Allahabad High Court
Nisar Ahmad And Others vs V Addl. District Judge, Azamgarh And ... on 25 July, 1991
Equivalent citations: AIR1992ALL198, AIR 1992 ALLAHABAD 198, 1992 ALL. L. J. 635 (1991) ALL WC 115, (1991) ALL WC 115
ORDER
1. This writ petition is directed against the orders of Vth Addl. District Judge, Azamgarh dated 25-9-89 passed in Civil Revision No. 27 of 1988 by which the order dated 5-2-1988 passed by Munsif rejecting the application (88C-2) in Execution Case No. 22 of 1974 Sabira Bibi v. Abdul Qavi had been affirmed. The order dated 2-12-1983 passed by Munsif, Gohana (Azamgarh) is also sought to be quashed. Further prayer is to issue a writ of mandamus commanding the respondent No. 2 Munsif to dispose of application (67C-2) dated 19-1-75 and recall the order dated 20-12-75.
2. The brief facts of the case would be necessary for properly appreciating the controversy in the petition. The Original Suit No. 471 of 1967 was filed by Smt. Sabira Bibi for recovery of possession over a shop room and also for recovery of damages from Abdul Qavi. The plaintiff Smt. Sabira Bibi has purchased the property in question by a sale deed dated 15-9-60 executed by one Mohd. Ali. The original suit was decreed in favour of the plaintiff and a Second Appeal No. 1858 of 1975 was filed before the Court. Initially on interim stay order staying the Execution of decree dated 31-10-75 was passed but it was later vacated by this Court itself. The case for execution of the decree had already been filed as Execution Case No. 22 of 1974. The execution of the decree proceeded again after the interim stay order in Second Appeal was vacated. A parawana Dakhal warrant for delivery of possession was issued by the Execution Court but the same was returned without executing the same. There was a report that the boundaries of the premises described in the parawana Dakhal was not tallying at spot.
3. Again the execution proceeded and the Execution Court issued a warrant for pos-
session in October 1975. When the Advocate Commissioner tried to execute the warrant at the spot, one Sri Abdul Wali, father of the present petitioners resisted the execution of the decree for possession. The ground for resistance was that the decree which was being executed was not passed against the said Abdul Wali. He claimed to be in possession in his own rights independently and he pleaded that the decree in question could not be executed against him. Thus, the decree was not executed by the Advocate Commissioner. The Commissioner in fact had reported on 9-10-75 that on account of huge gathering, the police could not control the situation and it could not execute the decree. The Executing Court passed orders for providing police aid for execution.
4. In the mean time, Abdui Wali submitted application 59C-2 dated 23-10-75 praying to recall the order dated 17-10-75 for execution with police force. Further it was prayed that plaintiff-decree-holder he directed to move application undr Order XXI, Rule 97, C.P.C. It was pleaded that since the judgment-debtors of the original suit had obtained a stay order from this Court, staying the execution of the decree, the application dated 23-10-75 was not taken up by the executing Court.
5. It is important to note that the Second Appeal No. 1858 of 1975 arising out of the decree in Original Suit No. 471 of 1967 have been finally dismissed by the High Court on 16-5-83. Further also it is important to note that the deceased Abdul Wali, the father of the present petitioners is admittedly the brother of the defendant-judgment-debtor of the Original Suit No. 471 of 1967.
6. After the dismissal of the Second Appeal by the Hon'ble High Court, the execution proceedings was resumed. Abdul Wali, father of the petitioners submitted an application on 5-8-83 with an affidavit for disposing the application 67C-2. The petitioners state that the application 81C-2 dated 5-8-83 was illegally and wrongly rejected. It is submitted that application dated 20-12-75, 59C-2 was dismissed for default and not as not pressed. It is submitted that the Court below misread it and wrongly held as not passed. A true copy of the order dated 2-12-83 is annexed as Annexure 6 to the writ petition. A perusal of this order clearly show that the learned Munsif was of the view that since the matter was finally decided by the Hon'ble High Court, there was no justification for recalling the order dated 20-12-75.
7. Again after the order dated 2-12-83, the petitioners submitted another application 88C-2 before the execution Court a true copy of which has been annexed as Annexure 7 with the petition, which was finally heard and dismissed by the Munsif Gohna by order dated 5-2-88. A perusal of the order dated 5-2-88 shows that the learned Munsif had held that order dated 20-12-75 was passed long back and there was a highly belated application by the petitioner for recalling the order dated 20-12-75. There was no legitimate ground raised in the application for recalling the order dated 20-12-75. The appliction 81C-2 was rejected on 5-12-88. A Civil Revision was filed against the order dated 5-2-88, which has been dismissed giving rise to the impugned order.
8. The parties to the writ petition have exchanged counter-affidavit and rejoinder-affidavit. Without passing orders for admission of the writ petition, it is being finally heard and decided with the consent of the parties according to the Rules of Court.
9. The contesting respondent-decree-holder in the counter-affidavit denied the allegations of the writ petition and specifically pleaded that the Advocate Commissioner had reported that a large number of persons had assembled to resist the execution of the decree on behalf of the judgment-debtor. Abdul Qavi Wali father of present petitioners was not in possession over the property in question in his own rights. Abdul Wali and Abdul Qavi were real brothers. The plea set up by the petitioners (father Abdui Wali) that a direction be given to the decree-holder to file application under Order 21, Rule 97, C.P.C. is misconceived. It is pleaded that no such direction can be issued to the decree-holder by the Court. It was pointed out that a civil suit for permanent injunction and declaration was filed by the petitioners in which an application for interim injunction was also filed and rejected. The petitioners filed the present writ petition and concealed the fact that a civil suit has been filed and is pending. The interim injunction prayed by them was rejected. It was urged that since petitioner filed this petition by concealment of material facts, they have not approached this Court with clear hands, they are not entitled to be heard on merits and the writ petition be dismissed on this ground alone.
10. After hearing the learned Counsel for the parties, the following questions emerge for adjudication by the Court :
(i) Whether the writ petition is liable to be dismissed on the ground that petitioner concealed material facts in the writ petition and obtained ex parte interim order staying the execution of the decree?
(ii) Whether petitioners' claim before the executing Court for a direction to the decree-holder to file application under Order 21, Rule 97, C.P.C. is legal and mandatory?
(iii) Whether the petitioners were not given reasonable opportuity of being herd by the executing Court?
11. The learned Counsel for the respondent Sri R. N. Singh pointed out the true copies of the plaint in Civil Suit No. 248 of 1989 filed by Sri Nisar Ahmad against Mst. Sabira Bibi and another and the true copy of the order dated 29-5-89 passed by the learned Munsif Mohammadabad, Gohan Azamgarh rejecting the application for interim injunction. It is stated that petitioner concealed this fact in the Writ petition, which was material and important. Since petitioners had concealed the material important fact in the writ petition, they could get an interim order staying the execution of decree for possession. Had this fact disclosed in the writ petition, they could not have obtained the interim stay order. They are thus accused of not coming before this Court with clean hands. Sri R. N. Singh placed reliance on a Full Bench decision of this Court, AIR 1951 All 746 (FB) : (1951 All LJ 576), Asiatic Engineering Co. y. Achhru Ram, Sri S. P. Srivastava, learned Counsel for the petitioners rebutted the submissions of the learned Counsel for the respondents, saying that non-disclosure of this fact that Civil Suit No. 248 of 1989 by petitioner-Nisar and order of rejection of the interim application for injunction was neither fatal for the present writ petition nor it was necessary at all to disclose the same in the writ petition. It is not denied in the rejoinder-affidavit that the aforementioned civil suit was filed and injunction application was rejected. The petitioners in para 22 of the writ petition, categorically stated that..... "they have been left with no alternative but to invoke the extraordinary jurisdiction of this Hon'ble Court under Art. 226 of the Constitution. Admittedly, the petitioners have filed the civil suit and the interim injunction application was rejected. It appears that civil suit is still pending. It is abundantly clear from the facts and circumstances of the case and conduct of the petitioners that they are simply interested in delaying the execution of the decree for possession obtained by the decree-holder. They admittedly filed civil suit and interim application for injunction which too was rejected by order dated 29-5-89 by Munsif Gohna, Azamgarh. They again wanted for such time i.e. about 5 months and when realised that the decree for possession was likely to be executed, filed the present writ petition on 7-11-89 and obtained the stay order. The learned Counsel for the petitioners has not been able to show that the question to disclose the aforesaid fact was bona fide or unintentional. He has also not cited any other case law to support his contention. The Full Bench decision supra held:--
"In our opinion, the salutary principle laid down in the cases quoted above should appropriately be applied by courts in our country when parties seek the aid of the extraordinary powers granted to the Court under Art. 226 of the Constitution. A person obtaining an ex parte order or a rule nisi by means of a petition for exercise of the extraordinary powers under Art. 226 of the Constitution must come with clean hands, must not suppress any relevant facts from the Court, must refrain from making misleading statements and from giving incorrect information to the Court. Courts for their own protection, should insist that persons invoking these extraordinary powers should not attempt in any manner to misuse this valuable right by obtaining ex parte orders by suppression, misrepresentation or misstatement of facts."
12. The Full Bench case fully applies to facts and circumstances of the present case. It is thus held that petitioner is guilty of suppression of material relevant facts and the concealment was made simply to make out a case so that an interim stay order may be passed in favour of petitioners. The petitioners have not approached the High Court with clean hands. They have concealed a fact and also sworn a false affidavit that there is no alternative remedy available, whereas they filed civil suit and already availed alternative remedy, petitioners are thus not entitled to invoke the writ jurisdiction of the High Court.
13. The learned Counsel submitted that there has been patent error of law and procedure adopted in the present case at the courts below. He submitted that the legal questions as formulated for consideration if examined, it would be clear that the courts below aroused the process of court. He submitted that the technical objection raised by the learned Counsel for respondent be ignored and legal questions formulated for consideration by the court be examined. I do not agree to the submission of learned Counsel for petitioners that respondents' objection for not entertaining the writ petition is a mere technical objection. The alleged technical objection is in fact guideline laid by the Full Bench of the High Court. When to entertain writ petition and when it be thrown out, for faults of petitioner e.g. concealment of material facts, false statements and not approaching the Court with clean hands.
14. However, even after holding that petitioners' writ petition is liable to be thrown out and petitioners not entitled to be heard on merits of the case on ground of concealment of material facts and approaching this Court not with clean hands, I proceed to decide the legal questions formulated in the present case.
Whether the petitioner is legally correct that the executing Court was under a legal obligation to issue directions to the decree-holder-respondent to file an application under Order 21, Rule 97, C.P.C.
15. The learned Counsel for the petitioners submitted that in case of resistance or obstruction to possession of immovable property in execution of the decree. It is mandatory for the executing Court to direct the decree-holder to submit application under Order 21, Rule 97, C.P.C. It is submitted that since the courts below failed to issue such a direction, the orders impugned in the writ petition are liable to be quashed. The learned Counsel for the petitioners relied on AIR 1974 MP 26 (Bhagat Narain Dwivedi v. Kasturi). The learned Counsel for the petitioners cited in AIR 1974 MP 26 which have already been overruled by Full Bench case reported in AIR 1980 MP 146 (FB), Smt. Usha Jain v. Man Mohan Bajaj. The Full Bench case of Madhya Pradesh held that when a decree-holder or auction-purchaser is met with obstruction or resistance in obtaining possession. One of the options open to him is to apply under Rule 97 of Order 21, but the provisions is merely permissive and not mandatory and it is open to the decree-holder/auction-purchaser to apply instead for afresh warrant for possession. An enquiry at the instance of a third party in possession is contemplated only under Order 21, Rule 100 after he was dispossessed and not before.
16. The learned Counsel for the petitioner cited 1970 All LJ 1311, Brij Kishore Tewari v. G. H. Jafri but the said case law is of no assistance to the petitioners' case. The controversy in the said case was whether before issuing an order for delivery of possession under Rule 94 of Order 21, any notice be issued to person against whom possession is claimed. In the present case an application filed by the petitioners' father Abdul Wall was rejected by order dated 20-12-75. The petitioners' father or the petitioners never challenged the order dated 20-12-75. The Courts below clearly held that there is no justification or sufficient ground for recalling the order dated 2-12-83 at the belated stage of execution of the decree in the civil revision filed by the petitioners. The learned Revisional Court legally and correctly stated in the order impugned that it shall be open to the applicants to move application under O.21, R.97, C.P.C.
17. The learned Counsel for the petitioners cited AIR 1980 All 206, Smt. Madora Bibi v. Mohd. Mateen, which lays that period of limitation for filing application u/O.21, Rule 97, C.P.C. under Art. 167 of the Limitation Act in 30 days of the first resistance and not if successive or last resistance. The case law is also not of any help to the petitioners. It is not the case of either of the parties that any application under Order 21, Rule 97, C.P.C. was filed by them and it was beyond the prescribed limitation. The learned Counsel for the petitioners relied on (1904) 16 ILR All 365 : ((1904) 1 All LJ 86), which was relied by the learned single Judge in 1980 AIR All 206 (supra). I have already pointed out that the present case is not under Order 21, Rule 97, C.P.C. and there was no question of limitation involved at any stage.
18. The learned Counsel for the respondents Sri R. N. Singh cited AIR 1988 All 52, Smt. Sona Devi v. The District Judge, Allahabad and AIR 1983 All 256, Krishna Kumar Kanaujia v. Sm. Ramkesh Gupta, where it was held that objection filed by the third party was not maintainable before he is dispossessed in execution of decree to which he was not a party. The 1988 All. case cited (supra) and the present case the facts appear to be identical and similar. In the present case also the petitioners admittedly filed Civil Suit No. 248 of 1987 for declaration and injunction has been filed which is pending. The decision of 1986 All. (supra) is after consideration of provisions of 1976 Amendments in Civil Procedure Code.
19. The learned Counsel for the respondents cited AIR 1985 Ker 204, K. A. Prabha-karan v. Kuttian Prakashan; AIR 1985 Punj& Har 181, Harijan Wood Workers Production-cum-Sales Co-operative Society Ltd. v. Smt. Mayawati to emphasise that if a decree-holderis resisted or obstructed by any person in obtaining possession of the property, he can make application under Rule 97 complaining of the resistance or obstruction. The person causing resistance or obstruction is not entitled under this rule to make an application. However, if the decree-holder makes the necessary application the person causing resistance or obstruction is entitled to defend his conduct. At that stage he is entitled to be defensive but cannot take offensive steps. In case he wants to take such a step he can do so under Rule 99 but after surrendering possession.
20. Similar other case law AIR 1962 Pat 403 (Janki Mohan v. Dr. S. Samdor; AIR 1978 Raj 129, Durgah Committee v. Abdul Gaffor have been cited, which support the case of the respondents. I do not consider to deal with them also as the case law already discussed is sufficient to hold that the provisions of Order 21, Rule 97, C.P.C. is not such a provision which compulsorily require the decree-holder to make application in case of obstruction or resistance by a third party in execution of a decree for delivery of possession. I further hold that the petitioners are not entitled for a relief for direction to the respondents to file application under 0.21, Rule 97, C.P.C. In view of the settled law also if such application was filed, the petitioners could have only raised pleas of defence. The only course open to the petitioners is to surrender possession to the decree-holder and thereafter may initiate such legal proceedings as may be advised. Thus, the second question formulated for consideration is also decided against the petitioners.
21. So far the third question formulated for consideration is concerned, whether petitioners were given reasonable opportunity of being heard by the executing Court, I have already narrated the facts of the proceedings before executing Court in detail. This is not disputed that at the first instance when the decree for possession was put in execution, the warrant of possession was issued by the executing Court. In October 1975 Sri Abdul Wali father of the petitioners came to know about the execution of the defence for possession, he had moved application 59C-2 dated 23-10-75 praying that order dated 17-10-75 passed by the Court for providing police aid be recalled, besides the prayer that Decree holder be directed to file application under Order 21 Rule 97 C.P.C. The petitioners stated that application on 59 C-2 was put up for orders before the presiding officer on 20-12-75. The petitioners application 59 C-2 was rejected on the ground "there was none to press 50 C-2. An application for recalling the order dated 20-12-75 was filed by the petitioner on 19-1-76. The said application remained pending as the judgment debtor had filed application for stay of the execution of the decree before the High Court in Second Appeal. The ex parte stay order was vacated by the Hon'ble High Court. Thereafter, petitioners' application for recalling order dated 20-12-75 was heard by the court and rejected on the ground that there was no sufficient ground for recalling the order. The order of the executing court was challenged by the petitioners in revision. The petitioners' revision was heard and rejected. The petitioners wrongly pleaded that he was not given reasonable opportunity of being heard.
22. After hearing the learned counsel for the parties and carefully scrutinising facts and circumstances of the case, I am fully convinced that the petitioners have no case for interference under Art. 226 of the Constitution. They have not approached this court with clean hands, concealed material facts and obtained ex parte stay order. They have already filed civil suit for declaration and injunction. They have adequate alternative remedy. They are not entitled for any relief.
23. The writ petition is, thus, dismissed. The interim stay order passed on 7-11-1989 is vacated.
24. Petition dismissed.