Final Order 13

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF MS. GOMATI MANOCHA,
DISTRICT JUDGE-2, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
MCA No. 18/2024
CNR No. DLNE01-003825-2024
1. Urmila Devi
W/o Sh. Puran Chand
2. Sunny @ Sunny Ojha
S/o Sh. Puran Chand
3. Manju Sharma
D/o Sh. Puran Chand
W/o Sh. Pintu Sharma
All residents of H. No. T-208, Gali No. 1
Gautampuri, Delhi. ..… Appellants
Versus
Ram Prakash Ojha
S/o Late Ram Kishan Ojha
R/o T-209, Gali No. 1,
Gautam Puri, Seelampur,
Delhi. …..Respondent
Date of filing of the present appeal : 20.12.2024
Date of completion of Final Arguments : 26.09.2025
Date of Judgment : 26.09.2025
Final Decision : Dismissed
JUDGMENT-in-APPEAL
1. The present appeal has been preferred by the appellants
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against the impugned order dated 06.12.2024, titled as Urmila Devi
& Ors. vs. Ram Prakash Ojha in review petition being Misc SCJ No.
29/14. The review petition was dismissed by the Court of the then
JSCC/ASCJ/GJ (North East), Karkardooma Courts, Delhi.
Thereafter, the present appeal has been filed.
2. In order to decide the present appeal, it is necessary to
understand the chronology of events. Perusal of the record reveals
that in Civil Suit No. 279/2010 titled as Sh. Ram Prakash Ojha Vs.
Smt. Urmila Devi & Ors, judgment was passed by the Court of Sh.
Saurabh Kulshreshtha, Ld. CCJ/ARC, East, Karkardooma Courts,
Delhi, on 05.05.2011. This Judgment was challenged by way of
appeal before the Court of Sh. Virender Kumar Goyal, Ld. ADJ-01,
East, Karkardooma Courts, Delhi. The appeal was dismissed on
16.09.2015. Challenging the order of the said appeal, a second
appeal was filed before the Hon’ble High Court and vide order
dated 08.04.2016, the same was dismissed at the threshold for
absence of any substantial question of law arising therein.
Thereafter, an execution petition was filed bearing No. 13/2017 on
18.01.2017 in which objections were filed by Manju, Sunny and
Jitender. The said objections were dismissed vide order dated
19.05.2023 by the Ld. Executing Court. Also, the applications under
Order 45 and 47 of the Evidence Act and under Order IX Rule 13
CPC were dismissed. Thereafter, it was found that the property in
question did not lie within the jurisdiction of Shahdara District and
the same was within the jurisdiction of North-East District. Hence, a
fresh execution petition bearing Execution Petition No. 2/24 was
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filed on 04.01.2024 in the North-East District. In the meantime, the
appellant filed MCA bearing DJ 75/23 challenging the order dated
19.05.2023 vide which the objections were dismissed, in Execution
Petition No. 13/17. The said appeal was also dismissed as being non
maintainable. In Execution Petition No. 2/24 before the North-East
District, vide order dated 06.12.2024 application filed under Order
XLVII Rule 1 read with section 114 and 151 of the Code of Civil
Procedure and under Order 41 Rule 5 read with section 151 of CPC,
in Misc No. 29/2024 was dismissed and warrants were issued
against the JD to remove the wall at CD shown in the site plan
Ex.PW1/D1 between plots T-208 and T-209, Gali No. 1, Gautam
Puri, Delhi dividing them into two plots of equal area of 175 sq.
yards each. Further, warrant was issued to permit the Decree Holder
to erect/construct to wall at point AB in the site plan Ex.PW1/D1 so
that the area of his plot bearing no. T-209, Gali No. 1, Gautam Puri,
Delhi is completed to 175 sq. yards. as per the judgment and decree
dated 05.05.2011 in CS No. 753/07 titled as “Kalawati & Anr. Vs.
Urmila Devi & Ors” passed by the Court of Sh. Saurabh
Kulshreshtha, the then Ld. CCJ/ARC (East), Karkardooma Courts,
Delhi. The SHO was directed to provide all the necessary assistance
for execution of warrants.
3. Vide the present appeal, the order dated 06.12.2024 is being
challenged vide which the review petition was dismissed. In the said
order, the Ld. Court had observed that the application has been filed
under the wrong provision of law but the same was being
considered under the correct provision i.e. Order XXI Rule 26 of the
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Code of Civil Procedure. On 06.12.2024, by way of the review
petition, the applicant/petitioner had sought the review of order
dated 19.05.2023 vide which the objections filed by Manju Sharma,
Sunny and Jitender were dismissed. The Court observed that the
power of review is limited and can only be exercised (i) if new and
important matter or evidence has been discovered which after the
exercise of due diligence was not within the knowledge of the
applicant or could not be produced by him at the time when the
decree or order was passed, (ii) on account of some mistake or error
apparent on the face of record, (iii) any other sufficient reason (the
reason must be analogous to the above two grounds).
4. The Ld. Court observed that the objections raised by the
applicant have been considered in detail by the Ld. Predecessor
Court and that there is no error apparent on record. Also, the
applicant had not been able to show the discovery of any new and
important matter or evidence which was not in his knowledge
earlier. It was stated that the Court could not function as an appellate
authority under the guise of review. It was also stated that the said
application was hopelessly barred by limitation and as it was
without merit, the same was dismissed.
5. Vide the present appeal, the appellant has prayed for
summoning the record of the review application Misc SCJ No.
29/2024 titled as Urmila Devi & Ors. Vs. Ram Prakash Ojha,
decided on 06.12.2024. He has also sought summoning the record of
the Ex. Petition No. 2/2024 titled as Ram Prakash Ojha Vs. Urmila
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Devi & Ors. He has also sought stay on the operation of the order
dated 06.12.2024 passed in the above Ex. Petition No. 2/2024. He
has further prayed for summoning the record of Civil Suit No.
151/1998 titled as Ram Prakash Ojha Vs. Smt. Kalawati & Ors. and
summoning of record of Civil Suit No. 8439/2016 (old no.
753/2007) titled as Puran Chand Vs. Urmila Devi & Ors. He has
sought stay of proceedings of Ex. Petition No. 2/2024 titled as Ram
Prakash Ojha Vs. Urmila Devi & Ors. and setting aside of order
dated 06.12.2024 passed in review application Misc SCJ No.
29/2024 titled as Urmila Devi & Ors. Vs. Ram Prakash Ojha.
6. Arguments heard on behalf of both the parties and record
perused.
7. During arguments, Ld. Counsel for the appellant again
agitated the facts and evidence that have been considered and duly
appreciated by the Courts of competent jurisdiction. When an issue
is decided and the same has attained finality, the same cannot be re-
opened and re-agitated. A final judgment rendered by a Court of
competent jurisdiction on the merits is conclusive as to the rights of
the parties and constitutes an absolute bar to raising the same claim
again. Since, the rights of the parties have already been decided in
the Civil Suit No. 279/2010 followed an order in first and second
appeal therefore, the same facts cannot be agitated again. Further, as
per the record, the objections raised by Manju Sharma, Sunny and
Jitender have also already been dismissed. The review petition
against the said order has also been dismissed. Thus, the appellant is
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estopped at this stage from raising the same pleas/objections as have
already been decided upon. This appeal appears to be another
attempt in delaying the execution in the present case and to deny the
respondent of the fruits of decree in his favour.
8. Furthermore, this Miscellaneous Appeal is not maintainable in
view of the provisions of Order XLVII Rule 7 of the Code of Civil
Procedure. Order XLVII Rule 7 (1) of the Code of Civil Procedure
reads as under:-
A
n order of the Court rejecting the application shall not be
appealable; but an order granting an application may be objected to
at once by an appeal from the order granting the application or in an
appeal from the decree or order finally passed or made in the suit.
9. Thus, in view of the embargo of Order XLVII Rule 7 of the
Code of Civil Procedure, the present appeal is not maintainable.
Reliance is also placed on judgment in Vinod Kapoor Vs. State of
Goa & Ors., AIR 2012 Supreme Court 3722 in Civil Appeal No.
8643-8644 of 2003, in which the Hon’ble Supreme Court
categorically observed that an order rejecting the application for
review is not appealable by virtue of the principle in Order XLVII
Rule 7 of the Code of Civil Procedure. Hence, the present appeal is
not maintainable and the same is hereby dismissed with the cost of
Rs. 10,000/- to be recovered from the appellant by the Ld.
Executing Court.
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10. TCR be sent back with the copy of this judgment.
11. Appeal file be consigned to the Record Room.
(Gomati Manocha)
District Judge-02 (North East District)
Karkardooma Courts, Delhi.
Dictated and announced in the open court
today i.e. 26th September, 2025
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