ORDER
S.S. Subramani, J.
1. Decree-holder in O.S. No. 14 of 1972 on the file of District Munsif Court, Kancheepuram is the revision petitioner herein. This revision is filed under Article 227 of Constitution of India.
2. O.S. No. 14 of 1972 was filed by petitioner for recovery of property scheduled in the plaint. The subject matter of the suit read thus: Kancheepuram town, in Vallal Pachaiyappan Street to the east of the street to the south of the house of Rathina Mudali and others, to the west of Municipal Narasam, to the north of Varadadappa Mudali’s house, premises bearing Door No. 34-AB, S. No. 2554 measuring 29′ x 125′ with all the structures well, tap, electric fittings.
3. After obtaining decree, petitioner filed E.P. No. 5 of 1978 for getting delivery of possession. When delivery was ordered, one Munusamy Mudaliar obstructed delivery of possession claiming some right over the property. Obstructor was none other than the father of decree-holder. It was he, who conducted suit on behalf of decree-holder. Obstruction petition was dismissed and decree-holder was allowed to get possession after removing obstruction. For the said purpose, executing court relied on documentary evidence. About 65 documents was produced by Munusamy Mudaliar. Executing Court held that Munusamy Mudaliar, the obstructor did not have any right, title or interest in the property and the obstruction is frivolous.
4. Aggrieved by the order of Executing Court, obstructor filed C.M.A. No. 623 of 1980 on the file of this Court. Justice Rathinam (as he then was) dismissed the appeal on 1.12.1981. Learned Judge re-appreciated the entire evidence that was produced before executing court and came to the conclusion that the obstruction is frivolous. Learned Judge relied on Ex.A-1, a deposition given by Munusamy Mudaliar, wherein he has admitted that he has been living in the same house and himself and his daughter i.e., decree-holder are residing there as family and he was assisting decree-holder in conduct of suit. In the suit, recovery was allowed in favour of decree-holder after finding that there was trespass and defendants forcibly occupied the house, The civil miscellaneous appeal was also dismissed.
5. Aggrieved by the order of learned single Judge, L.P.A. No. 4 of 1982 was filed. The Division Bench also confirmed the decision of learned single Judge. It may not be out of place to mention that when civil miscellaneous appeal was pending, obstructor died and respondent herein was impleaded as his legal heir. He got himself impleaded on the basis of will, alleged to have been executed by Munusamy Mudaliar. It was he, who filed L.P.A. before the Division Bench, He also moved the Honourable Supreme Court in S.L.P. No. 14147 of 1986, which was also dismissed.
6. Respondent again moved Honourable Supreme Court by filing Review Petition No. 120 of 1991. The same was also dismissed.
7. Undaunted by the failure in the earlier proceedings, respondent again filed O.S. No. 205 of 1997 on the file of Subordinate Judge, Kancheepuram to declare his title to suit properties and for permanent injunction restraining defendant from in any way interfering with the possession and enjoyment of plaintiff under the guise of executing decree in O.S. No. 14 of 1972. In that suit he further wanted declaration that the decree obtained in O.S. No. 14 of 1972 is not binding on him. An application for injunction was also filed in I.A. No. 503 of 1997 and the same was dismissed. The matter was taken on appeal in C.M.A. No. 16 of 1997 on the file of Subordinate Judge’s Court, which also did not meet with success.
8. When his attempt to stall the execution of decree failed, he filed another suit as O.S. No. 501 of 1997 on the file of District Munsif Court, Kancheepuram. That suit was one for permanent prohibitory injunction restraining decree-holder from executing decree. In that case, he contended that without partition, decree cannot be executed.
9. Though he moved an application for injunction, no order was passed thereon.
10. When his attempt to get interim order failed, respondent filed E.A. No. 200 of 1998 before the executing court. At that time, decree-holder came to this Court in C.R.P. No. 2238 of 1998 alleging that the present application under Section 47 is an abuse of process of court, I ordered notice of motion in C.R.P. No. 2238 of 1998. Respondent entered appearance and made submission that he has already filed memo before lower court withdrawing the application. In view of the said submission, I dismissed the revision petition as unnecessary. I have recorded the statement in my order thus,
Learned Counsel for respondent/third party, who has filed the application under Section 47 of the Code of Civil Procedure has filed a memo before this Court that the third party has withdrawn the said application. In view of the said submission, the revision petition is dismissed as unnecessary….
11. On the very same date, When petitioner withdrew the application under Section 47, he filed E.A. No. 997 of 1998 in District Munsif Court, Kancheepuram, under Order 21, Rule 58 of Code of Civil Procedure. Application filed by. respondent is also among the typed set of papers. From the facts elicited therein it is said that petitioner wanted to reagitate the matter again. Decree-holder filed this revision petition challenging the procedure adopted by lower court in entertaining such application. Learned Counsel for decree-holder submitted that if this application is allowed to be filed, the validly obtained decree could not be executed, According to the learned Counsel, it is purely abuse of process of law and respondent should not be allowed to prosecute such application.
12. Respondent also entered appearance. He has also filed counter affidavit and typed set of papers. In the counter-affidavit it is said that he has withdrawn Section 47 application reserving his right to file a separate application under Order 21, Rule 58 of Code of Civil Procedure to work out his rights and therefore the present application under Order 21, Rule 58 is not barred. It is further contended that the decree-holder is not entitled to entire property that is scheduled in the decree and what she was obtained is only half of the property and the remaining half property belong to him and without partition, the decree could not be executed.
13. Counsel further submitted that under Order 21, Rule 58, this can be construed as a claim and if it is not coming under Order 21, Rule 58, at least the principles under that Rule can be applied. It is also submitted by learned Counsel that application for amendment of execution application is also pending. He also wanted to invoke the principles of Order 21, Rule 99 in such cases. Counsel further submitted that even though he is a party in C.M.A., L.P.A. and S.L.P. that will not bar him from entertaining this application since he is not party to the suit and he was all along a third party and the decree is not binding on him. His possession is also not likely to be disturbed.
14. After having heard counsel on both sides, I feel it is a fit case where the decree-holder has been harassed by respondent and his predecessors by filing applications after applications for the last more than two decades.
15. In this connection, it is worthwhile to note that respondent is claiming under obstructor Munusamy Mudaliar on the basis of will alleged to have been executed by him. The obstruction petition was filed by respondent’s grandfather in E.A. No. 211 of 1978. Contention therein also was that the entire property did not belong to decree-holder. It is alleged therein that even though he is witness in the suit, he cannot be deemed to be party in the suit and therefore entitled to obstruct the execution of decree. The claim was rejected as per order dated 28.7.1980. After detailed order marking about 65 documents executing court found that the obstruction is frivolous, vexatious and obstructor has no right over the property. Executing Court held thus,
…By no stretch of imagination, it may be stated that the respondent has any manner of title independently to the suit property. Exs.B-1 to B-65 need not be examined thoroughly and independently. Since the release deed was subject matter of the previous litigation and it was found specifically against the respondent and the defendants. Therefore, on going through the entire materials, I am satisfied that the respondent has no independent title than that of the judgment-debtor and his present petition is only frivolous and there are no merits in the case set up by the respondent.
Obstruction was found to be removed. It was this right that is bequeathed to respondent who got himself impleaded in C.M.A. No. 623 of 1980. Learned single Judge dismissed C.M.A., which was confirmed in L.P.A. No. 4 of 1982. In paragraph 2 of the order in L.P.A. the subject matter of the suit is also specifically stated. The attempt before Honourable Supreme Court in S.L.P. also failed.
16. Review petition was also filed before Honourable Supreme Court but without success. In C.M.A., L.P.A., S.L.P., and review petition, very same respondent was party who agitated very same right on the basis of Will alleged to have been executed by his grandfather who was obstructor, whose was also rejected.
17. Respondent again filed O.S. No. 205 of 1997 and obtained interim order from District Munsif Court, Kancheepuram, which was subsequently vacated in August, 1997. No appeal was taken against that order, but another suit was filed as O.S. No. 501 of 1997 before the same court. In that suit also no interim order was obtained.
18. It was thereafter, application under Section 47 was filed, which was subsequently withdrawn.
19. Contention of learned Counsel for respondent that the present application E.A. No. 997 of 1998 is not maintainable cannot be accepted.
20. Argument, is that Section 47 application could be filed only by a party or person claiming under the party to the suit. When he claims that he is not party to the suit, he wanted the petitioner to be withdrawn and that was granted. In the present application in E.A. No. 997 of 1998, he is claiming independent title and it is also submitted that the claim is also not based on Will alleged to have been executed by his grandfather. He claims his independent right over the property and therefore, it is maintainable.
21. On a reading of Section 47 application as well as present application, contents and relief sought for are same, merely because it is stated as application under Section 47 and in the present application it is stated as Order 21, Rule 58, subject matter cannot be changed nor there is change in the reliefs. The argument that the application under Section 47 was withdrawn with liberty to file separate application has no substance.
22. Memo filed by respondent before executing court read thus,
It is submitted that since the petitioner has not derived any title under the judgment-debtors, the petitioner is withdrawing the petitioner under Section 47, C.P.C. as reported by the petitioner in C.R.P. No. 2238 of 1998 High Court and filing separate petition under Order 21, Rule 58, C.P.C. to work out his rights and hence it is prayed that this Hon’ble court may be pleased to dismiss the E.A. No. 200 of 1998 and render justice,
23. No liberty is given to petitioner by court to life an application under Order 21, Rule 58 petitioner reserved in himself a right to file another application and he wanted to dismiss E.A. No. 200 of 1998. I do not find that any permission was granted by executing court permitting petitioner to file separate application.
24. It is true that provisions of Order 23, Rule 1 of Code of Civil Procedure are not made applicable to execution proceedings. Under Order 23, Rule 4, it is said that the provisions of that order will not apply to proceedings in execution. According to me, even without resorting to Order 23, present application is barred. Purpose of Order 23 is that the litigant must be prevented from abusing process of court by instituting suits again and again on the same cause of action. That principle is found on public policy and therefore de hors Order 23 public policy prevents reagitating same matter.
25. In Sarguja Transport Service v. State Transport Appellate Tribunal, M.P., Gwalior and Ors. (1989) 1 S.C.C. 5, their Lordships of Supreme Court held that if a writ petition is withdrawn without permission to file a separate application. Subsequent application on the same cause of action is barred. In that case, their Lordships said thus,
The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that article. On this point the decision in Daryao case is of no assistance. But we are of the view that the principle underlying Rule 1 of Order 23 of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata, but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics…..
[Italics supplied]
De hors Order 23, on the ground of public policy and for administration of Justice, such repeated attempts by litigant to thwart execution of decree and attempt to reagitate the same matter should be prevented.
26. Facts elicited by me are admitted facts. It is clear therefrom that the very same matter was in issue in execution when petitioner’s grandfather filed application. At that time he claimed as legatee under the Will and obstructed delivery of property. Now, under the present E.A., he claims that he has got independent right. But he is reagitating same issue. It is not the case that he has got independent right only now. The alleged independent right was available to him even at the time when he was agitating matter earlier. Present application is also barred by res judicata. Once it is found that present application is hopelessly barred and the intention is only to reagitate the same issue, court has to view such conduct seriously and immediate action will have to be taken to save the precious time of public and court from being wasted, by not permitting such an application being presented. Such action must be immediately stopped.
27. In a recent decision of Honourable Supreme Court reported in K.K. Modi v. K.N. Modi , their Lordships considered this question in detail. Paragraphs 42 to 46 of the judgment are relevant for our purpose, which read thus,
42. Under Order 6, Rule 16, the court may, at any stage of the proceeding, order to be struck out, inter alia, any matter in any pleading which is otherwise an abuse of the process of the court. Mulla in his treatise on the Code of Civil Procedure, (15th Edn. Vol.II, P. 1179, note 7) has stated that power under Clause (c) of Order 6, Rule 16 of the Code is confined to cases where the abuse of the process of the court is manifest from the pleadings and that this power is unlike the power under Section 151 whereunder courts have inherent power to strike out pleadings or to stay or dismiss proceedings which are an abuse of their process. In the present case the High Court has held the suit to be an abuse of the process of the court on the basis of what is stated in the plaint.
43. The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraphs 18/19/33 (p.344) explains the phrase “abuse of the process of the court thus:
This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation…. The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material.
44. One of the examples cited as an abuse of the process of the court is relitigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res judicata. But if the same issue is sought to be reagitated, it also amounts to an abuse of the process of the court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given note of facts amount to an abuse of the processes of the court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the court especially where the proceedings are absolutely groundless. The court then has the power to stop such proceedings summarily and prevent the time of the public and the court from being wasted. Undoubtedly, it is a matter of the court’s discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The court should also be satisfied that there is no chance of the suit succeeding.
45. In the case of Greenhalgh v. Mallard (1947) 2 All E.R. 255, the court had to consider different proceedings on the same cause of action for conspiracy, but supported by different averments. The court held that if the plaintiff has chosen to put his case in one way, he cannot thereafter bring the same transaction before the court, put his case in another way and say that he is relying on a new cause of action. In such circumstances he can be met with the plea of res judicata or the statement or plaint may be struck out on the ground that the action is frivolous and vexatious and an abuse of the process of the court.
46. In Mcllkonny v. Chief Constable of West Midlands Police Force (1980) 2 All E.R. 227, the Court of Appeal in England struck out the pleading on the ground that the action was an abuse of the process of the court since it raised an issue identical to that which had been finally determined at the plaintiffs’ earlier criminal trial. The court said even when it is not possible to strike out the plaint on the ground of issue estoppel, the action can be struck out as an abuse of the process of the court because it is an abuse for a party to relitigate a question or issue which has already been decided against him even though the other party cannot satisfy the strict rule of res judicata or the requirement of issue estoppel.
[Italics supplied]
28. I find that E.A. No. 997 of 1998 filed by respondent was only with an intention to prevent a validly obtained decree being executed and such applications are filed only to prevent administration of justice being done. It has no good faith. Respondent should not be allowed to reagitate the same mater over again.
29. Learned Counsel for respondent submitted that he is entitled to agitate the matter under Order 21, Rule 58 or under Order 21, Rule 99 of Code of Civil Procedure. This Court is not concerned as to the provisions on which petition is filed. Whatever may be the provision, intention is only one, that is, to reagitate the same matter already concluded, and that he is not entitled to under law.
30. In the result, E.A. No. 997 of 1998 filed by respondent in O.S. No. 14 of 1992 on the file of District Munsif Court, Kancheepuram stands dismissed.
31. I direct executing court to see that decree-holder is given possession of property without any further delay. I direct executing court to see that the fruits of decree reaches petitioner within a period of seven days from the date of production of copy of this order.
32. From the history of litigation for the last two decades, it is clear that respondent and his associates will not permit decree-holder to get possession and they will create law and order problem. I therefore direct executing court that without waiting for any formal application from decree-holder for getting police assistance, it shall order police protection and see that the property is delivered to decree-holder within the time stipulated. I also make it clear that executing court is bound to and shall see that the property is delivered even if there is any interim order from any court subordinate to this Court. Any interim order from any subordinate courts shall not stand in the way of executing decree. Executing Court is directed to comply with this direction without any deviation and report compliance by 3.3.1999 to this Court.
33. The civil revision petition is allowed as above. Petitioner is entitled to cost and the same is quantified as Rs. 3,000. Consequently, C.M.R No. 18976 of 1998 is closed.