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Judgment
Prafulla C. Pant, J.—Heard learned Counsel for the appellant/third party.
This second appeal, preferred u/s 100 of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 17th of July 2009, passed by the District Judge, Tehri Garhwal, in Civil Appeal No. 04 of 2008, filed by the defendants, whereby the judgment and decree dated 30th of August 2007, passed by the trial court (Civil Judge (Senior Division), Tehri Garhwal), in Suit No. 58 of 2005, decreeing the suit of the plaintiffs, is affirmed.
Brief facts of the case are that, the plaintiffs Janki Devi and Sona Devi (who are the present respondents No. 1 and 2) instituted the suit for declaration and injunction claiming title over certain land, acquired by the State Government for construction of Tehri Dam. They had sought the declaration that they are entitled to compensation and other benefits in respect of the land acquired. The suit was contested by the State of Uttarakhand, who was defendant No. 1 in said suit (in the present appeal said party has been arrayed as respondent No. 7). After framing the issues and recording the evidence, the trial court decreed the suit. The State of Uttarakhand preferred Civil Appeal No. 04 of 2008, before the District Judge, Tehri Garhwal. Said court, after hearing the parties, dismissed the appeal. The present appellant before this Court, who has challenged the orders passed by the trial court and the first appellate court, was not a party to the suit or the appeal. Appellant is Tehri Hydro Development Corporation Ltd., who has challenged the decree passed by the courts below, seeking leave of the court by moving Application No. 8963 of 2009, on the ground that, ultimately, it is the Tehri Hydro Development Corporation Ltd. (present appellant) who would be affected by the decree, as the State Government would recover the amount of compensation and the cost of other benefits from the present appellant.
It is settled principle of law that only the parties to the suit are bound by the decree passed in the suit except the case where it is a judgment in rem. An execution cannot lie against the party who was not a party in the suit or who is not legal representative of such a party. If the execution proceedings are drawn against the third party, who was neither a party in the suit nor is the legal representative, such party may raise the objection that the decree is not executable against it. When a decree is not executable against a person, he cannot be said to be an affected party by the decree passed by the court.
Learned Counsel for the present appellant/third party drew attention of this Court to the case of U.P Awas Evam Vikas Parishad Vs. Gyan Devi (Dead) by L.Rs. and another, etc. etc., , and argued that Tehri Hydro Development Corporation Ltd. (present appellant) for whom the land in question was acquired, has a right to file the appeal, as ultimately it is the present appellant who is finally going to be affected by the execution of the decree. I have gone through said case law. The aforesaid referred case relates to the proceedings and the appeal under the Land Acquisition Act, 1894. That was not a case in which a decree was passed in a regular suit. The decree is passed against the defendants which includes the State of Uttarakhand. Of course, the ultimate affected party is Tehri Hydro Development Corporation Ltd., as such, it should have been impleaded as a party by the plaintiffs in the suit. Once the plaintiffs have failed to implead it as a party, it cannot get the decree executed against the Tehri Hydro Development Corporation. The State of Uttarakhand has not preferred any appeal, till now.
In the above circumstances, leave to appeal is rejected with the observation that as against Tehri Hydro Development Corporation Ltd. (present appellant/applicant) the decree has no force in law. With the above observation the memorandum of appeal also stands rejected. (Stay Application No. 8958 of 2009 also stands dismissed).