Application of the principle of Res-Judicata in the execution proceedings and it's drafting.

 

Application of the principle of Res-Judicata in the execution proceedings

 

•      Prior to addition of Explanation VII to Section 11 the principle of res judicata was not applicable during the execution proceedings strictly. However the general principles of res- judicata was held applicable even to the execution proceedings. [ Prem Lata Vs. Lakshman Prasad AIR 1970 SC 1525].

•      Explanation VII was inserted to Section 11 of CPC by Amendment Act of 1976 and now the principle of res judicata is applicable to execution proceedings directly and references in Section 11 to any suit, issue or former suit shall be construed as references, respectively to a proceedings for the execution of the decree, question arising in such proceedings and a former proceeding for the execution of that decree.

                    IN THE COURT OF CIVIL JUDGE SR. DIV. KAPURTHALA

 

                  ABC                              Vs.                       XYZ

                 ….D.H./Respondent                  ..J.D./Applicant

 

 Subject:- Application under section 11 of CPC 1908 for dismissal of execution application as being barred by Res- Judicata.

Respected Sir,

Most respectfully stated as under:

1.     That the above noted execution application is pending before this Hon’ble Court and the same is fixed for today.

2.     That the decree holder had filed a recovery suit of Rs.15,00,000/- against the judgment debtor/applicant  which was decreed on 05/04/2019.

 3. That thereafter the judgment debtor had filed an appeal against the above noted judgment and decree and the appellate Court modified the above said decree by upholding the recovery of the principle amount, however, interest was reduced from 12% p.a. to 8 % p.a. The copy of the judgment and decree of the appellate court is attached along with the present application.

4. That no further appeal, review or revision was filed by the decree holder against the above said order of the appellate Court and the judgment and decree of the appellate Court has become final.

5. That the decree holder however, has filed the present execution application claiming the decretal amount that has been passed by the trail court claiming interest at the rate of 12 per cent per annum.

6. That after filing the present execution , the judgment debtor/applicant had already deposited the decretal amount as per judgment and decree of the appellate court and the same has been withdrawn by the decree holder from the court.

7. That now the decree holder has filed an application for attachment of the property of the judgment debtor for recovery of remaining amount in terms of the decree of the trail court unlawfully and illegally, although no appeal was filed by the decree holder against the judgment  and the decree of the appellate court.

8. Therefore, filing of the present application is clearly barred by the principle of Res- Judicata.

Prayer:-

IN VIEW OF SUBMISSIONS MADE ABOVE, IT IS HEREBY MOST RESPECTFULLY PRAYED

a.      That the present execution application of the decree holder be dismissed as being barred as the principle of res- judicata in the facts and circumstances of the case.

b.     To pass any other further order which this Hon’ble Court may deem fit and proper in the interest of justice and equity.

 

Place_______                                                Applicant/Judgment Debtor

 

                                       Through Counsel

                            

                                Ashish Kumar, Advocate

Verification:-

Verified that the contents of my application are true and correct and has not been falsely stated therein.

Verified at  Kapurthala

Verified on _________                     Applicant/Judgment Debtor