IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931 CRP.NO. 435 OF 2006() --------------------- {IN E.P.NO.992/2001 IN OS.2138/1998 OF THE PRL.MUNSIFF COURT, THRISSUR} .................... REVN. PETITIONER(S): --------------------- POOTHOKARAN AGENCIES, P.O. ROAD, THRISSUR, REPRESENTED BY GEORGE. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.P.B.KRISHNAN RESPONDENT(S): DECREE-HOLDERS: ------------------------------ 1. FAISAL RAJ, S/O. ABDUL HAMEED, PUTHENVEETTIL HOUSE, KOKKALAI, THRISSUR. 2. RUKIYA, W/O. ABDUL HAMEED, PUTHENVEETTIL HOUSE, KOKKALAI, THRISSUR. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRP.NO. 435 OF 2006 :: :: ORDER ON I.A.No.1744/06 & 1521/07 IN CRP.NO. 435 OF 2006 DISMISSED. Sd/- (S.S.SATHEESACHANDRAN) 19.2.2010. JUDGE sk/- //true copy// P.S. To Judge. S.S. SATHEESACHANDRAN, J. = = = = = = = = = = = = = = = = = = = = C.R.P.No.435 of 2006 = = = = = = = = = = = = = = = = = = = = Dated this the 19th February, 2010. O R D E R The revision is directed against an order passed by the execution court negativing the challenge canvassed by the judgment debtor that the decree is inexecutable. Petitioner is the judgment debtor in E.P.No.992/2001 in O.S.No.2138/98 on the file of the Principal Munsiff's Court, Thrissur. Respondent is the decree holder. Respondent is the landlord of a building occupied by the petitioner as a lessee. At a time when a judicial pronouncement of this court striking down Section 5 of the Kerala Buildings (Lease and Rent Control) Act, 1965 {for short “the Act”} as unconstitutional prevailed the landlord had filed the present suit before the Sub Court for fixation of the fair rent to be paid by the petitioner/tenant. In the suit, the landlord claimed a monthly rent at the rate of Rs.2,250/- and also his entitlement to claim rent from a particular date. Suit was decreed. When the C.R.P.No.435 of 2006 :: 2 :: landlord proceeded to execute that decree, the impugned order shows the tenant had raised an objection challenging the executability of the decree, contending that a declaratory decree alone had been granted in favour of the landlord. That challenge raised by the judgment debtor was negatived. However, when further steps in execution petition continued the very same challenge was made by filing another petition. The impugned order arises from the dismissal of that petition. 2. Petitioner/judgment debtor, who had already raised a challenge as to the executability of the decree after that was turned down by the execution court and that order remained unimpeached cannot be permitted to raise the same challenge at a later stage in the execution petition. The Apex Court has held that raising of pleas at various stages of a proceeding is an abuse of the process of the court and C.R.P.No.435 of 2006 :: 3 :: once a plea is decided at the earlier stage, it would constitute constructive res judicata preventing the raising of the same at a later point of time. Non raising of a relevant plea at an early stage, it has been held, would constitute constructive res judicata precluding the party from raising that plea at a later stage. Petitioner who had already suffered an adverse order on the challenge canvassed against the executability of the decree cannot be heard to raise that contention again in the very same execution proceedings. Then the next question whether under the decree the landlord is entitled to claim arrears of rent on the basis of the rent fixed by the court. A copy of the decree had been handed over to me by the learned counsel for the petitioner. The decree provides for entitlement of the petitioner/decree holder to claim rent from a particular date as fixed by the court. It is only legal and proper to give effect to that C.R.P.No.435 of 2006 :: 4 :: decree, allowing the decree holder to get the rent at the rate fixed by the court. Learned counsel submits that no interest is provided in the decree. If no interest is provided in the decree, needless to point out the executing court will see that no interest is claimed from the judgment debtor under the decree. Civil Revision petition is disposed of as above. Sd/- (S.S. SATHEESACHANDRAN) JUDGE SK/- //true copy//