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irappa Bhimrao Umate Vs. Shankarappa Bhimrao Umate and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 519 of 1981
Judge
Reported in1982(2)BomCR496
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11; Registration Act, 1908 - Sections 17(2)
Appellantirappa Bhimrao Umate
RespondentShankarappa Bhimrao Umate and ors.
Appellant AdvocateS.C. Bora, Adv.
Respondent AdvocateC.G. Solshe, Adv.
Excerpt:
- - the other part of the decree which did not require registration would very well be executed against the appellants. one cannot be allowed to agitate several time a new point when he had an opportunity to raise a point and he had failed to raise the same......passed by the learned assistant judge, dated september 24, 1980 is erroneous and illegal. the learned judge ought not to have allowed any point which had not been taken in earlier proceeding. the learned judge committed an obvious error in allowing the judgment-debtors to raise the point for the first time after the decision of the high court in appeal no. 382 of 1975. in this view of the matter, the point raised by the judgment-debtors, respondents herein, is barred by constructive res judicata and it is, therefore, the judgment and order passed by the learned assistant judge, dated september 24, 1980 deserves to be set aside.8. in the result, the rule is made absolute. the judgment and order dated september 24, 1980 passed by the learned assistant judge is set aside. the matter is.....
Judgment:

M.P. Kanade, J.

1. This revision application is filed by the original decree-holder to obtain a decree in Regular Civil Suit No. 101 of 1970. During the pendency of the said suit, the matter was referred to the Court for an arbitration and an award was passed by the arbitrator and the same was made by passing a decree in terms of the award.

2. Thereafter a Darkhast, bearing Regular Darkhast No. 35 of 1972 was filed. The judgment-debtors, respondents herein raised certain contentions that the decree was unexecutable because it was preliminary decree and not a final decree. It was also contended that there was some property which was not the subject-matter of the suit having including in the award and a decree has been passed and, therefore, the said decree is not executable.

3. The matter was reached upto High Court and in Second Appeal No. 382 of 1975 this Court by judgment dated March 9, 1978 held that all these objections were technical objections and there was no substance in the contentions.

4. It is, thereafter, the darkhast proceedings were received. When the decree was sought to be executed, the judgement-debtors, respondents herein, raised a further contention that the decree requires to be registered under section 17(2) of the Indian Registration Act. That contention was rejected by the learned Civil Judge (Junior Division), Udgir, by judgment and order dated July 7, 1979. On appeal, the learned Assistant Judge, Latur, by judgment and order dated September 24, 1980 allowed the appeal holding that the part of the decree which includes immovable property which was not the subject-matter of the original suit, is unexecutable for want of registration. The other part of the decree which did not require registration would very well be executed against the appellants. That judgment and decree passed by the learned Assistant Judge is challenged in this revision application.

5. Mr. S.C. Bora, learned Counsel appearing in support of this revision application, contended that the learned Assistant Judge committed an error in allowing the judgment-debtors to raise a plea once again when it has been already decided in appeal by the High Court. The contention raised by the judgment-debtor is barred by the principles of res judicata.

6. Mr. C.G. Solshe, learned Counsel appearing on behalf of the respondent-judgment-debtors, contended that the decree passed by the Civil Court is without jurisdiction, inasmuch as the property mentioned in the decree was not the subject-matter of the suit. It is also argued that the decree requires registration and in the absence of registration of the decree, it is not executable.

7. There must be a finality to a proceeding. One cannot be allowed to agitate several time a new point when he had an opportunity to raise a point and he had failed to raise the same. In an earlier darkhast proceeding certain contentions were taken by the judgment-debtors and they have finally decided by the courts upto the High Court. A point which could have been raised in Darkhast No. 35 of 1970 and since it has not been raised, it cannot be allowed to be reagitated or taken up on the subsequent proceedings. Such a plea can be said to have been barred by constructive res judiciata. The judgment-debtors could have raised the point in the earlier proceedings. If this point has not been raised, it is not open for a Court to allow the same to be raised afresh or at every stage of the proceeding. Some where there must be some finality to a proceeding. The point of registration of the decree was not raised at an earlier stage and now Mr. Solshe contended that the decree itself is without registration. This plea could have been taken in Darkhast No. 35 of 1970. This plea not having been raised cannot be taken at this stage. It is barred by contractive res judicata. It is, therefore, the order passed by the learned Assistant Judge, dated September 24, 1980 is erroneous and illegal. The learned Judge ought not to have allowed any point which had not been taken in earlier proceeding. The learned Judge committed an obvious error in allowing the judgment-debtors to raise the point for the first time after the decision of the High Court in Appeal No. 382 of 1975. In this view of the matter, the point raised by the judgment-debtors, respondents herein, is barred by constructive res judicata and it is, therefore, the judgment and order passed by the learned Assistant Judge, dated September 24, 1980 deserves to be set aside.

8. In the result, the rule is made absolute. The judgment and order dated September 24, 1980 passed by the learned Assistant Judge is set aside. The matter is remanded to the executing Court to proceed with the execution of the decree or a part of the decree in accordance with law.


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