Where an earlier claim petition under Order XXI Rule 58 CPC seeking declaration of right over attached property has been dismissed and has attained finality, a subsequent application under Order XXI Rule 97 CPC for the same relief is barred by principles akin to constructive res judicata. The proper remedy under Rule 58(5) CPC is to institute a separate suit. In absence of any substantial question of law, a second appeal under Section 100 CPC is not maintainable.

advocatemmmohan

Code of Civil Procedure, 1908 – Order XXI Rule 58 & Rule 97 – Claim to attached property – Earlier claim petition dismissed and attained finality – Second petition for same relief not maintainable – Constructive res judicata – Para 6–8

Order XXI Rule 58(5) CPC – Remedy after dismissal of claim – Institution of separate suit – Failure to avail statutory remedy – Subsequent proceedings barred – Para 9

Execution Proceedings – Executing Court – Cannot go behind decree – Decree having attained finality – Allegation of collusion not substantiated – Para 6, 8

Section 100 CPC – Second Appeal – No substantial question of law – Concurrent findings in execution and first appeal – Appeal dismissed at admission stage – Para 10–11

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FACTUAL BACKGROUND

• Decree passed in O.S. No.1304 of 2003.

• Property sold in auction; delivery granted to auction purchaser.

• Claim petitioner (since deceased) filed E.A. No.23 of 2016 under Order XXI Rule 97 CPC seeking declaration of possessory rights and setting aside delivery.

• Earlier, E.A. No.101 of 2010 under Order XXI Rule 58 CPC for similar relief had been dismissed on 18.10.2012 and attained finality.

• Executing Court dismissed E.A. No.23 of 2016.

• First Appellate Court confirmed dismissal in A.S. No.74 of 2018.

• Present Second Appeal filed by legal representatives.

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CONTENTIONS

Appellants contended:

• Property was Government land under DKT patta.

• Enjoyment Certificate issued; RCC building constructed.

• Decree obtained collusively.

• Auction purchaser failed to take possession within one year; barred by limitation.

• Executing Court can go behind decree in case of fraud.

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POINT FOR CONSIDERATION

Whether the appeal involves any substantial question of law warranting admission under Section 100 CPC?

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COURT’S ANALYSIS

I. Effect of Earlier Dismissal (Para 6–8)

• Earlier E.A. No.101 of 2010 seeking same relief was dismissed.

• Order attained finality; no revision filed.

• Second application seeking identical relief barred by constructive res judicata.

Relied on principle laid down in:

• M. Padma v. M. Seshagiri Rao (2003 (5) ALD 3) – A claim dismissed under Order XXI Rule 58 cannot be re-agitated under Rule 97.

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II. Scope of Order XXI Rule 58(5) CPC (Para 9)

Statutory remedy:

• If claim is refused, party may institute separate suit to establish right.

• Absent such suit, order refusing claim becomes conclusive.

Appellants did not avail statutory remedy.

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III. Executing Court’s Jurisdiction (Para 6, 8)

• Executing Court cannot go behind decree.

• Decree had attained finality.

• Mere allegation of collusion insufficient.

• Enjoyment Certificate does not confer title.

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IV. Substantial Question of Law (Para 10–11)

• Concurrent findings by Executing Court and Appellate Court.

• No perversity or legal error demonstrated.

• No substantial question of law arises.

Second Appeal dismissed at admission stage.

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RATIO DECIDENDI

Where an earlier claim petition under Order XXI Rule 58 CPC seeking declaration of right over attached property has been dismissed and has attained finality, a subsequent application under Order XXI Rule 97 CPC for the same relief is barred by principles akin to constructive res judicata. The proper remedy under Rule 58(5) CPC is to institute a separate suit. In absence of any substantial question of law, a second appeal under Section 100 CPC is not maintainable.