Karnataka High Court
M/S. Pushpam Realty vs Dega Devakumar Reddy on 8 July, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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Reserved on : 19.06.2025
Pronounced on : 08.07.2025 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.8353 OF 2025 (GM - CPC)
BETWEEN:
M/S. PUSHPAM REALTY
A PARTNERSHIP FIRM
REGISTERED UNDER
THE PARTNERSHIP ACT, 1932
HAVING ITS OFFICE AT NO. 191
1ST CROSS, 1ST BLOCK
JAYANAGAR EAST, BYRASANDRA
BENGALURU - 560 011.
REPRESENTED BY ITS PARTNER
SMT. R.S.VEENA
AGED ABOUT 59 YEARS
W/O DR. N.MANJUNATHA REDDY.
... PETITIONER
(BY SRI DHANANJAY V.JOSHI, SENIOR ADVOCATE FOR
SMT. KAVITHA DAMODARAN, ADVOCATE)
AND:
DEGA DEVAKUMAR REDDY
S/O LATE DEGA RAMGOPAL REDDY
AGED ABOUT 64 YEARS
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RESIDING AT VILLA NO.33
COOK STREET, 10 DOWNING
WHITEFIELD, HOSAKOTE ROAD
KANNAMANGALA, BIDARNAHALLI HOBLI
BENGALURU - 560 067.
... RESPONDENT
(BY SMT. ANJANA C. H., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER,
DTD 16.11.2024 PASSED BY THE COURT OF THE HONBLE III ADDL.
CITY CIVIL AND SESSIONS JUDGE AT BANGALORE (CCH-25), IN
EX. NO. 1075/2020 (ANNX-A) ON THE APPLICATION FILED BY THE
PETITIONER UNDER SEC 151 OF THE CPC, 1908 FOR RECALLING
ORDER DTD 10.07.2024 AND TO ALLOW THE APPLICATION FILED
BY THE PETITIONER UNDER SEC 151 THE CPC, 1908 (IA NO. 3).
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 19.06.2025, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner/judgment debtor is before this Court calling in
question an order dated 16-11-2024 passed by the III Additional
City Civil and Sessions Judge, Bengaluru in Execution No.1075 of
2020 dismissing I.A.No.3 filed by the Judgment Debtor.
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2. Heard Sri Dhananjay V. Joshi, learned senior counsel
appearing for the petitioner and Miss. Anjana C.H, learned counsel
appearing for the respondent.
3. Sans details, facts in brief, germane are as follows: -
To consider the issue that is brought before the Court, the
narration of institution of the suit and its aftermath would not be
required. It would suffice if the narration would commence from
filing of execution petition. The petitioner - M/s Pushpam Realty is
the judgment debtor and the respondent is the decree holder. An
execution petition is preferred in Execution Petition No. 1075 of
2020 seeking to execute a decree passed in A.A. No. 44 of 2018. In
the execution petition, the petitioner filed its objections challenging
maintainability of the execution petition on a jurisdictional issue and
another application under Section 47 of the CPC to hold the
execution petition filed by the decree holder as not maintainable.
The decree holder files objections to the said application. In the
interregnum the decree holder files an application under Order XI
Rule 14 read with Section 151 of the CPC seeking for a direction to
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the judgment debtor to produce certain documents and deposit
them before the concerned court. The judgment debtor files
objections to the said application. The concerned court in terms of
its order dated 10-07-2024 allows the application filed by the
decree holder and directs the judgment debtor to deposit the
original documents before the concerned court. The judgment
debtor/petitioner filed Writ Petition No. 20089 of 2024 challenging
the said order passed on 10-07-2024. In the said petition the
judgment debtor also seeks for a direction to consider the
application filed by the judgment debtor under Section 47 of the
CPC. A coordinate Bench of this Court rejected the petition in terms
of its order dated 31-07-2024. The judgment debtor, being
aggrieved by the order of the coordinate Bench, prefers Special
Leave Petition before the Apex Court, which is withdrawn at the
time of its preliminary hearing. After withdrawal of the SLP, again,
the judgment debtor files an application before the concerned Court
i.e., the executing Court, on the ground that the Court did not have
territorial jurisdiction to entertain the execution petition and prefers
an application seeking to recall the order dated 10-07-2024 which
stood confirmed by the order passed by this Court and S.L.P against
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the order of the coordinate Bench was withdrawn. The executing
Court rejects the application on 16-11-2024. It is this order that
drives the petitioner again to this Court in the subject petition.
SUBMISSIONS:
PETITIONER'S:
4. The learned senior counsel Sri Dhananjay V. Joshi
appearing for the petitioner would vehemently contend that the
question of jurisdiction would cut at the root of the matter. The
Court at Bangalore did not have jurisdiction, as everything has
happened in Madikeri. Therefore, the execution petition ought to
have been preferred before the Court at Madikeri. This aspect has
not been decided by the coordinate Bench and, therefore, he would
contend that this Court should delve upon the issue of jurisdiction,
as any amount of consent of parties would not confer jurisdiction.
Insofar as rejection of the earlier petition and SLP being withdrawn,
the learned senior counsel would submit that it would not constitute
affirmation by the Apex Court and it is open to this Court to
consider on an altogether new cause of action today.
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RESPONDENT'S:
5. Per contra, the learned counsel Miss. Anjana C.H, would
vehemently refute the submissions, contending that the petitioner
has abused the process of law. The petitioner took every contention
with regard to jurisdiction but the Court rejected it. The rejection is
challenged. This Court dismissed the petition and the SLP filed is
withdrawn. In all these petitions one common plea of jurisdiction is
raised and the petitions are dismissed. She would contend that a
fact once pleaded is deemed to have been concluded in the final
order. Therefore, it is not open to the petitioner all over again to
contend about the issue of jurisdiction.
6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
CONSIDERATION:
7. The petitioner is said to have approached the respondent
for development of a layout, in the subject property in Sy.Nos.81,
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82 and 8/10 situated at K.Badaga Village, Madikeri Taluk measuring
15 acres 93 cents. In furtherance of the same, the petitioner is said
to have entered into a memorandum of understanding on
24-06-2013 and later executed a Joint Development Agreement.
Dispute between the two arose and for the resolution of the same,
the respondent files a Civil Miscellaneous Petition, before this Court
seeking appointment of an Arbitrator in C.M.P.No.316 of 2017 to
adjudicate the dispute between the parties. An arbitration case was
thus registered in A.C.No.44 of 2018 and sole arbitrator, a retired
Judge of the High Court of Karnataka was appointed. During the
pendency of arbitration proceedings, the petitioner and the
respondent filed a compromise petition under Order 23 Rule 3 of
the CPC drawing up certain terms and conditions. Conditional time
lines also formed the subject matter of compromise petition.
8. On the score that there has been no return of documents
in terms of compromise, the respondent initiates execution
proceeding in Execution No.1075 of 2020. An application is
preferred in the execution proceedings under Section 47 of the CPC
challenging maintainability of the execution petition on the ground
8
that there was no executable arbitration award. The respondent
then files an application under Order XI Rule 14 seeking a direction
to the petitioner to deposit original title deeds in respect of the
schedule property, as the contention was that they have been in
illegal custody of the petitioner for 11 years. The petitioner/
judgment debtor takes up a new contention invoking Section 42 of
the Arbitration and Conciliation Act, 1996 ('the Act' for short)
contending that the execution petition is not maintainable owing to
territorial jurisdiction.
9. It becomes necessary to notice the averments in the
objections filed by the judgment debtor on maintainability of the
execution petition, which read as follows:
"1. It is respectfully submitted that the present
Execution Petition filed by the Decree Holder before this
Hon'ble Court is not maintainable. This Hon'ble Court has
no territorial jurisdiction to entertain the present
Execution Petition. The present Execution Petition arises out
of an award dated 22-09-2018 passed by the Hon'ble Sole
Arbitrator. The dispute before the Arbitrator between the Decree
Holder and the judgment debtor was referred for adjudication,
under a registered Joint Development Agreement dated 28-06-
2013. The schedule properties involved in the Joint
Development Agreement dated 28.06.2013 are situated at
K. Bagada Village, Madikeri Taluk, Kodagu District. Hence, the
decree holder ought to have filed present execution petition
before the Civil and Sessions Judge at Madikeri. The decree
9
holder instead of filing the present execution petition before the
District Court, Madikeri, filed the same before this Hon'ble Court
which lacks jurisdiction. On this ground alone the present
execution petition is liable to be dismissed at the threshold.
2. It is respectfully submitted that the judgment debtor
has earlier, with a dispute arose for the first time, with respect
to the above, Joint Development Agreement dated 28-06-2013
had filed Arbitration Application in A.A.No.1/2017 for interim
measure under Section 9(1) of the Arbitration and Conciliation
Act, 1996 before the Hon'ble District Civil and Sessions Judge at
Madikeri. The Decree Holder entered appearance in the above
said proceedings and contested the proceedings. The Decree
Holder, though is well aware that the present proceedings are
not maintainable for lack of jurisdiction, nevertheless to mislead
this Hon'ble Court, chose to file the present Execution Petition.
3. It is relevant to extract the definition of "Court" as
defined in Section 2(e)(1) of the Arbitration and Conciliation Act,
1996:
"2(e). "Court" means--
(i) in the case of an arbitration other than
international commercial arbitration, the principal
Civil Court of original jurisdiction in a district, and
includes the High Court in exercise of its ordinary
original civil jurisdiction, having jurisdiction to
decide the questions forming the subject-matter
of the arbitration if the same had been the
subject-matter of a suit, but does not include any
Civil Court of a grade inferior to such principal
Civil Court, or any Court of Small Causes;
4. Section 42 of the Arbitration and Conciliation Act, 1996
reads as under
"42. Jurisdiction. - Notwithstanding anything
contained elsewhere in this Part or in any other law
for the time being in force, where with respect to an
arbitration agreement any application under this Part
has been made in a Court, that Court alone shall have
jurisdiction over the arbitral proceedings and all
subsequent applications arising out of that agreement
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and the arbitral proceedings shall be made in that
Court and in no other Court."
Since the first application under Section 9(1) of the Arbitration
and Conciliation Act, 1996 was filed and contested before the
Hon'ble District Civil and Sessions Judge at Madikeri, Section 42
mandates that the very same court alone shall have jurisdiction
over the arbitral proceedings and all subsequent applications
arising out of that agreement and the arbitral proceedings shall
be made in that Court. Thus, the Decree Holder ought to have
filed present Execution Petition before the Civil and Sessions
Judge at Madikeri, which alone has jurisdiction in accordance
with Section 42 of the Arbitration and Conciliation Act, 1996.
Hence, the present Execution Petition is liable to be rejected in
the preliminary stage itself for lack of jurisdiction."
(Emphasis added)
The judgment debtor files its written submissions as well, before
the concerned Court specifically invoking Section 42 of the Act with
regard to jurisdiction. The decree-holder also files his written
submissions, in counter, to the written submissions of the judgment
debtor.
10. The written submissions filed by the decree-holder qua
jurisdiction. It reads as follows:
"C. Jurisdiction:
28. The contention raised by the Judgment Debtor
regarding this Hon'ble Court not having jurisdiction is liable to
be rejected in the light of the decision of the Hon'ble Supreme
Court in Sundaram Finance Limited v. Abdul Samad
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reported in (2018) 3 SCC 622, wherein the Hon'ble Supreme
Court has held that the Arbitration Award can be
executed/enforced anywhere in the country.
"20. We are, thus, unhesitatingly of the view
that the enforcement of an award through its
execution can be filed anywhere in the country where
such decree can be executed and there is no
requirement for obtaining a transfer of the decree
from the Court, which would have jurisdiction over the
arbitral proceedings."
29. In the case of Cheran Properties Limited v.
Kasturi and Sons Limited and others : (2018) 16 SCC 413,
the Hon'ble Supreme Court after considering the issue regarding
jurisdiction in the light of various judgments of the Supreme
Court has held as under:
"40... ...
Consequently, in the view of the Court, the enforcement of
an award through its execution can be initiated anywhere in
the country where the decree can be executed and there is
no requirement of obtaining a transfer of the decree from
the court which would have jurisdiction over the arbitral
proceedings."
30. That since the judgment debtor operates their
business in Bangalore they would be subjected to the
jurisdiction of this Hon'ble Court. The Decree Holder in the
execution proceedings has sought for return of the title
documents which are in the custody of the Judgment Debtor and
therefore this Hon'ble Court has jurisdiction.
D. Self-contained code:
The Arbitration and Conciliation Act, 1996 is a self-
contained code. The Arbitration Act serves as a comprehensive
and self-contained legal framework, encompassing various
aspect such as the appointment of arbitrators, initiation of
arbitration proceedings, issuance of awards including their
execution, and the resolution of challenges to arbitral awards.
The primary objective of the Arbitration At is to minimise the
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supervisory role of courts in the arbitration process. Section 5 of
the Arbitration Act commences with the phrase "notwithstanding
anything contained in any other law for the time being in force".
This broad language signifies the legislative intent to curtail
judicial intervention during arbitration. In the specific context of
Section 5 of the Arbitration Act, it mandates that the provisions
outlined in Part-I of the Arbitration Act should be fully effective
and operational, regardless of any other existing laws. The
incorporation of non-obstante clauses by the legislature serves
to eliminate obstacles that might hinder the operation of the
legislation.
Arbitration is designed to achieve a prompt, efficient, and
conclusive resolution of disputes arising between the parties
concerning their substantive obligations. Therefore, the entire
exercise of arbitration undertaken should not be nullified."
Based on the aforesaid pleadings and written submissions, filed by
warring parties, the concerned Court, rejects issue of
maintainability of the execution petition, in terms of its order dated
10-07-2024 which reads as follows:
"REASONS
6. POINT NO.1: The JDR herein objected the I.A.
filed by DHR on two points. Basically, he submitted the
execution petition is not maintainable as this Court has
not got territorial jurisdiction to try execution petition
and the I.A.11 Rule 14 CPC is not maintainable in
execution petition.
Hence, the first point to be considered by this court is
whether this court got territorial jurisdiction to try the
execution petition.
7. In support of his arguments on maintainability of
Execution petition DHR files some authorities wherein, in
Sundaram Finance Limited vs. Abdul Samad and
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another, as per the observations of the Apex Court in para
20, "we are, thus, unhesitatingly of the view that the
enforcement of an award through its execution can be filed
anywhere in the country where such decree can be executed
and there is no requirement for obtaining a transfer of the
decree from the Court, which would have jurisdiction over the
arbitral proceedings." Arbitration award considered as decree.
Hence, the DHR can file the Execution petition in any of the
Civil Courts. Hence as per the observations of the Hon'ble
Apex Court this court concluded that it has got jurisdiction to
try Execution petition.
8.Then regarding the I.A. filed by the DHR under Order
11 Rule 14 CPC, JDR objections cannot be considered and filed
in the Execution petition. On perusal of order 11 Rule 14 of
CPC, yes the application should be filed in the suits as per
provision Order XI Rule 14 of CPC.
14. Production of documents: It shall be lawful for
the Court, at any time during the pendency of any suit, to
order the production by any party thereto, upon oath, of such
of the documents in his possession or power, relating to any
matter in question in such suit, as the court shall think right,
and the Court may deal with such documents, when produced
in such manner as shall appear just.
9. Then as per the provision this I.A. under Order XI
Rule 14 of CPC is not maintainable. Then whether any other
mode available for DHR to seek for the original documents
from JDR for inspection. However, keeping this point in view
when the compromise petition filed by both the parties clause
xxvi "it shall be open to the claimant to inspect the title
deeds from time to time".
10. It is clearly depicts that it shall be open to the
claimant/DHR herein to inspect the title deeds from time to
time. Hence, the compromise petition before the arbitrator
entered by both the parties.
11. Hence by considering the condition No.XXVI
which is mentioned in the compromise petition filed
before Hon'ble Arbitrator the application is maintainable
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even in this Execution petition also. Hence, I proceed to
pass the following:
ORDER
Application filed by DHR under XI Rule 14 of CPC is hereby allowed.
The JDR is hereby directed to produce the original document to the DHR for inspection in order to adjudicate the matter it is better to keep in Court custody."
(Emphasis added)
11. The aforesaid order is challenged before this Court in W.P. No. 20089 of 2024. In the writ petition the petitioner/judgment debtor also seeks for a direction to the concerned Court to consider the application filed under Section 47 of the CPC. The application, under Section 47 of the CPC, was with regard to maintainability of the Execution Petition before the concerned Court, on the strength of Section 42 of the Act. The coordinate bench rejects Writ Petition No, 20089 of 2024 by the following order:
"The petitioner, a developer who had entered into an agreement of development with the respondent is before this court aggrieved of the impugned order at Annexure-A passed by the Executing Court, directing the petitioner herein to deposit the original documents belonging to the respondent herein, for inspection in order to adjudicate the matter and it was directed that it 15 would be better to keep the documents in the court custody.
2. The brief facts that being the parties before this court is that when the respondent went before the Arbitral Tribunal seeking adjudication of the disputes between the parties arising of the agreement that was entered into between the parties at an undisputed point of time. It appears that a compromise petition was filed by the parties and the Arbitral Tribunal passed an order on 22.09.2018 in AC No.44/2018 on the basis of the Memorandum of Understanding signed by the parties and respective learned advocates, wherein it was recorded that the parties are present before the Tribunal and they are identified by their respective learned advocates. It was recorded that the parties have stated that they have entered into the settlement on their own volition and without any duress from anybody. The Tribunal finds that the settlement arrived at is fair and proper and therefore, the arbitration case was disposed of in terms of the memorandum of compromise extracted into the said order.
3. It appears that the respondent thereafter filed a execution case on 15.06.2020 with various prayers including a direction to the judgment debtor to return the original documents in respect of the immoveable properties mentioned in the schedule. Thereafter, on an application filed at the hands of the decree holder under Order XI Rule 14 read with Section 151 of Code of Civil Procedure, the Executing Court has proceeded to pass the impugned order.
4. Learned Senior Counsel appearing for the petitioner seeks to contend that the execution case was filed even before the award could be passed by the Arbitral Tribunal. Moreover, it was pointed out from the memorandum of settlement that the respondent, owner of the property was required to execute a General Power of Attorney in favour of the developer which would then enable the developer to proceed to develop the property in terms of the compromise petition. It is contended that the respondent never executed General Power of Attorney and therefore the respondent could not have approached the Executing Court seeking execution of the award.16
5. Learned Senior Counsel appearing for the respondent however has taken this court through the order sheet maintained by the Arbitral Tribunal and has submitted that the Arbitral Tribunal disposed of the arbitration case on 22.09.2018 in terms of the memorandum of settlement filed by the parties. However, subsequently the respondent wanted the award to be registered in the office of jurisdictional Sub-Registrar. However, it was informed to the respondent that the award was not in the format prescribed and therefore it was not possible for the registering authority to register such a document. It is thereafter that the parties once again went before the Arbitral Tribunal and subsequently an order and award was passed on 14.12.2021. The learned Senior Counsel would therefore submit that there is no substance in the contention of the learned counsel for the petitioner that execution case was filed even before the award was passed by the Arbitral Tribunal. Learned Senior Counsel would also add on instructions that respondent has executed a Power of Attorney as required in terms of memorandum of settlement.
6. Having heard the learned Senior Counsels on both the sides and on perusing the petition papers, this court is of the considered opinion that the question as to whether Power of Attorney was executed in terms of the memorandum of settlement and in terms of the award is something which has to be considered by the Executing Court. Nevertheless, the impugned order only requires the petitioner to deposit the original title deeds with the Executing Court. It is also noticeable that in the operative portion of the impugned order it has been directed that the original document would be better keep in the custody of the court.
7. In that view of the matter, this court is of the considered opinion that in the interest of justice it would be required that the petitioner should deposit the original title deeds before the Executing Court and the original documents shall remain in the custody of the court till an enquiry is held and orders are passed by the Executing Court subsequently.17
8. Accordingly, the writ petition stands disposed of directing the petitioner to deposit the original documents before the executing court and the Executing Court shall receive the same and keep the original documents in its safe custody till the enquiry is held into the matter and orders are passed by the Executing Court, in accordance with law."
(Emphasis supplied) The order dated 10-07-2024 quoted supra comes to be affirmed.
12. A S.L.P. is preferred by the judgment debtor in S.L.P.No.19765 of 2024. In the S.L.P. the pleading that is relevant is as follows:
".... .... ....
5.8 The above sequence of events would demonstrate that the Execution Petition was filed in respect of an Order which had no existence in the eyes of law. Therefore, the Executing Court had no jurisdiction to entertain execution proceedings. This is a glaring error which both the Executing Court and the High Court has failed to answer.
5.9 BECAUSE the Hon'ble High Court has failed to appreciate that the Respondent in the guise of an Execution Petition is actually seeking the setting aside of the Arbitration Award.
5.10 That the High Court has failed to see through this stratagem of the Respondent has resulted in a grave miscarriage of justice.
5.11 BECAUSE the Hon'ble Single Judge has failed to appreciate that the Respondent is seeking to question the 18 legality of the Settlement Award in the guise of the Execution Petition which is impermissible in law.
5.12 The only remedy available to a party to an Arbitration Award is to approach the Court under Section 34 of the Arbitration Act, 1996.
5.13 Because the Ld. Single Judge erred in coming to the conclusion that the question as to whether the Power of Attorney was executed in terms of the Award is something which has to be considered by the Executing Court without:
a. Taking into account the fact that the Execution Petition was premature.
b. The terms and conditions of the compromise dated 22-09-2018 was still in force.
c. That the judgment Debtor/Petitioner filed detailed objections to the Execution Petition and also an Application under Section 47 of the CPC, which is currently pending and has not yet been disposed off.
5.14 BECAUSE the Hon'ble single Judge and the Executing Court failed to appreciate that the Execution Application filed prior to the Settlement Award and therefore does not survive for adjudication once the Order has been passed.
5.15 BECAUSE the Hon'ble Single Judge failed to appreciate that the Execution proceedings from which the Impugned Order arises was based on an Application under Order 11 Rule 14 which is only confined to suits and not to execution proceedings. Therefore, the Hon'ble Single Judge erred in directing for the Petitioner to deposit title deeds in such a misconceived application.
5.16 BECAUSE the Hon'ble Single Judge failed to appreciate that the Petitioner has already executed various development works contemplated by the Memorandum of Compromise and that such efforts made by the Petitioner is being sought to be undone by way of 19 Execution Proceedings which itself is wholly without jurisdiction.
5.17. BECAUSE the proceedings before the Executing Court is a contravention to Sections 30, 34 and 42 of the Arbitration Act, 1996. An Executing Court cannot decide the legality of an Award passed in terms of Section 30 of the Arbitration Act. An Executing Court does not have the jurisdiction to indirectly interfere in an Arbitration Award.
5.18 Furthermore, the jurisdiction of an Executing Court is ousted in view of Section 42 of the Arbitration and Conciliation Act, 1996 as the Petitioner has preferred an application under Section 9 of the Arbitration Act, 1996 and that Court alone has jurisdiction to determine questions arising from the Arbitration.
5.19 BECAUSE the Executing Court has no jurisdiction to consider any question regarding the interpretation of the Arbitration Award as under Section 33 of the Act, only the Arbitrator is empowered to interpret any part of the Arbitral Award."
(Emphasis supplied) Before the Apex Court the judgment-debtor withdrew the petition.
The order passed by the Apex Court is as follows:
"Dr. A.M.Singhvi, learned senior counsel, after arguing at some length, seeks permission to withdraw this petition.
Permission is granted.
The special leave petition is, accordingly dismissed as withdrawn."
(Emphasis supplied) 20 Permission was sought to withdraw the petition. However, no liberty was sought to re-agitate the issue.
RES JUDICATA:
13. It now becomes necessary to notice Section 11 of the CPC. Section 11 deals with res judicata. It reads as follows:
"11. Res judicata.--No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and 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.
Explanation I.--The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
Explanation II.--For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III.--The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV.--Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.21
Explanation V.--Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
Explanation VI.--Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
Explanation VII.--The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII.--An issue heard and finally decided by a court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised."
Interpretation of Section 11 CPC need not detain this Court for long or delve deep into the matter. Plethora of judgments are rendered by the Apex Court and constitutional Courts interpreting Section 11 CPC, but with particular reference to constructive res judicata. The Apex Court in the case of S. RAMACHANDRA RAO v. S. NAGABHUSHANA RAO1, has held as follows:
".... .... ....
22. The doctrine of res judicata, having a very ancient history, embodies a rule of universal law and is a sum total of 1 2022 SCC OnLine SC 1460 22 public policy reflected in various maxims like 'res judicata pro veritateoccipitur', which means that a judicial decision must be accepted as correct; and 'nemo debet bis vexari pro una et eadem causa', which means that no man should be vexed twice for the same cause. The ancient history of this doctrine and its consistent recognition could well be underscored with reference to the following statement of law in the case of Sheoparsan Singh v. Ramnandan Prasad Narayan Singh, AIR 1916 PC 78:--
"...But in view of the arguments addressed to them, their Lordships desire to emphasise that the rule of res judicata, while founded on ancient precedent, is dictated by a wisdom which is for all time.
"'It has been well said,' declared Lord Coke, 'interest reipublicoeut sit finislitium, otherwise great oppression might be done under colour and pretence of law'".-(6 Coke, 9 A.) Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu commentators. Vijnanesvara and Nilakantha include the plea of a former judgment among those allowed by law, each citing for this purpose the text of Katyayana, who escribes the plea thus:"If a person though defeated at law sue again he should be answered, 'You were defeated formerly. This is called the plea of former judgment." [See "The Mitakshara(Vyavahara)," Bk. II, ch. I, edited by J. R. Gharpure, p. 14, and "The Mayuka," Ch. I, sec. 1, p. 11 of Mandlik's edition.] And so the application of the rule by the Courts in India should be influenced by no technical consideration of form, but by matter of substance within the limits allowed by law."
(emphasis supplied)
23. The contours of this doctrine of res judicata and its application could be taken into comprehension by a reference to the Constitution Bench decision of this Court in the case of Daryao v. State of U.P., AIR 1961 SC 1457. In that case, after the writ petitions filed before the High Court of Allahabad under Article 226 of the Constitution of India were dismissed, the petitioners filed substantive petitions in this Court under Article 32 of the Constitution of India for the same relief and on the same grounds. In such petitions, this Court upheld the 23 objection that the decision of the High Court would operate as res judicata while observing, inter alia, as under:--
"(9) But, is the rule of res judicata merely a technical rule or is it based on high public policy? If the rule of res judicata itself embodies a principle of public policy which in turn is an essential part of the rule of law then the objection that the rule cannot be invoked where fundamental rights are in question may lose much of its validity. Now, the rule of res judicata as indicated in S. 11 of the Code of Civil Procedure has no doubt some technical aspects, for instance the rule of constructive res judicata may be said to be technical; but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Art. 32.
(10) In considering the essential elements of res judicata one inevitably harks back to the judgment of Sir William B. Hale in the leading Duchess of Kingston's case, 2 Smith Lead Cas. 13th Ed. pp. 644, 645. Said Sir William B. Hale "from the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true : First, that the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties, upon the same matter, directly in question in another court; Secondly, that the judgment of a court of exclusive jurisdiction, directly upon the point, is in like manner conclusive upon the same matter, between the same parties, coming incidentally in question in another court for a different purpose." As has been observed by Halsbury, "the doctrine of res judicata is not a technical doctrine applicable only to records; it is a fundamental doctrine of all courts that there must be an end of litigation", Halsbury's Laws of England, 3rd Ed., Vol. 15, Paragraph 357, p. 185. Halsbury also adds that the doctrine applies equally in all courts, and it is immaterial in what 24 court the former proceeding was taken, provided only that it was a court of competent jurisdiction, or what form the proceeding took, provided it was really for the same cause"
(p. 187, paragraph 362). "Res judicata", it is observed in Corpus Juris, "is a rule of universal law pervading every well regulated system of jurisprudence, and is put upon two grounds, embodied in various maxims of the common law; the one, public policy and necessity, which makes it to the interest of the State that there should be an end to litigation
-- interest republicaeut sit finislitium; the other, the hardship on the individual that he should be vexed twice for the same cause -- nemo debet bis vexari pro eadem causa", Corpus Juris, Vol. 34, p. 743.....
(11) The same question can be considered from another point of view. If a judgment has been pronounced by a court of competent jurisdiction it is binding between the parties unless it is reversed or modified by appeal, revision or other procedure prescribed by law. Therefore, if a judgment has been pronounced by the High Court in a writ petition filed by a party rejecting his prayer for the issue of an appropriate writ on the ground either that he had no fundamental right as pleaded by him or there has been no contravention of the right proved or that the contravention is justified by the Constitution itself, it must remain binding between the parties unless it is attacked by adopting the procedure prescribed by the Constitution itself. The binding character of judgments pronounced by courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis. As Halsbury has observed:"subject to appeal and to being amended or set aside a judgment is conclusive as between the parties and their privies, and is conclusive evidence against all the world of its existence, date and legal consequences" Halsbury's Laws of England, 3rd Ed., Vol. 22, p. 780 paragraph 1660.
(emphasis supplied)
24. It is also equally relevant to reiterate that Section 11 CPC is not the foundation of the doctrine of res judicata but is merely the statutory recognition thereof and, hence, is not considered exhaustive of the general principles of law. This doctrine, it is recognised, is conceived in larger public interest and is founded on 25 equity, justice and good conscience. These aspects were tersely put by this Court in the case of Lal Chand (dead) by L.Rs. v. Radha Krishan, (1977) 2 SCC 88 in the following words:
"19. ... The fact that Section 11 of the Code of Civil Procedure cannot apply on its terms, the earlier proceeding before the competent authority not being a suit, is no answer to the extension of the principle underlying that section to the instant case. Section 11, it is long since settled, is not exhaustive and the principle which motivates that section can be extended to cases which do not fall strictly within the letter of the law. The issues involved in the two proceedings are identical, those issues arise as between the same parties and thirdly, the issue now sought to be raised was decided finally by a competent quasi- judicial tribunal. The principle of res judicata is conceived in the larger public interest which requires that all litigation must, sooner than later, come to an end. The principle is also founded on equity, justice and good conscience which require that a party which has once succeeded on an issue should not be permitted to be harassed by a multiplicity of proceedings involving determination of the same issue...."
(emphasis supplied)"
(Emphasis supplied) Elaborating a little, in its latest judgement, in the case of CELIR LLP v. SUMATI PRASAD BAFNA2, the Apex Court applies Henderson principle, the principle which bars parties from raising new arguments, that could or should have been raised earlier, in the same proceeding. The Apex Court holds as follows:
".... .... .... 2 2024 SCC Online SC 3727 26
144. From the above exposition of law, it is clear that the 'Henderson Principle' is a core component of the broader doctrine of abuse of process, aimed at enthusing in the parties a sense of sanctity towards judicial adjudications and determinations. It ensures that litigants are not subjected to repetitive and vexatious legal challenges. At its core, the principle stipulates that all claims and issues that could and should have been raised in an earlier proceeding are barred from being raised in subsequent litigation, except in exceptional circumstances. This rule not only supports the finality of judgments but also underscores the ideals of judicial propriety and fairness.
145. There are, four situations where in second proceedings between the same parties doctrine res judicata as a corollary of the principle of abuse of process may be invoked : (i) cause of action estoppel, where the entirety of a decided cause of action is sought to be relitigated; (ii) issue estoppel or, "decided issue estoppel," where an issue is sought to be relitigated which has been raised and decided as a fundamental step in arriving at the earlier judicial decision; (iii) extended or constructive res judicata i.e., "unraised issue estoppel," where an issue is sought to be litigated which could, and should, have been raised in a previous action but was not raised; (iv) a further extension of the aforesaid to points not raised in relation to an issue in the earlier decision, as opposed to issues not raised in relation to the decision itself."
(Emphasis supplied) In the light of the judgments in RAMACHANDRA RAO and CELIR LLP supra, a subsequent ground that ought to have been raised and considered earlier in a proceeding, cannot be raised yet again after the dismissal of the earlier petition, as it would be barred by 27 constructive res judicata. Constructive res judicata is formulated for litigation to attain finality and to bar repeated vexatious arguments.
Same goes with Henderson principle. The Apex Court, in the afore-
quoted judgment, considers four circumstances, where a second proceeding between the same parties, cannot emerge on a new ground or a ground that was left being agitated, as it would be hit by unraised issue estoppel, which would mean, that an issue that ought to have been raised or raised and not urged, cannot be raised in a subsequent litigation between the same parties.
14. A party cannot be permitted to pick and choose the issues, whenever he approaches the Court by filing multiple petitions. The Apex Court in the very same judgment, CELIR LLP holds, that if such a process is permitted, it would on the face of it become an abuse of the process of law. The Apex Court has held as follows:
".... .... ....
149. Piecemeal litigation where issues are
deliberately fragmented across separate proceedings to gain an unfair advantage is in itself a facet of abuse of process of law and would also fall foul of this principle. Merely because one proceeding initiated by a party differs 28 in some aspects from another proceeding or happens to be before a different forum, will not make the subsequent proceeding distinct in nature from the former, if the underlying subject matter or the seminal issues involved remains substantially similar to each other or connected to the earlier subject matter by a certain degree, then such proceeding would tantamount to 'relitigating' and the Henderson Principle would be applicable.
150. Parties cannot be allowed to exploit procedural loopholes and different foras to revisit the same matters they had deliberately chosen not to pursue earlier. Thus, where a party deliberately withholds certain claims or issues in one proceeding with the intention to raise them in a subsequent litigation disguised as a distinct or separate remedy or proceeding from the initial one, such subsequent litigation will also fall foul of this principle."
(Emphasis supplied)
15. A three Judge Bench of the Apex Court in the case of UNION OF INDIA v. MAJOR S.P. SHARMA3, has held as follows:
".... .... ....
81. Thus, the principle of finality of litigation is based on a sound firm principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law inasmuch as there will be no end to litigation. The doctrine of res judicata has been evolved to prevent such anarchy.
82. In a country governed by the rule of law, the finality of a judgment is absolutely imperative and great sanctity is attached to the finality of the judgment and it is not permissible for the parties to reopen the concluded judgments of the court as it would not only tantamount to merely an abuse of the process of the court but would have 3 (2014) 6 SCC 351 29 far-reaching adverse effect on the administration of justice. It would also nullify the doctrine of stare decisis, a well- established valuable principle of precedent which cannot be departed from unless there are compelling circumstances to do so. The judgments of the court and particularly of the Apex Court of a country cannot and should not be unsettled lightly.
... ... ...
86. While dealing with the issue this Court in Ambika Prasad Mishra v. State of U.P. [(1980) 3 SCC 719 : AIR 1980 SC 1762] held as under : (SCC p. 723, para 6) "6. It is wise to remember that fatal flaws silenced by earlier rulings cannot survive after death because a decision does not lose its authority 'merely because it was badly argued, inadequately considered and fallaciously reasoned'."
... ... ...
88. Mrs Kiran Suri, learned counsel appearing for the respondent, put heavy reliance on a decision of this Court in Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy [(1970) 1 SCC 613] for the proposition that the question relating to the jurisdiction of a court cannot be deemed to have been finally determined by an erroneous decision of the court. Further, by an erroneous decision if the court resumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties whether the cause of action in the subsequent litigation is same or otherwise. In our opinion, the aforesaid decision is of no help to the respondent for the simple reason that the facts and the law involved in the instant case and the earlier round of litigation are the same. In para 5 of the aforesaid judgment, this Court has laid down the principle, which reads as under : (SCC p. 617) "5. But the doctrine of res judicata belongs to the domain of procedure : it cannot be exalted to the status of a legislative direction between the parties so as to determine the question relating to the interpretation of enactment affecting the jurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact and relating to the right in dispute between the parties has been determined thereby. A decision of a competent court on a matter in issue may be res judicata in 30 another proceeding between the same parties : the 'matter in issue' may be an issue of fact, an issue of law, or one of mixed law and fact. An issue of fact or an issue of mixed law and fact decided by a competent court is finally determined between the parties and cannot be reopened between them in another proceeding. The previous decision on a matter in issue alone is res judicata : the reasons for the decision are not res judicata. A matter in issue between the parties is the right claimed by one party and denied by the other, and the claim of right from its very nature depends upon proof of facts and application of the relevant law thereto. A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue. When it is said that a previous decision is res judicata, it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between the same parties. A previous decision of a competent court on facts which are the foundation of the right and the relevant law applicable to the determination of the transaction which is the source of the right is res judicata. A previous decision on a matter in issue is a composite decision : the decision on law cannot be dissociated from the decision on facts on which the right is founded. A decision on an issue of law will be as res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the court to try the earlier proceeding, nor when the earlier decision declares valid a transaction which is prohibited by law."
... ... ...
91. The term "dismissal" in the original order was substituted by the term "termination" issuing the corrigendum to ratify a mistake committed while issuing the order. In fact, the competent authority had taken a decision only to terminate, and therefore it was found necessary to issue the corrigendum. However, in view of such substitution of the word "dismissal" by the term "termination", does not tilt the balance in favour of the respondents. More so, as pointed out by Mr Paras Kuhad, learned Additional Solicitor General that the proposed 5% deduction had been withdrawn, and therefore the issue did not survive."
(Emphasis supplied) 31 The Apex Court holds that if grounds that are urged and given up are permitted to be agitated all over again, it would amount to confusion and chaos and finality of proceedings would cease to have any meaning.
POWER TO RECALL THE ORDER:
16. The learned senior counsel for the petitioner would contend that Section 151 of the CPC empowers the concerned Court with such inherent powers to recall the order and therefore, the Court ought to have recalled the order, in exercise of its power under Section 151 of the CPC. The submission is sans countenance, as such powers are cases marred by fraud, palpable miscarriage of justice and procedural oversight. None of these are even remotely evidenced in the case at hand. Under what circumstances said power should be exercised is considered by the Apex Court in the case of BUDHIA SWAIN v. GOPINATH DEB4, wherein the Apex Court holds as follows:
".... .... ....
6. What is a power to recall? Inherent power to recall its own order vesting in tribunals or courts was noticed in Indian 4 (1999) 4 SCC 396 32 Bank v. Satyam Fibres (India) (P) Ltd. [(1996) 5 SCC 550] Vide para 23, this Court has held that the courts have inherent power to recall and set aside an order
(i) obtained by fraud practised upon the court,
(ii) when the court is misled by a party, or
(iii) when the court itself commits a mistake, which prejudices a party.
In A.R. Antulay v. R.S. Nayak [(1988) 2 SCC 602 : 1988 SCC (Cri) 372 : AIR 1988 SC 1531, para 130] (vide para 130), this Court has noticed motions to set aside judgments being permitted where
(i) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all and was shown as served or in ignorance of the fact that a necessary party had died and the estate was not represented,
(ii) a judgment was obtained by fraud,
(iii) a party has had no notice and a decree was made against him and such party approaches the court for setting aside the decision ex debito justitiae on proof of the fact that there was no service.
7. In Corpus Juris Secundum (Vol. XIX) under the chapter "Judgment --Opening and Vacating" (paras 265 to 284, at pp. 487-510) the law on the subject has been stated. The grounds on which the courts may open or vacate their judgments are generally matters which render the judgment void or which are specified in statutes authorising such actions. Invalidity of the judgment of such a nature as to render it void is a valid ground for vacating it at least if the invalidity is apparent on the face of the record. Fraud or collusion in obtaining a judgment is a sufficient ground for opening or vacating it. A judgment secured in violation of an agreement not to enter a judgment may be vacated on that ground. However, in general, a judgment will not be opened or vacated on grounds which could have been pleaded in the original action. A motion to vacate will 33 not be entered when the proper remedy is by some other proceedings, such as by appeal. The right to vacation of a judgment may be lost by waiver or estoppel. Where a party injured acquiesces in the rendition of the judgment or submits to it, waiver or estoppel results.
8. In our opinion a tribunal or a court may recall an order earlier made by it if
(i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent,
(ii) there exists fraud or collusion in obtaining the judgment,
(iii) there has been a mistake of the court prejudicing a party, or
(iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented.
The power to recall a judgment will not be exercised when the ground for reopening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence."
(Emphasis supplied) The Apex Court holds that power to recall a judgment will not be exercised when the ground for reopening the proceedings or vacating the judgment was available to be pleaded in the original 34 application, but was not done. The invocation of Section 151 CPC in such a context is neither tenable nor proper. The provision meant to uphold ends of justice cannot become a conduit for repetitive and vexatious litigation. The judgment, in the case of BUDHIA SWAIN supra cautions against such misuse.
17. Insofar as the judgements relied on by the learned counsel for the judgment debtor in the cases of STATE OF WEST BENGAL v. ASSOCIATED CONTRACTORS reported in (2015) 1 SCC 32 and MOHIT BHARGAVA v. BHARAT BHUSHAN BHARGAVA reported in (2007) 4 SCC 795 and others, there can be no qualm about the principles laid down by the Apex Court in the afore-quoted judgments. The judgment in the case of ASSOCIATED CONTRACTORS is considered in the subsequent judgment i.e., in the case of SUNDARAM FINANCE LIMITED supra and the other judgment in the case of MOHIT BHARGAVA and they would not become applicable to the facts of the case at hand. Therefore, the judgments so relied on by the learned senior counsel for the petitioner would lend no assistance in buttressal of his submissions. On the other hand, the Authorities that have fallen 35 from the arsenal of the learned counsel appearing for the respondent are overwhelming to the judgments relied on by the learned senior counsel for the petitioner.
18. The contention of the learned senior counsel is that this Court can now entertain the plea of jurisdiction as that is not considered by the coordinate Bench. I decline to accept the said submission. The petitioner having exhausted every conceivable avenue from the Executing Court to this Court and finally to the Apex Court, where even the last refuge was abandoned without liberty, now seeks to breathe life into a contention already laid to rest. It must be noted with concern that the petitioner's conduct is not merely a legal misadventure, but borders on abuse of judicial process.
What the petitioner now seeks is not justice, but indulgence, not for correction of any error, but perpetuation of delay.
The petitioner projects a plea, though dressed anew, smacks of staleness and artifice. The attempt to repackage previously rejected argument or arguments that are previously given up with cosmetic, linguistic change, cannot 36 but be termed, to be an abuse of the process of the law. The doctrine of constructive res judicata, as elucidated by the Apex court in the afore-quoted judgment, unequivocally forecloses the present attempt. Judicial time, precious it is, already exhausted in the matter cannot be again diverted, to what is clearly a closed chapter. This Court, cannot permit litigation, to be transformed into a theatre of endless grievance. In the light of the foregoing analysis and the authoritative pronouncements quoted, this Court finds no infirmity, let alone perversity, in the order impugned.
19. The issue is return of the original documents. In terms of the agreement, both the decree holder and the judgment debtor have exchanged original documents. Having suffered a decree, the judgment debtor is dodging the issue of return of documents. As noted hereinabove, it is undoubtedly an abuse of the process of law by the judgment debtor to somehow drag on the proceedings.
Section 42 of the Act no doubt renders jurisdiction to a Court to entertain an execution petition. The said plea having been turned 37 down, this Court finds no warrant to interfere with the order that is now passed which does not indicate any perversity.
20. Petition lacking in merit stands rejected, with costs of ₹1,00,000/- to be paid by the petitioner/judgment debtor to the respondent/decree holder. Interim order, if any operating, shall stand dissolved.
Consequently, I.A.No.1 of 2025 also stands disposed.
SD/-
(M.NAGAPRASANNA) JUDGE bkp CT:SS