Karnataka High Court
Sri. Ajit S/O. Srimandhar Mirji vs Hanuman Mandir Trust on 5 March, 2014
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 5TH DAY OF MARCH, 2014
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
WRIT PETITION NO.102914/2014 (GM-CPC)
BETWEEN
1. SRI AJIT S/O. SRIMANDHAR MIRJI
AGE: 70 YEARS, OCC: BUSINESS
R/O. SRIMANDHAR ROAD, RICE MILL,
KAPILESHWAR ROAD, BELGAUM
2. SRI MOHAN S/O. SRIMANDHAR MIRJI
AGE: 68 YEARS, OCC: BUSINESS
R/O. SRIMANDHAR ROAD, RICE MILL,
KAPILESHWAR ROAD, BELGAUM. ..... PETITIONERS
(BY SRI DINESH M.KULKARNI, ADV.)
AND
HANUMAN MANDIR TRUST
R/BY ITS PRESIDENT
SHRI PARASHURAM SINGH L RAJPUT,
AGE: 64 YEARS, OCC: BUSINESS,
R/O. KAPILESHWAR ROAD, BELGAUM. ..... RESPONDENT
(BY SRI SHREEVATSA SURESH HEGDE, ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF CONSTITUTION OF INDIA PRAYING TO SET-ASIDE THE ORDER
DTD.03.02.2014 PASSED BY I ADDL.CIVIL JUDGE AND JMFC,
BELGAUM IN EXC.NO.1110/2011 VIDE ANNEXURE-J, AS NULL AND
VOID AND ETC.,
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THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned advocates appearing for the parties namely Sri Dinesh M. Kulkarni, learned counsel appearing for the petitioners and Sri Shreevatsa Suresh Hegde, appearing for the caveator/respondent. Perused the case papers.
2. Petitioners are seeking for quashing of the order dated 03.02.2014 passed by the I Addl. Civil Judge and JMFC, in Exc.No.1110/2011 vide Annexure-J and seeks for allowing the application filed by petitioners before the executing court under Order XXI Rule 29 CPC which has been rejected by the executing court.
3. It is the grievance of the petitioners that as judgment debtors they have suffered a decree in O.S.No.1170/2008 and same though attained finality, is now under scarring since judgment debtors have now :3: filed a suit in O.S.No.1756/2013 before the II Addl. Civil Judge, Belgaum, to declare the judgment and decree passed in O.S.No.1170/2008 dated 12.01.2011 affirmed in R.A.No.15/2011 and confirmed in R.S.A.No.5341/2012 as not binding on them (judgment debtors), since the original landlord has subsequent to judgment and decree passed in O.S.No.1170/2008 have filed a suit in O.S.No.4/2013 against the decree holders alleging that said judgment and decree obtained by decree holder is by playing fraud and as such during the pendency of the suit now filed by them in O.S.No.1756/2013, the judgment and decree passed in O.S.No.1170/2008 dated 12.01.2011 cannot be executed against them. In support of his submission, he relies upon judgment of co-ordinate bench of this Court in U.SADANANDA UDUPA VS. SMT.T.KUSUMA SHEDTHI reported in ILR 2013 KAR 3885.
4. Per contra, Sri Srivatsa, learned counsel appearing for the caveator/respondent would support the order :4: passed by the executing court and submits that the discretionary power vested with the executing court to stay the execution proceedings by invoking Rule 29 of Order XXI is conspicuously absent in the facts and circumstances of the case and as such he supports the order passed by the trial court prays for dismissal of the writ petition. In support of his submission, he has relied upon the following judgments:
i) SHAUKAT HUSSAIN @ ALI AKRAM AND OTHERS VS. SMT.BHUNESHWARI DEVI (AIR 1973 SC 528),
ii) KRISHNA SINGH VS. MATHURA AHIR AND OTHERS (AIR 1982 SC 686).
5. Parties are referred to as per their rank before the executing court.
6. The decree holder filed a suit in O.S.No.1170/2008 against the judgment debtors for ejectment from the suit :5: schedule premises contending interlia that the judgment debtors are the tenants of the said premises. Said suit came to be decreed on 12.01.2011. Being aggrieved by the same, defendant Nos.1 and 2 filed an appeal in R.A.No.15/2011 which came to be dismissed on 31.01.2012. Not being satisfied with the said judgment and decree, second appeal was filed before this Court in R.S.A.No.5341/2012 which also came to be dismissed by order dated 29.06.2012. Thus, the judgment and decree passed by the trial Court reached finality. In order to enjoy the fruits of the decree, decree holder filed an execution petition in E.P.No.1110/2011 seeking possession of the suit schedule premises. In the said execution petition, judgment debtor filed an application under Order XXI Rule 29 CPC seeking stay of the execution proceedings contending interalia that original landlord has filed a suit in O.S.No.4/2013 against the Trustees of the decree holder-Trust seeking relief of :6: declaration that Bhairagi Community Mudkavi Math Mahant, has got right to elect the Trustees to the Trust i.e., Hanuman Mandir Kapileshwar Galli, Belgaum, and for removal of the defendant-Trustees and also for incorporating certain aims and objectives in the said Trust. It was contended by judgment debtors that by virtue of the said suit having been filed, they have filed a suit in O.S.No.1756/2013 to declare the judgment and decree passed in O.S.No.1170/2008 confirmed in R.A.No.15/2011 and affirmed in R.S.A.No.15/2011 as not binding on them and in view of the said suit (O.S.No.1756/2013) having been filed which is between the same parties namely decree holders and judgment debtors in Exc.No.1110/2011, the executing court has to invoke Rule 29 of Order XXI CPC and stay its hands off in executing the decree. Said application came to be resisted by the decree holders and on adjudication, the executing court dismissed the said application. :7:
7. Order XXI Rule 29 CPC enables the executing court to stay the execution of a decree until the suit filed by the judgment debtor against the decree holder in respect of the very same dispute is disposed of. Perusal of the provision would clearly indicate that it is a discretionary power vested with the executing court to exercise such power in order to do complete justice between the parties or in other words such power is exercised by the executing court to ensure that decree passed by the competent courts ultimately would not be at cross roads. The necessary ingredients to be present to enable the executing court to stay the execution proceedings as contemplated under Rule 29 of Order XXI would be (i) a proceeding in execution of the decree of that court started at the instance of the decree holder against the judgment-debtor and (2) a suit at the instance of the same judgment-debtor against the holder of the decree of that court. These are the two necessary ingredients :8: which enables the executing court to stay the execution proceedings pending before it. It cannot be gain said by a judgment debtor that on account of a suit having been filed by him, executing court has to stay the execution proceedings and that would not be sufficient enough for the executing court to stay execution proceedings pending before it. The judgment debtor is required to prove much more than that. The power under Rule 29 of Order XXI of the Code can be exercised only when the decree that is going to be passed in the pending suit is likely to have a bearing on the decree under execution. The exercise of the power under this Rule being discretionary, it has to be exercised with utmost care, caution and by total judicial application of mind and also keeping in mind that party who has obtained a decree from a competent court is not left in the lurch or otherwise he is not prevented from enjoying the fruits of the decree. The decree holder should not be deprived of :9: the fruits of the decree unless good cause is shown and if it is shown and demonstrated that if the decree that is going to be passed in the pending suit filed by the judgment debtor, it would have a direct bearing on the execution proceedings in which decree is sought to be executed, then only it can stay the execution proceedings as otherwise not. Hence, it depends on the facts and circumstances of each case.
8. The Hon'ble Apex Court in the case of SHAUKAT HUSSAIN VS. SMT.BHUNESHWARI DEVI (AIR 1973 SC
528) have laid down the contours under which an application under Order XXI Rule 29 CPC is to be considered. It has been held as under:
"6. Order XXI, CPC deals generally with the execution of decrees and orders. That order is divided into several topics, each topic containing a number of rules. The first four topics cover rules 1 to 25 and the fifth topic, namely, stay of execution comprises 4 rules, : 10 : namely, rules 26 to 29. A perusal of these rules will show that the first three rules i.e. rules 26 to 28 deal with the powers and duties of a court to which decree has been sent for execution. Under rule 26, that court can stay the execution of the decree transferred to it for execution for a reasonable time to enable the judgment- debtor to apply to the court by which the decree was passed or to any court having appellate jurisdiction over the former for an order to stay execution or for any other order relating to the decree or execution which might have been made by the court of first instance or the appellate court. It will be seen, therefore, that under rule 26 the transferee court has a limited power to stay execution before it. Moreover, under sub-rule (2) if any property is seized by it in the course of execution, it may even order the restitution of the property pending the result of the application made by the judgment-
debtor to the court of the first instance or to the appellate court. Rule 27 says that any : 11 : such restitution made under sub-rule (2) of rule 26 will not prevent the property of the judgment-debtor from being retaken in execution of the decree sent for execution. Rule 28 provides that any order of the court by which the decree was passed, in relation to the execution of such decree, shall be binding upon the court to which the decree was sent for execution. And then we have rule 29 which deals with a different situation. The rule is as follows:
"Where a suit is pending in any court against the holder of a decree of such court, on the part of the person against whom the decree was passed, the court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided."
It is obvious from a mere perusal of the rule that there should be simultaneously two proceedings in one court. One is the proceeding in execution at the instance of the decree-holder against the judgment-debtor and the other a suit at the instance of the : 12 : judgment-debtor against the decree-holder. That is a condition under which the court in which the suit is pending may stay the execution before it. If that was the only condition, Mr. Chagla would be right in his contention, because admittedly there was a proceeding in execution by the decree-holder against the judgment-debtor in the court of Munsif 1st Gaya and there was also a suit at the instance of the judgment-debtor against the decree-holder in that court. But there is a snag in that rule. It is not enough that there is a suit pending by the judgment-debtor, it is further necessary that the suit must be against the holder of a decree of such court. The words "such court" are important. "Such court" means in the context of that rule the court in which the suit is pending. In other words, the suit must be one not only pending in that court but also one against the holder of a decree of that court. That appears to be the plain meaning of the rule."
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9. The said judgment came to be followed and applied by the Hon'ble Apex Court in KRISHNA SINGH VS. MATHURA AHIR AND OTHERS (1982 SC 686) wherein it is held as under:
"16. We are rather amazed to find that the totally unwarranted plea taken by Sri Krishna Singh seems to have found favour with the Civil Judge who readily accepted the prayer of Sri Krishna Singh of staying the execution of the decree without realising the scope and ambit of Order XXI R 29. Under this provision, jurisdiction has to be exercised with very great care and only under special cases. The Civil Judge also prima facie held that Harshankaranand was not a legal representative of late Mahant when this question was only left open and had to be decided by the Civil Judge. This shows the casual and perfunctory approach which was made by the Civil Judge. It is rather unfortunate that even the District Judge in revision affirmed the order of the Civil Judge.": 14 :
10. Insofar as the judgment relied upon by the learned counsel appearing for the petitioner in U.SADANANDA UDUPA VS. SMT. T.KUSUMA SHEDTHI (ILR 2013 KAR 3885) is concerned, it requires to be noticed that on the facts of the said case, it was noticed by co-ordinate bench of this Court that petitioners therein (judgment debtors) had suffered a decree in O.S.No.96/2003 and being aggrieved by the said judgment and decree, they filed an appeal in R.A.No.18/2006 and during the pendency of the said appeal, matter came to be referred to Lok Adalath for settlement in which proceedings matter came to be settled. However, the petitioners contended that during the period extended for vacating the premises therein, a fresh lease came to be entered into and as such they had filed a suit in O.S.No.11/2011 seeking for declaration that they are entitled to continue in possession as per the fresh lease agreement dated 15.12.2010. In view of the same, they filed an application under Order XXI Rule 29 : 15 : CPC in the execution proceedings initiated by the decree holder of O.S.No.96/2003 to stay the execution proceedings. It is in this background, co-ordinate bench has held that lis between the parties to the suit relates to the executability of the decree in O.S.No.96/2003 and the plea of judgment debtors answers Rule 29 of Order XXI. As such, the impugned order therein came to be set aside and further directions came to be issued.
11. In the instant case, undisputedly, judgment debtors have suffered a decree of ejectment which has reached finality before this court. Judgment debtor does not plead any fresh contract having been entered into with the decree holder. Judgment debtors intend to rest their case by virtue of plea put forward by the plaintiffs in O.S.No.4/2013 as their crutches in their suit O.S.No.1756/2013 and they do not have any independent leg to stand by themselves. The cause of action for the suit filed by the judgment debtors i.e., : 16 : O.S.No.1756/2013, it has been specifically pleaded at paragraph 6 that it arose in the first week of December, 2013, when they came to know about original landlord had filed a suit in O.S.No.4/2013 claiming that they are the original landlord and contended that defendant (decree holders) by playing fraud had got the judgment and decree in O.S.No.1170/2008 which came to be confirmed in R.S.A.No.5341/2012 as the basis for the said suit. The plaint in O.S.No.4/2013 is available on record as per Annexure-E. Prayer sought for by the plaintiffs in said suit who claim to be Bairagi Sanyasis is that they are the Mahants of Hanuman Mandir and as such, they sought for declaration that Bairagi Community Mudakavi Math Mahant, has got right to elect the Trustees of the Trust i.e., Hanuman Mandir Kapileshwar Galli. They have nowhere stated that suit schedule property does not belong to the Trust and it is only the right of management which has been questioned by : 17 : them. Even assuming for a moment that O.S.No.4/2013 would be ultimately decreed in favour of the plaintiffs, possession that may be taken by the decree holder Trust by executing a lawful decree would ultimately enure to the benefit of the Trust itself whether it is plaintiffs in O.S.No.4/2013 or plaintiff in O.S.No.1170/2008 namely decree holders. By virtue of the suit O.S.No.4/2013, decree passed against the judgment debtors would neither get changed nor status of the judgment debtors would get altered. As such, I am of the considered view that trial Court was fully justified in dismissing the application filed under Order XXI Rule 29 CPC filed by the judgment debtors and it does not suffer from any infirmity whatsoever calling for exercising supervisory jurisdiction under Article 227 of the Constitution of India by this Court. Hence, the following:
ORDER
i) Writ petition stands dismissed with costs.
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ii) The order passed by the Executing Court in
E.P.No.1110/2011 dated 03.02.2014
Annexure-J is hereby affirmed.
iii) Costs quantified at Rs.5,000/- payable by Judgment Debtors-Writ Petitioners to Respondent-Decree holders - Hanuman Mandir Trust within two weeks from today failing which the Executing Court shall be at liberty to recover the said amount from the judgment debtors as arrears of land revenue and pay the same to Decree-holders.
Ordered accordingly.
SD/-
JUDGE Jm/-