Once the decree reached to finality - No E.A. is maintainable questioning the very root of the decree and judgment - Partnership disputes - award was passed - made rule of court - property fell to the share of petitioner - Eviction suit filed was decree against the respondents - appeal allowed - Civil appeal set aside the appeal and confirmed the lower court order of eviction - reached finality - E.P. for eviction - EA. filed by tenant against whom the decree was passed for eviction is liable to be set aside but Lower court committed wrong - High court set aside the order of lower court = M/s. Kamakshi Builders,A partnership firm, Per Partner Sri R.S. Rangadas...Revision Petitioner/Respondent-decree holder/Plaintiff Dr.Ambedkar Educational Society, Rep. by its Secretary, Hyderabad...Respondent/petitioner/Judgment-debtor/defendant = published in judis.nic.in/judis_andhra/filename=10632
Once the decree reached to finality - No E.A. is maintainable questioning the very root of the decree and judgment reached finality - Partnership disputes - award was passed - made rule of court - property fell to the share of petitioner - Eviction suit filed was decree against the respondents - appeal allowed - Civil appeal set aside the appeal and confirmed the lower court order of eviction - reached finality - E.P. for eviction - EA. filed by tenant against whom the decree was passed for eviction is liable to be set aside but Lower court committed wrong - High court set aside the order of lower court =
in Shub Karan Bubna v. Sita Saran Bubna12 at para 27 this Court
observed as under: (SCC p. 699)
"27. In the present system, when preliminary decree for partition is passed,
there is no guarantee that the plaintiff will see the fruits of the decree. The
proverbial observation by the Privy Council is that the difficulties of a
litigant begin when he obtains a decree. It is necessary to remember that
success in a suit means nothing to a party unless he gets the relief. Therefore,
to be really meaningful and efficient, the scheme of the Code should enable a
party not only to get a decree quickly, but also to get the relief quickly. This
requires a conceptual change regarding civil litigation, so that the emphasis is
not only on disposal of suits, but also on securing relief to the litigant."
16. As stated by us hereinabove, the position has not been improved till today.
We strongly feel that there should not be unreasonable delay in execution of a
decree because if the decree-holder is unable to enjoy the fruits of his success
by getting the decree executed, the entire effort of successful litigant would
be in vain."
34. These observations, in my opinion, apply on all fours, to the present case.
Although the petitioner had succeeded on 18.05.2007 in Civil Appeal No.6345 of
2000, 6 1/2 years later, it is still unable to enjoy the fruits of the decree
because of the untenable pleas raised in the counter to the execution petition
by the respondent and filing of EA.No.550 of 2007 by it.
The respondent cannot
be allowed to circumvent the decree of eviction granted by the Supreme Court by
raking up fresh issues as to title of the petitioner in the execution
proceedings and stalling the same.
35. In this view of the matter, I am of the opinion that the order dt.14.03.2008
in EA.No.550 of 2007 in EP.No.90 of 2005 in OS.No.161 of 1989 of the Court below
is unsustainable. It is accordingly set aside. The Civil Revision Petition
No.1940 of 2008 is allowed accordingly. No costs.
THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO
CRP.No.1940 of 2008
12-12-2013
M/s. Kamakshi Builders,A partnership firm, Per Partner Sri R.S.
Rangadas...Revision Petitioner/Respondent-decree holder/Plaintiff
Dr.Ambedkar Educational Society, Rep. by its Secretary,
Hyderabad...Respondent/petitioner/Judgment-debtor/defendant
Counsel for the Petitioners:Sri B. Adinarayana Rao
Counsel for the Respondents:Sri M. Papa Reddy
Sri D. Ranganath Kumar
Ms. Manjani S. Ganu
<GIST:
>HEAD NOTE:
?Cases referred:
1. (2013) 9 SCC 491
2. AIR 1962 SC 1230
3. (1994) 1 SCC 1
4. (2012) 4 SCC 307
5. AIR 1992 SC 473
6. (2007) 14 SCC 262
7. (1987) 4 SCC 585
8. AIR 1997 SC 122
9. (2008) 4 SCC 615
10. 1982 (1) SCC 525
11. 1999 (2) SCC 325
12. 2009 (9) SCC 689
TWO THOUSAND AND THIRTEEN
The Court made the following : [order follows]
THE HON'BLE SRI JUSTICE M.S. RAMACHANDRA RAO
CRP.No.1940 of 2008
ORDER :
This Revision is filed under Article 227 of the Constitution of India
challenging the order dt.14.03.2008 of the IV Senior Civil Judge, City Civil
Court, Hyderabad in E.A.No.550 of 2007 in EP.No.90 of 2007 in O.S.No.161 of
1989.
2. The subject matter of this suit is property described in the schedule to the
plaint therein as "all that western side portion of building bearing H.No.1-8-1,
Baghlingampally, Hyderabad, consisting of plinth area of 780 Sq.yds. with open
yard of 2196 sq.yds." within boundaries specified in the plaint.
3. One Nawab Mohd. Misbahuddin Khan was the owner of the above property.
He
entered into a partnership with petitioner under a deed of partnership
dt.01.04.1986 for the purpose of carrying out the business of development and
construction.
Disputes arose between petitioner and Misbahuddin Khan and other
partners which were referred to an arbitrator who rendered an award
dt.22.11.1987.
Under the said award, a sum of Rs.4,00,000/- was awarded to
Misbahuddin Khan towards his share in the partnership, and the suit property was
awarded to petitioner, with Misbahuddin Khan retiring from the partnership.
The
said award was also made Rule of Court by judgment and decree dt.29.02.1988 in
OP.No.2193 of 1987 by the V Addl. Judge, City Civil Court, Hyderabad.
4. The 1st defendant/respondent herein was the tenant of the plaint schedule
property since 16.05.1973.
After the award was passed in favour of the
petitioner by the arbitrator, Misbahuddin Khan issued a notice dt.22.11.1987 to
the respondent directing him to pay the rent with all arrears to the petitioner.
The petitioner also issued a notice on 13.10.1988 to respondent informing about
the transfer of title to it.
In the same letter, petitioner determined the lease
of respondent on the ground that the latter had committed breach of the terms of
the lease by
(i) making unauthorised constructions,
(ii) sub-letting to the
State Bank of Hyderabad and also
(iii) on the ground of non-payment of arrears of rent.
In the said notice, the respondent was directed to handover possession
of the plaint schedule property on expiry of the tenancy month ending on
15.12.1988 and if it did not do so, the petitioner stated that it would be
liable for eviction and damages for use and occupation at the rate of
Rs.21,000/- per month.
5. The petitioner thereafter filed the above suit for eviction of the respondent
seeking damages for use and occupation, arrears of rent and costs.
6. A written statement was filed by respondent contending that
it is a Society
registered under the A.P. (Telangana Area) Public Societies Registration Act,
1350 Fasli; that
Misbahuddin Khan offered to donate the plaint schedule property
to enable the respondent to establish an educational institution permanently and
orally gifted it to the respondent on 01.10.1975;
since then, the respondent is
in peaceful possession and enjoyment of the property as owner thereof; that
Misbahuddin Khan later confirmed the oral gift by a letter dt.14.09.1980; and
therefore, the respondent had not paid any rents since 01.10.1975 onwards.
Even
otherwise, the respondent pleaded that it had acquired title to the plaint
schedule property by adverse possession and so, the petitioner had no authority
to evict the respondent.
It also contended that the termination of lease by
petitioner is null and void as petitioner is not its landlord.
It was denied
that there was a landlord and tenant relationship between petitioner and
respondent.
7. By judgment dt.05.09.1998, the suit was decreed directing the respondent and
the State Bank of Hyderabad to deliver possession of the plaint schedule
property to petitioner and also for damages and costs.
8. Aggrieved thereby, the respondent filed appeal CCCA.No.182 of 1998 in the
High Court of Andhra Pradesh. The said appeal was allowed on 31.12.1999.
9. Challenging the same, petitioner filed Civil Appeal No.6345 of 2000. The
said appeal was allowed on 18.05.2007 and the judgment of the trial court was
confirmed.
10. Thereafter, the petitioner filed EP.No.90 of 2007 under Order XXI Rule 35
CPC for delivery of possession of the plaint schedule property and other
reliefs.
The respondent filed a counter opposing the delivery of possession to
petitioner.
11. The respondent also filed EA.No.550 of 2007 under Order XXVI Rule 9 CPC r/w
Order XXXIX Rule 7 for appointment of an Advocate-Commissioner to identify the
plaint schedule property in Sy.No.55 of Baghlingampally, Hyderabad with specific
reference to the land leased to the respondent under registered deed of lease
dt.01.01.1998 admeasuring Acs.2.10 gts. and 74 Sq.yds. and
the land withdrawn
from acquisition in favour of the respondent, admeasuring Acs.1.20 gts. in
G.O.Ms. Dt.19.10.1978, including the land in Sy.No.55 lost for road widening, if
necessary, by taking assistance from a surveyor of A.P. Housing Board as well as
from the Department of Survey, Settlement and Land Records.
12. In the affidavit filed in support of this application, it is the contention
of respondent that the plaint schedule property was never in possession of
Misbahuddin Khan so as to enable him to offer the same to the petitioner as a
capital investment in the alleged partnership; that the petitioner had played a
fraud on the court in regard to the plan annexed to the amended plaint; that the
plaint schedule property was sought to be acquired under the provisions of the
Land Acquisition Act, 1894 along with other property; as per the award
dt.13.12.1975 filed by respondent, Misbahuddin Khan claimed 7291.55 Sq.yds. in
Sy.No.55 and also claimed land value at the rate of Rs.125/- per sq.yd. as
compensation for a portion of the building on the western side, wherein the
respondent was in occupation, without giving any measurements of the alleged
constructed area; that his brother Ghousuddin Khan claimed 9207 Sq.yds. and
constructed area of 1530 sq.yds.; their total claim was only in respect of
16,498.55 sq.yds. equivalent to Acs.3.37 gts.; but the plaint plan incorrectly
shows that the claim of the brothers was for 5278 sq.yds. each; the actual
building existing then was totally different from what is claimed by the decree-
holder on the basis of the alleged plaint plan; that under GO.Ms.No.40/A
dt.19.10.1978, an area admeasuring Acs.1.20 gts. was released by the State in
favour of the respondent from acquisition in favour of the respondent; the A.P.
Housing Board had also executed a registered lease deed in favour of respondent
for an area of Acs.2.10 gts. on 01.01.1998; and if the area as shown in the
plaint plan is to be accepted, then the balance constructed area after deducting
the above extents would be only 534.96 sq.yds. and not 780 sq.yds. shown in the
plan. It is further contended that the boundaries of the area admeasuring
Acs.1.20 gts. released in favour of the respondent from acquisition are not
available and the petitioner cannot claim that plaint schedule property falls
within this area. It is further contended that the respondent had an existing
building not only on the land which originally belonged to Misbahuddin Khan but
also on the land of Ghousuddin Khan and others admeasuring Acs.1.20 gts.; in the
registered lease deed executed by the Housing Board in favour of respondent,
the existing college was shown as the northern boundary; so everything towards
the South of the building shown in the plaint plan was acquired by the A.P.
Housing Board and then leased out to the respondent independently; that these
facts were suppressed and fraud was played upon the Court; and unless and until
the exact area admeasuring Acs.1.20 gts., which was released in favour of the
respondent, is identified in juxtaposition with the actual area leased under the
lease deed dt.01.01.1998 by the A.P. Housing Board, the true facts cannot be
culled out; and therefore, an Advocate-Commissioner should be appointed and a
survey be conducted as sought.
13. The petitioner opposed this application contending that the executing court
cannot go behind the decree, that the respondent is not entitled to raise the
above pleas; that this issue was not raised at any time either in the trial
court, High Court or in the Supreme Court; therefore, they cannot be allowed to
raise this issue at this stage; and that under the guise of appointment of
Advocate-Commissioner, the petitioner cannot be allowed to re-open issues which
have attained finality with the judgment of the Supreme Court and dispute the
identity of the property which was subject matter of the suit. It was further
contended that any release of properties from acquisition would result in
reversion of title to the owners, i.e., Misbahuddin Khan and Ghousuddin Khan,
and the respondent cannot claim any benefit of the same. It was specifically
contended that the Acs.1.20 gts. of land which is the subject matter of the
lease is the open area used as play ground and the northern side thereof is the
existing college building; that the respondent had obtained on rent the place,
building and appurtenant land for the purpose of running its educational
institution; and that the respondent cannot be allowed at this stage to urge
that the property which was available with Misbahuddin Khan could not have been
offered as a capital investment in the partnership firm.
14. Before the Court below, the respondent marked Exs.P.1 to P.4 and the
petitioner marked Exs.R.1 to R.11.
15. By order dt.14.03.2008, the Court below allowed the EA.No.550 of 2007. It
held that the award passed by the Land Acquisition Officer Ex.P.1 dt.13.12.1975
would show that the entire land of Misbahuddin Khan was acquired by the State
and compensation was paid; that prima facie, the question of offering a portion
of the said property by Misbahuddin Khan, as a partnership asset, as capital
investment does not arise; and therefore, it is a fit case to investigate the
identity of the property before passing an order of delivery of possession. The
Court however observed that the allegation of the respondent that the petitioner
played a fraud or not (by allegedly suppressing the extent of property
originally acquired from Misbahuddin Khan), cannot be decided while dealing with
this EA, and that there was no finding in the suit as to the acquisition and
de-requisition of any part of the land which is the subject matter of the suit,
in OS.No.161 of 1989. It therefore directed the appointment of an Advocate to
conduct the survey as sought by the respondent.
16. Challenging the same, this Revision is filed by the petitioner/decree-
holder.
17. Heard Sri B. Adinarayana Rao, Senior Counsel for the petitioner and Sri
Sunil B. Ganu, counsel for the respondent.
18. The counsel for petitioner contended that no dispute as to identity of the
plaint schedule property was raised by respondent at any time previously in the
Suit, First appeal or in the Civil Appeal; that the executing court cannot go
behind the decree; that the application for appointment of Advocate-Commissioner
filed by the respondent in the execution proceedings is only to aid its plan to
create a doubt as to the identity of the property, and facilitate it to persuade
the executing court to go behind the decree; that this is impermissible in law;
and therefore, the order of the Court below deserves to be set aside as it is
vitiated by error in the exercise of jurisdiction vested in it. He also placed
reliance upon the judgment of the Apex Court in Satyawati v. Rajinder Singh and
another1.
19. The counsel for respondent on the other hand contended that petitioner has
not disputed about the attempt to acquire the land of Misbahuddin Khan, or the
withdrawal from acquisition by the State in 1978 of a portion of the acquired
land, in which the respondent was housed; that the facts pleaded by the
respondent in the EA clearly demonstrate that the petitioner played a fraud on
the Court in securing the decree; that the appointment of an Advocate-
Commissioner is a step in the process to aid the respondent to show that
Misbahuddin Khan had no title to the plaint schedule property; that the Court
below had given cogent reasons for allowing the said EA and therefore, the CRP
be dismissed. He also placed reliance on Haji Sk. Subhan v. Madhorao2 and S.P.
Chengalvaraya Naidu (dead) by LRs. v. Jagannath (dead) by LRs. and others3.
20. I have noted the submissions of both sides.
21. It is settled law that an executing court cannot go behind a decree. This
is declared by the apex court in several decisions. In Kanwar Singh Saini v.
High Court of Delhi4, the Supreme Court held :
"25. It is a settled legal proposition that the executing court does not have
the power to go behind the decree. Thus, in absence of any challenge to the
decree, no objection can be raised in execution. (Vide State of Punjab v.
Mohinder Singh Randhawa5.)"
22. In Darshan Singh v. State of Punjab6, the Supreme Court reiterated this
principle and held that unless the decree is a nullity or passed by a court
without jurisdiction, it cannot be questioned.
23. In the present case, the Supreme Court had rejected the plea of the
respondent that it became the owner of the plaint schedule property by virtue of
a hiba/oral gift in its favour by Misbahuddin Khan or by adverse possession.
Thus it upheld the title of Misbahuddin Khan. By raising in execution
proceedings, the question whether Misbahuddin Khan had the right to alienate the
plaint schedule property to petitioner, respondent is now trying to question the
correctness of the decision of the Supreme Court wherein the title of
Misbahuddin Khan was upheld. This would amount to a collateral attack on the
judgement of the Supreme Court which is impermissible. It is not as if the
acquisition proceedings or the de-notification proceedings were not within the
knowledge of the respondent. The respondent in its written statement at para.17
had specifically adverted to the same.
24. Therefore, I am of the opinion that the plea now raised by respondent in its
counter in the EP and in the EA filed by it, might and ought to have been raised
by it, at the time when the suit was pending. Therefore, the principle of
constructive res judicata would apply and the respondent is precluded from
raising such a plea in the execution proceedings and collecting evidence to
establish the said plea by seeking appointment of an Advocate-Commissioner.
25. In Kamlabai v. Mangilal Dulichand Mantri7, the Supreme Court held :
"28. The next question which is of some importance is about raising of the
objections at the earlier stage. Admittedly when the award was filed in the
court, notice was served and no objection was raised. It the tenant intended to
raise the objection that this decree on the basis of the award could not be
passed as it was in contravention to clause 13 of the Rent Act and therefore was
absolutely without jurisdiction, such an objection could have been raised there
and then. The tenant admittedly did not raise this objection which was open to
him. In this view to the matter, the contention on behalf of the appellant about
the constructive res judicata also is of some significance. This question of
constructive res judicata in execution proceedings came before this Court in
Mohanlal Goenka v. Benoy Krishna Mukherjee. In this decision following the
earlier decision of the Privy Council, this Court ruled that the principles of
constructive res judicata will be applicable even in execution proceedings."
26. In Bharmappa Nemanna Kawale and another v. Dhondi Bhima Patil and others8,
the Supreme Court held that a judgment-debtor cannot be allowed to raise a plea
at the time of execution that he was a tenant under the Bombay Tenancy and
Agricultural Lands Act, 1948, when a decree for eviction was passed against him
holding that he was not a tenant.
27. In Barkat Ali v. Badrinarain9, the Supreme Court held :
"13. The principles of res judicata not only apply in respect of separate
proceedings but the general principles also apply at the subsequent stage of the
same proceedings also and the same court is precluded to go into that question
again which has been decided or deemed to have been decided by it at an early
stage.
14. In Arjun Singh v. Mohindra Kumar it was observed as follows: (AIR pp. 999-
1000, paras 10-11)
"10. ... Scope of principle of res judicata is not confined to what is contained
in Section 11 but is of more general application. Again, res judicata could be
as much applicable to different stages of the same suit as to findings on issues
in different suits. ...
11. ... where the principle of res judicata is invoked in the case of the
different stages of proceedings in the same suit, the nature of the proceedings,
the scope of the enquiry which the adjectival law provides, the decision being
reached, as well as the specific provisions made on matters touching such
decision are some of the material and the relevant factors to be considered
before the principle is held applicable."
15. In Satyadhyan Ghosal v. Deorajin Debi it was observed as follows: (AIR pp.
943-44, para 8)
"8. The principle of res judicata applies also as between two stages in the same
litigation to this extent that a court, whether the trial court or a higher
court having at an earlier stage decided a matter in one way will not allow the
parties to reagitate the matter again at a subsequent stage of the same
proceedings."
28. In view of this legal position, the respondent cannot be allowed to plead in
the execution proceedings that petitioner's predecessor in title, Misbahuddin
Khan had no right in the plaint schedule property and could not have alienated
it to the petitioner and seek to collect evidence in support of such a plea by
getting an Advocate Commissioner appointed.
29. In Haji Sk. Subhan (2 supra), cited by the counsel for the respondent, a
decree for possession of property on the basis of a proprietary right was passed
in ignorance of the passing of M.P. Abolition of Proprietary Rights (Estates,
Mahals, Alienated Lands) Act, 1950. The Supreme Court held that in such a
situation the principle that the executing Court cannot go behind the decree
would not apply. It held that the effect of the provisions of the Act was to
deprive the respondent of his proprietary rights, including the right to recover
possession of the land in the suit and as such the executing Court was entitled
to refuse to execute the decree, holding that it has become inexecutable on
account of change in the law and its effect. In the present case, the situation
is entirely different. There is no statute which had taken away, prior to
decree, the title of the petitioner in the land or his right to recover
possession thereof. Therefore, the said decision has no application.
30. As regards the plea of fraud raised by the respondent, by merely alleging
fraud and suggesting that the petitioner somehow misled the Court, one cannot
seek to get over an order of eviction passed by the Supreme Court.
31. It is no doubt true that in S.P. Chengal Varaya Naidu (3
supra), cited by the counsel for respondent, the Supreme Court held that a
decree or judgment obtained by fraud is a nullity and can be questioned even in
collateral proceedings. In that case, an application for final decree in a
partition suit was opposed on the ground that the preliminary decree had been
obtained by fraud. The trial court accepted the said plea and dismissed the
application for grant of final decree. The High Court allowed the appeal from
the judgment of the trial court. The Supreme Court reversed the said decision
on the ground that the predecessor-in-interest of the plaintiff by name
Jagannath had purchased at a Court auction, the properties in dispute which
belonged to the appellants on behalf of the decree holder Sowcar, as a Benamidar
of the decree holder. By a registered deed dt.25.11.1945, Jagannath
relinquished all his rights in the property in favour of Sowcar. Thereafter,
the appellants, who were judgment debtors, had paid the total decretal amount to
Sowcar. So Sowcar was no longer entitled to the property which he had purchased
through Jagannath. Without disclosing that he had executed a release deed in
favour of Sowcar, Jagannath filed the suit for partition of property and
obtained a preliminary decree. During the pendency of the suit, the appellants
did not know that Jagannath had no locus standi to file the suit because he had
already executed a registered release deed, relinquishing all his rights in
respect of the property in dispute in favour of Sowcar. It was only at the
hearing of the application for final decree that the appellants came to know
about the release deed; so they challenged the application on the ground of non-
disclosure on the part of Jagannath that he was left with no right in the
property in dispute; that this vitiated the proceedings; and as such, the
preliminary decree obtained by Jagannath by playing fraud in the Court was a
nullity. The Supreme Court accepted the said plea and held :
"5. ... ... ... The principle of "finality of litigation" cannot be pressed to
the extent of such an absurdity that it becomes an engine of fraud in the hands
of dishonest litigants. The courts of law are meant for imparting justice
between the parties. One who comes to the court, must come with clean hands. We
are constrained to say that more often than not, process of the court is being
abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous
persons from all walks of life find the court-process a convenient lever to
retain the illegal gains indefinitely. We have no hesitation to say that a
person, who's case is based on falsehood, has no right to approach the court. He
can be summarily thrown out at any stage of the litigation."
32. The said principle has no application to the present case since the plea of
fraud was raised in the above case,not at the time of execution proceedings, but
during the pendency of the suit, before the passing of final decree. The
appellants therein had no knowledge of the fraud prior to passing of preliminary
decree. But in the present case, such a plea is being raised for the first time
in execution proceedings by seeking to rely upon certain proceedings for
acquisition of property belonging to Misbahuddin Khan, although the respondent
was fully aware of the acquisition and denotification proceedings during the
pendency of the suit (as mentioned in para.17 of the Written Statement).
33. In Satyawati (1 supra), relied upon by the counsel for the petitioner, a
decree for possession passed in favour of the appellant by the District Judge,
Faridabad, had become final. When the execution petition was filed, the
executing court rejected it observing that the decree was not executable because
of some contradictory reports of a local Commissioner. The judgment in favour
of the plaintiff was delivered by considering a report dt.17.09.1989 and a
sketch of the land in question made by the local Commissioner, but the executing
court, on the basis of some other reports dismissed the EP as not executable and
this was confirmed by the High Court. The Supreme Court set aside the decision
of the executing court and the High Court holding that the executing court ought
not to have considered other factors and facts which were not forming part of
the judgment and decree passed in favour of the appellant. It held :
"12. It is really agonising to learn that the appellant-decree-holder is unable
to enjoy the fruits of her success even today i.e. in 2013 though the appellant-
plaintiff had finally succeeded in January 1996. As stated hereinabove, the
Privy Council in General Manager of the Raj Durbhunga v. Coomar Ramaput Sing had
observed that the difficulties of a litigant in India begin when he has obtained
a decree. Even in 1925, while quoting the aforestated judgment of the Privy
Council in Kuer Jang Bahadur v. Bank of Upper India Ltd. the Court was
constrained to observe that: (AIR p.448)
"Courts in India have to be careful to see that the process of the Court and the
law of procedure are not abused by judgment-debtors in such a way as to make
courts of law instrumental in defrauding creditors, who have obtained decrees in
accordance with their rights."
13. In spite of the aforestated observation made in 1925, this Court was again
constrained to observe in Babu Lal v. Hazari Lal Kishori Lal10 in para 29 that:
(SCC p.539)
"29. Procedure is meant to advance the cause of justice and not to retard it.
The difficulty of the decree-holder starts in getting possession in pursuance of
the decree obtained by him. The judgment-debtor tries to thwart the execution by
all possible objections."
14. This Court, again in Marshall Sons & Co. (I) Ltd. v. Sahi Oretrans (P)
Ltd.11 was constrained to observe in para 4 of the said judgment that: (SCC p.
326)
"4. ... it appears to us, prima facie, that a decree in favour of the appellant
is not being executed for some reason or the other, we do not think it proper at
this stage to direct the respondent to deliver the possession to the appellant
since the suit filed by the respondent is still pending. It is true that
proceedings are dragged for a long time on one count or the other and, on
occasion, become highly technical accompanied by unending prolixity at every
stage providing a legal trap to the unwary. Because of the delay, unscrupulous
parties to the proceedings take undue advantage and a person who is in wrongful
possession draws delight in delay in disposal of the cases by taking undue
advantage of procedural complications. It is also a known fact that after
obtaining a decree for possession of immovable property, its execution takes a
long time."
15. Once again in Shub Karan Bubna v. Sita Saran Bubna12 at para 27 this Court
observed as under: (SCC p. 699)
"27. In the present system, when preliminary decree for partition is passed,
there is no guarantee that the plaintiff will see the fruits of the decree. The
proverbial observation by the Privy Council is that the difficulties of a
litigant begin when he obtains a decree. It is necessary to remember that
success in a suit means nothing to a party unless he gets the relief. Therefore,
to be really meaningful and efficient, the scheme of the Code should enable a
party not only to get a decree quickly, but also to get the relief quickly. This
requires a conceptual change regarding civil litigation, so that the emphasis is
not only on disposal of suits, but also on securing relief to the litigant."
16. As stated by us hereinabove, the position has not been improved till today.
We strongly feel that there should not be unreasonable delay in execution of a
decree because if the decree-holder is unable to enjoy the fruits of his success
by getting the decree executed, the entire effort of successful litigant would
be in vain."
34. These observations, in my opinion, apply on all fours, to the present case.
Although the petitioner had succeeded on 18.05.2007 in Civil Appeal No.6345 of
2000, 6 1/2 years later, it is still unable to enjoy the fruits of the decree
because of the untenable pleas raised in the counter to the execution petition
by the respondent and filing of EA.No.550 of 2007 by it.
The respondent cannot
be allowed to circumvent the decree of eviction granted by the Supreme Court by
raking up fresh issues as to title of the petitioner in the execution
proceedings and stalling the same.
35. In this view of the matter, I am of the opinion that the order dt.14.03.2008
in EA.No.550 of 2007 in EP.No.90 of 2005 in OS.No.161 of 1989 of the Court below
is unsustainable. It is accordingly set aside. The Civil Revision Petition
No.1940 of 2008 is allowed accordingly. No costs.
__________________________________
JUSTICE M.S. RAMACHANDRA RAO
Date: 12-12-2013
in Shub Karan Bubna v. Sita Saran Bubna12 at para 27 this Court
observed as under: (SCC p. 699)
"27. In the present system, when preliminary decree for partition is passed,
there is no guarantee that the plaintiff will see the fruits of the decree. The
proverbial observation by the Privy Council is that the difficulties of a
litigant begin when he obtains a decree. It is necessary to remember that
success in a suit means nothing to a party unless he gets the relief. Therefore,
to be really meaningful and efficient, the scheme of the Code should enable a
party not only to get a decree quickly, but also to get the relief quickly. This
requires a conceptual change regarding civil litigation, so that the emphasis is
not only on disposal of suits, but also on securing relief to the litigant."
16. As stated by us hereinabove, the position has not been improved till today.
We strongly feel that there should not be unreasonable delay in execution of a
decree because if the decree-holder is unable to enjoy the fruits of his success
by getting the decree executed, the entire effort of successful litigant would
be in vain."
34. These observations, in my opinion, apply on all fours, to the present case.
Although the petitioner had succeeded on 18.05.2007 in Civil Appeal No.6345 of
2000, 6 1/2 years later, it is still unable to enjoy the fruits of the decree
because of the untenable pleas raised in the counter to the execution petition
by the respondent and filing of EA.No.550 of 2007 by it.
The respondent cannot
be allowed to circumvent the decree of eviction granted by the Supreme Court by
raking up fresh issues as to title of the petitioner in the execution
proceedings and stalling the same.
35. In this view of the matter, I am of the opinion that the order dt.14.03.2008
in EA.No.550 of 2007 in EP.No.90 of 2005 in OS.No.161 of 1989 of the Court below
is unsustainable. It is accordingly set aside. The Civil Revision Petition
No.1940 of 2008 is allowed accordingly. No costs.
THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO
CRP.No.1940 of 2008
12-12-2013
M/s. Kamakshi Builders,A partnership firm, Per Partner Sri R.S.
Rangadas...Revision Petitioner/Respondent-decree holder/Plaintiff
Dr.Ambedkar Educational Society, Rep. by its Secretary,
Hyderabad...Respondent/petitioner/Judgment-debtor/defendant
Counsel for the Petitioners:Sri B. Adinarayana Rao
Counsel for the Respondents:Sri M. Papa Reddy
Sri D. Ranganath Kumar
Ms. Manjani S. Ganu
<GIST:
>HEAD NOTE:
?Cases referred:
1. (2013) 9 SCC 491
2. AIR 1962 SC 1230
3. (1994) 1 SCC 1
4. (2012) 4 SCC 307
5. AIR 1992 SC 473
6. (2007) 14 SCC 262
7. (1987) 4 SCC 585
8. AIR 1997 SC 122
9. (2008) 4 SCC 615
10. 1982 (1) SCC 525
11. 1999 (2) SCC 325
12. 2009 (9) SCC 689
TWO THOUSAND AND THIRTEEN
The Court made the following : [order follows]
THE HON'BLE SRI JUSTICE M.S. RAMACHANDRA RAO
CRP.No.1940 of 2008
ORDER :
This Revision is filed under Article 227 of the Constitution of India
challenging the order dt.14.03.2008 of the IV Senior Civil Judge, City Civil
Court, Hyderabad in E.A.No.550 of 2007 in EP.No.90 of 2007 in O.S.No.161 of
1989.
2. The subject matter of this suit is property described in the schedule to the
plaint therein as "all that western side portion of building bearing H.No.1-8-1,
Baghlingampally, Hyderabad, consisting of plinth area of 780 Sq.yds. with open
yard of 2196 sq.yds." within boundaries specified in the plaint.
3. One Nawab Mohd. Misbahuddin Khan was the owner of the above property.
He
entered into a partnership with petitioner under a deed of partnership
dt.01.04.1986 for the purpose of carrying out the business of development and
construction.
Disputes arose between petitioner and Misbahuddin Khan and other
partners which were referred to an arbitrator who rendered an award
dt.22.11.1987.
Under the said award, a sum of Rs.4,00,000/- was awarded to
Misbahuddin Khan towards his share in the partnership, and the suit property was
awarded to petitioner, with Misbahuddin Khan retiring from the partnership.
The
said award was also made Rule of Court by judgment and decree dt.29.02.1988 in
OP.No.2193 of 1987 by the V Addl. Judge, City Civil Court, Hyderabad.
4. The 1st defendant/respondent herein was the tenant of the plaint schedule
property since 16.05.1973.
After the award was passed in favour of the
petitioner by the arbitrator, Misbahuddin Khan issued a notice dt.22.11.1987 to
the respondent directing him to pay the rent with all arrears to the petitioner.
The petitioner also issued a notice on 13.10.1988 to respondent informing about
the transfer of title to it.
In the same letter, petitioner determined the lease
of respondent on the ground that the latter had committed breach of the terms of
the lease by
(i) making unauthorised constructions,
(ii) sub-letting to the
State Bank of Hyderabad and also
(iii) on the ground of non-payment of arrears of rent.
In the said notice, the respondent was directed to handover possession
of the plaint schedule property on expiry of the tenancy month ending on
15.12.1988 and if it did not do so, the petitioner stated that it would be
liable for eviction and damages for use and occupation at the rate of
Rs.21,000/- per month.
5. The petitioner thereafter filed the above suit for eviction of the respondent
seeking damages for use and occupation, arrears of rent and costs.
6. A written statement was filed by respondent contending that
it is a Society
registered under the A.P. (Telangana Area) Public Societies Registration Act,
1350 Fasli; that
Misbahuddin Khan offered to donate the plaint schedule property
to enable the respondent to establish an educational institution permanently and
orally gifted it to the respondent on 01.10.1975;
since then, the respondent is
in peaceful possession and enjoyment of the property as owner thereof; that
Misbahuddin Khan later confirmed the oral gift by a letter dt.14.09.1980; and
therefore, the respondent had not paid any rents since 01.10.1975 onwards.
Even
otherwise, the respondent pleaded that it had acquired title to the plaint
schedule property by adverse possession and so, the petitioner had no authority
to evict the respondent.
It also contended that the termination of lease by
petitioner is null and void as petitioner is not its landlord.
It was denied
that there was a landlord and tenant relationship between petitioner and
respondent.
7. By judgment dt.05.09.1998, the suit was decreed directing the respondent and
the State Bank of Hyderabad to deliver possession of the plaint schedule
property to petitioner and also for damages and costs.
8. Aggrieved thereby, the respondent filed appeal CCCA.No.182 of 1998 in the
High Court of Andhra Pradesh. The said appeal was allowed on 31.12.1999.
9. Challenging the same, petitioner filed Civil Appeal No.6345 of 2000. The
said appeal was allowed on 18.05.2007 and the judgment of the trial court was
confirmed.
10. Thereafter, the petitioner filed EP.No.90 of 2007 under Order XXI Rule 35
CPC for delivery of possession of the plaint schedule property and other
reliefs.
The respondent filed a counter opposing the delivery of possession to
petitioner.
11. The respondent also filed EA.No.550 of 2007 under Order XXVI Rule 9 CPC r/w
Order XXXIX Rule 7 for appointment of an Advocate-Commissioner to identify the
plaint schedule property in Sy.No.55 of Baghlingampally, Hyderabad with specific
reference to the land leased to the respondent under registered deed of lease
dt.01.01.1998 admeasuring Acs.2.10 gts. and 74 Sq.yds. and
the land withdrawn
from acquisition in favour of the respondent, admeasuring Acs.1.20 gts. in
G.O.Ms. Dt.19.10.1978, including the land in Sy.No.55 lost for road widening, if
necessary, by taking assistance from a surveyor of A.P. Housing Board as well as
from the Department of Survey, Settlement and Land Records.
12. In the affidavit filed in support of this application, it is the contention
of respondent that the plaint schedule property was never in possession of
Misbahuddin Khan so as to enable him to offer the same to the petitioner as a
capital investment in the alleged partnership; that the petitioner had played a
fraud on the court in regard to the plan annexed to the amended plaint; that the
plaint schedule property was sought to be acquired under the provisions of the
Land Acquisition Act, 1894 along with other property; as per the award
dt.13.12.1975 filed by respondent, Misbahuddin Khan claimed 7291.55 Sq.yds. in
Sy.No.55 and also claimed land value at the rate of Rs.125/- per sq.yd. as
compensation for a portion of the building on the western side, wherein the
respondent was in occupation, without giving any measurements of the alleged
constructed area; that his brother Ghousuddin Khan claimed 9207 Sq.yds. and
constructed area of 1530 sq.yds.; their total claim was only in respect of
16,498.55 sq.yds. equivalent to Acs.3.37 gts.; but the plaint plan incorrectly
shows that the claim of the brothers was for 5278 sq.yds. each; the actual
building existing then was totally different from what is claimed by the decree-
holder on the basis of the alleged plaint plan; that under GO.Ms.No.40/A
dt.19.10.1978, an area admeasuring Acs.1.20 gts. was released by the State in
favour of the respondent from acquisition in favour of the respondent; the A.P.
Housing Board had also executed a registered lease deed in favour of respondent
for an area of Acs.2.10 gts. on 01.01.1998; and if the area as shown in the
plaint plan is to be accepted, then the balance constructed area after deducting
the above extents would be only 534.96 sq.yds. and not 780 sq.yds. shown in the
plan. It is further contended that the boundaries of the area admeasuring
Acs.1.20 gts. released in favour of the respondent from acquisition are not
available and the petitioner cannot claim that plaint schedule property falls
within this area. It is further contended that the respondent had an existing
building not only on the land which originally belonged to Misbahuddin Khan but
also on the land of Ghousuddin Khan and others admeasuring Acs.1.20 gts.; in the
registered lease deed executed by the Housing Board in favour of respondent,
the existing college was shown as the northern boundary; so everything towards
the South of the building shown in the plaint plan was acquired by the A.P.
Housing Board and then leased out to the respondent independently; that these
facts were suppressed and fraud was played upon the Court; and unless and until
the exact area admeasuring Acs.1.20 gts., which was released in favour of the
respondent, is identified in juxtaposition with the actual area leased under the
lease deed dt.01.01.1998 by the A.P. Housing Board, the true facts cannot be
culled out; and therefore, an Advocate-Commissioner should be appointed and a
survey be conducted as sought.
13. The petitioner opposed this application contending that the executing court
cannot go behind the decree, that the respondent is not entitled to raise the
above pleas; that this issue was not raised at any time either in the trial
court, High Court or in the Supreme Court; therefore, they cannot be allowed to
raise this issue at this stage; and that under the guise of appointment of
Advocate-Commissioner, the petitioner cannot be allowed to re-open issues which
have attained finality with the judgment of the Supreme Court and dispute the
identity of the property which was subject matter of the suit. It was further
contended that any release of properties from acquisition would result in
reversion of title to the owners, i.e., Misbahuddin Khan and Ghousuddin Khan,
and the respondent cannot claim any benefit of the same. It was specifically
contended that the Acs.1.20 gts. of land which is the subject matter of the
lease is the open area used as play ground and the northern side thereof is the
existing college building; that the respondent had obtained on rent the place,
building and appurtenant land for the purpose of running its educational
institution; and that the respondent cannot be allowed at this stage to urge
that the property which was available with Misbahuddin Khan could not have been
offered as a capital investment in the partnership firm.
14. Before the Court below, the respondent marked Exs.P.1 to P.4 and the
petitioner marked Exs.R.1 to R.11.
15. By order dt.14.03.2008, the Court below allowed the EA.No.550 of 2007. It
held that the award passed by the Land Acquisition Officer Ex.P.1 dt.13.12.1975
would show that the entire land of Misbahuddin Khan was acquired by the State
and compensation was paid; that prima facie, the question of offering a portion
of the said property by Misbahuddin Khan, as a partnership asset, as capital
investment does not arise; and therefore, it is a fit case to investigate the
identity of the property before passing an order of delivery of possession. The
Court however observed that the allegation of the respondent that the petitioner
played a fraud or not (by allegedly suppressing the extent of property
originally acquired from Misbahuddin Khan), cannot be decided while dealing with
this EA, and that there was no finding in the suit as to the acquisition and
de-requisition of any part of the land which is the subject matter of the suit,
in OS.No.161 of 1989. It therefore directed the appointment of an Advocate to
conduct the survey as sought by the respondent.
16. Challenging the same, this Revision is filed by the petitioner/decree-
holder.
17. Heard Sri B. Adinarayana Rao, Senior Counsel for the petitioner and Sri
Sunil B. Ganu, counsel for the respondent.
18. The counsel for petitioner contended that no dispute as to identity of the
plaint schedule property was raised by respondent at any time previously in the
Suit, First appeal or in the Civil Appeal; that the executing court cannot go
behind the decree; that the application for appointment of Advocate-Commissioner
filed by the respondent in the execution proceedings is only to aid its plan to
create a doubt as to the identity of the property, and facilitate it to persuade
the executing court to go behind the decree; that this is impermissible in law;
and therefore, the order of the Court below deserves to be set aside as it is
vitiated by error in the exercise of jurisdiction vested in it. He also placed
reliance upon the judgment of the Apex Court in Satyawati v. Rajinder Singh and
another1.
19. The counsel for respondent on the other hand contended that petitioner has
not disputed about the attempt to acquire the land of Misbahuddin Khan, or the
withdrawal from acquisition by the State in 1978 of a portion of the acquired
land, in which the respondent was housed; that the facts pleaded by the
respondent in the EA clearly demonstrate that the petitioner played a fraud on
the Court in securing the decree; that the appointment of an Advocate-
Commissioner is a step in the process to aid the respondent to show that
Misbahuddin Khan had no title to the plaint schedule property; that the Court
below had given cogent reasons for allowing the said EA and therefore, the CRP
be dismissed. He also placed reliance on Haji Sk. Subhan v. Madhorao2 and S.P.
Chengalvaraya Naidu (dead) by LRs. v. Jagannath (dead) by LRs. and others3.
20. I have noted the submissions of both sides.
21. It is settled law that an executing court cannot go behind a decree. This
is declared by the apex court in several decisions. In Kanwar Singh Saini v.
High Court of Delhi4, the Supreme Court held :
"25. It is a settled legal proposition that the executing court does not have
the power to go behind the decree. Thus, in absence of any challenge to the
decree, no objection can be raised in execution. (Vide State of Punjab v.
Mohinder Singh Randhawa5.)"
22. In Darshan Singh v. State of Punjab6, the Supreme Court reiterated this
principle and held that unless the decree is a nullity or passed by a court
without jurisdiction, it cannot be questioned.
23. In the present case, the Supreme Court had rejected the plea of the
respondent that it became the owner of the plaint schedule property by virtue of
a hiba/oral gift in its favour by Misbahuddin Khan or by adverse possession.
Thus it upheld the title of Misbahuddin Khan. By raising in execution
proceedings, the question whether Misbahuddin Khan had the right to alienate the
plaint schedule property to petitioner, respondent is now trying to question the
correctness of the decision of the Supreme Court wherein the title of
Misbahuddin Khan was upheld. This would amount to a collateral attack on the
judgement of the Supreme Court which is impermissible. It is not as if the
acquisition proceedings or the de-notification proceedings were not within the
knowledge of the respondent. The respondent in its written statement at para.17
had specifically adverted to the same.
24. Therefore, I am of the opinion that the plea now raised by respondent in its
counter in the EP and in the EA filed by it, might and ought to have been raised
by it, at the time when the suit was pending. Therefore, the principle of
constructive res judicata would apply and the respondent is precluded from
raising such a plea in the execution proceedings and collecting evidence to
establish the said plea by seeking appointment of an Advocate-Commissioner.
25. In Kamlabai v. Mangilal Dulichand Mantri7, the Supreme Court held :
"28. The next question which is of some importance is about raising of the
objections at the earlier stage. Admittedly when the award was filed in the
court, notice was served and no objection was raised. It the tenant intended to
raise the objection that this decree on the basis of the award could not be
passed as it was in contravention to clause 13 of the Rent Act and therefore was
absolutely without jurisdiction, such an objection could have been raised there
and then. The tenant admittedly did not raise this objection which was open to
him. In this view to the matter, the contention on behalf of the appellant about
the constructive res judicata also is of some significance. This question of
constructive res judicata in execution proceedings came before this Court in
Mohanlal Goenka v. Benoy Krishna Mukherjee. In this decision following the
earlier decision of the Privy Council, this Court ruled that the principles of
constructive res judicata will be applicable even in execution proceedings."
26. In Bharmappa Nemanna Kawale and another v. Dhondi Bhima Patil and others8,
the Supreme Court held that a judgment-debtor cannot be allowed to raise a plea
at the time of execution that he was a tenant under the Bombay Tenancy and
Agricultural Lands Act, 1948, when a decree for eviction was passed against him
holding that he was not a tenant.
27. In Barkat Ali v. Badrinarain9, the Supreme Court held :
"13. The principles of res judicata not only apply in respect of separate
proceedings but the general principles also apply at the subsequent stage of the
same proceedings also and the same court is precluded to go into that question
again which has been decided or deemed to have been decided by it at an early
stage.
14. In Arjun Singh v. Mohindra Kumar it was observed as follows: (AIR pp. 999-
1000, paras 10-11)
"10. ... Scope of principle of res judicata is not confined to what is contained
in Section 11 but is of more general application. Again, res judicata could be
as much applicable to different stages of the same suit as to findings on issues
in different suits. ...
11. ... where the principle of res judicata is invoked in the case of the
different stages of proceedings in the same suit, the nature of the proceedings,
the scope of the enquiry which the adjectival law provides, the decision being
reached, as well as the specific provisions made on matters touching such
decision are some of the material and the relevant factors to be considered
before the principle is held applicable."
15. In Satyadhyan Ghosal v. Deorajin Debi it was observed as follows: (AIR pp.
943-44, para 8)
"8. The principle of res judicata applies also as between two stages in the same
litigation to this extent that a court, whether the trial court or a higher
court having at an earlier stage decided a matter in one way will not allow the
parties to reagitate the matter again at a subsequent stage of the same
proceedings."
28. In view of this legal position, the respondent cannot be allowed to plead in
the execution proceedings that petitioner's predecessor in title, Misbahuddin
Khan had no right in the plaint schedule property and could not have alienated
it to the petitioner and seek to collect evidence in support of such a plea by
getting an Advocate Commissioner appointed.
29. In Haji Sk. Subhan (2 supra), cited by the counsel for the respondent, a
decree for possession of property on the basis of a proprietary right was passed
in ignorance of the passing of M.P. Abolition of Proprietary Rights (Estates,
Mahals, Alienated Lands) Act, 1950. The Supreme Court held that in such a
situation the principle that the executing Court cannot go behind the decree
would not apply. It held that the effect of the provisions of the Act was to
deprive the respondent of his proprietary rights, including the right to recover
possession of the land in the suit and as such the executing Court was entitled
to refuse to execute the decree, holding that it has become inexecutable on
account of change in the law and its effect. In the present case, the situation
is entirely different. There is no statute which had taken away, prior to
decree, the title of the petitioner in the land or his right to recover
possession thereof. Therefore, the said decision has no application.
30. As regards the plea of fraud raised by the respondent, by merely alleging
fraud and suggesting that the petitioner somehow misled the Court, one cannot
seek to get over an order of eviction passed by the Supreme Court.
31. It is no doubt true that in S.P. Chengal Varaya Naidu (3
supra), cited by the counsel for respondent, the Supreme Court held that a
decree or judgment obtained by fraud is a nullity and can be questioned even in
collateral proceedings. In that case, an application for final decree in a
partition suit was opposed on the ground that the preliminary decree had been
obtained by fraud. The trial court accepted the said plea and dismissed the
application for grant of final decree. The High Court allowed the appeal from
the judgment of the trial court. The Supreme Court reversed the said decision
on the ground that the predecessor-in-interest of the plaintiff by name
Jagannath had purchased at a Court auction, the properties in dispute which
belonged to the appellants on behalf of the decree holder Sowcar, as a Benamidar
of the decree holder. By a registered deed dt.25.11.1945, Jagannath
relinquished all his rights in the property in favour of Sowcar. Thereafter,
the appellants, who were judgment debtors, had paid the total decretal amount to
Sowcar. So Sowcar was no longer entitled to the property which he had purchased
through Jagannath. Without disclosing that he had executed a release deed in
favour of Sowcar, Jagannath filed the suit for partition of property and
obtained a preliminary decree. During the pendency of the suit, the appellants
did not know that Jagannath had no locus standi to file the suit because he had
already executed a registered release deed, relinquishing all his rights in
respect of the property in dispute in favour of Sowcar. It was only at the
hearing of the application for final decree that the appellants came to know
about the release deed; so they challenged the application on the ground of non-
disclosure on the part of Jagannath that he was left with no right in the
property in dispute; that this vitiated the proceedings; and as such, the
preliminary decree obtained by Jagannath by playing fraud in the Court was a
nullity. The Supreme Court accepted the said plea and held :
"5. ... ... ... The principle of "finality of litigation" cannot be pressed to
the extent of such an absurdity that it becomes an engine of fraud in the hands
of dishonest litigants. The courts of law are meant for imparting justice
between the parties. One who comes to the court, must come with clean hands. We
are constrained to say that more often than not, process of the court is being
abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous
persons from all walks of life find the court-process a convenient lever to
retain the illegal gains indefinitely. We have no hesitation to say that a
person, who's case is based on falsehood, has no right to approach the court. He
can be summarily thrown out at any stage of the litigation."
32. The said principle has no application to the present case since the plea of
fraud was raised in the above case,not at the time of execution proceedings, but
during the pendency of the suit, before the passing of final decree. The
appellants therein had no knowledge of the fraud prior to passing of preliminary
decree. But in the present case, such a plea is being raised for the first time
in execution proceedings by seeking to rely upon certain proceedings for
acquisition of property belonging to Misbahuddin Khan, although the respondent
was fully aware of the acquisition and denotification proceedings during the
pendency of the suit (as mentioned in para.17 of the Written Statement).
33. In Satyawati (1 supra), relied upon by the counsel for the petitioner, a
decree for possession passed in favour of the appellant by the District Judge,
Faridabad, had become final. When the execution petition was filed, the
executing court rejected it observing that the decree was not executable because
of some contradictory reports of a local Commissioner. The judgment in favour
of the plaintiff was delivered by considering a report dt.17.09.1989 and a
sketch of the land in question made by the local Commissioner, but the executing
court, on the basis of some other reports dismissed the EP as not executable and
this was confirmed by the High Court. The Supreme Court set aside the decision
of the executing court and the High Court holding that the executing court ought
not to have considered other factors and facts which were not forming part of
the judgment and decree passed in favour of the appellant. It held :
"12. It is really agonising to learn that the appellant-decree-holder is unable
to enjoy the fruits of her success even today i.e. in 2013 though the appellant-
plaintiff had finally succeeded in January 1996. As stated hereinabove, the
Privy Council in General Manager of the Raj Durbhunga v. Coomar Ramaput Sing had
observed that the difficulties of a litigant in India begin when he has obtained
a decree. Even in 1925, while quoting the aforestated judgment of the Privy
Council in Kuer Jang Bahadur v. Bank of Upper India Ltd. the Court was
constrained to observe that: (AIR p.448)
"Courts in India have to be careful to see that the process of the Court and the
law of procedure are not abused by judgment-debtors in such a way as to make
courts of law instrumental in defrauding creditors, who have obtained decrees in
accordance with their rights."
13. In spite of the aforestated observation made in 1925, this Court was again
constrained to observe in Babu Lal v. Hazari Lal Kishori Lal10 in para 29 that:
(SCC p.539)
"29. Procedure is meant to advance the cause of justice and not to retard it.
The difficulty of the decree-holder starts in getting possession in pursuance of
the decree obtained by him. The judgment-debtor tries to thwart the execution by
all possible objections."
14. This Court, again in Marshall Sons & Co. (I) Ltd. v. Sahi Oretrans (P)
Ltd.11 was constrained to observe in para 4 of the said judgment that: (SCC p.
326)
"4. ... it appears to us, prima facie, that a decree in favour of the appellant
is not being executed for some reason or the other, we do not think it proper at
this stage to direct the respondent to deliver the possession to the appellant
since the suit filed by the respondent is still pending. It is true that
proceedings are dragged for a long time on one count or the other and, on
occasion, become highly technical accompanied by unending prolixity at every
stage providing a legal trap to the unwary. Because of the delay, unscrupulous
parties to the proceedings take undue advantage and a person who is in wrongful
possession draws delight in delay in disposal of the cases by taking undue
advantage of procedural complications. It is also a known fact that after
obtaining a decree for possession of immovable property, its execution takes a
long time."
15. Once again in Shub Karan Bubna v. Sita Saran Bubna12 at para 27 this Court
observed as under: (SCC p. 699)
"27. In the present system, when preliminary decree for partition is passed,
there is no guarantee that the plaintiff will see the fruits of the decree. The
proverbial observation by the Privy Council is that the difficulties of a
litigant begin when he obtains a decree. It is necessary to remember that
success in a suit means nothing to a party unless he gets the relief. Therefore,
to be really meaningful and efficient, the scheme of the Code should enable a
party not only to get a decree quickly, but also to get the relief quickly. This
requires a conceptual change regarding civil litigation, so that the emphasis is
not only on disposal of suits, but also on securing relief to the litigant."
16. As stated by us hereinabove, the position has not been improved till today.
We strongly feel that there should not be unreasonable delay in execution of a
decree because if the decree-holder is unable to enjoy the fruits of his success
by getting the decree executed, the entire effort of successful litigant would
be in vain."
34. These observations, in my opinion, apply on all fours, to the present case.
Although the petitioner had succeeded on 18.05.2007 in Civil Appeal No.6345 of
2000, 6 1/2 years later, it is still unable to enjoy the fruits of the decree
because of the untenable pleas raised in the counter to the execution petition
by the respondent and filing of EA.No.550 of 2007 by it.
The respondent cannot
be allowed to circumvent the decree of eviction granted by the Supreme Court by
raking up fresh issues as to title of the petitioner in the execution
proceedings and stalling the same.
35. In this view of the matter, I am of the opinion that the order dt.14.03.2008
in EA.No.550 of 2007 in EP.No.90 of 2005 in OS.No.161 of 1989 of the Court below
is unsustainable. It is accordingly set aside. The Civil Revision Petition
No.1940 of 2008 is allowed accordingly. No costs.
__________________________________
JUSTICE M.S. RAMACHANDRA RAO
Date: 12-12-2013
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