Delhi High Court - Orders
Samuel Watharkar vs Shri Nathu Ram Now Deceased & Ors on 29 August, 2022
Author: C.Hari Shankar
Bench: C.Hari Shankar
$~94(Appellate)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ EX.F.A. 15/2022 & CM APPL.36751/2022, CM
APPL.36752/2022
SAMUEL WATHARKAR ..... Appellant
Through: Mr. J.K. Bhola, Mr.Deepak
Arora and Ms.Kimmi Brara, Advs.
versus
SHRI NATHU RAM NOW DECEASED & ORS.
..... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
ORDER
% 29.08.2022 CM APPL.36752/2022 (exemption)
1. Exemption allowed, subject to all just exceptions.
2. The application stands disposed of.
EX.F.A. 15/2022 & CM APPL.36751/2022 (stay)
3. The facts in this case are somewhat peculiar.
4. Execution 443/2018 (Nathu Ram v. David Watharkar), in which the impugned order dated 27th May, 2022 has come to be passed by the learned Additional District Judge (the learned ADJ) sought execution of a judgment and decree dated 8 th December, 2015 passed by the learned ADJ in Suit 476/2004 (Nathu Ram v. David Watharkar).
Signature Not Verified Digitally Signed EX.F.A. 15/2022 Page 1 of 6 By:SUNIL SINGH NEGI Signing Date:29.08.2022 15:53:415. Suit 476/2004 was instituted by Nathu Ram and others essentially against two defendants - David Watharkar and Suryakant, who were Defendants 1 and 2 in the suit. The present petitioner Samuel Watharkar is the nephew of Suryakant.
6. The suit sought restoration of possession of a shop situated at 203, INA Market, New Delhi (the suit property) to the plaintiffs Nathu Ram and others, who claimed to have acquired title, in respect of the suit property, from their father Sanwalia Ram, to whom the platform on which the shop was located was stated to have been allotted by the Ministry of Work, Housing and Rehabilitation in 1964.
7. The present petitioner was not impleaded as a party in Suit 476/2004, as originally instituted by Nathu Ram and others.
8. During the pendency of the aforesaid Suit 476/2004, the present petitioner Samuel Watharkar instituted CS 461/2012, against his uncle Suryakant (Defendant 2 in Suit 476/2004). No other defendant was impleaded in the suit. In the said suit, Samuel Watharkar sought a decree of possession in respect of the same shop, at 203, INA Market, in respect of which possession was sought by Nathu Ram and others in Suit 476/2004.
9. Thus, after institution of CS 461/2012, two suits were in existence, both seeking restoration of possession of Shop no. 203, INA Market, Suit 476/2004 instituted by Nathu Ram and others and CS 461/2012 instituted by Samuel Watharkar (the present petition).
Signature Not Verified Digitally Signed EX.F.A. 15/2022 Page 2 of 6 By:SUNIL SINGH NEGI Signing Date:29.08.2022 15:53:4110. CS 461/2012 was decreed, ex parte, by the learned ADJ, on 29th May, 2013. The learned ADJ passed a decree of possession in favour of the petitioner Samuel Watharkar and against Suryakant, the defendant in the said suit.
11. Mr. Bhola, learned Counsel for the petitioner submits that the aforesaid judgment and decree were executed, consequent on execution proceedings being instituted by the petitioner, and, through the Bailiff appointed by the Court, the petitioner obtained possession of the aforesaid Shop no. 203 of which he continues to remain in possession till date.
12. The petitioner moved an application under Order I Rule 10 of the Code of Civil Procedure, 1908 (CPC), seeking to be impleaded in Suit 476/2004. The said application was, however, dismissed by the learned ADJ vide order dated 15th November, 2014, in which severe adverse observations have been returned against the petitioner, Samuel Watharkar to the extent that the order also finds the petitioner guilty of having obtained the decree dated 29th May, 2013 by fraud.
13. It may be a matter which requires debate as to whether, while adjudicating an application under Order I Rule 10 filed in one suit, the Court is empowered to declare a decree passed in another suit to have been obtained by fraud.
14. Be that as it may, the petitioner claims to have filed a Civil Revision Petition, under Section 115 of the CPC, before this Court, seeking to challenge the aforesaid order dated 15th November, 2014, passed by the learned ADJ, whereby the petitioner's application under Signature Not Verified Digitally Signed EX.F.A. 15/2022 Page 3 of 6 By:SUNIL SINGH NEGI Signing Date:29.08.2022 15:53:41 Order I Rule 10 of the CPC was dismissed. Before the said application could be listed, however, Suit 476/2004 came to be decreed on 8th December, 2015. Accordingly, Mr. Bhola submits that the petitioner did not prosecute the Civil Revision Petition filed by him before this Court.
15. The Respondents Nathu Ram and others filed Ex.443/2018 before the learned ADJ for execution of the aforesaid judgment and decree dated 8th December, 2015, passed by the learned ADJ in Suit 476/2004. In the said execution petition, the present petitioner Samuel Watharkar filed objections under Order XXI Rule 97 of the CPC, objecting to the execution of the judgment and decree dated 8th December, 2015, inter alia on the ground that there already existed a decree dated 29th May, 2013 in the petitioner's favour, qua the same property.
16. The impugned order dated 27th May, 2022 rejects the said objections. In rejecting the objections of the petitioner, the learned ADJ has chosen to rely solely on the order dated 15 th November, 2014 supra whereby the petitioner's application under Order I Rule 10 was dismissed. The learned ADJ observed that the said order has attained finality, as no challenge to the said order was preferred by the petitioner. In that view of the matter, the learned ADJ has expressed the opinion that the petitioner could not seek to re-agitate, in objections to the execution proceedings, the grounds which were agitated by him in his application under Order I Rule 10, which was rejected by the learned ADJ.
Signature Not Verified Digitally Signed EX.F.A. 15/2022 Page 4 of 6 By:SUNIL SINGH NEGI Signing Date:29.08.2022 15:53:4117. Though it is true that the petitioner's application under Order I Rule 10 of the CPC, seeking to be impleaded as a party in Suit 476/2004 was in fact, rejected by the learned ADJ vide order dated 15th November, 2014, two factors deserve consideration.
18. The first is that the petitioner was, in fact, in the process of challenging the said order dated 15th November, 2014 before this Court by way of a Civil Revision Petition, but did not proceed to have the petition listed as, in the interregnum, judgment and decree dated 8th December, 2015, decreeing the Suit 476/2004 came to be passed.
19. More importantly, the petitioner has, in his favour, judgment and decree dated 29th May, 2013, which has also attained finality. (I may note that the sole defendant in the said suit applied under Order IX Rule 13 of the CPC to have the ex parte decree set aside, but that the said application was also dismissed by the learned ADJ vide order dated 24th January, 2015. An FAO stands filed against the said decision, which is presently pending before this Court, but no interlocutory orders have been passed thereon. The FAO has been admitted).
20. If the execution proceedings instituted by the respondent are allowed to proceed, the decree dated 29th May, 2013, passed in favour of the petitioner, which was prior in point of time to the judgment and decree dated 8th December, 2015, which is being presently executed, would be rendered a nullity. The said decree dated 27th September, 2013 already stands executed as the petitioner has come into possession of the suit property consequent thereon.
Signature Not Verified Digitally Signed EX.F.A. 15/2022 Page 5 of 6 By:SUNIL SINGH NEGI Signing Date:29.08.2022 15:53:4121. The matter, therefore, requires serious consideration.
22. In view thereof, issue notice, returnable on 23rd January, 2023. Notice be served on the respondents by all modes including dasti as well as through learned Counsel who appears on behalf of the respondents before the learned ADJ, if any.
23. Reply, if any, be filed within four weeks, with advance copy to learned Counsel for the petitioner who may file rejoinder thereto before the next date of hearing.
24. Till the next date of hearing, further proceedings in Execution 443/2021 (Nathu Ram v. David Watharkar) shall remain stayed.
25. Copy of this order be given dasti under signatures of the Court Master to learned Counsel for the petitioner.
C.HARI SHANKAR, J AUGUST 29, 2022/kr Signature Not Verified Digitally Signed EX.F.A. 15/2022 Page 6 of 6 By:SUNIL SINGH NEGI Signing Date:29.08.2022 15:53:41