon getting the land assigned to it.
7. The plaintiff society on the aforesaid canvas of facts asserted in the suit that it was thus necessary for the defendant No. 10 to assign the leasehold rights of the suit land in favour of the society but the defendant No. 10 failed to make such assignment. The plaintiff had also alleged that the defendant No. 10 even failed to get the society registered though agreed in the agreements executed in favour of the respective buyers of the flats or apartment. The plaintiff-society had also alleged in the plaint that the flat purchasers themselves came together, moved an application for registration of the society and got the society registered on 3-6-1980. The plaintiff had also asserted that their members had paid the entire consideration to the defendant No. 10 and that the defendant No. 10 in spite of repeated demands failed and neglected to refund certain amounts though they were entitled to such refunds and that finally failed to get the land in question transferred in favour of the society.
8. It was thus a common ground in the suit that the original defendant Nos. 1 to 8, being legal heirs of the original owner of suit land along with defendant Nos. 9 and 10, were bound to convey the suit property in favour of the plaintiff-society. The defendant No. 10 having taken possession of the suit land, and commenced construction of the building after demolishing the old bungalow standing thereon, and having put the members of the society in possession of their respective flats, was bound to convey the suit plot to the plaintiff-society as per the provisions of the Maharashtra Ownership Fiats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 ("Maharashtra Ownership Flats Act" for short). Since the defendants failed to discharge their respective obligations, they were compelled to file suit on behalf of the society; wherein the reliefs referred to in the plaint were prayed for by the plaintiff-society.
9. The above suit, as already stated hereinabove, came to be decreed without any contest. The plaintiff-society, after obtaining the decree in the year 1992, filed Execution Petition on 4-10-1994 being the holder of the decree. The Execution Petition came to be registered as Execution Application No 696/94. The decree-holder had taken out Notice of Motion under Order XXI, Rule 34 of the Code of Civil Procedure ("C.P.C." for short), calling upon the original defendants-judgment debtors to state their objections, if any, in writing to the draft conveyance served on them along with Notice of Motion. The defendant-judgment debtor Nos. 5, 6 and 8 raised their objections by filing an affidavit contending therein; that the suit was for declaratory decree as such no decree for execution of any document as stipulated under Order XXI, Rule 34 of the Civil Procedure Code was contemplated in the decree in execution. It was further contended that under the said decree, at the highest, the defendant No. 10 was required to take appropriate proceedings against the defendant Nos. 1 to 8 for obtaining assignment of the land with the building thereon but under no circumstance decree should be interpreted to mean the decree directing the defendant/judgment debtor Nos. 1 to 9 to execute any document in favour of the decree-holder-society. It was further contended that in the agreement dated 2-6-1972 executed by Madhavdas Tulsidas, Rasika widow of Krishnadas Tulsidas and Ravindra K. Mody (Objector), Surya wife of Ramesh Shah and daughter of Krishnadas Tulsidas, it was agreed that the said property was to be assigned in favour of the assignee for a consideration of Rs. 3,50,000/- which defendant No. 10 has failed and neglected to pay in full as such the defendant/judgment debtor Nos. 1 to 8 could not be held liable to execute any document even in favour of the defendant-judgment debtor No. 10 much less in favour of the decree holder-society. It was also contended that Madhavdas Tulsidas being dead his name could not have been shown in the deed of conveyance as one of the parties to the document.
10. The Hon, Secretary of the plaintiff-society tiled counter affidavit-in-reply and thereunder suitably replied all the contentions and objections raised in the affidavit filed by judgment-debtor No. 6 on behalf of himself and judgment-
debtor Nos. 5 and 8. The decree-holder society contended that the decree passed by the trial court in Short Cause Suit No. 1548 of 1989 would bind all the defendants in the suit and prayed for execution of conveyance either by the judgment-debtors or by the court on their behalf in pursuance of the decree in execution.
11. The executing court after hearing rival contentions vide its order dated 3-9-1997 initially dealt with all the objections raised by the defendant No. 10, a partnership firm, wherein, it tried to contend that the execution application was not maintainable in view of the prayers in the suit in which only declaratory reliefs were claimed. The executing Court after taking survey of the entire facts mentioned in the plaint and prayer clauses incorporated therein; observed that the defendants did not oppose the suit as such it could be presumed that they too considered prayer Clause (b) as that of specific performance of the duties cast upon the defendant No. 10 under Section 11 of the Maharashtra Ownership Flats Act. The executing court was thus pleased to hold that view of prayer Clause (b) of the plaint, the plaintiff-society was entitled to seek specific performance of the duties cast upon the defendant No. 10. None of the judgment-debtors challenged this order dated 3-9-1997.
12. The plaintiff-society (Decree Holder) moved another application seeking specific directions against the other Judgment-debtors including the original owners of the land seeking execution of the required conveyance in favour of the plaintiff-society. The original defendant-judgment debtor Nos. 5, 6 and 8 i.e. some of the legal heirs of original owner, as already stated hereinabove, opposed this application and repeating the same contention, which raised by defendant No. 1, contended that in the original suit the plaintiff had only claimed declaration, and did not claim decree for specific performance of the contract, as such plaintiff-society-decree holder cannot be allowed to seek specific performance of the agreement in the execution proceeding in question. It was further contended that at the most decree in the suit would bind the defendant No. 10 to obtain assignment of the land from the original defendants/judgment debtor Nos. 1 to 8. In other words, the contention sought to be raised was that the defendant No. 10 ought to have taken appropriate action against the defendants/judgment debtor Nos. 1 to 8 to obtain deed of assignment in respect of the suit land in its favour. If that was not done by a defendant No. 10-judgment debtor, the plaintiff-society could not be allowed to claim that right in the present execution application. It was admitted by the original defendant/judgment debtor Nos. 5, 6 and 8 that they had agreed to assign the land to the defendant No. 10 for a consideration of Rs. 3,50,000/-, which according to them, defendant No. 10 failed and neglected to pay the said consideration in toto and as such they were not liable to execute deed of assignment either in favour of the defendant No. 10 and or its assignee; as such the contention was that the decree holder-society has no right to claim conveyance in its favour.
13. The executing court again heard all the objectors on the above objections and dealt with the same with well reasoned order and held that the defendants/judgment debtors; who were opposing the execution of the decree, were parties to the suit. They did not oppose the suit, despite service of the suit summons, as such the objections sought to be raised on behalf of the original defendants No. 5, 6 and 8 were not maintainable. According to the executing court, all these questions could have been and ought to have been raised in the suit. Having lost the suit, it was not open for them to raise all these contentions in the execution proceeding. The executing court also held that had there been any dispute between the defendants judgment debtor Nos. 1 to 8 with their own assignee i.e. defendant No. 10, then, they ought to have raised this plea in their defence and ought to have pointed out to the trial court that the agreed consideration was not fully paid by the defendant No. 10 through whom the plaintiff-society was asserting its right to obtain conveyance. It was also observed by the executing court that the objectors could have got their remaining consideration recovered by claiming suitable relief in the suit. The executing court also considered as to whether or not prayer Clause (b) was capable of being read as directions against the original defendant Nos. 1 to 8 to assign or convey the land in question in favour of the plaintiff-society instead of defendant No. 10.
14. The executing Court while dealing with the issues raised also recorded its findings against the said judgment debtors and while recording such findings, the executing court observed that the original defendant/judgment debtor Nos. 1 to 8 were aware of the fact that the defendant No. 10 had agreed to construct the building and had incurred an obligation to transfer these flats to various apartment purchasers and to convey the plot of land to the society to be formed; in view of the provisions of Section 11 of the Maharashtra Ownership Flats Act. It was also observed by the executing Court that the defendant No. 10 had agreed to assume responsibility of "the Promoter" as defined under the said Act. If the defendant-judgment debtor Nos. 1 to 8 had any dispute with the so called Promoter, who had agreed to sell the flats to the prospective purchasers; presently the members of the decree-holder-society; or had there been any intention to avoid liability arising out of the various provisions of the said Act, then, they ought to have appeared in the suit and ought to have opposed the suit. They ought to have put forth their defence; do demonstrate how they were not bound by the acts and omissions committed by their developer, the defendant No. 10 or how the suit claim was defective warranting rejection. The executing court was pleased to hold that the defendant/judgment-debtor Nos. 1 to 8 having lost all such opportunities were not entitled to raise any objection or dispute in this behalf in the execution proceeding.
15. Lastly, it was contended before the executing court that the decree could not be allowed to be executed against them or no order directing execution of the conveyance could be passed against them by the executing court. The executing court while dealing with this objection clearly observed that the defendants were already made aware of their responsibility and that of defendant No. 10 was bound to convey title of the land, on which the building was constructed, in favour of the co-operative society, which was to be formed by the "Promoter". In other words, the executing court found that all the defendants were well aware of the fact that they themselves were developing the property by constructing building thereon; as such they all were, jointly and severally, aware of their obligation to execute the conveyance in favour of the society to be formed by the defendant No. 10. The executing court, therefore, found that none of the contentions raised by the original defendant/judgment debtor Nos. 5, 6 and 8 were maintainable and was pleased to hold that the decree would bind on all the defendants/judgment debtors.
16. The executing court has rejected the contention of the defendant-judgment debtor Nos. 5, 6 and 8 that they did not receive consideration and consequently they were not bound by the decree in execution. In pursuance of its earlier order dated 3-9-1997, the executing court was pleased to reiterate that the prayer Clause (b) in the plaint was for the specific performance of duties cast upon the defendant No. 10 and other defendants under Section 11 of the Act. Thus, rejecting all the contentions raised by the said defendants/judgment debtors, the executing court vide its order dated 22-12-1997 (impugned for short) directed the defendants/judgment debtor Nos. 1 to 8 to execute necessary conveyance in favour of the plaintiff-decree holder-society within three months from the date of impugned order, failing which, Registrar of the Court was directed to execute the required documents in favour of the decree-holder-(plaintiff) society.
Contentions in appeal
17. Being aggrieved by the aforesaid order, the appellants preferred this appeal and reiterated the same contentions which were raised before the executing court and contended that the draft of the conveyance contains the name of a dead person, as such the said draft of the conveyance could not have been approved by the executing court.
18. The learned counsel appearing for the appellants contended that the defendant No. 8 did not pay a full consideration which was agreed in the sum of Rs. 3,50,000/- between the original landholder Late Madhavdas and defendant/judgment debtor No. 9, as such in the absence of payment of this amount, the executing court could not have directed execution of the conveyance. It consequently, could not have approved the draft indenture. It was further contended that the executing court could not have interpreted the said decree which was basically a declaratory decree not being a decree seeking specific performance of contract between the parties. In the submission of the learned counsel for the appellants, the executing court has thus committed an error in passing the impugned order. In order to support these submissions, the learned counsel for the appellants relied upon judgment of the Apex Court in the case of State of Madhya Pradesh v. Mangilal Sharma, , in which the Apex Court was pleased to hold that the executing court is always bound by terms of decree and could not add to or alter the decree. The learned counsel for the appellants has also relied upon the one more judgment of the Apex Court in the case of Vasudeo Dhanjibhai Modi v. Rajabhai Abdul Rehman and Ors., , in which, it was held that the executing court cannot go behind the decree even if it is erroneous in law or on facts. It is always binding on the parties to the decree.
19. Per contra, the learned counsel appearing for the respondent/decree holder tried to support the order and contended that this being an appeal under Order 43, Rule 1(i) of the Civil Procedure Code, the scope of this appeal and jurisdiction of this court being limited, this court in exercise Of the appellate powers conferred under Rule 1(i) of Order 43 should not examine the legality of the previous order dated 3-9-1997 in the present appeal and that this court should not travel beyond the scope of the provisions of Order 43, Rule 1(i) of the Civil Procedure Code while deciding this appeal. In support of his submission, he pressed into service the text of the provision of Order 43, Rule 1 (i) of the Code of Civil Procedure, which reads as under:
"an order under Rule 34 of Order XXI on an objection to the draft of a document or of an endorsement."
20. The learned counsel for the decree-holder further while elaborating his submission reiterated that looking to the scope of the aforesaid provision, this Court while exercising appellate jurisdiction should confine its enquiry to the extent of the terms of the draft conveyance and objections raised thereto. He further urged that this being an appeal against order under Order 43 of the Code of Civil Procedure, the law laid down by the Apex Court in the case of Uttar Pradesh Co-operative Federation Ltd., v. Sunder Bros., Delhi, should be kept in mind, wherein the Apex Court ruled as under :--
"....the Appellate Court would be slow to interfere with the exercise of their discretion. In dealing with the matter raised before it at the appellate stage, the appellate Court would normally not be justified in interfering with the exercise of the discretion under the appeal solely on the ground that if it had considered the matter at the trial stage it may have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the Appellate Court would have taken a different view may not justify such interference with the trial Court's exercise of discretion. If it appears to the Appellate Court that in exercising its discretion the trial Court has acted unreasonably or capriciously or has ignored relevant facts, then it would be open to the Appellate Court to interfere with the trial Court's exercise of discretion."
The learned counsel for the respondent in the above premises prayed for dismissal of this appeal with costs.
The Issue
21. Having heard the parties at length and keeping in view the aforesaid rival contentions, the following issue needs consideration in the present appeal.
"Whether the executing court was justified in approving the draft of the indenture?"
Consideration and findings
22. The first question which needs to be considered is, what is the scope of the appellate jurisdiction of this Court under Order 43, Rule 1 of Civil Procedure Code while examining the order of the executing Court passed under Order 21, Rule 34 of Civil Procedure Code. Rule 34 of Order 21 deals for execution of decree directing execution of document or endorsement of negotiable instrument. Relevant Clauses of Rule 34 of Order 21, with which we are concerned read as under:
"(1) Where a decree is for the execution of a document or for the endorsement of a negotiable instrument and the judgment-debtor neglects or refuses to obey the decree, the decree-holder may prepare a draft of the document or endorsement in accordance with the terms of the decree and deliver the same to the Court.
(2) The Court shall thereupon cause the draft to be served on the judgment-debtor together with a notice requiring his objections (if any) to be made within such time as the Court fixes in this behalf.
(3) Where, the judgment-debtor objects to the draft, his objections shall be stated in writing within such time, and the Court shall make such order approving or altering the draft, as it thinks fit.
(4) The decree-holder shall deliver to the Court a copy of the draft with such alterations (if any) as the Court may have directed upon the proper stamp-paper if a stamp is required by the law for the time being in force; and the Judge or such officer as may be appointed in this behalf shall execute the document so delivered.
(5)..................
(6) (a) Where the registration of the document is required under any law for the time being in force, the Court, or such officer of the Court as may be authorised in this behalf by the Court, shall cause the document to be registered in accordance with such law.
(b)...... ....................
(c)...... ........ ........."
Reading of the above Clauses of Rule 34 of Order 21 of Civil Procedure Code makes it clear that where a decree is for execution of a document and the judgment debtor neglects to execute document and thereby refuses to obey the decree, the decree holder may prepare a draft of the document or endorsement in accordance with the terms of the decree and deliver the same to the Court. The Court thereupon, has to cause the draft to be served on the judgment debtor together with notice requiring him to make his objections, if any, within such time as the Court may fix in that behalf.
23. Where the judgment debtor objects to the draft, he has to state his objections in writing within such time, and the Court has to make such order approving or altering the draft as it may think fit, after hearing the parties to the execution proceeding.
24. Upon finalisation of the draft by the Court, the decree holder has to deliver the Court a copy of the draft with such alterations, if any, as directed by the Court upon the proper stamp-paper, if a stamp is required by law for the time being in force; and the Judge or such officer as may be appointed in this behalf has to execute the document so delivered.
25. Where registration of the document is required under any law for the time being in force, the Court or such officer of the Court as may be authorised in this behalf by the Court has to execute the document and register the same in accordance with law. Thus, reading of Sub-rule (4) as a whole would indicate that it deals with the preparation of draft document, service thereof on the judgment debtor with a notice calling upon him to file his objections, if any, and upon receipt of the objections; the Court has to decide the same in accordance with law and upon decision thereof; after effecting necessary alterations in the draft, the Court has to execute and register the same in accordance with law either by itself or by such officer as it may authorise in this behalf.
26. The objector, if not satisfied with the order of the Court deciding objections taken, can file an appeal under Order 43, Rule 1(i) of Civil Procedure Code. Therefore, the scope of the appeal, as rightly contended by the learned counsel appearing for the respondent, is restricted to order dealing with the objections to the draft of the document. The appellate Court while exercising its jurisdiction under Order 43 cannot travel beyond the purview of its appellate jurisdiction.
27. Viewed from the above angle, if one turns to the objections raised by the appellants and dissects the same, then, it would be clear that except a minor objection to the draft document that it contains the name of a dead person i.e. Shri Madhavdas; there is hardly any substantial objection to the draft document. The another objection sought to be raised by the appellants relates to the nature of the decree. The said objection, in my view, cannot be gone into in this appeal. It cannot be said to be an objection to the draft document. It is an objection which relates to the nature of decree. Such objection is not permissible under Order 21, Rule 34(3) of Civil Procedure Code. Alternatively, assuming it to be within the purview of Rule 34 of Order 21, even then, the appellants cannot succeed in view of the prior order of the executing Court dated 3-9-1997. An identical objection was raised by defendant Nos. 5, 6 and 8 along with defendant No. 10. The same has been dealt with by the executing Court vide its order dated 3-9-1997. By the said order dated 3-9-1997, the objection in this behalf was overruled. This order was appealable order. No appeal was preferred against this order, with the result, the said order became final and conclusive and would operate as res judicata between the parties as observed by the Apex Court in Satyadhyan Ghosal v. Smt. Deorajin Debi, , wherein the Apex Court ruled that the principle of res judicata also applies in between two stages of the same litigation to the extent that a Court, whether the trial Court or a higher Court, having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the same matter again at a subsequent stage of the same proceedings. In this view of the matter, in my opinion, the order dated 3-9-1997 shall operate as res judicata, as such it was not open for the appellants to reiterate and raise the same objection once again with respect to the nature of decree. The executing Court, therefore, rightly held that the decree in question has to be treated as a decree for specific performance of duties cast upon the defendants/judgment debtors. No fault can be found with the finding recorded in this behalf.
28. The second question raised by the learned counsel appearing for the appellants, is that respondent No. 10 did not pay entire consideration, which was in the sum of Rs. 3,50,000/-, to the defendants/judgment debtor Nos. 1 to 8, and therefore, they cannot be called upon to execute necessary conveyance in favour of the plaintiffs/decree holders - society. In my considered view, the objection raised in this behalf is beyond the scope of Rule 34 of Order 21 of Civil Procedure Code. It is, therefore, not permissible for the appellants to raise any objection in this behalf.
29. Alternatively, assuming that such objection could be raised by the appellants in the execution proceeding, even then, in the peculiar facts of the present case the appellants cannot be allowed to raise any objection in this behalf for the simple reason that, though each of the defendants were served with the suit summons; none of them chose to answer the suit summons. None of them appeared before the trial Court in reply to the suit summons. The suit came to be decreed ex parte long back in the year 1992. Neither the defendants applied for setting aside the ex parte decree nor did they challenge the same in appeal. The judgment and decree, in the result, became final and conclusive. The same is operating as res judicata between the parties.
30. So far as the other objections sought to be raised are concerned, those objections also could have been raised in the suit. Having failed to contest the suit, in my considered view, it is too late for the judgment debtors to object the execution of decree on the grounds which could have been raised by them in the suit. In the case of The Workmen of Cochin Port Trust v. The Board of Trustees, , the Apex Court ruled as under :
"It is well-known that the doctrine of res judicata is codified in Section 11, Civil Procedure Code but it is not exhaustive, Section 11 generally conies into play in relation to civil suits. But apart from the codified law the doctrine of res judicata has been applied since long in various other kinds of proceedings and situations by Courts in England, India and other countries. The rule of constructive res judicata is engrafted in Explanation IV of Section 11 and in many other situations also principles not only of direct res judicata but of constructive res judicata are also applied. If by any judgment or order any matter in issue has been directly and explicitly decided the decision operates as res judicata and bars the trial of an identical issue in a subsequent proceeding between the same parties. The principle of res judicata also comes into play when by the judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implication; then also the principle of res judicata on that issue is directly applicable. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it is deemed to have been constructively in issue and, therefore, it taken as decided."
The Apex Court while dealing with another shed of Section 11 of Civil Procedure Code in the case of Forward Construction Co. v. Prabhat Mandal (Regd.), held that in view of Section 11, explanation IV, it could not be said that the earlier judgment would not operate as res judicata as one of the grounds taken in the subsequent petition was conspicuous by its absence in the earlier petition. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the. original action both in respect of the matters of claim or defence.
31. The Apex Court in the case of P.K. Vijayan v. Kamalakshi Amma, held that it is a sheer abuse of the process of the Court to raise at each successive stages different pleas to protract the proceedings or to drive the party to multiplicity of proceedings. It would be fair and just that the parties to raise all available relevant pleas in the suits or the proceedings when the action is initiated and the omission thereof does constitute constructive res judicata to prevent raising of the same at a later point of time thereby it must be deemed that they are waived. Thus, considering the aforesaid well recognised principles of law recognised by the Apex Court and the High Courts from time to time, the objections raised by the judgment debtors are hit by the doctrine of constructive res judicata. At the stage of execution proceeding it is not open for the judgment debtors to raise these objections and to contend that the decree in question is not executable. In this view of the matter, the executing Court was perfectly justified in over-ruling the objections raised by the appellants.
32. Apart from the above, even, otherwise, the objections raised by the appellants are untenable and hold no water. It is beyond imagination that defendant No. 9 and/or 10 would develop entire property and place all the prospective purchasers in possession of their respective residential apartments, and the appellants would not insist for recovery of consideration from defendant Nos. 9 and 10 for such long years. It is also beyond imagination that in spite of adverse decision in the suit, none of the appellants would take any steps to initiate any proceedings for recovery of their outstanding dues and would wait till the expiry of the period of limitation for recovery of the alleged amount of unpaid consideration. In this view of the matter, the objection sought to be raised in this behalf is collusive and not bona fide. Entire attempt of the judgment debtors appears to be to defeat the decree in execution. Under these circumstances, in the present proceeding, the appellants cannot be allowed to raise any objection in this behalf. At this juncture, it would be useful to refer to the observations of B. P. Sinha, J. (as he then was) in the case of Bilas Devi v. Bansidhar Sahu, , wherein it is laid down that the court will always resist any attempt on the part of any of the parties to construe the decree in such a way as to multiply litigation. In this view of the matter, the approval adopted by the executing Court is perfectly legal and valid. The view taken by the Court below is reasonable and possible.
33. The last objection which needs consideration is that the draft document contains the name of a dead person i.e. of late Madhavdas, the original owner who came to be substituted with his legal heirs i.e. defendents/judgment debtor Nos. 1 to 8. It is true that Madhavdas being dead his name could not have been shown in the draft document. The objection in this behalf is liable to be sustained. Accordingly, it is directed that the name of Shri Madhavdas Tulsidas be deleted from the draft indenture and be substituted with that of his legal heirs who were parties to the suit and are parties to the decree in execution i.e. defendant/judgment debtor Nos. 1 to 8. With this small modification, the draft indenture has got to be approved. Accordingly, the same is approved. The impugned order passed by the executing Court is confirmed with slight modification as indicated herein.
In the result, appeal is partly allowed with no order as to costs.
34. The executing Court is directed to execute the indenture in favour of the decree holder as expeditiously as possible, at any rate, within three months from the date of communication of this order.
35. On request made by the learned counsel for the appellant, operation of this judgment is stayed for another six weeks.
36. All the concerned parties to act on ordinary copy of this order duly authenticated by the Associate/Sheristedar of this Court. Issuance of certified copy is expedited.