Rakesh Vishwakarma Vs Akanksha Singh

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WP227 No. 511 of 2024

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Rakesh Vishwakarma S/o Late Shri Daddu Prasad, Aged About 45 Years R/o Pendra, Tehsil Pendra, District Gaurela -Pendra -Marwahi Chhattisgarh.

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---- Petitioner

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Versus

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1. Akanksha Singh W/o Abhishek Kumar Singh Aged About 42 Years R/o Purani Basti Pendra, Tehsil Pendra, District Gaurela -Pendra -Marwahi Chhattisgarh.

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2. Ramesh Vishwakarma S/o Late Shri Daddu Prasad Aged About 60 Years R/o Pendra, Tehsil Pendra, District Gaurela -Pendra -Marwahi Chhattisgarh.

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3. Suresh Vishwakarma S/o Late Shri Daddu Prasad, Aged About 50 Years R/o Pendra, Tehsil Pendra, District Gaurela -Pendra -Marwahi Chhattisgarh.

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4. Ritesh Vishwakarma S/o Late Shri Daddu Prasad, Aged About 40 Years R/o Pendra, Tehsil Pendra, District Gaurela -Pendra -Marwahi Chhattisgarh.

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5. Sarita D/o Late Shri Daddu Prasad, Aged About 44 Years R/o Pendra, Tehsil Pendra, District Gaurela -Pendra -Marwahi Chhattisgarh.

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6. Savitri D/o Late Shri Daddu Prasad, Aged About 43 Years R/o Pendra, Tehsil Pendra, District Gaurela -Pendra -Marwahi Chhattisgarh.

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7. Saroj D/o Late Shri Daddu Prasad Aged About 55 Years R/o Pendra, Tehsil Pendra, District Gaurela -Pendra -Marwahi Chhattisgarh.

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8. Sarla D/o Late Shri Daddu Prasad, Aged About 49 Years R/o Pendra, Tehsil Pendra, District Gaurela -Pendra -Marwahi Chhattisgarh.

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---- Respondent

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For Petitioner : Mr. Achyut Tiwari, Advocate. …………………………………………………………………………… Hon'ble Shri Justice Deepak Kumar Tiwari Order On Board

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25.06.2024

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1. This Petition has been filed against the order dated 03.05.2024 passed by the Civil Judge Class-1, Pendra Road District-Bilaspur

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in Execution Case No.49A/2002 whereby an application preferred for demarcation of land claiming that the suit land is different was dismissed.

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2. Brief facts of the case are that against petitioner and his brother and sister, a suit was filed by the respondent No.1/plaintiff for eviction and arrears of land. The trial Court has granted a decree in favour of the plaintiff and it was directed to vacate the suit house within a period of two months and hand over possession to the plaintiff. In the first appeal, the decree passed by the Civil Judge Class-I, Pendra Road in Civil Suit No.94A/2002 dated 12.07.2005 was reversed vide judgment dated 29.11.2007 passed by Additional District Judge, Fast Track Court, Pendra Road, District-Bilaspur in Civil Appeal No.20A/2005. The plaintiff had challenged the said finding in the Second Appeal No.76/2008 before this High Court and vide judgment dated 29.01.2020, the decree passed by the trial Court was restored and at the time of execution, son of the original defendant/present petitioner herein who was also arrayed as a party in the Second Appeal, filed an objection and claimed demarcation, which was rejected by the Executing Court. Hence this Petition.

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3. Learned counsel for the petitioner would submit that a Civil Suit was contested between respondent No.1 and forefather of petitioner with respect to Khasra No.2315. The petitioner is in possession of some part of Khasra No.2254, therefore for identification of the land, an application has been preferred under

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Order 26 Rule 9 CPC and the executing Court rejected the said prayer which is not proper as the petitioner is in possession of land which is registered in favour of Department of Public Works of the State in the head and name of the road. So prays to allow the petition and set-aside the impugned order.

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4. I have heard learned counsel for the petitioner and perused the documents annexed with the petition.

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5. It is well settled that executing Court must not go beyond the decree, as against the present petitioner who stepped into the shoes of his late father, a suit was contested on merit and the petitioner lost the battle. In the execution proceeding, he raised a fresh ground which relates to identity of the disputed land, as the petitioner failed to raise such objection during the main proceeding. In several judgments, it has been experienced that various objections are filed before the executing court only to drag the execution process in order to deprive the decree holder of the fruits of the litigation. In the matter of Pradeep Mehra v. Harijivan J. Jethwa(Since Deceased THR. LRS.) & ORS ., reported in 2023 LiveLaw (SC) 936 , the following has been observed at Paras 4 to 6, which read thus:-

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4. Section 47 of the CPC reads as under:

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Section 47. Questions to be determined by the Court executing decree.

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(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a

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separate suit.

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(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.

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Explanation 1.-- For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.

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Explanation II.-- (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and (b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.

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5. A bare perusal of the aforesaid provision shows that all questions between the parties can be decided by the executing court. But the important aspect to remember is that these questions are limited to the “execution of the decree”. The executing court can never go behind the decree. Under Section 47, CPC the executing court cannot examine the validity of the order of the court which had allowed the execution of the decree in 2013, unless the court’s order is itself without jurisdiction. More importantly this order (the order dated 12.02.2013), was never challenged by the tenants/judgment debtors before any forum.

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The multiple stages a civil suit invariably has to go through before it reaches finality, is to ensure that any error in law is cured by the higher court. The appellate court, the second appellate court and the revisional court do not have the same powers, as the powers of the executing court, which are extremely limited. This was explained by this Court in Dhurandhar Prasad Singh v. Jai Prakash University and Others (2001) 6 SCC 534, in para 24, it had stated thus:

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“24. ………. The exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus, it is plain that executing court can allow objection under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and a nullity, apart from the ground that the decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after its passing.”

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This Court noted further:

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“ ………. The validity or otherwise of a decree may be

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challenged by filing a properly constituted suit or taking any other remedy available under law on the ground that the original defendant absented himself from the proceeding of the suit after appearance as he had no longer any interest in the subject of dispute or did not purposely take interest in the proceeding or colluded with the adversary or any other ground permissible under law.

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6. The reality is that pure civil matters take a long time to be decided, and regretfully it does not end with a decision, as execution of a decree is an entirely new phase in the long life of a civil litigation. The inordinate delay, which is universally caused throughout India in the execution of a decree, has been a cause of concern with this Court for several years. In Rahul S. Shah v. Jinendra Kumar Gandhi and Others (2021) 6 SCC 418, this Court had observed that a remedy which is provided for preventing injustice (in the Civil Procedure Code) is in fact being misused to cause injustice by preventing timely implementation of orders and execution of decrees. Then, it had observed as under:

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“23. ……………. The execution proceedings which are supposed to be a handmaid of justice and subserve the cause of justice are, in effect, becoming tools which are being easily misused to obstruct justice.”

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The above judgment is an important judgment in respect of Section 47 as well as Order XXI, CPC as the three Judge Bench decision of this Court not only condemned the abuse of process done in the garb of exercise of powers under Section 47 read with Order XXI, CPC, but also gave certain directions to be followed by all Civil Courts in their exercise of powers in the execution of a decree. It further directed all the High Courts to update and amend their Rules relating to the execution of decrees so that the decrees are executed in a timely manner. As far as Section 47 is concerned, this Court had stated as under:

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“24. In respect of execution of a decree, Section 47 CPC contemplates adjudication of limited nature of issues relating to execution i.e. discharge or satisfaction of the decree and is aligned with the consequential provisions of Order 21 CPC. Section 47 is intended to prevent multiplicity of suits. It simply lays down the procedure and the form whereby the court reaches a decision. For the applicability of the section, two essential requisites have to be kept in mind. Firstly, the question must be the one arising between the parties and secondly, the dispute relates to the execution, discharge or satisfaction of the decree. Thus, the objective of Section 47 is to prevent unwanted litigation and dispose of all objections as expeditiously as possible.

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25. These provisions contemplate that for execution of decrees, executing court must not go beyond the decree. However, there is steady rise of proceedings akin to a retrial at the time of execution causing failure of realisation of fruits of decree and relief which the party seeks from the courts despite there being a decree in their favour. Experience has shown that various objections are filed before the executing court and the decreeholder is deprived of the fruits of the litigation and the judgment debtor, in abuse of process of law, is allowed to benefit from the subject-matter which he is otherwise not entitled to.

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26. The general practice prevailing in the subordinate courts is that invariably in all execution applications, the courts first issue show-cause notice asking the judgmentdebtor as to why the decree should not be executed as is given under Order 21 Rule 22 for certain class of cases. However, this is often misconstrued as the beginning of a new trial. For example, the judgment-debtor sometimes misuses the provisions of Order 21 Rule 2 and Order 21 Rule 11 to set up an oral plea, which invariably leaves no option with the court but to record oral evidence which may be frivolous. This drags the execution proceedings indefinitely .

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This Court then gave certain directions, which were to be mandatorily followed by all Courts dealing with civil suits and execution proceedings. Two of its directions were as follows: “42……………

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42.8. The court exercising jurisdiction under Section 47 or under Order 21 CPC, must not issue notice on an application of third party claiming rights in a mechanical manner. Further, the court should refrain from entertaining any such application(s) that has already been considered by the court while adjudicating the suit or which raises any such issue which otherwise could have been raised and determined during adjudication of suit if due diligence was exercised by the applicant.

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42.12. The executing court must dispose of the execution proceedings within six months from the date of filing, which may be extended only by recording reasons in writing for such delay . 42.13. ……..”

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It further directed all the High Courts to update their Rules relating to execution of decrees. It was as under:

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“43. We further direct all the High Courts to reconsider and update all the Rules relating to execution of decrees, made under exercise of its powers under Article 227 of the

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Constitution of India and Section 122 CPC, within one year of the date of this order. The High Courts must ensure that the Rules are in consonance with CPC and the above directions, with an endeavour to expedite the process of execution with the use of information technology tools. Until such time these Rules are brought into existence, the above directions shall remain enforceable.”

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We have referred to the above decision of this Court only to highlight the slow process in the execution of a decree and the concern of this Court, and its efforts in the past, to improve this situation.

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6. In view of aforesaid settled proposition and the reasons assigned by the Executing Court, the petitioner herein was arrayed as a tenant in the suit property and during the execution, he cannot convert it into a title litigation. So, this Court does not find any infirmity or illegality in the impugned order invoking supervisory jurisdiction under Article 227 of the Constitution of India.

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7. Resultantly, this petition fails and is hereby dismissed.

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Sd/-

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(Deepak Kumar Tiwari) Judge

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Avinash

Rakesh Vishwakarma v. Akanksha Singh

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Rakesh Vishwakarma v. Akanksha Singh

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