The Hissar Geeta Cooperative House Building Society vs Shri Jeewandhar Jain and Others

K. Kannan, J.—The revision is against the order dismissing the suit on the basis of objection filed by the defendants on an application moved under Order 7 Rule 11 CPC.

The contention of the Counsel for the petitioner is that an application under Order 7 Rule 11 CPC which entails rejection of plaint could not have applied for dismissal. He refers to decision in judgment of Kerala High Court reported in Anil Kumar v. Vijayalakshmi 2007 (5) R.C.R. 299 (Civil) that provision of Order 7 Rule 11 CPC enables Court to reject the plaint and does not give the power to dismiss the suit. I have no difficulty in accepting the contention that a reference by the Court below that the suit is dismissed, in the application filed for the execution is not in accordance with law.

The point to be considered is whether there existed a ground for such rejection although euphemistically worded as dismissal of the suit. The Court below has stated that the plaintiff himself has filed an application in execution objecting to the enforceability of the decree which the defendants have purported to have obtained in respect to the very same property. A right to object to the enforceability of a decree of even a third party is preserved under Order 21 Rule 97 CPC, which though contains words that would same like a right to apply for removal obstruction caused by a third party when a decree holder applies for execution, the Supreme Court held in the decision reported in Brahma Deo Chaudhary v. Rishikesh Prasad Jaisal (1997) 3 S.C.C. 699 that even a third party could seek for an adjudication under Order 21 Rule 97 and the provisions must be read in a fashion that would allow for adjudication regarding title to the property. That such an adjudication is possible could have seen from the language under Order 21 Rule 101 which states all the question including questions relating to right, title and interest of the property arising between the parties to a proceedings on an application under Rule 97 and Rule 99 and relevant to the adjudication of the application shall be determined by the Court. See also: decisions in Shreenath and Another Vs. Rajesh and Others, ; Ashan Devi and Another Vs. Phulwasi Devi and Others, . If the plaintiffs have already filed an objection before the Executing Court and had invited an adjudication, a suit in respect to the very same subject matter is a needless duplication. The claim to title which a person seeks in execution is not an illusory remedy for an order passed on the question of title which is to be determined is in the nature of a decree as seen from the language employed under Order 21 Rule 103 CPC. The plaintiff who can obtain such an adjudication of title and who will have a remedy of an appeal by treating the order as a decree will not be a person competent to file also a suit in respect to the very same subject matter. The dismissal of the petition by the Court that the subject matter is the very same one that calls consideration in execution filed at instance of the plaintiff in the decree obtained by the defendants.

Counsel for the petitioner refers to a decision of this Court reported in Rajesh Grover Vs. Smt. Rita Khurana and Others, that the Court should be circumspect in rejecting a plaint at the threshold as it entails very serious consequences. Circumspection, there has been,-in this case that the Court has ensured that there is no needless duplication of proceedings regarding person who has opted for a particular remedy by resorting to the very same Court which has granted the decree in favour of the defendant. Learned Counsel also refers to the decision of the Delhi High Court in Suresh Kakkar and Anr. v. Mahender Nath Kakkar and Ors. 2009 (1) R.C.R. (Civil) 788 wherein the Court while dealing with the provisions for rejection of plaint under Order 7 Rule(d) CPC has stated that a plea by the defendant that the suit is barred under Order 2 Rule 2 CPC could not be taken as a ground for rejection but the Court should frame an issue with regard to identity of the suit and the execution that would constitute a bar under Order 2 Rule 2 CPC and dispose of case on such an issue. We are not governed by a similar situation as the decision that was dealt with by the Delhi High Court. The rejection of the plaint that has been made by Court below cannot in any way prejudice the plaintiff for his right to seek for his adjudication to seek the matter referred to above. The plaintiff must be deemed to have elected to seek adjudication before the Executing Court and hence he was barred in law from filing a fresh suit on the same cause of action.

This Civil Revision is, therefore, dismissed.