Karnataka High Court
Mohammed Raza Ali vs Smt. Zareen Taj Begum And Another on 21 November, 1995
Equivalent citations: AIR1996KANT274, ILR1996KAR872, 1996(2)KARLJ501, AIR 1996 KARNATAKA 274, (1996) ILR (KANT) 872, (1996) 2 KANT LJ 501, (1996) 2 ICC 256
JUDGMENT
1. This appeal is directed against an order dated 31-8-1995 passed by the learned Xth Additional City Civil Judge, Mayo Hall Bangalore. Effectively, on an application filed by the 2nd respondent to this appeal the learned trial Judge directed restoration of possession of property that had been delivered in execution. The order has been seriously assailed on a number of grounds which 1 shall deal with, but it is first necessary to set out the background to this dispute which is of some consequence.
2. The disputed property is situated at. No. 27, Serpentine Street, Richmond Town, Bangalore. The property in question had been purchased by the 2nd respondent to this appeal who was the applicant before the lower Court in the year 1991. According to him, the disputed property is supposed to have been purchased from the daughter of respondent No. 1. It is necessary for me to indicate as to how the right of respondent No, 1 to the property arose. In the first instance on 31st May 1990 a suit bearing No. OS 228/90 was instituted in the Court of the Principal Sub-Judge, Ranga Reddy District, Andhra Pra-desh by Mohammed Murtaza AH for partition of family properties situated at Andhra Pradesh and Bangalore, respondent No. 1 was the first defendant in that suit. On 27-7-1990 a compromise decree was passed in that suit on the basis of which the present appellant contends that he is the decree-holder in respect of the property in dispute which is situated in Bangalore. The respondent No, 1 thereafter, in September, 1990 applied for setting aside the compromise decree and on 18-8-1993 the Principal Sub-Judge, Ranga Reddy District, allowed the application and set aside the compromise decree. Against this order CRP 452/94 was filed in the Andhra Pradesh High Court and the High Court on 4-10-1994 set aside the order of the Principal Sub-Judge and restored the compromise decree. The present appellant thereupon took out Execution 1006/95 and since the property is situated at Bangalore, the Court at Andhra Pradesh transmitted the decree to the Bangalore Court for execution.
3. At this stage, it is necessary to indicate that in the meanwhile, the respondent No. 2 to this appeal had purchased the property in 1991. According to him, the property in question was tenanted and one Mrs. Doris was in occupation thereof. Respondent No. 1 had instituted eviction proceedings in which he was successful and the tenant thereafter appealed against the decree passed against her which appeal was dismissed. The respondent No, 2 is therefore as far as those proceedings are concerned, the person who is entitled to possession under the Court orders. It is however alleged that one Madhava Reddy, who claims to be the husband of Mrs. Doris who had since died, was the person from whom the physical possession was taken over by the executing court. On 18-1-1995, the Andhra Pradesh High Court stayed further proceedings in execution, but as indicated by me, the decree had already been executed and the possession handed over to the present appellant on 16-1-1995. It was under these circumstances that an application under O.21, Rr.99 to 101 was filed by the 2nd respondent before the executing court.
4. There is one more development which is of some significance namely that on 27-3-1995, the Andhra Pradesh High Court set aside its earlier order in CRP 452/94 and restored the revision petition to file for final hearing. A copy of this order has been produced before me and in view of the rather complicated background of this case, I need to point out that whereas in 1994 the Andhra Pradesh High Court had effectively restored the compromise decree, that by the subsequent order dated 27-3-1995 that decree was once again set aside. It is true that the Court has restored the revision petition and that it is yet to be heard, but a perusal of the speaking order passed by the Court indicates that no interim orders of any type were passed. The respondent No, 2 to the present appeal applied to the executing court at Bangalore claiming interest under two sale deeds executed in January, 1991 and the gist of the application is to the effect that he is the purchaser of the property and that he is entitled to the possession thereof under the decree obtained by him against the tenant and that consequently, having regard to the order dated 27-3-1995 whereby the compromise decree under which the execution had taken place, having been set aside that as a necessary consequence the property be restored to the applicant.
5. The present appellant stoutly resisted the passing of any orders by the executing court at Bangalore on a variety of grounds most of them being points of law which I shall deal with. The learned trial Judge overruled the objections and held that in so far as the compromise decree in execution of which the trial Court had handed over possession is no longer in existence and that the Court would have to retrace its steps by restoring possession and consequently directed that the same be done. It is against this order that the present appeal has been directed.
6. The appellant's learned counsel has attacked the correctness of the order on three broad grounds. In the first instance he submits that regardless of the background of the case that the last order passed by the Andhra Pradesh High Court on 27-3-1995 is a reversal of the order of 1994, but that the revision application is still pending. The argument is that the issue with regard to the correctness or otherwise of the compromise decree is sub judice and that therefore, the application under Section 144 to the executing court was misconceived in so far as the compromise decree has not finally been adjudicated upon in the sense that it has neither been revised, modified nor finally set aside. In fact, learned counsel has attacked the maintainability of the application presented to the trial Court.
7. As far as this aspect of the matter is concerned, the learned counsel who represents respondent No. 2 (respondent No. 1 having died and is not represented before me) contended that the aforesaid- position is factually incorrect. Tracing the history of the litigation learned counsel points out to me that it is true that in 1994 the compromise decree was. restored in so far as the order of the Principal Sub Judge was set aside; but what the learned counsel emphasises is that by the subsequent order passed on 27-3-1995 the Andhra Pradesh High Court has set aside the earlier order passed on 4-10-1994. The effect of this decision is that the order dated 4-10-1994 is no longer in existence and the compromise decree which had virtually been restored is relegated to the position in which it was by virtue of the order of the Principal Sub Judge who had set aside that decree. The order dated 27-3-1995 is in the form of a judgment, It is- a detailed speaking order running into twelve pages and it unequivo-cally records that the order dated 4-10-1994 is set aside. There is not a word in that order to the effect that the earlier order of the Sub Judge is saved. The only question that arises is as to what is the effect of the pendency of the revision petition. Appellant's learned counsel has submitted that the litigation has not assumed a stage of finality and that Section 144 presupposes a situation whereunder that stage has been reached. The learned counsel who represents respondent No. 2 has drawn my attention to an earlier decision of this Court reported in (1965 (1) Mysore LJ page 786) wherein this very issue had come up for consideration. This court on that occasion had placed reliance on a decision of the Madras High Court reported in AIR 1945 Mad 360 Ankamma v. Punnayya as also on a decision of the Privy Council reported in AIR 1935 PC 12 in L. Guran Ditta v. T.R. Ditta in Both" of "which "cases, the view "taken by the Court was that it is essential in a proceeding under Section 144, C.P.C. that the status quo ante be restored as soon as the decree is reversed or modified or set aside. The argument was canvassed before the Court at that stage with regard to the aspect of finality in respect of the pending litigation and the Court overruled that contention in so far as the correct position in law was interpreted to mean that once the original order was reversed that the consequence under Section 144 must follow. One does not need to go into an elaborate discussion with regard to the position in law as far as this aspect of the matter is concerned because the scheme of Section 144 is very clear in so far as if there is a reversal of the earlier position it virtually mean that the decree is no longer in existence in its final form, then the consequence of the execution will also have to be reversed. It is inevitable that further litigation may be pending and a Court will undoubtedly pass appropriate orders as far as the subsequent litigation is concerned. In those of the instances where such litigation is pending before the Court and some issues are still sub judice, undoubtedly the court passing orders under Section 144 will issue appropriate directions in order to safeguard the.interest of the parties. I am however unable to pursuade myself to uphold the preliminary objection raised on behalf of the appellant that the application under Section 144 in the present instance was not maintainable merely because of the pendency of the revision petition. The order of the Andhra Pradesh High. Court dated 27-3-1995 is a clear unequivocal order setting aside the earlier decision of 4-10-1994 and therefore, it cannot be said, that on the date on which the application for restoration was made that the present appellant was still in possession of an executable decree. The first objection canvassed on behalf of the appellant will therefore have to be overruled.
8. I am reinforced in this view by one other circumstance namely that the execution process which was obviously set in motion pursuant to the order dated 4-10-1994 was ordered to be stayed by the Andhra Pradesh High Court on 18-1-1995. This order dated 18-1-1995 makes it abundantly clear that even prior to the setting aside of the order dated 4-10-1994 that the Andhra Pradesh High Court was of the view that the decree ought not to be executed. It so happened that the decree had already been executed but this is a circumstance of some consequence.
9. The second and more specific ground on which the appellant's learned counsel has attacked the validity of the trial Court's order is that Section 144, C.P.C. which is the provision under which restoration has been ordered, came to be amended in the year 1976. Prior to the amendment the Section incorporated the words "Court of first instance" which have thereafter been substituted by the words "In appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order shall .......,". The learned counsel submitted in the first instance that the decree in question even if set aside or varied, can only give rise to a situation whereby the trial Court namely the Court which originally passed the decree will thereafter have to reverse the course of action that was set in motion as a result of the earlier decree. He submits that quite apart from the argument that the process of setting aside or otherwise has not reached the stage of finality, that the authority to reverse the consequence of the execution vests exclusively with the Court which passed the decree in the first instance and not with the executing Court if that Court happens to be a different one. In support of this statement, learned counsel placed heavy reliance oh a recent decision of the Supreme Court in the case of 'Neelathupara Kunni Seethi Koya Phangal (dead) by LRs v. Monthrappala Padippua Attakoya, wherein the Court was concerned with a similar dispute and the Supreme Court held the Court of first instance competent to pass an order for restitution which means the Court which passed the decree or order. In that case, the original suit was filed in the year 1962 and came to be transmitted to the Administrator's Court on 4-4-1965. The decree was transmitted for execution to the District Munsif at Androt who in turn executed the decree by delivering possession. An application was thereafter made to the District Munsif because the Appellate Court had subsequently dismissed the suit for restitution and the District Munsif restored the property. The matter was carried to the High Court and the Kerala High Court took the view that the Munsif had no jurisdiction to entertain the application under Section 144 after which the matter was taken in appeal to the Supreme Court. The Supreme Court had occasion to deal with Section 144 both in its unamended and amended form and the Supreme Court took the view that the expression Court in the first instance very clearly and specifically indicates the Court which had passed the decree and not the executing court. The Supreme Court had occasion to observe that it is the trial Court that would normally execute the decree and only because the decree had been transmitted to another Court for execution, that the jurisdiction to entertain an application under Section 144, C.P.C. cannot be said to be transferred to the execut-
ing Court. On the basis of this decision the appellant's learned counsel has contended that the order of the trial Court is wholly and completely without jurisdiction. He has submitted at considerable length that the wording of Section 144 is abundantly clear that there is no ambiguity with regard to the provisions and that even after the amendment, the explanations to the Section clearly point to the fact that the jurisdiction to entertain an application for restoration rests only with the Court that has passed the decree and not with the executing Court if that Court happens to be a different one.
10. The learned counsel who represents the 2nd respondent has contended that undoubtedly the Hon'ble Supreme Court has interpreted Section 144, C.P.C. as indicated by me above. He however, submitted that there is a whole string of decisions of the Supreme Court itself wherein a contrary view has been taken. As an illustration, learned counsel drew my attention to the decision, of Supreme Court in the casc of Unioni of India v. Tulsiram Patel wherein, a five Judge Bench of the Supreme Court after considering the case law virtually threadbare starting from some of the decisions reported since 1865 onwards, accepted the position that the process of execution is a continuous process in which more than one Court may be involved if the property is located at a place other than where the decree has been passed and that therefore, the application to the executing Court would be maintainable. In a very detailed and unconsidered judgment, a five Judge Bench of the Supreme Court has comprehensively interpreted Section 144, C.P.C. and it does not appear from the report in the 1994 decision of the Supreme Court which was referred to by me supra that this five Judge Bench decision of the Supreme Court which was undoubtedly an earlier one was not pointed out to the learned Judges when the matter was taken up before them.
11. The learned counsel who represents respondent No. 2 has thereafter drawn my attention to another decision of the Supreme Court in the case of Binayak Swam v. Rarnesh Chandra Pahigrahi wherein, a four Judge Bench of the Supreme Court took the same view and further laid down that the conseouences of a reversal or setting aside of a decree are automatic whereby the status quo ante is required to be restored. The Court pointed out that it is imperative that the damage must be immediately undone and that the original decision must be restored. Once again, it appears that this decision was also not pointed out to the Bench when the matter was decided in the year 1994. The learned Advocate who represents respondent No. 2 relied on another earlier decision of this Court reported in (1963) 2 Mys LJ 421 wherein a Division Bench of this Court had occasion to interpret Section 144 and after exhaustively considering the case law both English and Indian took the view that an application for restoration would lie to the executing Court.
12. Quite apart from these decisions the learned counsel who" represents respondent No. 2 submitted that the aforesaid decisions have had occasion to consider the position of an executing Court vis-a-vis the position of the Court which originally passed the decree. The learned counsel drew my attention to Section 38 to 42 of the Code of Civil Procedure and in particular the powers of the executing Court as enunciated in Section 42 and he advanced the submission that the executing Court has the same powers as the powers of Court and is entitled to exercise incidental powers is the Court that had passed the decree in the first instance. Learned counsel therefore submitted that when the jurisdiction is challenged, the first question which the Court would address itself to is as to whether the executing Court possessed the requisite powers to do what it did and it is his submission, that where a decree has been transmitted to another Court for execution that the second Court virtually steps into the shoes of the original one and that therefore, the entire dispute as to whether the application ought to have been made to the Bangalore Court or to the Court at Andhra Pradesh is academic. As far as this aspect of the matter is concerned one needs to take cognizance of the fact that the two Courts are Courts of concurrent jurisdiction. The appellant's learned Advocate has at-tacked the exercise of jurisdiction by the Bangalore Court on the ground that Section 144. reserves the exercise, of those powers only to the Court which has passed the decree originally. Undoubtedly, the Supreme Court has in the last of the decisions reported in 1994 taken this view, but as indicated by me, where the Supreme Court itself has expressed different views in respect of the same point of law at different times, the normal principle that this Court would have to follow would be that the view taken by the larger Bench would have to take precedence. I am reinforced in this view by the fact that unfortunately when the matter was argued before the learned Judges in 1994, the earlier decisions which were of five Judge and four Judge Bench were unfortunately not brought to the notice of the learned Judges as otherwise, they would have had the benefit of considering the earlier view of the two Benches of the Supreme Court.
13. I need to record here that certain principles have emerged while the Courts have interpreted Section 144. Where a decree is transmitted for execution to another Court one needs to take note of the fact that the executing Court is virtually exercising the powers or the same powers as the Court which passed the decree in the first instance and for all intents and purpose, in law it would be a Court that will have to be regarded as being synonymous with the original one. Apart from this, the second aspect of the matter which one needs to take note of in an artificial situation such as the present one is that the executing Court is the one which has ultimately given concrete shape to the decree by handing over the property partitioning it doing some such acts. If those acts are to be undone, the application would naturally and normally have to go to that Court because the Court which passed the decree would not be seized of either of the records or facts relating to the effects of the execution. It is for this reason that the Courts have consistently taken the view that where a situation arose in which the execution is required to be undone that it is to the executing Court to whom the application would lie. In this view of the matter, to my mind the learned trial Judge was justified in upholding the view that the Bangalore Court had jurisdiction to entertain the application under Section 144, C.P.C. I have already held that the decree in question has been set aside and furthermore that there was also an interim order of the Andhra Pradesh High Court to the effect that the decree should not be executed and under these circumstances the learned trial Judge was fully justified in having ordered restoration of possession.
14. The third ground on which the appellant's learned counsel has attacked the order of the trial Court is that he has submitted that the learned trial Judge has jumped to the conclusion that the possession ought to be restored to the applicant who is the present respondent. He submits that the present case is a hotly contested one in which the present appellants had pointed out that according to them the original owner of the property namely the daughter of respondent No. 1 had no authority to alienate the property because according to the appellant the property had only been gifted to her. Learned counsel submitted that the learned trial Judge was duty bound even if he proposed to exercise powers under Section 144 to have examined the factual position by directing the parties to lead evidence with regard to the last aspect of the matter namely the question as to whether the applicant was entitled to restoration of possession. The submission proceeds on the footing that there are references in the record that the possession was taken over from one Madhava Reddy who claimed to be the husband of the deceased Mrs. Doris who in turn was the tenant against whom the final eviction decree had been passed. Learned counsel therefore submitted that in these circumstances the learned trial Judge was in error in having straightaway passed an order without embarking on a factual investigation. In response to this objection, the learned Advocate who represents respondent No. 2 submitted that his client has purchased the property under registered sale deeds and furthermore that he is the holder of a decree for possession which has become final. He therefore contends that he was fully justified in law in having applied for possession to the trial Court and that the learned trial Judge was right in directing the restoration of possession to him.
15. As far as this aspect of the matter is concerned I do not need to labour because even thought there is considerable substance in the submission canvassed by the appellant's learned Advocate that an executing Court has got to be circumspect while restoring possession and to ensure that it goes to the right party. On the facts of the present case there is little dispute about the fact that the learned trial Judge has acted correctly. The reason for this is because once the possession was taken over the property temporarily vested in the executing Court which Court in turn handed it over to the present appellant. Where that process is required to be revised, the executing Court is required to take the property back from the appellant and restore it to the party that is lawfully entitled to receive it. If at this stage there is more than one party claiming it, undoubtedly an investigation will be necessary. Had Madhava Reddy applied to the trial Court or had he appeared before the trial Court or had he put forward a claim that according to him he was lawfully entitled to the restoration the trial Court would have had to examine the rival claims and decide thern. In the present circumstances there was no such application. On the other hand, the present applicant had pointed out that he is not only the lawful owner of the property but furthermore that he is a decreee-holder in so far as the decree passed in his favour by the competent Court as become final and therefore to my mind, the learned trial Judge was fully justified in directing that the restoration of the property should be done to the present applicant.
16. Having regard to the aforesaid situation I see no valid ground on which the order passed by the learned trial Judge require is to be either modified, varied or set aside. It is true that the matter did raise several arguable points but having regard to the fact that the application for restoration was made after a long history of litigation and while the matter is still pending before the Andhra Pradesh High Court this appeal involved a matter of some urgency and therefore I have heard the matter at the admission stage itself. The learned counsels who have argued the matter have done an admirable job and I am indebted to them for the high literary skill with which they have researched and presented their cases.
17. In the aforesaid circumstances, the order passsed by the learned trial Judge is maintained. Jhe appeal fails and accordingly stands dismissed. The interim order passed by this Court shall stand vacated.
18. I however need to direct that having regard to the fact that the revision petition is yet to be heard by the Andhra Pradesh High Court, the respondent No. 2 to whom the restoration is directed shall file an undertaking before the trial Court that he shall not alienate, encumber or part with possession of the property for a period of three months from the date on which the possession is restored to him. It shall be open to the parties to apply to the Andhra Pradesh High Court for expeditious disposal of the revision petition or for appropriate orders.
With these directions, the appeal to stand disposed of.
19. At this stage, the appellant's learned counsel submits that this is a case in which both the parties have relied on certain decisions of the Supreme Court in support of their respective cases and that the appellant is desirous of carrying the matter higher as the law on the point will have to be resolved by the Supreme Court. He therefore submits that the interim orders passed by this Court should be continued for a reasonable period of time to enable the appellant to file a Special Leave Petition and obtain appropriate orders from the Supreme Court. The application is opposed by the learned counsel who represents respondent No. 2. He submits that the 2nd respondent has already been required to vacate the rented premises in which he stays and that therefore he is badly in need of accommodation. He states that his client will abide by every one of the conditions imposed by this Court, that he will not encumber or create third party rights or induct any third party in the premises and that therefore, if the order of this Court is reversed by the Supreme Court that the respondents will not be prejudiced,
20. Normally, I would have granted the appellant reasonable time to approach the Supreme Court which the appellant has every right to do. The position however is that the respondent No. 2 has demonstrated that he is the purchaser of the property and that he is the registered owner thereof. He has also pointed out that he is the holder of a decree whereby the Court has authorised him to the possession of the premises and furthermore it has been demonstrated that he is badly in need of the same. This Court has conclusively held that the order of the trial Court is correct and under these circumstances, it would not be proper to extend the interim order. However I am conscious of the fact that the appellant's rights should not be prejudiced and to this extent I have laid down strigent conditions in order to safeguard the interest of the opposite party. Haying regard to these circumstances the interim order passed by this Court cannot be continued. The appellant's learned counsel has pointed out that during the interim period of three months that the respondent No. 2 should be restrained from developing the property as if anything of this sort is done serious complications will arise. This submission is fully justified and the respondent No. 2 shall indicate that when he files the undertaking before the trial Court that he will not undertake any development on the site during the interim period. This shall however not preclude him from carrying out any essential or minor repairs to the house.
21. Appeal dismissed.