ASGAR & ORS. versus MOHAN VARMA & ORS. on 5 February 2019

664 SUPREME COURT REPORTS [2019] 2 S.C.R.[2019] 2 S.C.R. 664

[2019] 2 S.C.R. 664

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ASGAR & ORS.

v.

MOHAN VARMA & ORS.

(Civil Appeal No. 1500 of 2019)

FEBRUARY 05, 2019

B[DR. DHANANJAYA Y CHANDRACHUD ANDHEMANT GUPTA, JJ.]

Code of Civil Procedure, 1908 – Explanation IV to s.11 andOr.XXI rr.97 to 101 – Constructive Res judicata – Respondentsinstituted Execution Petition for delivery of possession of ScheduleC‘B’ property – Application by appellants seeking declaration thatthey were entitled to possession of the property as lessees and werenot liable to be dispossessed – Application allowed by the DistrictCourt – However, High Court dismissed the claim of appellants –SLP was also dismissed – Appellants instituted fresh proceedingsand sought inter alia, a direction for payment to them of the value ofDimprovements over the property, before an order for delivery ofpossession was made – Application dismissed by the District Court– Writ petition – High Court held that claims advanced by appellantswere barred by the principle of constructive res judicata – Appellantcontended that neither the District Court nor the High Court haveEenquired into the merits of the claim advanced by the appellants u/s.4(1) of the Act, 1958 – Held: In the present case, the appellantswere strangers to the decree – They were required to get that claimadjudicated in the course of their Execution Application which wasreferable to the provisions of Or. XXI, r. 97 – Having failed toassert the claim at that stage, the deeming fiction contained inFExplanation IV to s.11 is clearly attracted – An issue which theappellants might and ought to have asserted in the earlier round ofproceedings is deemed to have been directly and substantially inissue – The High Court was justified in coming to the conclusionthat the failure of the appellants to raise a claim would result in theGapplication of the principle of constructive res judicata both havingregard to the provisions of ss. 4 and 5 of the Act of 1958 and to theprovisions of Or. XXI, rr. 97 to 101 of the CPC – KeralaCompensation for Tenants Improvements Act, 1958 – ss.4 and 5.

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Appellants filed application in Execution proceedings fordeclaration that they were entitled to possession of the propertyas lessees. The District Court allowed the application. Aggrieved,the respondents moved to the High Court. The High Courtallowed the appeal and dismissed the claim petitions filed by theappellants. SLP was also dismissed. Thereafter, appellantinstituted fresh proceedings and sought directions for paymentto them of the value of improvements over the property, beforean order of delivery of possession was made. The said applicationwas dismissed by the District Court. High Court held that claimsadvanced by appellants were barred by principle of res judicata.Hence, Special Leave Petition.

Dismissing the appeal, the Court

HELD : 1. In view of the settled position in law, it is evidentthat the appellants were entitled, though they were strangers tothe decree, to get their claim to remain in possession of theproperty independent of the decree, adjudicated in the course ofthe execution proceedings. The appellants in fact set up such aclaim. They sought a declaration of their entitlement to remain inpossession in the character of lessees. Under Order XXI Rule97, they were entitled to set up an independent claim even priorto their dispossession. Under Order XXI Rule 101, allquestions have to be adjudicated upon by the court dealing withthe application and not by a separate suit. Upon the determinationof the questions referred to in Rule 101, Order XXIRule 98 empowers the court to issue necessary orders.The consequence of the adjudication is a decree under Rule 103.[Para 39][690-D-F]

2. The claim which the appellants have now sought to assertfor compensation under Section 4(1) of the Kerala Compensationfor Tenants Improvements Act, 1958 is intrinsically related tothe claim which they asserted in the earlier round of proceedingsto remain in possession. Indeed, the appellants seek to resistthe execution of the decree on the ground that they are entitledto continue in possession until their claim for compensation isdetermined upon adjudication and paid. Such a claim falls withinthe purview of Explanation IV to Section 11 of the CPC. Such aclaim could certainly have been made in the earlier round of AB

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Aproceedings. Moreover, the claim ought to have been made inthe earlier round of proceedings. The provisions of Order XXIRules 97 to 103 constitute a complete code and provide the soleremedy both to parties to a suit and to a stranger to a decree. Allquestions pertaining to the right, title and interest which theappellants claimed had to be urged in the earlier ExecutionBApplication and adjudicated therein. To take any other view wouldonly lead to a multiplicity of proceedings and interminably delaythe fruits of the decree being realized by the decree holder.[Para 40][690-F-H; 691-A-B]

3. This view is adopted following the consistent line ofCprecedent on Rules 97 to 103 of Order XXI is buttressed by theprovisions of the Act of 1958. A claim under Section 4 (1) has tobe addressed to the court which passes a decree for eviction. Inthe present case, the appellants are strangers to the decree. Theywere required to get that claim adjudicated in the course of their DExecution Application which was referable to the provisions ofOrder XXI Rule 97. Having failed to assert the claim at that stage,the deeming fiction contained in Explanation IV to Section 11 isclearly attracted. An issue which the appellants might and oughtto have asserted in the earlier round of proceedings is deemed to have been directly and substantially in issue. The High CourtEwas, in this view of the matter, entirely justified in coming to theconclusion that the failure of the appellants to raise a claim wouldresult in the application of the principle of constructive res judicataboth having regard to the provisions of Sections 4 and 5 of theAct of 1958 and to the provisions of Order XXI Rules 97 to 101Fof the CPC. [Para 41][691-C-E]

Direct Recruit Class II Engg. Officers’ Assn. v. State ofMaharashtra (1990) 2 SCC 715 : [1990] 2 SCR 900– followed.

Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal(1997) 3 SCC 694 : [1997] 1 SCR 463 – relied on.GShamma Bhatt v. T Ramakrishna Bhatt (1987) 2 SCC416; Kameswar Pershad v. Rajkumari Ruttun Koer H

(1892) SCC OnLine PC 16 ; State of U. P. v. NawabHussain (1977) 2 SCC 806 : [1977] 3 SCR 428;Forward Construction Co. v. Prabhat Mandal (Regd.),Andheri (1986) 1 SCC 100 : [1985] 3 Suppl. SCR766 ; Shreenath v. Rajesh (1998) 4 SCC 543 : [1998] 2SCR 709; Har Vilas v. Mahendra Nath (2011) 15 SCC377 – referred to.

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Delhi Cloth & General Mills Co. Ltd v. MunicipalCorporation of Delhi ILR (1975) II Delhi 174;Nusserwanji E Poonegar v. Mrs Shirinbai F BbesaniaAIR 1984 Bom 357 – referred to.

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Henderson v. Henderson 67 E.R. 313; Greenhalgh vMallard (1947) 2 All ER 255; Johnson v. Gore Wood& Co (a firm) [2001] 2 WLR 72 – referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1500of 2019.

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From the Judgment and Order dated 11.12.2015 of the High Courtof Kerala at Ernakulam in O.P. (C) No. 2125 of 2015

V. Giri, Sr. Adv., M. Gireesh Kumar, Amit Krishnan, SvedhaShankar, Ankur S. Kulkarni, Advs. for the Appellants.

Gourab Banerji, Sr. Adv., C. K. Sasi, Ms. Nayantara Roy, AbdullaNaseeh, Ms. Raka Chatterjee, Subhro P. Mukherjee, Sahil Tagotra, Advs.for the Respondents.

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AThe Judgment of the Court was delivered byDR. DHANANJAYA Y CHANDRACHUD, J.

1. Leave granted.

2. This appeal arises from a judgment of the Kerala High Courtdated 11 December 2015. Dismissing a petition instituted by the appellantsBunder Article 227 of the Constitution, the High Court held that the claimset up by the appellants before the executing court for the value of theimprovements alleged to have been made by them on the land in disputeunder the Kerala Compensation for Tenants Improvements Act 1958[1]was barred by the principle of constructive res judicata. The High CourtCupheld the finding of the executing court that the appellants are not entitledto claim compensation under Section 51 of the Transfer of Property Act1882[2].

3. The genesis of the dispute needs to be explained. The propertyencompassing an extent of 914 acres originally belonged to VengunaduKovilakam of Kollengode. True to the bounties of nature, it comprisedDof coffee, cardamom, orange and pepper plantations. On 25 November1897, 909 acres of the property came to be leased out to William EspantsWatts Esquire for a period of 75 years. By a subsequent transfer, theleasehold rights were transferred to and vested in Anglo American DirectTea Trading Corporation Limited (“Anglo American Corporation”).EOn 17 October 1931, an area admeasuring 5 acres of what is describedas the bungalow site was leased out in favour of Anglo AmericanCorporation for a period of 43 years. In 1945, Anglo AmericanCorporation assigned its rights over the property to Amalgamated CoffeeEstate Limited.

4. A suit for partition[3] was instituted by the respondents beforeFthe District Judge, Palakkad in respect of some portions of the property.The petitioners and their predecessors-in-interest were not parties. Apreliminary decree for partition was passed by the District Judge,Palakkad on 30 November 1965.

5. On 7 August 1969, Amalgamated Coffee Estate LimitedGassigned its rights over 410 acres of the land to Mathew T Marattukulam,329 acres in favour of Mrs Annakutty Mathew and 175 acres in favourof Philomina Thomas.

1“The Act of 1958"H2 The TP Act3 (O S No. 1 of 1964)

6. The lease deed of 1897 expired by efflux of time in 1972. Inspite of the fact that the tenure of lease had ended, the above threepersons assigned their rights in respect of the property on 28 August1978 in favour of M/s K J Plantations. On 23 June 1990, acting inpursuance of a Power of Attorney alleged to have been executed by KJ Plantations in favour of M S M Haneefa, the latter executed eight saledeeds in favour of the petitioners and M/s South Coast Spices ExportLimited. In 1991, M/s K J Plantations instituted a suit[4] before theSubordinate Judge, Palakkad seeking inter alia the setting aside of thePower of Attorney executed in favour of M S M Haneefa and the eightsale deeds.

7. On 27 May 1995, the Subordinate Judge, Palakkad ordered theproperty to be divided into a hundred equal shares of which forty wereto be allotted to M/s K J Plantations and sixty to the other assignees. Anarea admeasuring 274.20 acres had been assigned to the petitioners.

8. On 21 February 2003, the District Judge, Palakkad passed afinal decree in the suit for partition. The respondents instituted ExecutionPetition No. 7 of 2002 in OS No. 1 of 1964 on 17 November 2008 fordelivery of possession of Schedule ‘B’ property. When the Amin cameto effect delivery, the appellants and other similarly situated personsraised an obstruction.

9. On 31 August 2009, several execution applications were filedin Execution Petition No. 7 of 2008. Among them were executionapplications 33 of 2009 (filed by National Spices Company), 38 of 2009(filed by the petitioners) and 41 of 2009 (filed by K J Plantations) underOrder XXI Rule 99 of the Code of Civil Procedure 1908[5]. In theirapplications, the applicants inter alia sought a declaration that they wereentitled to possession of the property as lessees and were not liable to bedispossessed.

10. The District Judge, Palakkad allowed execution applications33, 38 and 41 of 2009 by a judgment dated 6 January 2010. The DistrictJudge held that the appellants had established that they had a subsistinginterest and were in possession of the property as a consequence ofwhich the respondents were not entitled to delivery of possession. Inview of the order of the District Court, the respondents, as decree holders,were held not to be entitled to the delivery of actual physical possessionof the property and their remedy would be to file a suit impleading theappellants as parties.

4 O S No. 553 of 1991

5 The CPC

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A11. Aggrieved by the order of the District Judge, Palakkad, therespondents moved the High Court of Kerala in a proceeding describedas Execution First Appeal No. 12 of 2010. By its judgment dated 29June 2012, the High Court allowed the appeal and, while upholding thesubmissions of the respondents, dismissed the claim petitions filed by theappellants.B

12. On 25 July 2014, a Special Leave Petition filed under Article136 of the Constitution was dismissed by this Court in the followingterms:

“Heard learned senior counsel and learned counsel for the parties.

CSpecial leave petitions are dismissed.

No order needs to be passed in Interlocutory Application No. 5 of2014 made by the applicants - Ravi Varma Thampan and SaradaThampatty - for impleadment in S.L.P. (Civil) No. 27268 of 2012in view of dismissal of special leave petition and application isdisposed of as such.D

In so far as question of compensation of improvements made bythe petitioners is concerned, petitioners are free to pursueappropriate remedy for redressal of their grievance in accordancewith law.”

13. On 24 October 2014, the appellants instituted fresh proceedings,Enumbered as EA No. 414 of 2014 in EP No. 7 of 2008 seeking inter aliaa direction for the payment to them of the value of improvements overthe property, before an order for delivery of possession was made. Therespondents, in reply opposing the application, contended that the claimwas barred by the principle of constructive res judicata under ExplanationIV of Section 11 of the CPC.F

14. By a judgment and order dated 26 June 2015, the FirstAdditional District Judge dismissed the application filed by the appellantson the ground that they were not transferees of the property and werehence disentitled to seek the value of the improvements alleged to havebeen made by them, under Section 51 of the TP Act. During the courseGof the proceedings before the ADJ, it was only the claim under Section51 which was pressed. The claim under the Act of 1958 was notadvanced. The ADJ rejected the submission of the respondents that theclaim in execution was barred by the principle of constructive resjudicata. However, on merits the ADJ came to the conclusion that theHclaim was not maintainable under Section 51 of the TP Act.

ASGAR & ORS. v. MOHAN VARMA & ORS.[DR. DHANANJAYA Y CHANDRACHUD, J.]

ASGAR & ORS. v. MOHAN VARMA & ORS.[DR. DHANANJAYA Y CHANDRACHUD, J.]

15. A Writ Petition under Article 227 of the Constitution wasinstituted before the High Court of Kerala on 3 September 2015[6]. By itsjudgment and order dated 11 December 2015, the High Court dismissedthe writ petition, holding inter alia that:

(i) The claims advanced by the appellants for the value of theimprovements alleged to have been made on the property werebarred by the principle of constructive res judicata; and

(ii) The appellants, not being transferees, were in any event not entitledto raise the claim under Section 51 of the TP Act.16. Assailing the judgment of the High Court, Mr V Giri, learnedSenior Counsel urged that:

(i) Neither the District Court nor the High Court have enquired intothe merits of the claim advanced by the appellants under Section4(1) of the Act of 1958;

(ii) By the judgment of a Division Bench of the High Court in theearlier proceedings, it was clarified that the court was not goinginto the entitlement of the appellants under Section 4(1) of the Act1958 since “it is not a question which arises from the order on theclaim petitions”. The High Court clarified that it was only holdingthat the claim of the appellants to possess leasehold rights waswithout merit;

(iii) When the case travelled to this Court, the appellants were grantedliberty to pursue an appropriate remedy for the redressal of theirgrievance in regard to the payment of compensation for theimprovements made by them, in accordance with law;

(iv) Once the High Court had declined to enquire into the claim ofcompensation under the Act of 1958 and this Court had specificallykept open the right of recourse to remedies under law, the principleof constructive res judicata would have no application;

(v) In Explanation IV to Section 11 of the CPC, the expression “mightand ought” has to be conjunctively construed. Hence, merelybecause the claim for compensation under the Act of 1958 couldhave been raised in the earlier proceedings in the executionapplication, that does not debar the appellants from filing a freshapplication; A

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A(vi)The test should be whether allowing the claim to be raised couldbe construed as an abuse of the process and it is only when theclaim is of a nature that might have been urged and ought to havebeen urged in the earlier proceedings, that the bar of constructiveres judicata would be attracted; B(vii)The concession made by Counsel in the earlier proceedingsasserting only the claim under Section 51 of the TP Act, would notoperate as an estoppel against the appellants from raising the claimfor improvements under Section 4 of the Act of 1958;

(viii) The second application moved by the appellants was of a naturewhich they would have raised if the respondents had filed anCapplication under Order XXI Rule 97 of the CPC. Since therespondents did not file any application under Order XXI Rule 97,but it was the appellants who had filed an application under OrderXXI Rule 99, the bar of constructive res judicata is not attracted;andD(ix)The claim of the appellants at the present stage is not in thecharacter of lessees (since their claim as lessees was rejectedearlier) but as a judgment- debtor who is entitled to retainpossession until the value of the improvements made by them onthe land is paid under Section 4 of the Act of 1958. The juridicalcharacter in which the claim is asserted under Section 4 is henceEdistinct from their earlier claim as lessees entitled to possession ofthe land.

17. Opposing these submissions, Mr Gourab Banerji, learned SeniorCounsel submitted that:

(i) Execution Application No. 38 of 2009 was in essence not anFapplication under Order XXI Rule 99 but under Order XXI Rule97 of the CPC;

(ii) Order XXI Rule 97 has been broadly interpreted by this Court toallow even a third party to move the executing court beforedispossession in pursuance of a decree takes place;G(iii)The provisions of Rules 97 to 103 of Order XXI constitute acomplete code. They provide the sole remedy for parties and forstrangers to a proceeding which has ended in a decree of the civilcourt; H

(iv) The adjudication which followed upon the earlier proceedings wasin the nature of a decree under Order XXI Rule 103. All claimsthat the appellants seek to urge presently could have been andought to have been raised in the earlier proceedings. The appellants,having failed to do so, the bar of constructive res judicata issquarely attracted;

(v) The claim under the Act of 1958 ought to have been raised in theearlier proceedings because of the provisions of Section 5 of theAct of 1958. Section 5 postulates that every such claim has to beraised and adjudicated upon before the decree is passed. Hencethe defence of being entitled to possession, unless the value ofthe improvements is paid, should have been raised in the earlierproceedings;

(vi) The language of Order XXI Rule 101 is peremptory. The orderby the High Court constitutes a decree under Order XXIRule 103;

(vii) The question of compensation under the Act of 1958 is intrinsicallyconnected to the claim of the appellants to retain possession untilthe value of the improvements alleged to have been made is paid.In the previous round of proceedings, the prayer was for theretention of possession and hence the claim could have been raisedand ought to have been addressed when the decree was passed;and

(viii) The second application before the ADJ was under Section 151 ofthe CPC. A conscious decision was taken by counsel representingthe appellants to only urge the claim under Section 51 of the TPAct. Once that claim was rejected, it is not open to the appellantsto press the claim under the Act of 1958 in a fresh round ofproceedings. If the issue was raised earlier, the respondents wouldhave been entitled to maintain a claim for a set-off under the Actof 1958. Once the issue of possession stands concluded, it is notopen to the appellants to protect their possession, albeit on thebasis of a claim for compensation under the Act of 1958.

18. The rival submissions now fall for consideration.

19. We must begin our analysis of the controversy in this appealwith a reference to the decision rendered on 29 June 2012 by a DivisionBench of the Kerala High Court. The First Appeal in execution beforethe Kerala High Court arose from a judgment of the District Judge in A

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Aexecution proceedings holding that the appellants had established asubsisting interest, entitling them to continue in possession of the property.The appellants made the claim under a purported assignment after theexpiration of the original deed of lease in 1972. Justice K M Joseph (asthe learned Judge then was), speaking for the Division Bench held that atenant “at sufferance” is only entitled to protection against unlawfulBeviction. As assignees, the tenants at sufferance were not entitled to anyestate or property and the right to remain in possession could not havebeen assigned. Consequently, the Division Bench of the High Court held:

“56. We need not consider the case that the transfers arefraudulent. We take the view that there was no estate or propertyCwhich could have been transferred either by the assignors in Ext.A6 or subsequent assignors on the said basis. Possession by itselfmay be treated as being changed hands unaccompanied by anylegal right.”

Concluding its discussion, the High Court observed that:D“59. The upshot of the above discussion is that we are inclined toreverse the findings and the decision rendered by the court below.We hold that the respondents cannot claim as tenants by holdingover. Nor can they claim any right as tenants at sufferance. Theresult is that while they may have possession, it is unaccompaniedEby any right…”20. Now in this background, it is necessary to advert to the reliefsthat were sought by the appellants in Execution Application 38 of 2009instituted by them in Execution Petition 7 of 2008. The reliefs which theysought were in the following terms:

F“A) Establishing and declaring the claim of the petitioners forpossession as lessees over 274.20 acres of property included inthe schedule hereunder and also included in the schedule to theexecution petition;

B) Declaring the respondents 1 to 6 are not entitled to dispossessthe petitioners from the properties in their possession and takeGactual delivery of the same;”

21. Clearly, what the appellants sought was a declaration that theirpossession was entitled to protection in their character as lessees over274.20 acres of the land. No claim was set up in the execution application on the basis of the provisions contained in Section 4(1) of the Act of1958. When the proceedings were before the High Court, the appellantssought to urge that “it may be borne in mind” that they would be entitledto compensation under the Act of 1958. Besides, they also invokedSection 51 of the TP Act. The respondents objected on the ground, asthe High Court recorded, “that such a case is not there in the claims andthey cannot raise such a claim”. Adverting to the submission of theappellants that they had a claim under the Act of 1958, the High Courtobserved that:

“62. We feel that we need not go into this question, as it is not aquestion which arises from the order on the claim petitions. Infact, whether the respondents /claimants can raise the said issue,are all matters which we will not pronounce on…”

22. The above observations of the High Court indicate that thereason why it did not go into the question was because it did not arisefrom the order on the claim petitions. In fact, the High Court also observedthat it would not pronounce judgment on whether the appellants wereentitled to raise the issue. While dismissing the Special Leave Petitionagainst the judgment of the High Court, this Court in its order dated 25July 2014 observed that “insofar as the question of compensation forimprovements made by the appellants is concerned, the appellants werefree to pursue an appropriate remedy for the redressal of their grievancesin accordance with law.” These observations as contained in the orderof this Court cannot be construed to mean that the respondents wouldbe deprived of their right to set up a plea of constructive res judicata ifthe appellants were to raise such a claim. The appellants were, as thisCourt observed, free to pursue the “appropriate remedy for redressal oftheir grievances in accordance with law.” This must necessarily beconstrued to mean that all defences of the respondents upon theinvocation of a remedy by the appellants were kept open for decision.The liberty granted by this Court was not one-sided. It encompassesboth the ability of the appellants to take recourse and of the respondentsto raise necessary defences to the invocation of the remedy. Therefore,we do not find any merit in the submission urged on behalf of the appellantsthat the earlier judgment of the Kerala High Court and the order of thisCourt preclude the respondents from raising the bar of constructive resjudicata.

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A23. Having cleared this ground, we now proceed to analyse theprovisions contained in the Act of 1958. The Act, as its long title indicates,has been enacted “to make provisions for payment of compensation forimprovements made by the tenants in the State of Kerala”. Section 2(b)defines the expression “improvement” in the following terms:

B“(b) “improvement” means any work or product of a work whichadds to the value of the holding, is suitable to it and consistentwith the purpose for which the holding is let, mortgaged or occupied,but does not include such clearances, embankments, leveling,enclosures, temporary wells and water-channels as are made bythe tenant in the ordinary course of cultivation and without anyCspecial expenditure or any other benefit accruing to land from theordinary operations of husbandry:”

Section 2(d) defines the expression “tenant” as follows:

“(d) “tenant” with its grammatical variations and cognateexpressions includes- D(i) a person who, as lessee, sub-lessee, mortgagee or sub-mortgagee or in good faith believing himself to be lessee, sub-lessee, mortgagee of land, is in possession thereof;

(ii) a person who with the bona fide intention of attorning andpaying a reasonable rent to the person entitled to cultivate or letEwaste-land, but without the permission of such person, brings suchland, under cultivation and is in occupation thereof as cultivator;and

(iii) a person who comes into possession of land belonging to anotherperson and makes improvement thereon in the bona fide beliefthat he is entitled to make such improvements.”F

24. The expression “tenant” in Section 2(d) is defined in a broadsense. It includes for instance, a person who in good faith, believinghimself to be a lessee, sub-lessee or mortgagee of land, is in possession.Similarly, it includes a person who without the permission of a personentitled to cultivate or let waste-land brings the land under cultivationGand is in occupation under the bona fide intention of attorning to andpaying a reasonable rent to the person entitled to cultivate. The definitionincludes a person who comes into possession of land belonging to anotherand makes improvements in the bona fide belief that he is entitled tomake those improvements. Similarly, Section 3 defines certain work or the products of work which shall be presumed to be improvements forthe purposes of the Act. Section 3 is in the following terms:

“3. What are presumed to be improvements.- Until the contraryis shown, the following works or the products of such works shallbe presumed to be improvements for the purposes of this Act:- (a) the erection of dwelling houses, buildings appurtenant there toand farm buildings; (b) the construction of tanks, wells, channels, dams and otherworks for the storage or supply of water for agricultural or domesticpurposes;

(c) the preparation of land for irrigation; (d) the conversion of one-crop into two-crop land; (e) the drainage, reclamation from reverse or other waters orprotection from floods or from erosion or other damage by water,of land used for agricultural purposes, or of waste-land which isculturable; (f) the reclamation, clearance, enclosure or permanentimprovement of land for agricultural purposes; (g) the renewal or reconstruction of any of the foregoing worksor alterations therein or additions thereto; and (h) the planting or protection and maintenance of fruit trees, timbertrees and other useful trees and, plants.”

25. Sections 4 and 5 have a material bearing on the presentcontroversy and are hence extracted below:

“4. Tenant entitled to compensation for improvements.-(1) Everytenant shall, on eviction, be entitled to compensation forimprovements which were made by him, his predecessor- in-interest or by any person not in occupation at the time of theeviction who derived title from either of them and for whichcompensation had not already been paid, and every tenant to whomcompensation is so due shall, notwithstanding the determinationof the tenancy of the payment or tender of the mortgage moneyor premium, if any, be entitled to remain in possession until evictionin execution of a decree or order of court:

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Provided that nothing herein contained shall be construed asaffecting the provisions of the Kerala Land Conservancy Act,1957:

Provided further that this section shall not apply to tenants holdinglands under the Government,

(2) A tenant so continuing in possession shall, during suchcontinuance, hold as a tenant subject to the terms of his lease ormortgage, if any.

5. Decree in eviction to be conditional on payment ofcompensation.- (1) In a suit for eviction instituted against a tenantin which the plaintiff succeeds and the defendant establishes aclaim for compensation due under section 4 for improvements,the court shall ascertain as provided in section 7 to 16, the amountof the compensation and shall pass a decree declaring the amountso found due and ordering that on payment by the plaintiff into thecourt of the amount so found due and also the mortgage money orthe premium, as the case may be, the defendant shall put theplaintiff into possession of the land with the improvements thereon.

(2) If in such suit the court finds any sum of money due by thedefendant to the plaintiff for rent, or otherwise in respect of thetenancy, the court shall set off such sum against the sum founddue under sub section (1), and shall pass a decree declaring asthe amount payable to him on eviction the amount, if any, remainingdue to the defendant after such set-off:

Provided that the court shall not set off any sum of money due forrent as aforesaid, if such sum is not legally recoverable.

(3) The amount of compensation for improvements made sub-sequent to the date up to which compensation for improvementshas been adjudged in the decree and the revaluation of animprovement, for which compensation has been so adjudged,when and in so far as such re-valuation may be necessary withreference to the condition of such improvement at the time ofeviction as well as any sum of money accruing due to the plaintiffsubsequent to the said date for rent, or otherwise in respect of thetenancy, shall be determined by order of the court executing thedecree and the decree shall be varied in accordance with suchorder.

(4) Every matter arising under subsection (3) shall be deemed tobe a question relating to the execution of a decree within themeaning of sub-section (1) of section 47 of the Code of CivilProcedure, 1908.”

26. Sub-section 1 of Section 4 stipulates that every tenant shall,on eviction, be entitled to compensation for improvements which weremade by him, or his predecessor-in-interest or by any person who thoughnot in occupation at the time of eviction, has derived title from either ofthem. Under sub-section 1, such a person is entitled, notwithstanding thedetermination of the tenancy, to remain in possession until eviction inexecution of a decree or order of a court. Sub-section 1 of Section 5indicates that in a suit for eviction instituted against a tenant in which theplaintiff succeeds and the defendant establishes a claim for compensation,the court is required to ascertain the amount of compensation (underSections 7 to 16). The court will then pass a decree declaring the amountfound due and that on payment by the plaintiff into the court of theamount found due, the defendant shall place the plaintiff in possession ofthe land with the improvements thereon. The provisions contained insub-section 1 of Section 5 indicate that a determination of the amount ofcompensation which is payable to the tenant precedes the passing of theultimate decree and the plaintiff would be entitled to be placed intopossession conditional on the deposit in court of compensation founddue. Sub-section 2 of Section 5 enables the plaintiff to seek a set off onaccount of money due by the defendant for rent against the amountwhich is found due to the defendant by way of compensation. Sub-section 3 of Section 5 provides for an eventuality where improvementshave been made subsequent to the date upto which compensation forimprovements has been adjudged in the decree. On account of suchimprovements after the passing of the decree, the amount due will bedetermined by the court executing the decree upon which the decreeshall be varied in accordance with such order.

27. The provisions contained in the Act of 1958 came up forconsideration before a two judge Bench of this Court in Shamma Bhattv T Ramakrishna Bhatt[7]. Justice V Khalid, speaking for this Courtheld:

“8…Section 5 comes into operation only when a defendant againstwhom a suit for eviction is instituted establishes a claim forcompensation under the Act. The judgment of the High Court7 (1987) 2 SCC 416

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Arendered in 1969 has clearly held that the value of improvementawarded was not under Section 4 of the Act but was an amountagreed by the plaintiff. The appellants cannot succeed and havenot succeeded in satisfying us that they ever made a claim forcompensation under Section 4 of the Act and succeeded in such aclaim. Therefore their further claim for getting the improvementsBrevalued cannot be accepted.”[8]28. In the present case, what the appellants now seek to assert isthat in pursuance of the provisions of Section 4(1), they are entitled toremain in possession until their claim for compensation for theimprovements made on the land is adjudicated upon. As we have foundCearlier, the claim which the appellants asserted in Execution Application38 of 2009 was specifically for declaring that they were entitled to remainin possession as lessees and that the respondents were not entitled todispossess them from the property in their possession. Though they soughtto assert that claim in their character as lessees, the issue which requires Dconsideration is whether the claim to compensation under Section 4(1)of the Act of 1958 could have been asserted in the earlier proceedingsand should have been asserted then.29. The substantive part of Section 11 of the CPC together withExplanation IV provide thus:

E“11. Res judicata.—No Court shall try any suit or issue in whichthe matter directly and substantially in issue has been directly andsubstantially in issue in a former suit between the same parties, orbetween parties under whom they or any of them claim, litigatingunder the same title, in a Court competent to try such subsequentsuit or the suit in which such issue has been subsequently raised,Fand has been heard and finally decided by such Court.

Explanation IV- Any matter which might and ought to have beenmade ground of defence or attack in such former suit shall bedeemed to have been a matter directly and substantially in issuein such suit.”GUnder Section 11, a matter which has been directly andsubstantially in issue in a former suit between the same parties or betweenparties litigating under the same title cannot be raised before a courtsubsequently, where the issue has been heard and finally decided by acompetent court. Explanation IV enacts a deeming fiction. As a result H8 Id at page 422

of the fiction, a matter which “might and ought” to have been made aground of defence or attack in a former suit shall be deemed to havebeen a matter directly and substantially in issue in such a suit. In otherwords, Explanation IV is attracted when twin conditions are satisfied:the matter should be of a nature which might and ought to have beenmade a ground of defence or attack in a former suit. Justice S Rangarajan(as the learned Judge then was) sitting as a Single Judge of the DelhiHigh Court in Delhi Cloth & General Mills Co. Ltd v MunicipalCorporation of Delhi[9]noticed this feature :

“35…The words employed — might and ought — are cumulative;they are not in the alternative. It is a well-established rule that anyplea which if taken would have been inconsistent with or destructiveof the title in the earlier suit is not a matter which ought to beraised therein because even though it might also have been raisedin the alternative. This aspect was explained by the JudicialCommittee of the Privy Council in KameswarPershad v. Rajkumari Ruttan Koer (I.L.R. 20 Calcutta 79 at p.85). The possibility of merely raising it as a ground of attack ordefence, at least in the alternative, is alone not sufficient; the testis one which is more compulsive, namely, that the said plea “ought”to have been taken as a ground of attack or defence. Thesefeatures would of course depend upon the particular facts of eachcase.”[10]

The words “might and ought” are used in a conjunctive sense.They denote that a matter must be of such a nature as could have beenraised as a ground of defence or attack and should have been raised inthe earlier suit.

30. The “might and ought” requirement was construed by thePrivy Council in a judgment of 1892 in Kameswar Pershad v RajkumariRuttun Koer[11]. Lord Morris, speaking for the Privy Council, held thus:

“That it “might” have been, made a ground of attack is clear.That it “ought” to have been, appears to their Lordships to dependupon the particular fact of each case. Where matters are sodissimilar that their union might lead to confusion, the constructionof the word “ought” would become important; in this case the 9 ILR (1975) II Delhi 174

10 Id at page 194

111892 SCC OnLine PC 16

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Amatters were the same. It was only an alternative way of seekingto impose a liability upon Pun Bahadoor, and it appears to theirLordships that the matter “ought” to have been made a ground ofattack in the former suit, and therefore that it should be “deemedto have been a matter directly and substantially in issue” in theformer suit, and is res judicata.”[12]BThe classical dictum on the subject finds formulation in the judgmentof Wigram, V C in Henderson v Henderson[13]:

“…I believe, I state the rule of the court correctly, when I say,that where a given matter becomes the subject of litigation in, andCof adjudication by, a court of competent jurisdiction, the courtrequires the parties to that litigation to bring forward their wholecase, and will not (except under special circumstances) permitthe same parties to open the same subject of litigation in respectof a matter which might have been brought forward as part of theDsubject in contest, but which was not brought forward only becausethey have, from negligence, inadvertence, or even accident, omittedpart of their case. The plea of res judicata applies, except inspecial cases, not only to points upon which the court was actuallyrequired by the parties to form an opinion and pronounce ajudgment, but to every point which properly belonged to the subjectEof litigation and which the parties, exercising reasonable diligence,might have brought forward at the time…”

In Greenhalgh v Mallard[14], Lord Justice Somervell, speakingfor the Court of Appeal, held :

“…I think that on the authorities to which I will refer it would beFaccurate to say that res judicata for this purpose is not confinedto the issues which the court is actually asked to decide, but thatit covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised thatit would be an abuse of the process of the court to allow a newproceeding to be started in respect of them”.G

In Johnson v Gore Wood & Co (a firm)[15], Lord Bingham whileadverting to the dictum in Henderson, noted that the underlying public12 Id at page 2381367 E.R. 31314(1947) 2 All ER 255H15[2001] 2 WLR 72

interest in res judicata (as indeed in cause of action estoppel and issueestoppel) has a common element:

“…The underlying public interest is the same: that there shouldbe finality in litigation and that a party should not be twice vexedin the same matter. This public interest is reinforced by the currentemphasis on efficiency and economy in the conduct of litigation,in the interests of the parties and the public as a whole. The bringingof a claim or the raising of a defence in later proceedings may,without more, amount to abuse if the court is satisfied (the onusbeing on the party alleging abuse) that the claim or defence shouldhave been raised in the earlier proceedings if it was to be raisedat all. I would not accept that it is necessary, before abuse may befound, to identify any additional element such as a collateral attackon a previous decision or some dishonesty, but where thoseelements are present the later proceedings will be much moreobviously abusive, and there will rarely be a finding of abuse unlessthe later proceeding involves what the court regards as unjustharassment of a party. It is, however, wrong to hold that becausea matter could have been raised in early proceedings it shouldhave been, so as to render the raising of it in later proceedingsnecessarily abusive. That is to adopt too dogmatic an approach towhat should in my opinion be a broad, merits-based judgment whichtakes account of the public and private interests involved and alsotakes account of all the facts of the case, focusing attention onthe crucial question whether, in all the circumstances, a party ismisusing or abusing the process of the court by seeking to raisebefore it the issue which could have been raised before. As onecannot comprehensively list all possible forms of abuse, so onecannot formulate any hard and fast rule to determine whether, ongiven facts, abuse is to be found or not. Thus while I would acceptthat lack of funds would not ordinarily excuse a failure to raise inearlier proceedings an issue which could and should have beenraised then, I would not regard it as necessarily irrelevant,particularly if it appears that the lack of funds has been caused bythe party against whom it is sought to claim. While the result mayoften be the same, it is in my view preferable to ask whether in allthe circumstances a party’s conduct is an abuse than to askwhether the conduct is an abuse and then, if it is, to ask whetherthe abuse is excused or justified by special circumstances. Properlyapplied, and whatever the legitimacy of its descent, the rule has in A

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Amy view a valuable part to play in protecting the interests ofjustice.”

Lord Millett held thus:

“…It is one thing to refuse to allow a party to relitigate a questionwhich has already been decided; it is quite another to deny himBthe opportunity of litigating for the first time a question which hasnot previously been adjudicated upon. This latter (though not theformer) is prima facie a denial of the citizen’s right of access tothe court conferred by the common law and guaranteed by Article6 of the Convention for the Protection of Human Rights andFundamental Freedoms (Rome, 4th. November 1950). While,Ctherefore, the doctrine of res judicata in all its branches mayproperly be regarded as a rule of substantive law, applicable in allsave exceptional circumstances, the doctrine now underconsideration can be no more than a procedural rule based on theneed to protect the process of the Court from abuse and theDdefendant from oppression...”

31. Mr Giri urged, relying upon the above decision of the Houseof Lords that in construing the expression “might and ought”, it isnecessary for the court to bear in mind the fundamental distinctionbetween res judicata and constructive res judicata. He urged thatEwhereas the former encompasses a matter which was directly andsubstantially in issue in a previous suit between the same parties and hasbeen adjudicated upon, the latter brings in a deeming fiction according towhich a matter which might and ought to have been advanced in aprevious suit would be deemed to be directly and substantially in issue.He therefore urges that a degree of circumspection must be exercisedFin the application of the principle of constructive res judicata.

32. We are not inclined to decide this question on a prioriconsideration, for the simple reason that under the CPC, both res judicata(in the substantive part of Section 11) and constructive res judicata (inExplanation IV) are embodied as statutory principles of the law governingGcivil procedure. The fundamental policy of the law is that there must befinality to litigation. Multiplicity of litigation enures to the benefit,unfortunately for the decree holder, of those who seek to delay the fruitsof a decree reaching those to whom the decree is meant. Constructive res judicata, in the same manner as the principles underlying res judicata,is intended to ensure that grounds of attack or defence in litigation mustbe taken in one of the same proceeding. A party which avoids doing sodoes it at its own peril. In deciding as to whether a matter might havebeen urged in the earlier proceedings, the court must ask itself as towhether it could have been urged. In deciding whether the matter oughtto have been urged in the earlier proceedings, the court will have dueregard to the ambit of the earlier proceedings and the nexus which thematter bears to the nature of the controversy. In holding that a matterought to have been taken as a ground of attack or defence in the earlierproceedings, the court is indicating that the matter is of such a natureand character and bears such a connection with the controversy in theearlier case that the failure to raise it in that proceeding would debar theparty from agitating it in the future.

33. In State of U P v Nawab Hussain[16], a three judge Bench ofthis Court noted that the two principles of res judicata and constructiveres judicata seek to achieve the common objective of assuring finalityto litigation. Justice P N Shinghal observed:

“3. The principle of estoppel per rem judicatam is a rule ofevidence. As has been stated in Marginson v. BlackburnBorough Council [(1939) 2 KB 426 at p. 437], it may be said tobe “the broader rule of evidence which prohibits the reassertionof a cause of action”. This doctrine is based on two theories: (i)the finality and conclusiveness of judicial decisions for the finaltermination of disputes in the general interest of the communityas a matter of public policy, and (ii) the interest of the individualthat he should be protected from multiplication of litigation. Ittherefore serves not only a public but also a private purpose byobstructing the reopening of matters which have once beenadjudicated upon. It is thus not permissible to obtain a secondjudgment for the same civil relief on the same cause of action, forotherwise the spirit of contentiousness may give rise to conflictingjudgments of equal authority, lead to multiplicity of actions andbring the administration of justice into disrepute. It is the cause ofaction which gives rise to an action, and that is why it is necessaryfor the courts to recognise that a cause of action which results ina judgment must lose its identity and vitality and merge in the A

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Ajudgment when pronounced. It cannot therefore survive thejudgment, or give rise to another cause of action on the samefacts. This is what is known as the general principle of res judicata.

4. But it may be that the same set of facts may give rise to two ormore causes of action. If in such a case a person is allowed toBchoose and sue upon one cause of action at one time and to reservethe other for subsequent litigation, that would aggravate the burdenof litigation. Courts have therefore treated such a course of actionas an abuse of its process and Somervell, L.J., has answered it asfollows in Greenhalgh v. Mallard [(1947) All ER 255 at p. 257]:

“I think that on the authorities to which I will refer it would beCaccurate to say that res judicata for this purpose is not confined tothe issues which the court is actually asked to decide, but that itcovers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised thatit would be an abuse of the process of the court to allow a newDproceeding to be started in respect of them.”

This is therefore another and an equally necessary and efficaciousaspect of the same principle, for it helps in raising the bar of resjudicata by suitably construing the general principle of subduing acantankerous litigant. That is why this other rule has some timesEbeen referred to as constructive res judicata which, in reality, isan aspect or amplification of the general principle.”[17]

A Constitution Bench of this Court in Direct Recruit Class II Engg.Officers’ Assn. v State of Maharashtra[18] referred to the decision of athree judge bench of this Court in Forward ConstructionFCo. v Prabhat Mandal (Regd.), Andheri[19]and noted the followingposition in law:

“20…an adjudication is conclusive and final not only as to theactual matter determined but as to every other matter whichthe parties might and ought to have litigated and have hadGdecided as incidental to or essentially connected withsubject matter of the litigation and every matter coming 17 Id at pages 809-81018 (1990) 2 SCC 715

19 (1986) 1 SCC 100H

into the legitimate purview of the original action both inrespect of the matters of claim and defence…”[20]

(emphasis supplied)

34. In determining as to whether the bar of constructive resjudicata stands attracted, it is necessary to advert to the earlier applicationwhich was filed by the appellants in the execution proceedings. Theappellants styled the application as one under Order XXI Rule 99 of theCPC but that, in our view, is not determinative of the true nature of theapplication. Order XXI Rule 97 provides as follows:

“97. Resistance or obstruction to possession of immovableproperty.—(1) Where the holder of a decree for the possessionof immovable property or the purchaser of any such property soldin execution of a decree is resisted or obstructed by any person inobtaining possession of the property, he may make an applicationto the Court complaining of such resistance or obstruction. [(2)Where any application is made under sub-rule (1), the Court shallproceed to adjudicate upon the application in accordance with theprovisions herein contained.]”

Order XXI Rule 99 provides thus:

“[99. Dispossession by decree-holder or purchaser.—(1) Whereany person other than the judgment debtor is dispossessed ofimmovable property by the holder of a decree for the possessionof such property or, where such property has been sold inexecution of a decree, by the purchaser thereof, he may make anapplication to the Court complaining of such dispossession.

(2) Where any such application is made, the Court shall proceedto adjudicate upon the application in accordance with the provisionsherein contained.]”

35. In Brahmdeo Chaudhary v Rishikesh Prasad Jaiswal[21],this Court held that the view taken by the High Court that the only remedyavailable to a stranger to a decree who claims an independent right, titleor interest in the property is to pursue the remedy under Order XXI Rule99, was unsustainable. The court held that a stranger to a decree isentitled to agitate his/her grievance and claim for adjudication for anindependent right, title and interest in the decretal property, even after 20 Id at page 112

21 (1997) 3 SCC 694

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Abeing dispossessed in accordance with Order XXI Rule 99. Order XXIRule 97 deals with the stage which is prior to the actual delivery ofpossession and the grievance of the obstructionist can be adjudicatedupon before the actual delivery of possession to the decree holder. Inother words, both sets of remedies are available to a stranger to thedecree. Justice S B Majmudar, speaking for the Court held:B

“9…the High Court has totally ignored the scheme of Order 21,Rule 97 in this connection by taking the view that only remedy ofsuch stranger to the decree lies under Order 21, Rule 99 and hehas no locus standi to get adjudication of his claim prior to theactual delivery of possession to the decree-holder in the executionCproceedings. The view taken by the High Court in this connectionalso results in patent breach of principles of natural justice as theobstructionist, who alleges to have any independent right, title andinterest in the decretal property and who is admittedly not a partyto the decree even though making a grievance right in time beforeDthe warrant for execution is actually executed, would be told offthe gates and his grievance would not be considered or heard onmerits and he would be thrown off lock, stock and barrel by useof police force by the decree-holder. That would obviously resultin irreparable injury to such obstructionist whose grievance wouldgo overboard without being considered on merits and suchEobstructionist would be condemned totally unheard. Such an orderof the executing court, therefore, would fail also on the ground ofnon-compliance with basic principles of natural justice. On thecontrary the statutory scheme envisaged by Order 21, Rule 97CPC as discussed earlier clearly guards against such a pitfall andFprovides a statutory remedy both to the decree-holder as well asto the obstructionist to have their respective say in the matter andto get proper adjudication before the executing court and it is thatadjudication which subject to the hierarchy of appeals would remainbinding between the parties to such proceedings and separate suitwould be barred with a view to seeing that multiplicity ofGproceedings and parallel proceedings are avoided and the gamutlaid down by Order 21, Rules 97 to 103 would remain a completecode and the sole remedy for the parties concerned to have theirgrievances once and for all finally resolved in executionproceedings themselves.”[22]

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H22 Id at page 702

36. Under Order XXI Rule 101[23], all questions including questionsrelating to right, title and interest in the property arising between partiesto a proceeding on an application under Rule 97 or Rule 99 or theirrepresentatives shall be determined by the court and not by a separatesuit. In Shreenath v Rajesh[24], Justice A P Misra, speaking for a twojudge Bench of this Court, while interpreting the expression “any person”in Rule 97, held thus :

“10…We find the expression “any person” under sub-clause (1)is used deliberately for widening the scope of power so that theexecuting court could adjudicate the claim made in any suchapplication under Order 21 Rule 97. Thus by the use of the words“any person” it includes all persons resisting the delivery ofpossession, claiming right in the property, even those not bound bythe decree, including tenants or other persons claiming right ontheir own, including a stranger.”[25]

37. These principles have been reiterated in Har Vilas vMahendra Nath[26], in which it has been held that the provisions of OrderXXI Rule 99 will not defeat the right of a third person claiming to be inpossession of the property forming the subject matter of a decree in hisown right to get his objection decided under Rule 97, at a stage prior todispossession.

23 Order XXI Rule 101 provides thus :

Question to be determined.- All questions (including questions relating to right,title or interest in the property) arising between the parties to a proceeding on anapplication under rule 97 or rule 99 or their representatives, and relevant to theadjudication of the application, shall be determined by the court dealing with theapplication, and not by a separate suit and for this purpose, the court shall,notwithstanding anything to the contrary contained in any other law for the timebeing in force, be deemed to have jurisdiction to decide such questions.Order XXI Rule 103 provides thus :

Orders to be treated as decrees.- Where any application has been adjudicated uponunder rule 98 or rule 100, the order made thereon shall have the same force and besubject to the same conditions as to an appeal or otherwise as if it were a decree.24 (1998) 4 SCC 54325 Id at page 54926 (2011) 15 SCC 377

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A38. In a succinct elucidation of the law in Nusserwanji EPoonegar v Mrs Shirinbai F Bbesania[27], Justice R A Jahagirdar as aSingle Judge of the Bombay High Court interpreted Rule 101 of OrderXXI:

“10. From the rule extracted above, it is easily seen that the languageBof the rule is peremptory and the powers given to the executingCourt under the said rule are plenary. The powers given to theexecuting Court under Rule 101 are not qualified or hedged byany restrictions. On the other hand it shows that the executingCourt is required to adjudicate upon all questions mentioned in thesaid rule as if it had jurisdiction to deal with every question thatCmay so arise. By a legal fiction, an executing Court which mayotherwise have no jurisdiction is invested with the jurisdiction totry all questions under the aforesaid rule.”[28]

39. In view of the settled position in law, as it emerges from theabove decisions, it is evident that the appellants were entitled, thoughDthey were strangers to the decree, to get their claim to remain inpossession of the property independent of the decree, adjudicated in thecourse of the execution proceedings. The appellants in fact set up sucha claim. They sought a declaration of their entitlement to remain inpossession in the character of lessees. Under Order XXI Rule 97, theywere entitled to set up an independent claim even prior to theirEdispossession. Under Order XXI Rule 101, all questions have to beadjudicated upon by the court dealing with the application and not by aseparate suit. Upon the determination of the questions referred to inRule 101, Order XXI Rule 98 empowers the court to issue necessaryorders. The consequence of the adjudication is a decree underFRule 103.

40. The claim which the appellants have now sought to assert forcompensation under Section 4(1) of the Act of 1958 is intrinsically relatedto the claim which they asserted in the earlier round of proceedings toremain in possession. Indeed as we have seen, the appellants seek toresist the execution of the decree on the ground that they are entitled toGcontinue in possession until their claim for compensation is determinedupon adjudication and paid. Such a claim falls within the purview ofExplanation IV to Section 11 of the CPC. Such a claim could certainlyhave been made in the earlier round of proceedings. Moreover, the claim27 AIR 1984 Bom 357H28 Id at page 359

ought to have been made in the earlier round of proceedings. Theprovisions of Order XXI Rules 97 to 103 constitute a complete code andprovide the sole remedy both to parties to a suit and to a stranger to adecree. All questions pertaining to the right, title and interest which theappellants claimed had to be urged in the earlier Execution Applicationand adjudicated therein. To take any other view would only lead to amultiplicity of proceedings and interminably delay the fruits of the decreebeing realized by the decree holder.

41. This view which we have adopted following the consistentline of precedent on Rules 97 to 103 of Order XXI is buttressed by theprovisions of the Act of 1958. A claim under Section 4 (1) has to beaddressed to the court which passes a decree for eviction. In the presentcase, the appellants are strangers to the decree. They were required toget that claim adjudicated in the course of their Execution Applicationwhich was referable to the provisions of Order XXI Rule 97. Havingfailed to assert the claim at that stage, the deeming fiction contained inExplanation IV to Section 11 is clearly attracted. An issue which theappellants might and ought to have asserted in the earlier round ofproceedings is deemed to have been directly and substantially in issue.The High Court was, in this view of the matter, entirely justified in comingto the conclusion that the failure of the appellants to raise a claim wouldresult in the application of the principle of constructive res judicataboth having regard to the provisions of Sections 4 and 5 of the Act of1958 and to the provisions of Order XXI Rules 97 to 101 of the CPC.

42. For the above reasons, we find no merit in the appeal. Theappeal shall stand dismissed. Pending applications, if any, are disposedof. There shall be no order as to costs.

Ankit Gyan

Appeal dismissed.

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