Bombay High Court
Shri C.V. Joshi vs The Elphinstone Spinning And Weaving ... on 28 June, 2000
Equivalent citations: (2000)102BOMLR269, 2000 A I H C 4367, (2004) 2 DMC 200, (2001) 1 RENCR 131, (2001) 2 CIVLJ 784, (2001) 2 MAH LJ 195, 2000 BOM LR 3 269, (2001) 6 BOM CR 57
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar
JUDGMENT A.M. Khanwilkar, J.
1. This writ petition by the Judgment-debtor takes exception to the order passed by the Judge of the Small Causes, Bombay dated 28th July, 1999 in Misc. Notice No. 20 of 1999 in Misc. Notice No. 716/1994 in L.E. Suit No. 157/183 of 1983.
2. The short question which arises for consideration in this case is whether it is mandatory for the Executing Court to frame an issue on the basis of the stand taken by the rival parties for deciding the question raised before it. Secondly, whether the Court below was justified in suo motu recalling the issue, which was already framed earlier, by the impugned order.
3. Briefly stated, the Respondent had instituted a suit for possession against the Petitioner wherein consent terms came to be filed on the basis of which the said suit was disposed of. As per the consent terms the Petitioner filed an undertaking before the Small Causes Court that he would vacate the suit premises on or before 31.12.1983. Inspite of the said undertaking the Petitioner did not vacate the suit property. Resultently, the Respondent-decree holder was forced to move an application for execution of the consent decree, purporting to be an application under Order 21 Rule 22 of the Civil Procedure Code. In the said proceedings the Petitioner took a plea that the said decree has become non-executable, as, with effect from 1.1.1984, the Petitioner has acquired fresh tenancy rights, independent of the said consent decree. In view of the stand taken by the Petitioner, the Small Causes Court on 19th November, 1998, after hearing both the sides, ordered that the Petitioner would be permitted to adduce evidence to establish his tenancy rights acquired after passing of the consent decree. Thereafter the Petitioner submitted draft issues to the Executing Court on 9th December, 1998. However, the Executing Court, on the same day, framed only one issue which reads thus:
Does the defendant prove that he acquire tenancy rights after passing of the decree?
4. The petitioner on 16.12.1998 made another application before the Executing Court to frame additional issues. The said application has been disallowed by the Executing Court on 28th July, 1999 on the ground that it is not necessary for the Executing Court to frame issues with regard to the stand taken by the parties and the execution proceedings can be finally decided without framing any issue. In the circumstances, the Executing Court thought it appropriate to -recall the issue already framed on 9th December, 1998.
5. The aforesaid order dated 28.7.1999 passed by the Executing Court is the subject-matter of challenge before this Court. The learned Counsel for the Petitioner contends that it is incumbent on the Executing Court to frame issue whenever it has to determine any question arising between the parties. Besides referring to Section 42 of the C.P.C. he has also relied on Order 14 Rule 1 and Order 14 Rule 3 to contend that the Court is duty bound to frame issue on the basis of the rival stand taken before proceeding to determine the question raised before it. Reference is also made to Order 21 Rule 101 and Rule 105 regarding the power of the Executing Court in deciding the question which is raised before it. It is thus submitted that since the Executing Court is empowered to decide all questions raised before it, it is the duty of the Executing Court to frame proper issues and address itself to those issues.
6. After having heard the rival contentions, I am of the view that the present writ petition is a classic instance of abuse of judicial process. Although, a consent decree has been passed and undertaking filed by the Petitioner in the Court, that he would hand over vacant and peaceful possession of the suit premises to the Respondent-plaintiff on or before December 31, 1983, the Petitioner has succeeded in stalling the said decree so far on one pretext or the other. The petitioner has raised a plea of decree having become non-executable, which is not supported by any documentary evidence. Besides raising such frivolous plea, the Petitioner has now taken recourse to the present proceedings to agitate that the Executing Court was bound to frame issues. This has been done with a definite purpose of protracting the execution of the decree. It is surprising that the Executing Court instead of deciding the main application has preferred to answer on the technical question as to the necessity of framing of issues. Undoubtedly, the execution proceedings in respect of a consent decree between the parties are pending since year 1994, although the Petitioner was required to vacate the suit premises by 31.12.1983, as per his undertaking given to the Court. There can be no better instance than the present one to hold that this is a clear case of abuse of judicial process. On this count alone, I am inclined to dismiss the present writ petition. There can be no two opinions that the litigants are primarily concerned with the final result of the case and not interested in getting locked up in procedural wrangles. Framing of issue would only enable the Court to focus its attention on the question raised before it between the parties and nothing more. Since no provision is made in the Code regarding the necessity of framing issues by the Executing Court, the Court would act with prudence. Procedure is evolved only to achieve the main object of dispensation of justice. It is only a means and not an end in itself. It may not be forgotten that it is on the Courts that citizens primarily repose trust. If they have respect for the work of the Courts, their respect for law will survive, but if they lose their respect for the work of the Courts, their respect for law and order will vanish with it to the great detriment of society. The approach of the Executing Court in the present case is bound to shatter the faith in the working of the Courts. There is no reason why the Courts should show any concession with regard to such technical plea at the instance of a party who seeks to in effect resile from the consent decree and has disobeyed the undertaking given to the Court.
7. Be that as it may, I shall now examine the merits of the contention advanced on behalf of the Petitioner, lest the Courts do not get embroiled in such unstatable matters in future. Reliance has been placed by the petitioner on the provisions of Order 14 of the C.P.C. which are inapplicable to the present case. We are concerned with the execution proceedings which are governed by the provisions of Order 21 of the C.P.C. In my view, Order 14 would apply only to the procedure regarding determination of the suit and not to the execution proceedings. Reference is also made to Order XXI Rule 101 and Rule 105. On plain reading of the said provisions it would appear that the Executing Court is not under any obligation to frame issue regarding the question which has been raised before it. Framing of issue by the Executing Court would at best be a matter of prudence but not a rule. The Court below has rightly relied upon the decision in Rarnjivan Ramnath v. Roopchand and Ors. to hold that issues are not necessarily framed when objections in execution proceedings are decided. In the light of the said decision no further investigation on this question would survive. Instead of spending its precious time on adjudicating such trivial matters, the Executing Court would be well advised to decide the main execution proceedings with utmost despatch.
8. Regarding the second grievance made by the Petitioner that the Executing Court was not justified in recalling the issue which was already framed, I am of the view that the Executing Court by the impugned order has held that it was not obligatory for the Executing Court to frame any issue. I have already held that there is no error in this approach. Consistent with this view the Court has thought it appropriate to recall the issue which was framed. In the circumstances, this approach of the Executing Court cannot be assailed. The learned Counsel for the Petitioner has placed reliance on the decision of this Court in Mr. Manuel Coetans Gonsalves Partricov. Mr. Antonio Broganza and Anr. 1999 (3) All M.R. 45. The said decision relates to Order 14 Rule 5, which has been held to be inapplicable to the present proceedings under Order 21 of the C.P.C. As already observed framing of issue would be matter of prudence, therefore, the Executing Court in the present case while deciding the question arising before it between the parties would nevertheless be guided by the issue framed earlier as to whether the Petitioner herein has succeeded in establishing that he has acquired fresh tenancy rights after passing of the decree.
9. For the aforesaid reasons, I am disposed of to dismiss the writ petition with exemplary costs. It is however made clear that the costs quantified in this order shall not preclude the Respondent from claiming appropriate damages/compensation against the Petitioner as permissible in law. While dismissing this writ petition it would be in the interest of justice to direct the Executing Court to decide the application under Order XXI Rule 22, which is pending before it since year 1994, within a period of 3 months from the receipt of this order. The parties shall appear before the Executing Court on 13.7.2000. The Court shall not permit any party to seek adjournment on any count and the proceedings be conducted on day-to-day basis, within 3 months from the receipt of this order.
10. Accordingly, the writ petition is dismissed with exemplary costs quantified at Rs. 10.000/-. The costs to be deposited with the Legal Aid Committee, High Court, Bombay within a period of two weeks from today. The said Committee is requested to accept the said amount.
Certified copy expedited.
Parties to act on the copy of this order duly authenticated by Sheristedar of this Court.