Andhra HC (Pre-Telangana)
Pothuri Thulasidas vs Potru Nageswara Rao on 3 September, 2004
Equivalent citations: AIR2005AP171, 2004(6)ALD376, 2004(6)ALT525, AIR 2005 ANDHRA PRADESH 171, (2004) 6 ANDH LT 525, (2004) 6 ANDHLD 376, (2005) 2 ICC 165
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. This C.M.S.A., is filed against the judgment and Decree, dated 17.6.2002, passed by the Court of the Principal Senior Civil Judge, Narsaraopet, in A.S. No. 9 of 2002. The subject-matter of A.S. No. 9 of 2002 is an order passed in E.A. No. 494 of 2001 by the Court of Junior Civil Judge, Chilakaluripeta.
2. The facts that gave rise to filing of the C.M.S.A., are as under:
The appellant is the owner of a sawmill installed in his land at Chilakaluripeta. The same was leased to the respondent in the year 1983. Thereafter, disputes arose between the appellant and the respondent. The appellant got issued notices terminating the lease. When he could not recover the possession, he filed O.S. No. 104 of 1990, in the Court of Junior Civil Judge, Chilakaluripeta, initially, for the relief of restraining the respondent, by way of a permanent injunction, from removing the machinery of saw-mill, its equipment, tools, the zinc sheets shed, or from replacing them with any other sheets, and for restraining the respondent from running the saw-mill. Subsequently, he got the relief amended, to include a mandatory, injunction to restore the suit schedule property to its original position and for recovery of possession of the same.
3. After contest by the parties, the suit was decreed on 25.10.1999. Aggrieved thereby, the respondent filed A.S. No. 67 of 1999, in the Court of the Principal Senior Civil Judge, Narsaraopet. The appeal was dismissed on 30.11.2000. Second Appeal No. 54 of 2001 filed in this Court was also dismissed on 16.11.2001. Finally, he filed S.L.P., before the Supreme Court, and it was also dismissed on 13.12.2001.
4. The appellant filed E.P. No. 94 of 2001, for execution of the decree. The respondent filed E.A. No. 494 of 2001, under Order 21, Rule 97 C.P.C., with a prayer to enquire into the matter of obstruction, with regard to the existing super structures. The basis for the application is that a fire accident took place on 28.3.1998, wherein the entire shed and machinery were gutted, and that the respondent got the shed and machinery restored. He pleaded that since the shed and machinery are different from those that were leased, the decree in its present form cannot be executed.
5. The Trial Court rejected E.A., through its order, dated 22.1.2002. The respondent filed A.S. No. 9 of 2002, in the Court of the Principal Senior Civil Judge, Narsaraopet, and it was allowed on 17.6.2002. Hence this C.M.S.A.
6. Sri O. Manohar Reddy, learned Counsel for the appellant submits that the application filed by the respondent under Order XXI, Rule 97 C.P.C. was not maintainable, and his effort was only to defeat the decree, which became final after the dismissal of the S.L.P. He submits that, if at all the respondent was of the view that the prayer in the suit cannot be granted, on account of the fire accident said to have taken place on 28.3.1998, he ought to have brought the same to the notice of the trial Court, or at any rate, the Appellate Court, and it is not open to him to raise the ground, at this stage. As to the maintainability of the application, learned Counsel submits that Rule 97 of Order XXI provides for removal of obstruction, and obviously such applications are to be filed by the decree-holders and under no circumstances, a judgment-debtor can be permitted to create an obstruction, by filing an application under that very provision. He submits that the findings recorded by the lower Appellate Court have the effect of setting at naught, the decree, which became final, with the pronouncement made by this Court and the Supreme Court, and thereby enabled the judgment debtor to resist the execution.
7. Sri V.L.N.G.K. Murthy, learned Counsel for the respondent, on the other hand, submits that the necessity and occasion for the respondent to file E.A. No. 494 of 2001 arose, because of the fact that the decree mandates the delivery of a particular item of the property, where as the same ceased to be in existence on account of fire accident. He also refers to a subsequent development namely, the dismissal of O.S. No. 75 of 1998, filed by the appellant himself for the same relief as in O.S. No. 104 of 1990, and the decree for counter claim passed therein. Learned Counsel also submits that there is nothing in Rule 97 of Order XXI C.P.C., which prohibits the judgment debtor to bring to the notice of the executing Court, any events, which come in the way of the execution of the decree and that the application so made cannot be treated as inviting fresh adjudication on the matter.
8. It is not in dispute that the respondent is the lessee of the appellant. The appellant filed O.S. No. 104 of 1990, initially, for a relief, which is prohibitory in nature. Thereafter, through an amendment, he sought the relief of mandatory injunction as to restoration of the suit schedule property, comprising of a shed and machinery therein, and for eviction of the respondent from it. The suit was decreed. The appellant was successful through out the hierarchy of the Courts, viz., the Trial Court, Appellate Court, this Court and the Supreme Court. After the decree became final, he filed E.P. No. 94 of 2001. The cantankerousness of the respondent did not stop with the dismissal of the S.L.P. He invented a new ground, in the execution proceedings. He resorted to a novel method of filing an application under Rule 97 of Order XXI C.P.C., thereby indicating that he proposes to create an obstruction and it is for the executing Court to decide as to how far his obstruction is permissible. The Trial Court took the view that the application can be treated as the one filed by the decree-holder himself, but rejected the same, on merits. The lower Appellate Court, however, has chosen to allow the appeal and uphold the obstruction pleaded by the respondent. Two important aspects fall for consideration in this C.M.S.A., namely:--
(a) whether it is competent for a judgment-debtor to file and maintain an application under Rule 97 of Order XXI, and
(b) whether the lower Appellate Court was justified in travelling beyond the scope of the decree.
9. Once a decree becomes final, the decree-holder gets a right to seek execution of the same. Depending on the nature of the decree, Order XXI provides for the corresponding procedure, for executing the decree. If the decree relates to delivery of the immovable property, the procedure is prescribed under Rule 35 of Order XXI C.P.C. If any obstruction is caused by the judgment-debtor, the same is taken care of, under Sub-rule (3) thereof. Where, however, the obstruction is by third parties. Rule 97 provides for removal of such obstruction. Basically, it is for the decree-holder to complain to the executing Court about existence of any obstruction from third parties.
10. In Bhanwarlal v. Satyanarain and Anr., , Srinath and Anr. v. Rajesh and Ors., and Silverline Forum Private Ltd. v. Rajiv Trust and Anr., , the Supreme Court held that the word "any person" occurring in Rule 97, would take in its fold the judgment debtor also. This view was reiterated by the Hon'ble Supreme Court in N.S.S. Narayana Sharma v. Gold Stone Exports, . Therefore, the obstruction that may have been created by the judgment-debtor, can be dealt with not only under Rule 35(3), but also under Rule 97 of Order XXI.
11. Where a person, other than a judgment-debtor, is evicted from a property in the course of execution, he can file an application under Rule 99 of Order XXI for restoration of the possession. Such application is required to be dealt with almost as an independent suit. In N.S.S. Narayana Sharma's case (supra), the Supreme Court took the view that a person, who is not a party to the decree, does not have to wait till he is dispossessed, for filing an application under Rule 99, and that it shall be competent for him to come forward with such an application, even on the apprehension of such dispossession. Such applications are required to be dealt with, under the parameters of Rule 97. In none of the judgments, referred to above, the Supreme held that it is permissible for a judgment-debtor to file an application under Rule 97. If permitted, such a course of action would result in annulment of the adjudication that culminated in the decree and would open new fronts for second round of litigation on the same dispute. This becomes apparent for the reason that an application filed under Rules 97 or 99 is required to be dealt with almost as an independent suit, under Rule 101 of Order XXI. It needs to be noted that the question of treating such applications on par with suits would arise, if only they involve the adjudication between the decree-holder, on the one hand, and the third parties, on the other. The reason is that the rights of the decree-holder, on the one hand, and the judgment-debtor, on the other, have already received adjudication in the hands of the Court and culminated in the decree.
12. This being the purport of various provisions of Order XXI, the Courts below have taken the view that an application filed by a judgment-debtor under Rule 97 can be treated as the one filed by decree-holder himself. Such a view runs counter to the execution procedure under C.P.C., and is contrary to law. Hence it is held that E.A. No. 494 of 2001 was not maintainable in law.
13. Coming to the second aspect, it has already been pointed out that the respondent suffered a decree and his contentions were negatived throughout the hierarchy of the Courts in the country. Once the decree has become final, it is not open to him to plead new facts. Even if it is true that the ground pleaded by him in the E.A. constitutes a formidable defence, it is not open to him to plead in the Execution proceedings. If for any reason, the application under Order XXI is to be treated as independent proceedings, the plea is barred by constructive res judicata. It is settled principle of law that the executing Court cannot go beyond the scope of the decree. Further, the respondent does not propose to plead a fact, which has surfaced or taken place after the decree became final. The incident pleaded by him relates to a time when the suit was pending. Not a whisper was made in his written statement nor was it canvassed in the appeal, second appeal or S.L.P. He cannot be permitted to open a fresh round of litigation. The executing Court had taken the correct view that it is impermissible for the judgment-debtor to plead any fact contrary to the decree. However, the lower Appellate Court did not feel itself restricted by the findings recorded by the Trial Court, which became final with the dismissal of S.L.P. It proceeded as though it is undertaking adjudication afresh.
14. When the decree was so specific as to the liability of the respondent to be evicted, and his obligation to restore the suit property to its original position, the lower Appellate Court had chosen to invoke the provisions of Section 108 of Transfer of Property Act, 1882 (for short 'the Act'). It has ignored its limitations and failed to honoured the finality attached to the decree under execution. It is on account of such indiscriminate misadventures, that persons like respondent derive courage in stalling the execution of the decrees. Thereby, the very effectiveness of the system is diluted. But for the perverse view taken by the Appellate Court, the respondent would not have been in a position to thwart the execution or to deny the appellant, of the benefit of a decree, which assumed finality at the Supreme Court.
15. The Appellate Court freely discussed various incidents pleaded by the respondent as though it is adjudicating the suit afresh. For example, this is what it observed as to the right of the respondent to remove the existing shed; by drawing its own inferences.
"The respondent is not contending that, after the fire accident he constructed the shed and installed the machinery. By the date of fire accident there was bitter enmity, so the respondent would not construct the shed or install machinery on the other hand he was seeking the eviction of the petitioner from the petition schedule property. So we can conclude that the petitioner constructed the shed and installed machinery."
16. After invoking Section 108 of the Act, the learned Judge observed as under:--
"The super structures and machinery that were in the suit schedule land were admittedly damaged in fire accident on 28.3.1998 and on insurance claim for that damages a suit is filed against the Insurance Company, and the petitioner in O.S. No. 13/ 2000 on the file of Prl. Senior Civil Judge, Narasaraopet and the same is pending before this Court and on that point we need not give any finding in this appeal. So in view of Section 108(h) of T.P. Act the petitioner is entitled to remove the super structures and machinery and he has to be permitted to remove the superstructures and machinery by giving reasonable time and if he fails to remove them within the reasonable time the property can be delivered including the super structures to the respondent. So the lower Court has to be given suitable directions".
With this, the learned Judge has frustrated the entire decree, and rendered it inexecutable.
17. Learned Counsel for the respondent submits that the appellant filed O.S. No. 75 of 1998, almost for the same relief as in O.S. No. 104 of 1990, in the same Court. He contends that apart from filing written statement, the respondent filed a counter claim, and that the suit was dismissed and the counter claim was decreed. He contends that, on the strength of the same, the respondent has acquired new rights and the decree in O.S. No. 104/90 became incapable of being executed.
18. The learned Counsel has placed before this Court the. certified copy of the decree and judgment in O.S. No. 75/1998. The relief claimed in this suit overlaps the one in O.S. No. 104 of 1990. Obviously because O.S. No. 104/90 was decreed and it became final throughout, the appellant did not pursue O.S. No. 75/98. The suit was dismissed for default on 23.4.2002. The relevant portion of the judgment reads as under:
"Plaintiff called absent. Costs not paid. No representation. Therefore, suit is dismissed for default."
19. However, the Trial Court has drafted a decree as though the counter claim of the respondent herein was decreed. On the face of it, the said decree is illegal and without any legal force. Rule 6 and 6(a) of Order XX C.P.C. mandate that the decree shall be in conformity with the judgment. Conversely any decree, which does not conform to the judgment, is nullity. Mere dismissal of a suit, by itself does not entail in the counter claim being allowed or decreed. There has to be specific finding and grant of relief separately as regards counter claim. So is the case with cross-objections in an appeal. When the Trial Court in O.S. No. 75/1998 did not grant any relief on the counter claim, there was no occasion or basis for drawing a decree in respect of counter claim. This Court has already taken note of the matter on administrative side for initiating action against the persons responsible for such a blatant illegality.
20. Hence, the judgment and decree in A.S. No. 9 of 2002, do not have any legal or factual basis and the same are accordingly set aside. Consequently dismissal of E.A. No. 494 of 2001 by the executing Court is upheld.
21. Having regard to the various developments that have taken place, which are, in fact, serious in nature, this Court is of the view that the executing Court be put on clear notice that it shall proceed with the execution of the decree which became final at the Supreme Court level, without any further delay, and report compliance of the same to this Court.
22. The CMSA is accordingly allowed with costs throughout.