Patna High Court
Ramrup Rai vs Mst. Gheodhari Kuer And Ors. on 24 October, 1979
Equivalent citations: AIR1980PAT197, AIR 1980 PATNA 197, 1980 BLJR 478 (1980) BLJ 387, (1980) BLJ 387
Author: Lalit Mohan Sharma
Bench: Lalit Mohan Sharma
JUDGMENT Hari Lal Agrawal, J.
1. This is an appeal under Section 47 of the Civil P. C. by the decree-holder. He had filed a suit for declaration of his title to and confirmation of possession or. in the alternative, recovery of possession of certain immvable property and obtained a decree. He has started the present execution case out of which this appeal arises praying for delivery of possession of the property in question after demolishing certain flimsy construction described as Docharas.
2. The judgment debtors took objection to the executability of the decree. Their further objection was that there being no direction in the decree to deliver vacant possession, the court could not make any order to that effect in favour of the decree holder. The application of the judgment debtors was registered as a miscellaneous case under Section 47 of the Code.
The decree holder filed a rejoinder in the said miscellaneous case and one of the points raised by him was that the objection petition of the judgment-debtors was not maintainable being barred by the principles of constructive res judicata, as no such objection was filed after the service of Order 21, Rule 22 notice and the executing court had already ordered for effecting delivery of possession before the filing of the miscellaneous case.
On the filing of the objection petition the execution case was every time postponed until the disposal of the miscellaneous case. The executing court ultimately held that the objection petition was maintainable in law as it was filed before any order under Rule 23 (1) of Order 2l was actually passed by the Court. It further held that the decree was executable and the decree holder was entitled to get delivery of possession over the suit land, but no order for demolition of the structures could be passed as there was no specific direction to that effect in the decree. The miscellaneous case was accordingly allowed in part.
3. The decree holder then filed an appeal in the court of appeal below. The lower appellate court also took a similar view and held that "in absence of any direction in the decree to remove and demolish the structures of the defendants from the suit land, no order for removal of the same can be passed by the executing court". The appeal was accordingly dismissed. The decree holder has now come to this court.
4. Mr. Nagendra Rai, appearing in support of the appeal, contended that the decree holders are entitled to be put in actual physical possession of the suit property and whatever is required to be done for this purpose has to be done by the executing Court. In reply to the judgment-debtor's argument that the decree being merely for declaration of title and confirmation of possession cannot be executed, he said that on a correct construction of the decree, if interpreted with the aid of the pleadings in the suit and the judgment, it should be held that the decree holders have been given a right to be put in actual possession of the property and the application for execution, therefore, is perfectly maintainable. Alternatively, he argued that the question of executability of the decree must be decided in favour of the decree-holders at this stage by reason of the principle of res judicata.
5. The bar of res judicata has been argued by Mr. Nagendra Rai, appearing for the decree holder, on the ground that the petition filed by the judgment-debtors-objectors to the executability of the decree itself having been filed out of time, the plea was not open to be considered. This argument is based on these facts. The notice under Order 21, Rule 22 was ordered to be issued by the executing court on 16-3-1972. The service return was received on 26-4-1972. The decree holder filed an affidavit on 1-5-1972, in support of the validity of the service of the notice and it was thereafter that on the 12th of May, 19/2 the executing court directed the decree holder to deposit the travelling allowance-of the Nazir and to file pro forma of the delivery of possession. The decree holder deposited only the travelling allowance of the Nazir but did not file the pro forma of the delivery of possession. The executing court accordingly by its order dated 25-5-1972 again directed the decree-holder to file the pro forma making it clear that order for delivery of possession would be passed only thereafter. The case was adjourned to 10th of June, 1972. In the meantime on 9th of June, 1972, the judgment debtors filed the miscellaneous case in question. It further appears that the decree holder had already filed the pro forma but the same came back unexecuted. On 10-6-1972 the court noted the fact of the unexecuted return of the processes of the delivery of possession. On that very day the judgment debtors also made an application for slaying further proceedings in the execution case until the disposal of their objection and although no order of stay was passed, the execution was postponed on every date until the disposal of the miscellaneous case.
6. Order 21, Rule 23 prescribes that, where the person to whom notice is issued under Rule 22 does not appear or does not show cause as to why the decree should not be executed, the court shall order the decree to be executed. But where such person makes any objection to the execution of the decree, the court is to consider such objection and make an order as it thinks fit. We have seen that the executing court has said that no express order in terms of Rule 23 was actually passed and, therefore, it came to the conclusion that the miscellaneous case in question was maintainable,
7. In support of his contention Mr. Rai placed reliance upon the Full Bench decision of this Court in Baijnath Prasad Sah v. Ramphal Sahni, (AIR 1962 Pat 72) where it was held that the principle of constructive res judicata applies to an execution proceeding also. It was laid down in that decision that there are five important stages in an execution proceeding of a money decree, namely, (1) issue of notice under Order 21, Rule 22, (2) the order for issue of attachment, (3) order for sale of the property, (4) sale of the property, and (5) confirmation of the sale.
It was held that if in spite of service of notice, the judgment debtor fails to raise an objection which he might and ought to have raised at that stage, for instance, an objection on the ground of limitation, the court in passing the order for execution of the decree must be deemed to have decided the objection against him. It was further observed that ordinarily the court does not pass an express order to the effect that the decree be executed. That order is implied in the order for the issue of attachment. All objections, therefore, to the executability of the decree have to be raised in such cases before the order for issue of attachment. Similarly, when the court orders sale of the judgment-debtor's property at the third stage of the proceeding under Rule 64 of Order 21, any objection on the ground of non-saleability of the property must be raised before that stage and in case the judgment-debtor fails to raise any such question at that stage, the court must be deemed to have decided it against him by passing an order for sale of the property, because, unless the property is liable to sale the court cannot pass that order. We are, however, not concerned in this case with the subsequent stages as the principle of res judicata is sought to be applied on the basis of what happened at the earlier stage of the execution proceeding. On the facts and in the circumstances mentioned above, I would accept the contention of the learned counsel for the appellant and as also observed by the Full Bench, an order under Rule 23 may be implied by passing of the subsequent order in the execution proceeding after the service return of the notice under Rule 22. In my view, the order of the executing court dated 12-5-1972 directing the decree holder to deposit the travelling allowance of the Nazir and to file processes for effecting delivery of possession would amount to an order under Rule 23 for executing the decree. No objection, therefore, having been filed to the executability of the decree before that order, the objection filed subsequent thereto must be deemed to be barred by the principle of constructive res judicata. The order of the courts below, therefore, to the maintainability of the execution case must also be upheld on this ground as well.
8. Now I proceed to consider the main question as to whether the courts below should have ordered for removal of the structures in course of effecting the delivery of possession of the land in question.
The relevant provision is contained in Rule 35 of Order 21 which deals with the modes of executing a decree for possession of immovable properties. The court of appeal below has noticed some cases on the point but all those cases are between a landlord and tenant and, in my view, the principle laid down in those cases will not apply to a situation in the case before us. The only question that has to be decided is as to whether while executing a decree for recovery of possession of the vacant land the executing court can direct for removing the structures. Such structures may be put up by a judgment-debtor, (1) before the institution of the suit, (2) pendente lite, and (3) after the decree. In their objection petition the judgment-debtors had pleaded that the constructions in question were put up by them must before the suit. The decree-holder in his rejoinder, however, controverted this position and contended that the structures were put up after the passing of the decree. There is no express finding on this question by either of the courts below. As already seen, they proceeded entirely from a different angle to answer this question. It cannot be disputed that where the defendant puts up construction pendente lite or after the passing of the decree, then the executing Court can order demolition of the structures and deliver vacant possession. But where the constructions are put up before the institution of the suit, the executing court cannot order demolition of the structures, but would simply deliver possession of the land and the buildings after removal; of the judgment-debtor therefrom. In either case, however, the court may before ordering delivery of possession give time to the judgment-debtor to remove himself the materials, if he so liked. The judgment-debtors' claim of the structures being in existence from before the institution of the suit was controverted by the decree-holder and both the sides examined several witnesses in support of their respective stand. The executing court has not discussed the oral evidence on this point, but it appears from para 9 of its order that with reference to the said evidence as well as the judgment of the title suit itself, it came to the conclusion that some structures existed on the suit land from before. To that view of the matter, the executing Court did not think it proper to order for removal of the structures and has further held that after delivery of possession was effected in his favour, it was for the decree holder to consider as to what he shall do with the structures in question.
9. From a perusal of para 7 of the Order of the lower appellate court, however, I find that it has come to a conclusion that two Docharas were constructed by the judgment-debtors during the pendency of the suit, although some other structures were already there from before. The decree-holder has prayed for delivering vacant possession over the lands on demolishing the two Docharas only, which according to the above finding were constructed pendente lite. In that view of the matter, I will allow this appeal and direct the executing court for giving possession of the land after removal or demolition, as the case may be, of the two Docharas. With respect to the constructions, if any, already on the land from before, it would simply allow some reasonable time to the judgment-debtors to remove the materials of the said structures. I find support for this view from the case of Mohd. Ismail v. Ashiq Husain (AIR 1970 All 648).
10. For the foregoing reasons, this appeal is allowed as indicated above, but in the circumstances I shall make no order as to costs.
11. I agree.