Quashed

Leeladhar Kejariwal v. Ghanshyamdas Tibrewa

Orissa HC6 Dec 2016WP(C)/5377/2007

Case brief

AI extract

What is this about?

The High Court quashed an order of the executing court that refused to execute a decree for removal of unlawful construction. The High Court found the executing court exceeded its jurisdiction by failing to interpret the decree in light of pleadings and accusing the judgment debtor of ambiguity regarding property description after the debtor had conceded no claim.

What did the court decide?

The order dated 29.02.2007 allowing the objection petition under Section 47 CPC was quashed, and the application was allowed. The executing court was directed to proceed with execution.

Leeladhar Kejariwal Vs Ghanshyamdas Tibrewa — Civil Procedure and Limitation | Orissa HC (2016)

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IN THE HIGH COURT OF ORISSA, CUTTACK

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W.P.(C) NO. 5377 OF 2007

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(In the matter of an application under Article 227 of the Constitution of India.)

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……… Leeladhar Kejariwal	:::: Petitioner
VERSUS
Ghanashyamdas Tibrewal & another ::::	Opp. Parties.
For Petitioner ::::	M/s. Samir Ku. Mishra, M.R. Dash, Miss S.Mohanty, S.K. Samantaray, A. Kejriwal, O.P. Sahoo, Advocates.
For Opposite Party ::::	M/s. B.H. Mohanty, D.P. Mohanty, R.K. Nayak, S. Burma, T.K. Mohanty, P.K. Swain,
………	M/s. D.K. Behera & S. Pattnaik, Advocates.

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PRESENT :

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THE HON’BLE MR. JUSTICE D.DASH

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------------------------------------------------------------------------------------------Date of hearing : 20.10.2016 : Date of judgment: 06.12.2016 -------------------------------------------------------------------------------------------

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The petitioner by filing this application seeks quashment of

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an order dated 29.01.2007 passed by the learned Civil Judge (Jr. Division) 1^st Court, Cuttack in I.A. No. 55 of 2006 allowing the petition filed by the opposite party no. 1 and 2 under section 47 of the Code of Civil Procedure and thereby dismissing execution proceeding holding the decree passed in T.S. No. 176 of 2000 in favour of the petitioner (decree holder) as not executable against the opposite party no. 1 and 2 (judgment debtors) as it had been finally decreed by the

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judgment and decree in appeal in R.F.A. No. 06 of 2005 setting aside the order of dismissal of the suit by the trial court.

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2. Heard learned counsel for the petitioner. None appears on behalf of the opposite parties despite opportunities being given in that regard. Perused the order in question.

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3. The suit originally had been filed by the plaintiff-decree holder arraigning opposite party no. 1 to 8 as defendants for issuance of mandatory injunction against the defendant-opposite party no. 1 and 2 for removal of unlawful construction put up on the suit land. It has been alleged that on 21.07.2000, the opposite party no. 1 and 2 (defendants) forcibly entered over the suit land measuring an area of Ac. 0.030 decimals and began digging earth for raising construction. So a proceeding under section 144 of the Code Criminal Procedure was initiated and status-quo order was passed therein.

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The plaintiff-petitioner further pleaded that the defendant no. 1 and 2 entered into the suit claiming to having the right to passes as such on the basis of tenancy agreement dated 10.07.2000 said to have been executed by defendant no. 3 in their favour and alleged that they had raised the construction blocking the skylight and demolishing the thatched room where Bhajan was being regularly held. It is stated that the tenancy agreement was not legally tenable since it had not been executed by all the marfatdars of the deity, Shri Satyanarayan Thakur. However, the agreement expired by afflux of time, when its life of five years came to an end. The defendant no. 1

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and 2 continued to remain in unauthorized possession and acted in violation of the order of status-quo passed in the proceeding under section 144 of Cr.P.C. Thereafter, since the defendant no. 1 and 2 found to have been raising further construction by encroaching over a part of the plaintiff-petitioner’s premises and thereby obstructing free flow of light and air to the room of the hotel of the petitioner, the suit as above came to be filed.

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The defendants-opposite parties entering appearance, contested the petitioner-plaintiff’s claim by disputing his tenancy. They also asserted that by virtue of the agreement between them and the opposite party no. 3 (landlord) through its marfatdars, they have so constructed the house and are in possession of the same. It is stated that their (defendant-opposite party no. 1 and 2) tenancy, is not having any clash with the interest to Mahadev Ram and his son Chiranjilal who are accepted as tenants with respect to the premises in O.S. No. 297 of 1950. They also pleaded to have never interfered with the tenancy of Mahadev Ram and to have never obstructed the free flow of light and air etc as alleged.

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4. The trial court dismissed the suit.

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The petitioner being the unsuccessful plaintiff filed appeal under section 96 of the Code of Civil Procedure. The appeal has been allowed and his suit has been decreed. This judgment and decree passed by the appellate court thus having marched over the judgment

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and decree passed by the trial court which stood merged therein was been put to execution.

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The defendant opposite party no. 1 and 2 (judgment debtors) in the said execution proceeding filed a petition under section 47 of the Code, attacking the decree to be ambiguous and not executable. The executing court has accepted the objection and hence the present move. As I find here the ambiguity is alleged to be with respect to the description of the property as per the decree and as ordained therein.

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5 . In the trial court although the property stood described as

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under:-

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“District –Cuttack, Mouza- Patapur, Thana No. 199, Khata No. 212, Plot No. 2762, Area Ac. 0.131 dec. out of which the suit land is just adjacent to the Northern back side of the “Hotel Vyanjan” covering an area of about Ac. 0.030 decs. Shown as per sketch map attached to this plaint.” In the first appeal the schedule of property had been

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furnished as under:-

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“District –Cuttack, Mouza- Patapur, Thana No. 199, Khata No. 212, Plot No. 2762, Area Ac. 0.030 dec. out of an area of Ac. 0.131 decs adjacent to the kitchen of Hotel VYANJAN, bearing Cuttack Municipality holding No. 171 under Ward No. 5 corresponding to new holding no. 198 and 201 under Ward No. 10.”

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6. The executing court in seisin of a proceeding under section

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47 of the Code having recorded evidence at length has arrived at a

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conclusion that description of the suit land and the existence of so called holding no. 198 and 201 therein together with illegal construction, if any, made by the petitioner-defendant no. 1 and 2 on either the said described suit land or over the said holding no. 198 and 201 is not seen to be specific nor identifiable for execution of the decree.

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It is next said that the said construction relates to which of the holdings or which part of the suit land is not ascertainable from the said decree. It has also found that the execution petition does not describe the situation on such constructions over any specific portion of the suit land. It has also gone to comment that the appellate court has not directed for removal of the construction, if made on the suit land as stated. For all these, in the opinion of the executing court, the existence of any construction if had been made over the suit land as stated in the judgment is required to be further enquired into so as to pass an order of removal. Therefore, it has finally refused to execute the decree by further holding the evidence to be insufficient to clearly ascertain the existence of such construction.

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With the above conclusions, again interestingly the order has been passed allowing the petition under section 47 of the Code in part.

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7 . Before going to examine the legality and propriety of the order in question whereby the executing court has refused to execute the decree passed by the appellate court, wherein the trial court’s

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decree stood merged, it is felt apposite to take note of the settled position of law:-

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8. In case of Bhavan Vaja Vrs. Solanki Hanuji reported in AIR 1972 SC 1371 (para-19), the Apex Court has been pleased to observe thus:

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“It is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the pleadings leading upto the decree. In order to find out the meaning of the words employed in a decree the court, often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution court and if that court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it”. And in case of Biswanth Vrs. Smt. Uttara Bewa ; AIR

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1988 Orissa 9 (para -6) and Chloride India Ltd. Vrs. District Judge,

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Puri ; AIR 1997 Orissa 135 has been held as under:-

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“The principle is also well established that ordinarily the executing court cannot go behind the decree. But it is within the competence of the executing court to interpret the decree sought to be executed and for doing so the court can refer to reliefs sought for in the plaint and discussion in the judgment to ascertain the true import of the decree.” 9 . In case of Satyawati Vrs. Rajinder Singh ; 2013 (II) CLR

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(SC) 238 (para 13-17), the Hon’ble Supreme Court while referring with approval its earlier decisions as well as that of the Privy Council and deprecating the practice of the Judgment-debtors employing dilatory

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tactics to deny the fruits of the decree to the Decree-holder has observed that the courts should be careful to see that the process of the court and law of procedure are not abused by the judgment-debtors in such a way as to make courts of law instrumental in defrauding creditors, who have obtained decrees. In accordance with that it has been observed as

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under:-

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“As stated by us hereinabove, the position has not 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.”

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In case of Rabinder Kaur Vrs. Ashok Kumar ; AIR 2004

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SC 904 (para 22) the view is that:-

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“Therefore, raising a dispute in regard to the description or identity of the suit schedule property or a dispute in regard to the boundary of the suit schedule property is only a bogey to delay the eviction by the abuse of the process of Court Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These types of error on the part of the judicial forum only encourage frivolous and cantankerous litigations causing laws delay and bringing bad name to the judicial system.”

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10 . In the backdrop of the settled position of law, when the

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order is given a careful reading, it is seen that the executing court has utterly failed to appreciate the facts. It was no one’s case that the

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decree holder has no right over the holding nos. 198 and 201. So, there was no question of allowing the opposite parties (judgment debtors) to raise some contention at that stage of the execution for the first time. The executing court has committed gross error of law by taking that into consideration, when it is not permissible in the eye of law. And there from the confusion in fact has crept in and further taken an aggravated form in ultimately shutting the door of the court in so far as the petitioner-decree holder is concerned in saying that the decree in his hand is merely on pen and paper and that he has not been given any fruit under the decree and therefore no fruit under the decree can be delivered to him in the execution proceeding.

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11. The executing court in the case as is seen has not construed the decree in its proper prospective, taking into consideration the pleadings. Therefore, executing court had utterly failed to interpret decree sought to be executed by referring to the reliefs sought for in the plaint and the discussion made by the appellate court in the judgment in finding out the true import of the decree which is its duty. As it appears the strong worded observation of the Hon’ble Apex Court in case of Rabinder Kaur (supra) has also lost sight of the executing court.

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12 . Learned counsel for the petitioner’s main contention is that in so far as the objection with regard to ambiguity in the description of the suit land is concerned, the descriptions furnished before the appellate court and that having been accepted by the opposite parties,

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the executing court has committed grave error in holding the decree as not executable on that sole ground. This Court finds all the legal reasons in accepting the submission of the learned counsel for the petitioner that the executing court had not at all taken into account the above aspects although it has gone to point out many omissions in the judgment and decree of the appellate court to be standing as hurdles on the path of execution of decree. It has been expressed in the order passed in concluding that:-

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“In the evidence adduced from both the sides the existence of such construction if have been made over the suit land has not been clearly ascertained by this court.”

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13. The above view does not at all appeal to the judicial conscience. If we read the above wherein the executing court has expressed its final opinion over the subject of the matter of the execution proceeding it is quite clear that it has proceeded to approach and conclude at the end as if in the proceeding the decree holder is legally obliged to again establish the factual aspect of existence of construction and the fate of the execution proceeding is dependent upon that. The settled principle that in a suit the plaintiff is either to stand on his own or fall and for his success, he cannot take advantage of the weakness of the defence or failure, has been made applicable execution proceeding in so far as the holder of the decree is concerned and that according to the executing court is in view of section 47 of the Code that whenever those questions arise,

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its as if the holder of the decree is under the legal obligation to show as to how he overcomes the legal hurdles in receiving answers in his favour. In my view the executing court taking the above view has placed the cart before the horse.

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14. At this juncture, it is pertinent to state that provision of order 7 rule 3 of the Code requires where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it. Such description enables the court to draw a proper decree as required under order 20 rule 3 of the Code. The property if can be identified by boundaries or numbers in a record of settlement of survey, the plaint shall specify such boundaries or number. If plaintiffs committed an error the defendants should have objected to promptly. The default or carelessness of the parties does not absolve the court of its obligation which should how, while scrutinizing the plaint, pointed out the omission if any on the part of the plaintiffs.

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When the suit as to immovable property has been decreed and the property is not definitely identified, the defect in the court record can very well be cured. After all a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to section 152 or section 47 of the Code depending upon the facts and circumstances of each case-which of the two provisions would be move appropriate, just and convenience to invoke. Being an inadvertent error not affecting the merits of the case, it can be

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corrected under section 152 of the Code by the court which passed the decree by supplying omission. Alternatively, the exact description of the decreetal property may be ascertained by the Executing Court as a question relating to execution, discharge or satisfaction of the decree within the meaning of section 47 of the Code. A decree of a competent court should not as far as practicable, be allowed to be defeated on account of an accidental slip or omission.

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These aspects are to be kept in mind whenever occasion so arises instead of approaching the matter in a technical manner.

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15 . Let us now examine the matter with one question finding its answer. If some construction has been made over the suit land clandestinely at some point of time, can the decree holder if under that circumstance be deprived of getting delivery of the possession of the suit land in spite of the fact that his right, title and interest has already been declared and he has been held to be entitled to the possession. The answer is certainly in the negative. Thus it simply does not occur to me as to how the executing court in this case has been persuaded to refuse to execute the decree in absence of any proof from the side of the decree holder as regards existence of some construction over the suit land itself.

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We may now take up another question that if the executing court directs delivery of possession of the suit land by removing the structure standing thereon and the baliff finds no

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structure to be standing over there on the suit land, so in that event can there be refusal of delivery of possession of the suit land for the reason that since no structure is standing over it, the question of removal does not arise and consequently therefore the delivery of possession as ordained is not possible. The answer again is ‘No’. The reasonings of the Executing Court thus clearly appear to be fallacious.

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16 . Adverting to the case in hand as already stated, the decree of permanent injunction against the defendant (judgment debtor) is specifically in holding nos. 198 and 201 and however this during in the first appeal, the judgment debtor has conceded to have no claim at all.

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In the present suit the following reliefs had been prayed for in the plaint:-

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“1. Let a decree for permanent injunction be passed against the defendants perpetually restraining them from entering upon this suit land.

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Let a decree of a mandatory injunction be passed in favour of the plaintiff directing the defendant nos. 1 and 2 to remove their unlawful construction made over the suit land or in alternate may be removed through court.

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xx xx xx”

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The most important part of the judgment of the first

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appellate court is at para-8 where it has gone to decide issue no.3 whether the plaintiff is the owner and in possession of the plot no. 2762 under khata no.212 situated at mouza Patapur Ward No. 5,

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Cuttack corresponding to holding no.171, measuring an area Ac.0.131 decimals. At page 12 of the judgment, the first appellate court has specifically recorded the concession of the learned counsel for the respondent nos. 1 and 2 therein who are now the judgment debtors that they that do not have any claim on the holding bearing nos. 198 and 201, which were allotted in favour of the grandfather of the appellant in O.S. No. 297 of 1950 as per the terms of compromise. The relevant part of the order in the judgment of the first appellate court at para 10 ordains as under:-

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“xx xx xx

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The suit is decreed subject to the followings:-

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The defendant-respondents are restrained from entering upon the above suit land that is holding nos. 198 and 201 and they are directed to remove the construction over the suit land as stated above.”

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17 . The Executing Court on the face of the judgment as above

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rendered in the first appeal had absolutely no authority and legal justification to say that for the first time the suit land relating to holding no. 198 and 201 has been described therein and that the appellate court was not certain about the construction made on the suit land over the such holding nos. 198 and 201. By saying so, it has gone behind the decree which is impermissible in the eye of law. Moreover the opposite party-judgment-debtor clearly stated that the shop room does not relate any portion of holding no. 198 and 201 in further stating that only to harass them and in order to demolish the

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shop room, the petitioner (decree holder) with illegal and mala fide intention given wrong schedule in the petition in creating the ambiguity. So, it is stated that the decree for permanent injunction is not executable. The decree as passed in the first appeal has the final say in the matter and now sought to be executed. It is very clear that the respondents therein who are the judgment-debtoropposite parties have been restrained from entering upon the suit land under holding nos. 198 and 201 and directed to remove the construction, if made, on the suit land.

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This decree has not faced any further challenge in accordance with law. It is not stated to have been so passed contrary to the findings rendered in the first appeal and the ultimate judgment. The said decree has thus attained its finality and now therefore, it was completely beyond the scope of the proceeding under section 47 of the Code for the Executing Court to again sit over those factual aspects and thereby to sit over the judgment and decree passed by the first appellate court as if being appealed against by way of that proceeding under section 47 of the Code in raising the question of identity of the property. The executing court is thus found to have exercised its jurisdiction illegally, with material irregularity as also in excess of the jurisdiction vested in it. Therefore by such order there has been miscarriage of justice. Thus it is a fit case for this Court to exercise the power under Article 227 of the Constitution in quashing the said order.

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18 . In view of the aforesaid discussion and reasons, the order dated 29.02.2007 is hereby quashed. Accordingly, the application is allowed. No order as to cost.

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The executing court is now to further proceed in the matter of execution of the said decree and if so finds it necessary with the help of Survey Knowing Commissioner in exactly identifying the land in the field with reference to the land records as regards the land under holding nos. 198 and 201 without further unreasonable delay keeping in mind the observations of the Apex Court in case of Satyawati Vrs. Rajinder Singh and Another; and Rabinder Kaur Vrs. Ashok Kumar (supra).

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…………………….. D. Dash, J.

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Orissa High Court, Cuttack Dated, the 06^th Dec, 2016/ Narayan .

Leeladhar Kejariwal v. Ghanshyamdas Tibrewa

Case brief

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Leeladhar Kejariwal v. Ghanshyamdas Tibrewa

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