earlier application was dismissed in default

S. 11 – Res-judicata – Second execution application – Maintainability

of Hon‘ble Supreme Court in the case of Chhiddi Singh @ Chhedda Singh has held as under: ―There is no dispute that the earlier application was dismissed in default without going into its merits. The subsequent application for execution was within time. The dismissal of the first execution application in default without adjudicating any rights of the parties would not operate as res-judicata.‖ In the instant case it is not in dispute between the parties that first execution application moved by the decree holder has been dismissed in default. Thus, it is clear that the same has not been decided and adjudicated on merit. Thereafter he has moved second application for execution registered as execution case no. 5 of 2009; Munna Khan v. Smt. Rashke Muneer so as per the facts and law as stated herein above, the second execution application moved by decree holder is maintainable and no interference is needed in the present case and the judgments which are cited by Sri Brijesh Kumar Saxena, learned Counsel for the petitioner are not applicable in the facts and circumstances of the case, hence, the petitioner cannot derive any benefit.

Case Law:
Mohd. Saeed (Adult) v. Munnu Khan (Died) Through Smt. Asgari Khatoon;

Citation:
2014 (123) RD 850