Bali Mohammed vs Nek Ram Sharma

Anil Sharma, J.—Arguments heard. This Miscellaneous Appeal has been filed under Order 43 Rule 1 of C.P.C. against the order dated 04.04.2012 passed in Civil Suit No. 03-A/12 by learned Tenth Additional District Judge, Gwalior, M.P. whereby suit filed by the appellants challenging the judgment and decree dated 31.03.2003 passed in Civil Suit No. 81-A/02 by learned First Civil Judge, Class I, Gwalior, on the ground of fraud, has been dismissed by allowing the application under Order 7 Rule 11 (d) of C.P.C.

Learned counsel for the appellants has submitted that learned trial Court has erred in dismissing the suit under Order 7 Rule 11 of C.P.C. as the provisions of Order 7 Rule 11 does not apply to the suit filed by the plaintiffs and the learned trial Court has not justified in dismissing the suit on the ground of res judicata without perusing the judgment and decree passed in Civil Suit No. 81-A/02.

Learned counsel for the respondent has submitted that suit of appellants/plaintiffs has been dismissed under Order 7 Rule 11(d) of C.P.C. on the ground that counter claim filed by the appellants in Civil Suit No. 81-A/02 has been confirmed in First Appeal and Second Appeal. In execution proceedings, the Executing Court for appointment of a fresh Commissioner for ascertaining whether the southern wall of the plaintiffs'' house is included in the area of 13 ft. 3 inch of the house of decree holder or not, does not required any interference.

Since the counter claim of appellants in Civil Suit No. 81-A/02 has been dismissed, therefore, again a suit on the same ground for the same property on the ground of fraud is not maintainable otherwise there will be no end to the litigation.

Learned counsel for the respondent has cited a judgment of this Court in the matter of Mohd. Ayub Khan (Since deceased, through L.Rs. ) Vs. Ashif Ali and others, in which it has been held that if a person is objecting to the execution of a decree, he has a remedy to file an application/objection under Order 21 Rules, 97, 101 and 103 of C.P.C. separate suit is not maintainable.

Learned counsel for the respondent has further submitted that the order passed in Writ Petition No. 7334/2010 is pending in which the order of Execution Court has been challenged by the appellants Bali Mohammad. The appeal has been registered on 18.06.2012 and the appellants have not mentioned this fact that Writ Petition against the order of Execution Court is pending in the High Court. Considering the facts that plaintiffs/appellants were required to file objection under Order 21 Rules 97, 101 and 102 of C.P.C. and suit in which appellants have not only been party but filed a counter claim also cannot be challenged by them on the ground of fraud as the judgment and decree has been passed after hearing both the parties. Therefore, such a suit filed by the appellants challenging the judgment and decree passed in Civil Suit No. 81-A/02 is not maintainable. Therefore, learned trial Court has not committed any error in dismissing the suit under Order 7 Rule 11 (d) of C.P.C. Therefore, appeal is dismissed.