Law: Code Of Civil Procedure, 1908.

Section: 12(2) , O.XXI R. 34

Law: Specific Relief Act, 1877

Section: 12

Civil Procedure Code, 1908 (V of 1908)-- ----S. 12(2) & O.XXI R. 34--Specific Relief Act, 1877 (I of 1877), S. 12--Suit for specific performance--oral agreement--Suit was decreed--Execution petition--Application for setting aside decree--Dismissed--Upheld upto High Court--Issuance of warrant of possession--Objection petition was dismissed--Application for cancellation was allowed--Revision petition--Dismissed--Res judicata--No consent decree--Challenge to--I first take up Petitioner’s objection relating to vires of judgment and decree dated 10.4.2010--Admittedly, previously she challenged it through an application under Section 12(2), CPC but failed and Civil Court’s order dated 23.12.2013 had been maintained upto this Court--Policy of law is that there should be end to litigation when matter had been conclusively decided--Petitioner had attempted to challenge judgment and decree dated 10.4.2010 on same grounds on which she filed an application under Section 12(2), CPC earlier that was dismissed upto this Court--I agree with learned counsel for Respondent No. 3 that she could not be permitted to do so--Principle of res judicata applied--Fraud was perpetrated by Petitioner and Respondents No. 4 and 5 against Respondent No. 3--Further, consent of Respondent No. 4 was only in respect of making reference to a referee (against whom there is no allegation of misconduct) and judgment and decree dated 10.4.2010 was not a consent decree--Respondent No. 3 had not instituted any legal proceedings for cancellation of Sale Deed and Tamleek Nama would not hinder execution of decree--In a suit for specific performance of contract, relief of delivery of possession was incidental to main relief and Executing Court may grant it even if plaintiff/decree holder had prayed therefor in plaint and there was no mention about it in decree--Petition dismissed.                                                     …