Madhya Pradesh High Court
Colonel Ali vs M/S Fusions Infraestate Pvt Ltd on 12 November, 2021
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
THE HIGH COURT OF MADHYA PRADESH
MCC No. 228/2020
Colonel Ali
vs.
M/s Fusions Infraestate Pvt. Ltd. & others
Date of Order 12/11/2021
Bench Constituted Single Bench
Order delivered by Hon'ble Shri Justice Sanjay Dwivedi
Whether approved for No
reporting
Name of counsel for the Shri Ashok Lalwani, counsel for the
parties applicant.
Shri Abhishek Gulati, counsel for the
respondent No. 1.
Reserved on: 17/08/2021
Delivered on: 12/11/2021
ORDER
This MCC has been filed by the applicant under Order 9 Rule 13 and Sections 151 and 152 of the Code of Civil Procedure asking relief therein to set aside the order passed on 22.06.2018 in Review Petition No. 913/2018 and the decree drawn in pursuance to the order dated 22.06.2018 be also set aside.
2. The facts adumbrated in nutshell are that non-applicant Nos. 1 and 2 entered into an agreement on 24.12.2013 to sell the land belonging to Kh. No. 244, 240/2, 243/1 and 244/1 2 situated at Patwari Halka No. 11 of Village Jharkhera, Tehsil and District Sehore, total area measuring 11.20 acres. The non-applicant No. 3, on the basis of power of attorney of non- applicant No. 2 (Smt. Jyoti Goyal) executed the sale deed for sale of 3.25 acres of land on 15.07.2014 in favour of non- applicant No.1.
3. A civil suit was filed by non-applicant No.1 for specific performance of agreement entered into between the parties and after filing the civil suit, on the basis of an application for amendment, the nomenclature of the plaintiff was changed.
4. An application under Order 7 Rule 11 of CPC was filed by the non-applicant No. 3 namely, Bilal Hussain for rejecting the plaint and vide order dated 02.03.2016, the application was allowed and thereafter first appeal under Section 96 of CPC was filed against the judgment and decree dated 02.03.2016 passed in Civil Suit No. 21-A/2015. In the said appeal, on 31.10.2017 parties appeared before the High Court and asked to pass a decree in terms of the agreement executed by the parties before the mediator and also claimed that the impugned judgment and decree be set aside and the matter be remitted to the trial court for testing the same on merit. On 31.10.2017, the High Court set aside the impugned judgment and decree 3 passed in Civil Suit No. 21-A/2015 in view of the compromise took place between the parties before the mediator and the matter was remitted back to the trial court for testing the same on merit and in view of the provision of Section 16 of the Court Fees Act the High Court directed the authority to refund the court fees deposited by the appellant.
5. Thereafter, a review petition was preferred by non- applicant No.1 M/s Fusions Infraestate Pvt. Ltd. pointing out that the decree as per the order of the court has not been drawn and the same be directed to be drawn in view of the terms and conditions of Annexure A/1. The review petition i.e. RP No. 913/2018 was disposed of vide order dated 22.06.2018 directing Registry to draw a decree in terms of agreement dated 06.07.2017. As per the agreed terms, as placed before the mediator, a sale deed was to be executed in respect of 3.75 acres of land by non-applicant Nos. 2 and 3.
6. Thereafter, decree was drawn and the First Appeal No.267/2016 was accordingly decided and a compromise decree was passed by the High Court in pursuance to the request made by the parties moving an application under Section 89 of CPC filed in First Appeal No. 267/2016 asking that the matter be referred to the mediator.
4
7. However, the non-applicant No. 3 filed review petitions i.e. RP Nos. 621/2019 and 422/2019, which were entertained by this Court and decided vide order dated 27.09.2019 dismissing the same with cost of Rs. 50,000/-.
8. Against the order dated 27.09.2019 passed in the aforesaid review petitions, SLP was filed before the Supreme Court and the said SLP was also dismissed vide order dated 07.02.2020 wherein the Supreme Court condoned the delay occurred in filing the SLP, but, dismissed the SLP observing as under:-
"We do not see any reason to interfere in the matters. The special leave petitions are, accordingly, dismissed."
9. Thereafter, the decree drawn in pursuance to the order of the High Court was put for execution in which the application was moved by the present applicant under Order 1 Rule 10 of CPC for deleting his name, but, the said application was rejected by the Executing Court vide order dated 07.12.2019 against which a petition i.e. MP No. 268/2020 has been filed which is pending and linked alongwith this MCC.
10. Learned counsel for the applicant has urged that the present applicant was not the party in the civil suit as well as in First Appeal No. 267/2016. The parties to civil suit were 5 referred to mutation and two agreements were executed, but, only the agreement dated 06.07.2017 was produced in the mediation proceeding. Even in review petition i.e. RP No. 913/2018, the present applicant was not the party, but the request was made by the parties to draw the decree in terms of the agreement dated 06.07.2017. He submits that even in the said review petition, the present applicant was not noticed. He submits that the decree was put for execution in which the applicant was arrayed as judgment debtor. An objection was raised by the present applicant by moving an application about inclusion of his name as a judgment debtor, but the same was rejected by the court vide order dated 22.10.2019.
11. Learned counsel for the applicant is assailing the orders passed in Review Petition No. 913/2018 on the ground that the orders are contrary to law as the High Court has not appreciated the mandatory provision of Order 47 Rule 4(2) of CPC appended with Proviso and also not followed the Proviso
(b) appended with sub-rule (2) of Rule 4 of Order 47 of CPC. He submits that the decree has been drawn ex-parte, without giving any notice to the present applicant.
12. In support of his submission, learned counsel for the applicant has placed reliance upon the decisions reported in 6 (1992) 1 GLR 108 -State of Gujrat vs. Diwaliben Radhav Khant and others, (2001) AIR (SC) 2497-M.K. Prasad vs. P. Arumogam, (2016) AIRCC 54-Tamil Nadu Arasu Kooturuvuthurai Paniyalargal Sangam and others vs. M.R. Srinivasan and others, (1977) AIR (Calcutta) 3- Kalipada Dinda and others vs. Kartick Chandra Hait and others, AIR 1970 Kerala 57-Puthan Veettil Sankaran Nair vs. Poomulli Manakkal Moopil Sthanam Parameswaran Namboodiripad, (2003) 1 SCC 197-Lakshmi Ram Bhuyan vs. Hari Prasad Bhuyan and others, AIR 1966 Orissa 225- Sagua Barik vs. Bichinta Barik and another, (1993) 1 SCC 581-Banwari Lal vs. Chando Devi (Smt.) (Through L.Rs.) and another, AIR 1992 Allahabad 360-Budha Lal vs. Sri Ram Chand, (2005) 4 SCC 117-K.Venkatachala Bhat and another vs. Krishna Nayak (D) By LRS. And others and AIR 1988 SC 400-Gurpreet Singh vs. Chatur Bhuj Goel.
13. In a nutshell, the basic objection of the applicant is that the decree is not executable against him as he was not party to the civil suit as well as in first appeal.
14. Shri Gulati appearing for the respondent No.1 has filed reply taking stand therein that the present MCC is not maintainable. It is stated by him that the present petition is 7 nothing but an abuse of process of law and deserves to be dismissed with heavy cost. He submits that the present applicant was very much aware of the proceedings initiated by the High Court in First Appeal No. 267/2016, because when the matter was referred to the mediator, the present applicant was party to the said proceeding and gave his consent in the terms and conditions of the agreement, which is the foundation of the decree passed by the High Court as the said decree was drawn in view of the terms and conditions of the agreement dated 06.07.2017. Learned counsel for the respondent has drawn attention of this Court that the said agreement has been signed by the present applicant and his photograph is also affixed on the same. He further submits that non-applicant No.3 has already assailed the decree drawn by the High Court in pursuance to the compromise took place between the parties before the mediator by filing review petition i.e. RP No. 621/2019, but the same was dismissed by this Court vide order dated 27.09.2019 with a cost of Rs.50,000/- and the said order was further assailed before the Supreme Court by filing SLP but it was also dismissed vide order dated 07.02.2020. He submits that from the order passed by the Supreme Court, it is clear that the decree drawn by the High Court in pursuance to the order passed on 22.06.2018 in Review Petition No. 8 913/2018 has been tested properly by this Court and rejected the objection of the non-applicant No. 3 and further tested by the Supreme Court dismissing the SLP observing that they do not find any reason to interfere in the order passed by the High Court. As such, present MCC filed by the applicant before this Court again seeking recall of the order dated 22.06.2018 passed in Review Petition No. 913/2018 is not maintainable, because that said order has already been merged in the order passed by the Supreme Court passed in SLP. The applicant at the most can approach the Supreme Court seeking review of the order or whatever relief he wants to claim because as per the plea of merger, the order of High Court has been merged in the order of Supreme Court, but, merely because that has been assailed by the counter part of the present applicant, the said issue cannot be reopened and cannot be decided by this Court afresh.
15. Shri Gulati, in support of his submission has placed reliance upon the judgments reported in 2018(3) MPLJ- Principal, Maharshi Vidya Mandir, Sagar vs. Labour Court, Sagar and another, (2008) 2 SCC 326-Sunil Poddar and others vs. Union Bank of India, (2015) 7 SCC 601- Rajasthan Housing Board vs. New Pink City Nirman Sahkari Samiti Limited and another, (1084) 3 SCC 46- 9 Ghanshyam Dass and others vs. Dominion of India and others and (2019) 20 SCC 277-Kaushaliya vs. Jodha Ram and others.
16. I have heard the arguments advanced by the learned counsel for both the parties, perused the record and gone through the cases cited by both the parties in support of their arguments.
17. As per the submission made by counsel for the applicant, his main grievance is that the decree drawn by the High Court is not valid one because before drawing the decree the present applicant has not been given any notice. Even the order passed by the High Court in Review Petition No. 913/2018 that too without giving any opportunity of hearing to the present applicant is also illegal and liable to be set aside as the same has been passed in violation of the principle of natural justice. According to him, the impugned order has been passed without any notice to the applicant and as such the said order is in violation of the provisions of Order 47 Rule 4(2) of CPC and Proviso appended thereto, which clearly provides that no order can be reviewed without issuing notice to the parties concerned. It is also contended by the counsel for the applicant that the decree drawn is not executable against the present 10 applicant for the reason that he was neither party in the first appeal nor in the Review Petition No. 913/2018. Counsel for the applicant has submitted that the order passed in review petition and thereafter decree drawn, in which applicant was not given any notice, is itself illegal and, therefore, both the orders may be recalled.
18. However, I am not convinced with the submission made by the learned counsel for the applicant because in Review Petition No. 913/2018 the court has not passed any order causing prejudice to the parties as in the pending first appeal parties submitted that there was possibility of settlement between them and on their own request the matter was forwarded to Mediator where an agreement was executed on certain terms and conditions, which was approved by the parties putting their signatures on the said agreement and the present applicant was very much present before the Mediator and also accepted the terms and conditions of the agreement executed. In the review petition, request was made before the Court that decree be drawn in pursuance to the terms and conditions of the agreement executed before the Mediator. The present applicant at the time of execution of agreement accepted those terms and conditions of the agreement knowing fully well that he would abide by the same and finally the said 11 agreement would be executed and he would have to perform his part as per the terms of the agreement. Thus, no prejudice was caused to the present applicant if decree was drawn in view of the terms and conditions, as have been laid down in the agreement executed before the Mediator with the consent of the parties in which the present applicant was also one of the party and accepted the terms and conditions of the agreement. The applicant was not noticed because he was not a party to the civil suit which gave rise to the appeal and in appeal the matter got settled in terms of agreement executed before the Mediator. Under such facts and circumstances of the case, the present applicant was not required to be heard and no notice was required to be given to him by the High Court at the time of passing the order in Review Petition No. 913/2018. It is not a case in which the applicant has come with a stand that his signature on the agreement was obtained by fraud before the Mediator. He accepted the terms of the agreement before the Mediator in the presence of counsel of both the parties.
19. It is apt to mention here that the decree passed by the High Court was assailed by the respondent No.3 herein namely, Bilal Hussain by filing Review Petition Nos. 621/2019 and 422/2019. The decree passed by the High Court was assailed on various grounds and finally the said review 12 petitions were dismissed vide a common order dated 27.09.2019 with a cost of Rs.50,000/-, as this Court found that the review petitions filed by the respondent No. 3 were frivolous. The order of this Court was further assailed by the respondent No. 3 by filing Special Leave petitions before the Supreme Court, but, the same were also dismissed vide order dated 07.02.2020. Thereafter, the said decree was put for execution in which the present applicant had to perform his part on the basis of which the decree was passed, that too on an undertaking or the terms accepted not only by respondent No. 3 but also by the present applicant. Although the present applicant was not a party in the civil suit, but, in view of the subsequent development took place during pendency of civil suit and appeal preferred before the High Court, the parties arrived at a settlement and that settlement reduced in writing by way of agreement executed before the Mediator in which the present applicant also accepted the terms and conditions of the said agreement knowing fully well that the compromise decree in pending appeal would be passed on the basis of terms and conditions of the agreement. When final decree was passed in execution proceedings, the present applicant was also made party because he too had to perform his part of the decree. Nothing illegal was committed by the decree holder by 13 impleading present applicant as a party before the Executing Court otherwise without his presence decree could not have been executed for the reason that some part of the decree had to be performed by the present applicant. When the respondent No. 3 challenged the execution of decree and to keep the matter pending filed a review petition before this Court for recalling the order passed by the High Court so as to recall the decree executed in pursuance to the direction of the High Court, the said attempt failed, the counter part of the respondent No. 3 i.e. present applicant, whose interest is also the same as that of respondent No.3, came before this Court reiterating the same prayer, which was already rejected by this Court in an attempt made by the respondent No. 3.
20. Considering the earlier order passed by this Court in review petitions preferred by the respondent No. 3 and the fact that the order has been affirmed by the Supreme Court, in my opinion, the present petition is frivolous one, as the interest of respondent No. 3 and the present applicant are not conflicting with each other because for both the parties the same counsel are protecting the interest and as such the order passed by the High Court in Review Petition No. 913/2018 is not required to be recalled. It is pertinent to mention here that when the respondent No. 3 challenged the order, this Court observed 14 that the conduct of the applicant is very shocking as he entered into an agreement with open eyes before the Mediator, accepted the terms and conditions knowing fully well that the same will be converted into a decree, but when the decree was passed and put for execution, he sought recall of the order. In the present case also the present applicant is also doing the same thing, but, this Court is not inclined to entertain the request of the present applicant because he was also a party to the agreement and now he is avoiding to discharge his part of the decree. The court below has rightly rejected the application of the applicant for deleting his name from the array of the party on the ground that he was not party to the civil suit as well as first appeal before the High Court, which was ultimately decided in terms of the compromise decree.
21. Learned counsel for the applicant has relied upon several decisions involving the issue regarding maintainability of second review petition, but this Court is not entering into the said field and not rejecting the present petition on the said count. Therefore, cases cited by the learned counsel for the applicant in that respect have no application in the present facts and circumstances of the case. Applicant has also relied upon several decisions challenging the validity of the decree passed by the High Court in terms of the agreement executed 15 before the Mediator, but those case laws are not applicable in the present case and even to some extent they go against the present applicant.
22. In the case of Banwari Lal (supra) the Supreme Court has observed that if a compromise took place on the basis of contract, which is fraudulent, the said compromise decree cannot be considered to be a valid one, but, here in this case it is not the stand of the applicant that the agreement executed before the Mediator was not lawful and it got executed fraudulently and, therefore, the decree passed in pursuance to the said agreement cannot be considered to be valid one. Per contra, the Supreme Court has observed that if a compromise took place before the parties and signed by them without any fear and pressure, the said compromise cannot be said to be unlawful.
23. Likewise, in the case of Lakshmi Ram Bhuyan (supra) also the Supreme Court has observed that decree should ordinarily be drawn up by the court passing it, however, if High Court Rules so provide, the ministerial act of drawing up the decree may be passed on to the trial court. Here in this case, the High Court has directed the Registry of this Court to draw the decree in view of the terms of the conditions of the 16 agreement executed before the Mediator and accordingly the decree was drawn. It is not the case of the parties that the decree was drawn contrary to the terms and conditions of the agreement. Admittedly the agreement was executed in the presence of the parties and they put their signatures in the agreement accepting the terms and conditions made thereunder. Therefore, the cases relied upon by the applicant are not providing any help to him.
24. The Supreme Court in the case of K.Venkatachala Bhat (supra) has observed that if compromise is not signed by the parties, cannot be recorded by the Court, compromise should be signed either by the parties or their counsel or even their agents. Here in this case, parties have signed the agreement in the presence of their counsel and decree has been drawn in view of the said agreement. Therefore, the decree drawn in view of the compromise cannot be said to be illegal and that decree is enforceable under the law.
25. On the contrary, the cases on which the learned counsel for the respondent has placed reliance support the submission made by him. In the case of Kaushaliya (supra) the decree was passed in pursuance to the settlement took place before the Mediation in respect of immovable property. The objection 17 to execution of the decree by the parties to the agreement was found illegal and not maintainable by the Supreme Court. The Supreme Court has also observed that if decree has been drawn in pursuance to the settlement of the parties took place before the Mediator even to the extent that the property which was not subject matter of the dispute, that settlement is binding on the parties and required to be acted upon. The Supreme Court in paragraph 17, 18 and 19 has observed as under :
"17. In the mediation, parties may try for amicable settlement, which is reduced into writing and/or a settlement agreement and thereafter it becomes the part of the Court's order and the Court disposes of the matter in terms of the settlement agreement. Thereafter the order in terms of the settlement agreement is executable irrespective of the fact whether the settlement agreement is with respect to the properties which was/were not the subject- matter of the proceedings before the Court. Thereafter the order passed by the Court in terms of the settlement is binding to the parties and is required to be acted upon and/or complied with and as observed above the same is executable.
18. Under the circumstances, the submission on behalf of Ramu Ram and Rampal that as the properties in question were not the subject-matter of the suit before the trial, the same could have been the subject-matter of the settlement agreement and/or the order dated 05.05.2017 cannot be accepted. The order passed by this Court dated 05.05.2017 in Kaushaliya v. Jodha Ram is required to be complied with and the same is executable. Under the circumstances the executing court has to execute the order passed by this Court dated 05.05.2017 in Kaushaliya v. Jodha Ram in its true spirit.18
19. In view of the reasons stated above, M.A. No.2485 of 2018 stands dismissed. I.A. No.30045 of 2019 is hereby allowed. In exercise of powers conferred under Article 142 of the Constitution of India and to see that the order passed by this Court dated 05.05.2017 in Kaushaliya v. Jodha Ram is fully complied with, we direct all the concerned persons claiming to be in possession of the disputed properties in questions including Plot Nos. 29 and 29-A of the Jodha House to handover the peaceful and vacant possession to Jodha Ram as per the order passed by this Court on 05.05.2017 in Kaushaliya v. Jodha Ram, within a period of four weeks from today. The executing court is hereby directed to see that the present order passed by this Court and its earlier order dated 05.05.2017 in Kaushaliya v. Jodha Ram is fully complied with. Both the parties Kaushaliya and Jodha Ram parties to the settlement agreement dated 10.02.2017 are hereby directed to comply with the terms and conditions of the settlement agreement dated 10.02.2017 and the order passed by this Court on 05.05.2017 in Kaushaliya v. Jodha Ram fully and in its true spirit. Consequently, the Contempt Petition stands disposed of at this stage."
In Ghanshyam Dass and others (supra), the Supreme Court has observed as under:-
"17. Section 80 of the Code is but a part of the Procedure Code passed to provide the regulation and machinery, by means of which the courts may do justice between the parties. It is therefore merely a part of the adjective law and deals with procedure alone and must be interpreted in a manner so as to subserve and advance the cause of justice rather than to defeat it. In Sangram Singh v. Election Tribunal, Kotah, Vivian Bose, J. in his illuminating language dealing with the Code of Civil Procedure said:
It is procedure, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves 19 no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.
18. Our laws of procedure are based on the principle that "as far as possible, no proceeding in a court of law should be allowed to be defeated on mere technicalities". Here, all the requirements of Section 80 of the Code were fulfilled. Before the suit was brought, the Dominion of India received a notice of claim from Seth Lachman Dass. The whole object of serving a notice under Section 80 is to give the Government sufficient warning of the case which is going to be instituted against it (sic so) that the Government, if it so wished (sic can), settle the claim without litigation or afford restitution without recourse to a court of law. That requirement of Section 80 was clearly fulfilled in the facts and circumstances of the present case.
19. It is a matter of common experience that in a large majority of cases the Government or the public officer concerned make no use of the opportunity afforded by the section In most cases the notice given under Section 80 remains unanswered till the expiration of two months provided by the section. It is also clear that in a large number of cases, as here, the Government or the public officer utilised the section merely to raise technical defences contending either that no notice had been given or that the notice actually given did not comply with the requirements of the section. It is unfortunate that the defendants came forward with a technical plea that the suit was not maintainable at the instance of the plaintiffs, the legal heirs of Seth Lachman Dass on the ground that no fresh notice had been given by them. This was obviously a technical plea calculated to defeat the just claim. Unfortunately, the technical plea so raised prevailed with the High Court with the result that the plaintiffs have been deprived of their legitimate dues for the last 35 years."
Further in the case of Sunil Poddar and others (supra) the Supreme Court has observed as to when notice to the 20 parties is required. In the said case, the Supreme Court has observed the necessity of notice to the parties and its effect. Here in this case no notice was required to be issued to the present applicant because before Mediator when he signed the agreement, he was fully aware of the fact that the said agreement would be reduced in decree and the same would be executable against him as the terms and conditions of the agreement were binding upon him and he had to perform his part in pursuance to the said decree.
26. The respondent has also placed reliance upon a full Bench decision of this High Court rendered in the case of Principal, Maharshi Vidya Mandir (supra) in which the Court has observed that no notice is required to a party when he is fully aware of the fact that in his presence before the Mediator the agreement of settlement would be executed and on the basis of the said agreement decree has to be drawn. The present applicant was fully aware of the fact that the proceeding before the Mediator was being taken place in pursuance to the pending appeal before the High Court and, therefore, no further notice to the applicant was required to be given by the High Court.
21
27. In view of the submission made by the learned counsel for the parties and the discussion made hereinabove, it is as clear as day light that the applicant is avoiding the execution of decree, which was passed in pursuance to the agreement took place between the parties. In the first round of litigation, the respondent No. 3 came before this Court challenging the validity of decree on various grounds and almost on the same grounds, the present applicant has also come before this Court by filing the present MCC. Parties have also been represented by the same counsel showing that they have no conflict of interest. Under such a circumstance, I do not find any substance in the submission made by the learned counsel for the applicant that the order passed in Review Petition No. 913/2018 on 22.06.2018 and the decree passed by the High Court in pursuance to the agreement executed before the Mediator are illegal and liable to be recalled is hereby rejected.
28. The petition being without substance is hereby dismissed.
(Sanjay Dwivedi) Judge Raghvendra RAGHVE Digitally signed by RAGHVENDRA SHARAN SHUKLA DN: c=IN, o=HIGH COURT OF NDRA MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482002, st=Madhya Pradesh, SHARAN 2.5.4.20=0b4ca33e82678112c8b8 779ae1f77dd53c66b97e56d85ed6 193d6ff614e6a268, cn=RAGHVENDRA SHARAN SHUKLA SHUKLA Date: 2021.11.16 14:34:17 +05'30'