Mehar Singh vs Vidya Parkash (deceased) through his LRs and ors.

S.P. Goyal, J.

The respondents filed an execution application to recover possession of the house in dispute which was dismissed as withdrawn on November 25, 1985. The second application filed by them was again dismissed holding it to be not maintainable, because of the misstatement of certain facts. Thereafter the present third application was filed. The judgmentdebtor raised objection that as the earlier applications have been dismissed as not maintainable, no fresh applications coudl be entertained. The objection was overruled by the impugned order and aggrieved thereby, the judgmentdebtor has came up in this revision.

The learned counsel for the petition contends that the order passed earlier being appealable under Order 43(1) (J), of the Code of Civil Procedure, no second application would be competent. What the learned counsel, in fact, meant to say was that the impugned order operates as res judicata by virtue of the provisions of section 11, explanation 7 and therefore, a fresh application would be barred. The contention is wholly misconceived. No issue of fact or law was tried or decided earlier. The order whereby the application was dismissed for some misstatement of fact, can, by no stretch of reasoning, be said to have decided any question of law and fact between the parties. The other contention is that the previous order was appellate under Order 43 Rule 1, because no order was passed under Order 21 Rule 106 by the executing Court. It is well established that any number of execution applications can be filed to execute a decree till the expiry of 12 years or till any order between the parties on merit is passed qua its executability. The impugned order, therefore, suffers from no illegality and this petition is accordingly dismissed. No order as to costs.