Jharkhand High Court
Panchu Nonia & Ors vs Smt. Urmila Sinha on 2 February, 2022
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Writ Jurisdiction)
W.P.(C) No. 5883 of 2010
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Panchu Nonia & Ors. .... ..... Petitioners
Versus
Smt. Urmila Sinha .... ..... Respondent
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through : Video Conferencing)
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For the Petitioners : Mr. A. K. Das, Advocate
For the Respondent : Mr. A. N. Deo, Advocate
Mr. Shailesh, Advocate
........
15/02.02.2022.
Heard, learned counsel for the parties.
The petitioners, (1) Panchu Nonia, (2) Doman Nonia and (3) Bajo Devi being the plaintiffs have preferred this writ petition for setting aside the order dated 06.09.2010 passed in Misc. Case No.20/2007 (arising out of Execution Case No.9/2005) passed by learned Sub-Judge-II, Dhanbad, whereby the petition filed by petitioners under Section 151 C.P.C. has been rejected on the ground that Title Suit of the plaintiffs have been dismissed and virtually the plaintiffs have lost everything, as such, they have no locus standi to file a petition under Section 151 CPC as because they have no case.
Learned counsel for the petitioners, Mr. A. K. Das has assailed the impugned order on the ground, that the impugned order is in contravention of Order 21 Rule 11 (2) (j) (i) CPC, which reads as follows:-
(j) the mode in which the assistance of the Court is required, whether -
(i) by the delivery of any property specifically decreed;
Learned counsel for the petitioners, Mr. A. K. Das has further submitted, that decree passed in Title Suit No.32/1996 has been brought on record vide Annexure-I of the writ petition, which reads as:- "the suit be and the same is dismissed on contest with cost. Pleader's fee Rs.32/- and Clerks fee Rs.8/-".
Learned counsel for the petitioners, Mr. A. K. Das has further submitted, that the title suit, which has been filed by plaintiffs / petitioners is with regard to following reliefs:-
-2-"(a) for declaration that impugned sale deed bearing No.6702 dated 15.12.1995 is fraudulent, void and illegal, manufactured, and created in collusion with the defendants and did not confer and right, on defendant no.2 and infringed the right, title, interest of the plaintiffs in respect of schedule 'B' below.
(b) for permanent injunction restraining the defendant no.2, her servants, and agents, from interfearing in any manner, with the Plaintiff's possession and /or taking forceful possession of the suit land.
(c) for the costs of the suit.
(d) for any other or further relief or reliefs to which the plaintiffs are entitled for."
Learned counsel for the petitioners, Mr. A. K. Das has further submitted, that though the plaintiff's suit has been dismissed, but by virtue of the decree passed in the suit defendant cannot file execution case to execute a decree as decree has never been passed in favour of defendant to evict the plaintiffs from the suit premises nor any application has been filed to modify the decree and as such, the executing court has completely erred in passing impugned order, which is illegal without jurisdiction and non-sustainable under law, as such, an order without considering the spirit of the law and against the catena of judgment passed by the Hon'ble Apex Court.
Learned counsel for the petitioners, Mr. A. K. Das has relied upon the judgment passed by the Apex Court in the case of State of Punjab & Anr. Vs. Buta Singh, reported in 1995 Supp (3) SCC 684 (para-3), which is quoted hereunder:-
"3. It is obvious that the executing court had no jurisdiction to direct the recovery of any amount which was not granted by the decree under execution since the decree was for a mere declaration. The order of the executing court being without jurisdiction, it was the duty of the High Court to have corrected that error of jurisdiction. However, the High Court has failed to do so."-3-
Learned counsel for the petitioners, Mr. A. K. Das has also relied upon the judgment passed by the Apex Court in the case of Rameshwar Dass Gupta Vs. State of U. P. & Anr. reported in (1996) 5 SCC 728 (paras-2 & 4), which is quoted hereunder:-
"2. In execution thereof, as per the rules, the petitioner laid execution petition under Order 21 Rule 1, CPC read with clause [5] of the Tribunal's Rules, On a certificate for recovery of the dues under the order. The executing court in the impugned order dated December 12, 1995, in addition to the salary, gratuity and pension in a total sum of Rs.1,97,575.32, awarded interest at 124 per annum from the date of the execution till date of the order which worked out to the sum of Rs.1,46,205/-. The respondents challenged the legality thereof only in respect of the direction to pay the interest at 12%. In the revision, the High Court in the impugned order held that the executing Court had no power to enlarge the decree. The decree of the Tribunal does not grant payment of interest and, therefore, the order directing payment of interest was without jurisdiction. Thus this special leave petition.
4. It is well settled legal position that an executing Court cannot travel beyond the order or decree under execution. It gets jurisdiction only to execute the order in accordance with the procedure laid down under Order 21, CPC. In view of the fact that it is a money claim, what was to be computed is the arrears of the salary, gratuity and pension after computation of his promotional benefits in accordance with the service law. That having been done and the court having decided the entitlement of the decree-holder in a sum of Rs.1,97,000/- and odd, the question that arises is whether the executing Court could step out and grant a decree for interest which was not part of the decree for execution on the ground of delay in payment or for unreasonable stand taken in execution? In our view, the executing Court has exceeded its jurisdiction and the order is one without jurisdiction and is thereby a void order. It true that the High Court normally exercises its revisional jurisdiction under Section 115, CPC but once it is held that the executing Court has exceeded its jurisdiction, it is but the duty of the High Court to correct the -4- same. Therefore, we do not find any illegally in the order passed by the High Court in interfering with and setting aside the order directing payment of interest."
Learned counsel for the petitioners, Mr. A. K. Das has also relied upon the judgment passed by the Apex Court in the case of J & K Bank Ltd. & Others Vs. Jagdish C. Gupta reported in (2004) 10 SCC 568 (para-2), which is quoted hereunder:-
"2. The short question involved in the case is whether the executing court could go beyond the decree by directing that the respondent be promoted to the post of Chief Manager. It is no more res integra that the executing court has no jurisdiction to go behind the decree. It is not disputed that the decree did not contain any direction to promote the respondent to the post of Chief Manager. Under such circumstances, we are of the view that the executing court as well as the High Court fell in error in issuing directions in execution case that the respondent be promoted to the post of Chief Manager. The order under challenge, therefore, deserves to be set aside. We order accordingly. The appeal is allowed. There shall be no order as to costs."
Learned counsel for the petitioners, Mr. A. K. Das has also relied upon the judgment passed by the Apex Court in the case of Vedic Girls Senior Secondary School, Arya Samaj Mandir, Jhajjar Vs. Rajwanti (Smt) & Others reported in (2007) 5 SCC 97 (paras-2, 16, 17, 24, 25 &
26), which is quoted hereunder:-
"2. The Respondent No. 1 in this appeal was appointed as Science Mistress in the Appellant School on 07.09.1988. At the time of joining her duties she was given an appointment letter on 05.7.1988 indicating that she was being appointed as Science Mistress in the school with effect from the date she joined her duties in the grade of Rs. 1400-2600/- plus usual allowances sanctioned by the Haryana Government from time to time.
16. In support of his aforesaid contention, Mr. Sanjay Sharawat, Ld. Advocate, referred to and relied on the decision of this Court in the case of State of Punjab Vs. Krishan Dayal Sharma, reported in A.I.R. 1990 SC 2177, wherein this Court had -5- held that when no interest had been claimed in the suit itself, the grant of such interest by the Executing Court was illegal since the Executing Court is bound by the terms of the decree and it could not add to or alter the decree on its notion of fairness or justice.
17. The same view was taken by this Court in the case of State of Punjab Vs. Buta Singh, reported in 1995 Supp. (3) SCC page 684, wherein in a suit for a mere declaration the Executing Court directed recovery of an amount which had not been granted by the decree. This Court held that such a direction given by the Executing Court was beyond its jurisdiction.
24. Having heard the Learned Counsel of the respected parties we are unable to agree with the reasoning both of the High Court as also the Executing Court since the decree does not indicate the basis on which the dues of the Respondent No. 1 was to be calculated. When there were conflicting claims regarding the salary payable to the Respondent No. 1, the said respondent ought to have taken steps to amend the prayers in the plaint so that proper relief could be provided to her. The same not having been done, the Executing Court had no jurisdiction to go beyond the decree as passed, despite the fact that the Trial Judge had noticed the dispute and had even decided the same.
25. As will be evident from the decree extracted hereinabove, the Respondent No. 1 was entitled to regularization of her services with effect from 06.7.1988, with other consequential relief and was also entitled to receive her salary through crossed cheques. The Executing Court was required to execute the decree as made and it had no jurisdiction to widen its scope or to add to it unless a specific question was raised relating to discharge or satisfaction of the decree as envisaged in Section 47 of the Code of Civil Procedure.
26. In our view, the Executing Court appears to have been misled by the application filed on behalf of the decree-holder Respondent No. 1 on 25.01.1999 indicating that her suit had been decreed by the Court with a direction upon the School authorities to make payment to her by cheque of her dues as per Government Scale (emphasis added)."-6-
Learned counsel for the petitioners, Mr. A. K. Das has also relied upon the judgment passed by the Apex Court in the case of State of Punjab & Others Vs. Krishan Dayal Sharma reported in (2011) 11 SCC 212 (paras-6, 7, 8 & 9), which is quoted hereunder:-
"6. There is no dispute between the parties that the decree which was put to execution did not contain any order or direction for the payment of any interest on the amount which was payable to the decree holder consequent to the declaration made by the Court decreeing the respondent's suit. There is further no dispute that no relief for interest had been claimed by the respondent in the suit nor any such claim was discussed or awarded by the Court decreeing the suit.
7. In the absence of pleadings and directions in the judgment or decree which was under execution, it was not open to the executing court to award interest. The Execution Court is bound by the terms of the decree, it cannot add or alter the decree on its notion of fairness or justice.
8. The right of the decree holder to obtain relief is determined in accordance with the terms of the decree. The Execution Court has referred to a number of decisions where interest had been granted on the arrears of salary and pension. The Execution Court failed to appreciate that in those decisions direction for payment of interest had been issued by the Court while granting relief for reinstatement or payment of arrears of salary or pension. None of those decisions relate to the grant of interest by the Execution Court. No doubt the Courts have power to award interest on the arrears of salary or pension or other amount to which a Government servant is found entitled having regard to the facts and circumstances of the case but that power cannot be exercised by the Execution Court in the absence of any direction in the decree.
9. In this view the executing court in the instant case acted in excess of its jurisdiction in awarding interest to the respondent- judgment debtor. In the result, we allow the appeal, set aside the order of the Execution Court awarding interest to the judgment debtor. There will be no order as to costs."-7-
Learned counsel for the petitioners, Mr. A. K. Das has also relied upon the judgment passed by the Apex Court in the case of State of M. P. Vs. Mangilal Sharma reported in (1998) 2 SCC 510 (paras-6, 7 & 10), which is quoted hereunder:-
"6. A declaratory decree merely declares the right of the decree holder vis-a-vis the judgment debtor and does not in terms direct the judgment debtor to do or refrain from doing any particular act or thing. Since in the present case decree does not direct reinstatement or payment of arrears of salary the executing court could not issue any process for the purpose as that would be going outside or beyond the decree. Respondent as a decree holder was free to seek his remedy for arrears of salary in the suit for declaration. The executing court has no jurisdiction to direct payment of salary or grant any other consequential relief which does not How directly and necessarily from the declaratory decree. It is not that if in a suit for declaration where the plaintiff is able to seek further relief he must seek that relief though he may not be in need of that further relief. In the present suit the plaintiff while seeking relief of declaration would certainly have asked for other reliefs like the reinstatement, arrears of salary and consequential benefits. He was however, satisfied with a relief of declaration knowing that the Government would honour the decree and would reinstate him. We will therefore assume that the suit for mere declaration filed by the respondent-plaintiff was maintainable, as the question of maintainability of the suit is not in issue before us.
7. Mr. Gambhir, learned counsel for the respondent, has been unable to show as to how a decree for declaration which the respondent got could at all be executable. It was, therefore, submitted by him that once the court gave a declaration about the legal status of the respondent that he was still in continuance of service of the appellant and his services were never terminated, the necessary consequence would be that the respondent should be granted arrears of salary and other consequential benefits by the appellant unlike in a case which was governed by law of contract between the parties. It is difficult to accept this -8- proposition as the provisions of law contained in Section 34 of the Specific Relief Act are specific and in that case even declaration could not have been granted as it could be said that respondent was able to seek further relief then a mere declaration of his legal status and which he omitted to do so. In State of Punjab and Others v. Krishan Dayal Sharma, the plaintiff obtained a decree that he was entitled to be promoted from the post of Inspector of Police to that of Deputy Superintendent of Police with effect from the date when his juniors were promoted and further claimed relief for all consequential benefits, rights and privileges. The suit was decreed and in the execution application filed by the plaintiff in addition to the benefits flowing from the decree, he also claimed compound interest at the rate of 12% per annum on the amount found due to him. The claim of interest was allowed by the executing court. This Court noticed that the decree which was put to execution did not contain any order or direction for the payment of any interest on the amount which was payable to the decree holder' consequent to the declaration made by the Court decreeing a suit. It was also not disputed that no relief for interest had been claimed by the decree holder in his suit nor any such claim was discussed or Awarded by the Court decreeing the suit. This Court held that the executing court was bound by the terms of the decree and could not add or alter the decree on its notion of fairness or justice. The Court further observed that no doubt the Courts had power to award interest on the arrears of salary or pension or other amount to which a Government servant was found entitled to having regard to the facts and circumstances of the case but that power could not be exercised by the executing court in the absence of any direction in the decree. In Parkash Chand Khurana Etc. v. Harnam Singh and Others, one of the contentions raised by the appellants before this Court was that the award in question was merely declaratory of the rights of the parties and was, therefore, inexecutable. The Court observed as under:
"This contention is based on the wording of clause 7 of the award which provides that on the happening of certain events the respondents "shall be entitled to take back the possession". We are unable to appreciate how this clause -9- makes the award merely declaratory. It is never a pre- condition of the executability of a decree that it must provide expressly that the party entitled to a relief under it must file an execution application for obtaining that relief. The tenor of the award shows that the arbitrator did not intend merely to declare the rights of the parties. It is a clear intendment of the award that if the appellants defaulted in discharging their obligations under the award, the respondents would be entitled to apply for and obtain possession of the property."
10. We are, therefore, of the opinion that the courts below did not exercise their jurisdiction properly and the respondent could not have sought execution of the declaratory decree when no relief was granted to him towards arrears of salary and other consequential benefits."
Learned counsel for the petitioners, Mr. A. K. Das has also relied upon the judgment passed by the Apex Court in the case of Mohinder Singh (dead) through Legal Representatives Vs. Parmjit Singh & Others reported in (2018) 5 SCC 698 (paras-17, 18 & 24), which is quoted hereunder:-
"17. In this backdrop, the moot question in the present case is the meaning of the expression "the declaratory decree is obtained". Does it mean the date of pronouncement of the judgment i.e. 20th August, 1963 or the date of preparation of decree sheet i.e. 19th August, 1972? The expression "obtain", as understood in common parlance and defined in Concise Oxford English Dictionary, would mean - "acquire, secure, have granted to one". This may also encompass obtaining a copy of the decree. In central legislation, the expression is made explicit by providing "for obtaining a copy of the decree", as was considered in Lala Balmukund (supra). The expression "obtained", therefore, would pre-suppose, in the context of reckoning limitation period for filing a suit for possession, of securing a certified copy of the decree (decree- sheet) on the basis of which, the suit for possession could be instituted. In other words, the date on which the decree is drawn would be the relevant date for commencement of limitation period. As in the case of execution proceedings, mere passing of the judgment by the Court is not enough but a decree has to be drawn on the basis of such declaratory judgment which -10- is then put into execution. Applying the same analogy, if a suit for possession is founded on a declaratory decree it could proceed only after a drawn up decree on the basis of a declaratory judgment of the Civil Court is made ready and obtained by the decree-holder.
18. The expression "the declaratory decree is obtained", therefore, assumes significance. If the legislature intended to provide it differently, it could have couched the provision as "the date on which the declaratory judgment is passed". The legislature in enacting 1920 Act, however, consciously used the expression "the declaratory decree is obtained", which intrinsically includes the date on which a formal decree is drawn or prepared and not merely the date on which a declaratory judgment is passed by the Court. Taking any other view would be rewriting the expression "the declaratory decree is obtained" and doing violence to the legislative intent. Besides, the expression "obtained" in Article 2(b) is prefixed by expression "is"; and further it follows with expression "whichever is later". Even this would reinforce the position that the date on which the declaratory decree is drawn could ignite the period of limitation for instituting a suit for possession and not a mere declaratory judgment rendered by the Court in the previous suit (for declaration simplicitor). Taking any other view will render the last part of Article 2(b), providing for "whichever is later"
nugatory and otiose.
24. Notably, the respondents did not question the decisions of the Executing Court - be it on the ground that it was premature or on the ground that the remedy for the plaintiff was to file a suit for possession. Indubitably, the proceedings such as execution petition resorted to by the plaintiff would be a civil proceeding. Further, the Trial Court as well as the Appellate Court have found that the plaintiff was pursuing that remedy in good faith. That finding has not been disturbed by the High Court. The reasons which weighed with the Executing Court for dismissing the execution petitions were just causes covered by the expression "defect of jurisdiction" and in any case, "other cause of a like nature", ascribed by the Executing Court for its inability to grant -11- relief of possession of suit property to the plaintiff. The fact situation of the present case would certainly satisfy the tests specified in Section 14 of the 1963 Act, for showing indulgence to the plaintiff to exclude the period during which the plaintiff pursued execution proceedings for reckoning the period of limitation for filing the suit for possession on 11th June, 1974. The argument of the respondents that the plaintiff did not offer any explanation for the period from 2nd February, 1974 till 11th June, 1974 does not impress us at all. That period is only of four months and once the period from 14th January, 1971 till 2nd February, 1974 was to be excluded as being time spent by the plaintiff in pursuing other civil proceedings in good faith, there would be no delay in filing of the suit. What is posited by Section 14 of the 1963 Act is the exclusion of time of proceeding bona fide in Court without jurisdiction or other cause of a like nature, for which the concerned Court is unable to entertain the lis. The fact that no explanation whatsoever has been offered for the period from 2nd February, 1974 to 11th June, 1974, therefore, would not whittle down the rights of the plaintiff to institute and pursue suit for possession of the subject land on the basis of declaratory decree." Learned counsel for the petitioners, Mr. A. K. Das has also relied upon the judgment passed by the Apex Court in the case of Murti Bhawani Mata Mandir represented through Pujari Ganeshi Lal (dead) through Legal representative Kailash Vs. Ramesh & Others reported in (2019) 3 SCC 707 (para-10), which is quoted hereunder:-
"10. In the present case, the interim order of the Trial court did not require the defendant to hand over the possession to the plaintiff. There was no decree or order of the Trial court by virtue of which the appellant was given possession of the property, nor did any decree or order mandate that the respondent hand over possession to the appellant. In these circumstances, the provisions of Section 144, CPC were not attracted there being no variation or reversal of a decree or order as contemplated by Section 144."
Learned counsel for the petitioners, Mr. A. K. Das has further submitted that the executing court cannot travel beyond the decree and has completely erred and executed an order, which was not a part of decree and thus the impugned order is fit to be set aside.
-12-Learned counsel, Mr. A. N. Deo assisted by learned counsel, Mr. Shailesh appearing for respondent has submitted, that the counter affidavit has been filed dated 05.12.2018 stating therein that plaintiffs have filed suit for declaration of sale deed bearing No.6702 dated 15.12.1995 is fraudulent, void, illegal, manufactured and created in collusion with the defendants. The above sale deed did not confer any right of defendant no.2 and infringed the right, title and interest of the plaintiffs in respect of schedule-B land, on the ground that it has been executed by one Dulia Devi claiming herself to be the widow of Gouri Shankar Nonia. The sale deed further shows that sale deed was drafted by the defendant No.3, Ashok Kumar Dutta, who is a deed writer and witnessed by defendant no.4, Ranjendra Mahato, defendant no.5 Kapildeo Sharma, defendant No.6 Baleshwar Sharma and defendant no.7 Arjun Prasad. Defendant No.4 Rajendra Mahato was also attesting witness of the same sale deed, who identified imposter Smt. Dulia Devi to be wife of Gouri Shankar Nonia before the Sub-registrar, Sadar.
Learned counsel for the respondent has further submitted that above raised contention of the plaintiffs have been negated by the trial court and affirmed by the First Appellate Court in First Appeal No.21/1998 (R), though the same has been dismissed for non-compliance of the peremptory order, but the judgment and decree passed in Title Suit No.32/1996 / 22/1996 has never been assailed by the plaintiffs and that attains finality, as such, the executing court has rightly executed the suit premises as per the sale deed.
Learned counsel for the respondent, Mr. A. N. Deo has fairly submitted that though the same has not been mentioned in the decree prepared by the court, but once a suit has been dismissed, whereby the sale deed of the defendant has not been cancelled, the right accrued in favour of the defendant is to be executed otherwise there shall be multiplicity of the suit and as such, the executing court has rightly passed an order.
Learned counsel for the respondent, Mr. A. N. Deo has placed reliance upon Section 47 (3) Explanation (II) (b) of CPC, which reads as follows:-
-13-"(b) all question 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."
Learned counsel for the respondent, Mr. A. N. Deo has further placed reliance upon Section 99 -A of CPC, which reads as follows;-
"99-A. No order under Section 47 to be reversed or modified unless decision of the case is prejudicially affected.- Without prejudice to the generality of the provisions of section 99, no order under section 47 shall be reversed or substantially varied, on account of any error, defect or irregularity in any proceeding relating to such order, unless such error, defect or irregularity has prejudicially affected the decision of the case."
Learned counsel for the respondent, Mr. A. N. Deo has thus submitted that even if the impugned order is bad in law, but much water has flown and the defendants / respondents have been given possession of the suit land, which they have purchased by way of a sale deed cannot be restored to the plaintiffs under Article 227 of the Constitution of India.
Learned counsel for the respondent has further submitted that it is open to the plaintiffs to avail the remedy under the law with respect to the possession of the suit land and in view of the judgment passed by the Apex Court in the case of Ramesh Vs. Harbans Nagpal & Others reported in (2015) 8 SCC 716, it is open to the plaintiffs to take steps that are available to them under the law, as such, this Court may pass necessary order.
Considering the rival submissions of the parties, looking into the fact and circumstances of the case and from bare reading of Order 21 Rule 11 (2) (j) of CPC, it is apparent that no such averments was made in the decree to hand over the possession to the defendants. It is settled proposition that the executing court cannot travel beyond the decree and the same has been held by the Apex Court as referred in the above cases.
Under the aforesaid circumstances, the impugned order passed by the executing court dated 06.09.2010 in Misc. Case No.20/2007 arising out of Execution Case No.09/2005 is set aside.
-14-Accordingly, the instant writ petition is hereby allowed. However, once the possession has already been delivered, this Court under Article 227 of the Constitution of India cannot restore the possession to the plaintiffs and in view of the judgment passed by the Apex Court in the case of Ramesh (supra), it is open to the plaintiffs to take steps available to them under the law.
(Kailash Prasad Deo, J.) Jay/