Seeking stay order in appeal - res-judicata ?
Balaji Bakthavathsal
(Querist) 27 September 2021
This query is : Resolved
Dear Learned Lawyers,
In a Civil Suit on an immovable property, as the respondents abstained from the court proceedings, the court awarded ex-parte judgment / decree in favour of the plaintiffs by granting a permanent injunction restraining the respondents not to interfere in peaceful possession of the property by the plaintiffs. At the same time, one of the respondents filed a separate civil suit on the very same property seeking partition which got dismissed by the other court stating that the plaintiff has got no right over the property as she failed establish the facts. While both the suits were filed in the same year, the ex-parte judgment delivered first and after a couple of years the partition suit judgment was delivered.
The person who was awarded permanent injunction in the ex-parte judgment neither contested the suit nor challenged the ex-parte judgment by filing an appeal.
On the contrary , in the suit filed by her seeking partition, she had filed an appeal in the District court challenging the dismissal of her petition and also filed an I.A. seeking stay for the sale of the immovable property.
In my view, the stay sought by her through the IA is not sustainable as she has been awarded permanent injunction which was not challenged by her.
My doubt is whether the IA petition tantamount to res-judicata ? Whether it can be opposed in the appeal ?
Please quite the citation if there is any.
Thanks & Regards
B.Balaji
P. Venu
(Expert) 28 September 2021
Was the plaintiff in the first suit a defendant in the second suit? So also, does the judgment in the second suit rely on the (ex-parte) judgment in the first suit?
Balaji Bakthavathsal
(Querist) 29 September 2021
Respected Venu Sir,
Here are the answers to your queries.
The first suit was seeking partition on the property without having any rights on it and excluding the genuine legal heirs who are in possession and occupation of the property. As the petition filed to implead the genuine legal heirs was dragging for a long time, another suit was filed in the Munsif Court seeking permanent injunction against the respondents and mandatory injunction for cancellation of fraudulent entries in which the court awarded the ex-parte judgment decree though it was filed six months later.
The plaintiff seeking partition was one of the respondent in the ex-parte judgment and the plaintiffs who got the ex-parte judgment in their favour were impleaded as respondents and the judgment was in favour of the impleaded respondents against which the appeal was made.
Have I made it clear Sir ?
Thanks & Regards
Balaji
P. Venu
(Expert) 29 September 2021
Ideally, both the suits ought to have been tried and heard together. Now, you can bring the grant of injunction in the other case to the notice of the appellate court.
