Stanley Joseph Nazareth vs Roby and Ors.

Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsel appearing for the parties.

The present petition challenges two orders passed below Exh.-122 and 123. Exh.-122 is an application by the respondent to suspend the proceedings of MJC No.287/1993 till the decision of Special Civil Suit No.1058/2022. While Exh.-123 is an application for permitting the present respondents to intervene in the execution proceedings MJC No.287/1993. Vide impugned orders passed by the trial Court both the applications have been allowed. Both these orders have been assailed before in the present petition.

Factual aspect which is more or less undisputed can be stated as under.

A Special Civil Suit bearing No.545/1991 wherein the present petitioner was the original plaintiff was decreed on 23.7.1993 wherein the present petitioner/original plaintiff was granted 1/3^rd share in the property. It is the contention of the present respondent that the present petitioner being his landlord has entered into an agreement to sell qua the subject property. It is in that circumstances initially an application was filed under Order 21 Rule 58 of the Civil Procedure Code, wherein following prayers were made :

The said application was rejected by the executing Court on 1^st February, 2016. A Review was filed under the provisions of Order 47 Rule 1 of the Civil Procedure Code which also came to be rejected vide Order dated 22^nd April 2022. Being aggrieved by this, the matter was carried to this Court by filing a Writ Petition bearing No.3597/2022. This Court vide judgment dated 1^st July, 2022 dismissed the writ petition. Thus, the prayer made in the initial application filed under Order 21 Rule 58 came to be rejected upto this Court. In the backdrop of these facts, the respondent herein after considerable period of time filed application at Exh.-122 praying for following reliefs.

The said application came to be allowed by executing Court vide order dated 13^th December, 2023. Likewise, the application below Exh.-123 was also filed praying for following reliefs :

This application also came to be allowed by the executing Court vide order of the even date. As I have stated supra, both these orders are subject matter of challenge to this petition.

I have heard Mr. J.J. Chandurkar, learned counsel for the petitioner and Mr. Ajit M. Adtani, learned counsel for the respondent No.1.

Mr. Chandurkar by taking me through the order passed on the previous application submits that all the grounds raised in the applications which have been allowed below Exh.-122 and 123 were already raised in the previous applications and they have been elaborately dealt with and negated by the Court. He, therefore, prays that such an issue which have attained finality cannot be raised up again and again. He, therefore, submits that the trial Court has gravely erred in allowing the applications.

Per contra, Mr. Adtani, learned counsel counter the submission. He submits that the earlier applications were rejected only on a technical ground since the property has not been partitioned. He also submits that an enforceable right qua the agreement accrued to the respondents herein and, therefore, he was correct in filing the applications for suspending the proceedings as also for intervening in the said proceeding. He, therefore, supports the impugned order.

I have considered the contentions canvassed by the learned counsel for the respective parties and also gone through the record. As far as order below Exh.-122 is concerned the same was an application for staying the proceeding of the MJC. The said order does not take into consideration the earlier orders passed by this Court and the concept of interlocutory res-judicata as spelt out by this Court and the Hon'ble Apex Court from time to time. As per the said concept, the doctrine of res judicata would even apply to the same proceedings. The doctrine is aimed to prohibit successive applications being filed on the same cause of action and the same set of facts and aimed to give finality to the order passed even during even at the interlocutory stage.

As has been held by the Hon'ble Supreme Court in a recent judgment reported in the case of B.S. Lalitha and others vs. Bhuvanesh and others, reported in 2026 SCC OnLine SC 860. The concept of interlocugtory res judicata applies even in the same proceedings. By testing the order passed below Exh.-122, I hardly find any reason given by the trial Court regarding the impact of the earlier orders for the same reliefs being rejected by the Court and the said rejection having been attained finality. A reasoning has been given in para 3 in order passed below Exh.-122 which to my judicial conscious is perverse.

As far as order below Exh.-123 is concerned, the same was an application for permitting the intervenors to be joined as non-applicant No.3 in the proceeding. True, it is that the right of the applicant flows from the agreement, however, that cannot be ipso facto clothe a right to intervene in the proceedings more particularly after a decree is passed. The present respondent is neither a necessary party nor a proper party and, therefore, there is no question of he being joined as an intervenor. Mr. Adtani makes a submission that the share of the present petitioner is put to auction, he would be put to grave injustice and there would not be any right which could not be enforced. The submission even though appealing at first blush to be correct, however, is fallacious on a premise that the provisions of the Specific Relief Act under which the suit is filed by the present respondent would takes care of the situation. Be that as it may, the orders impugned are not sustainable in law, they being perverse in nature, warranting interference in supervisory jurisdiction.

In that view of the matter, following order is passed :