Karnataka High Court
Mr.M. Abdul Kareem vs State Of Karnataka on 2 March, 2023
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF MARCH, 2023 R
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.3837 OF 2023 (GM-ST/RN)
BETWEEN:
1 . MR.M. ABDUL KAREEM
AGED ABOUT 33 YEARS,
S/O LATE S.M.MUNEER.
2 . MRS. RIZWANA BEGUM S.M.,
AGED ABOUT 58 YEARS,
W/O LATE S.M.MUNEER.
3 . MRS. HEENA KAUSER
AGED ABOUT 32 YEARS,
D/O LATE S.M.MUNEER.
4 . MRS.AMREEN KOUSER
AGED ABOUT 28 YEARS
D/O LATE S.M.MUNEER.
5. MR.TOUSIF PASHA
AGED ABOUT 27 YEARS,
S/O LATE S.M.MUNEER,
ALL ARE RESIDING AT
NO.86, OLD NO.14,
RICHMOND ROAD
BENGALURU - 560 025.
... PETITIONERS
(BY SRI K.SUMAN, SR.ADVOCATE FOR
2
SRI SIDDHARTH SUMAN, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ITS PRINCIPAL SECRETARY REVENUE
VIKAS SOUDHA
BENGALURU - 560 001.
2. THE INSPECTOR GENERAL OF
STAMP AND REVENUE COMMISSIONER
8TH FLOOR, KANDAYA BHAVAN,
K.G.ROAD, BENGALURU - 560 009.
3. DISTRICT REGISTRAR SHIVAJINAGAR
NO.122/22, 4TH FLOOR,
MONARK CHAMBER,
INFANTRY ROAD
BENGALURU - 560 001.
4. SENIOR SUB REGISTRAR
SHIVAJINAGAR,
122/2, 3RD FLOOR,
MONARCH CHAMBER,
NEAR BALAJI PLYWOOD
INFANTRY ROAD,
BENGALURU - 560 001.
5. SENIOR SUB REGISTRAR
K.R.PURAM
SLV SUNRISE AVENUE
FIRST FLOOR, POLICE QUARTERS
OPP. K.R.PURAM EXTENSION
BENGALURU - 560 001.
6. MRS.R.VIJAYALAKSHMI
AGED ABOUT 68 YEARS,
W/O LATE B.R.RANGASWAMY.
3
7. MRS.B.R.SUPRIYA
AGED ABOUT 49 YEARS,
S/O LATE B.R.RANGASWAMY.
8. MR.B.R.DILIP KUMAR
AGED ABOUT 45 YEARS,
S/O LATE B.R.RANGASWAMY.
9. MRS.SUBHA ROMESH PATEL
AGED ABOUT 42 YEARS,
D/O LATE B.R.RANGASWAMY
W/O RAMESH VIJAY PATEL.
10 . MRS.B.R.KAVITHA
AGED ABOUT 58 YEARS,
D/O LATE B.R.RANGASWAMY.
11 . MR.B.R.KASTURI RANGAIAH
AGED ABOUT 41 YEARS,
S/O LATE B.R.RANGASWAMY.
RESPONDENT NOS. 6 TO 11
ARE RESIDING AT
NO.101, SREE SANNIDHI,
RAILWAY PARALLEL ROAD,
KUMARA PARK WEST
BENGALURU - 560 020.
... RESPONDENTS
(BY SMT.SHWETHA KRISHNAPPA, AGA FOR R1 TO R5;
SRI B.M.ARUN, ADVOCATE FOR R6 TO R11)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECTING THE
R-1 TO 5 NOT TO REGISTER THE SALE DEED DATED 25/01/2023
EXECUTED BY THE COURT OF LXXII ADDITIONAL CITY CIVIL
JUDGE, MAYO HALL BENGALURU (CCH 73) IN EX. 15061/2006 IN
4
O.S 8443/1980 I.E. ANNEXURE-L WHICH IS KEPT PENDING
REGISTRATION AS NO. P-15166/2022-23 AND ETC.,
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 27.02.2023, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioners are before this Court calling in question order dated 14-02-2023 passed by the LXXII Additional City Civil and Sessions Judge, Mayo Hall, Bangalore in Execution Petition No.15061 of 2006 on I.A.No.4 of 2023 filed by respondents 6 to 11.
2. Brief facts that lead the petitioners to this Court in the subject petition, as borne out from the pleadings, are as follows:-
An agreement of sale was executed on 23-08-1978 in favour of one Sri B.R. Rangaswamy by Sri D.Syed Younus. The agreement resulted in a suit being filed by Sri B.R.Rangaswamy in O.S.No.8443 of 1980 for specific performance of the agreement of sale. The aforesaid suit came to be dismissed by the civil Court on 15-04-1989. Against dismissal of the suit, Sri B.R. Rangaswamy files a regular first appeal in R.F.A.No.374 of 1989 calling in 5 question the dismissal of suit in O.S.No.8443 of 1980. Ten years thereafter on 05-03-1999 the R.F.A. was allowed by this Court and the suit for specific performance was decreed. Against the said decree, the defendants in the suit, filed civil appeals before the Apex Court in Civil Appeal Nos. 1159 and 1160 of 2000 which came to be dismissed by order of the Apex Court on 08-02-2006.
3. After all the aforementioned proceedings a registered sale agreement was executed on 10-03-2006 by Sri D.Syed Younus represented by his GPA holder in favour of one S.M.Muneer, father of petitioner Nos. 1, 3, 4 and 5 and husband of the 2nd petitioner. Pursuant to the sale agreement absolute sale deed also comes to be registered on 28-02-2008 in favour of the said S.M.Muneer.
4. After dismissal of aforementioned civil appeals, the decree holders/legal representatives of Sri B.R. Rangaswamy in whose favour R.F.A.No.374 of 1989 came to be allowed decreeing the suit, filed Execution Case No.15061 of 2006 before the concerned Court. After filing of execution case by the decree holders, it appears that the 1st petitioner also files a suit against Sri D.Syed Younus for injunction in O.S.No.1535 of 2010 and had secured a decree of 6 permanent injunction. On 17-06-2020, the said Sri S.M.Muneer, husband of the 2nd petitioner and father of petitioner 1, 3, 4 and 5 dies. On 16-02-2021 in the execution petition filed by the decree holders, the 1st petitioner files an application for determination of his claim under Order XXI Rules 58, 97, 101 and 103 of the CPC. The application filed by the 1st petitioner in the said execution petition comes to be dismissed on 04-10-2021. The 1st petitioner, against the said dismissal, files a regular first appeal in R.F.A.No.1177 of 2021 which also comes to be dismissed on 15-11-2022. After exhausting these proceedings, a suit is filed by the 1st petitioner in O.S.No.6526 of 2022 for declaration and injunction which is pending consideration before the concerned Court.
5. During the pendency of the said suit, the petitioners filed another application in Execution case No.15061 of 2006 in I.A.No.1 of 2022 under Order I Rule 10 of the CPC to implead themselves as respondents in the execution case and another application in I.A.No.2 of 2022 under order XXI Rule 29 of the CPC for stay of execution proceedings. In terms of an order dated 05-01-2023, the concerned Court rejects the application seeking 7 impleadment into the proceedings filed under Order 1 Rule 10(3) r/w Order XXI Rule 92(4) of the CPC with costs of `25,000/-. The order dated 05-01-2023 was challenged before this Court in Writ Petition No.1173 of 2023 which is said to be pending consideration.
6. On 25-01-2023 the executing Court directs execution of the sale deed in favour of the decree holders in respect of the suit schedule property which the petitioners claim that it belonged to them. It is then, the petitioners have moved the civil Court in O.S.No.6526 of 2022 for declaration and injunction and also seeking a temporary injunction against the decree holders. The concerned Court on 09-02-2023 grants a temporary injunction in the suit filed by the petitioners. In the execution case the Court directs possession warrant be issued and if necessary to break open the lock with the aid of the jurisdictional police and take possession of the property which is the subject matter of the execution proceedings. It is at that juncture, the petitioners knocked at the doors of this Court in the subject petition. This Court, on submission that the petitioners would be dispossessed any moment, had 8 directed maintenance of status quo. The same is in subsistence even as on date.
7. Heard Sri K.Suman, learned senior counsel appearing for the petitioners; Smt. Shwetha Krishnappa, learned Additional Government Advocate appearing for respondents 1 to 5 and Sri B.M. Arun, learned counsel appearing for respondents 6 to 11.
8. The learned senior counsel Sri K.Suman representing the petitioners would submit that the petitioners are the recipients of a sale deed executed by Sri D. Syed Younus in the year 2008 in favour of the father of the petitioners 1, 3, 4 and 5 and husband of the 2nd petitioner and therefore, would contend that they are rightful owners of the property. He would emphasise on the fact that fraud had been played by Sri B.R. Rangaswamy while getting the sale agreement executed in the year 1978 and if fraud had been played, which according to the learned senior counsel is demonstrable, then the proceedings initiated from 1978 would be a fraud as according to him fraud would undo all the proceedings, including judicial. He would further contend that the civil Court has granted an injunction in O.S.No.6526 of 2022 and the suit is 9 pending adjudication and therefore, the petitioners should be protected from dispossession.
9. On the other hand, the learned counsel Sri B.M. Arun representing respondents 6 to 11/decree holders would vehemently refute the submissions to contend that the efforts of the petitioners is nothing but an abuse of the process of law. All the contentions which they want to now put up, in the present petition, have all been urged throughout in all the proceedings up to the Apex Court and have been negatived. The agreement is of the year 1978 and the R.F.A. filed against the said agreement was allowed on 05-03- 1999 and the Apex Court also rejected the civil Appeal on 08-02- 2006 affirming the judgment and decree passed in R.F.A.No.374 of 1989. Therefore, the agreement of the year 1978 is still to yield fruits to the decree-holders despite passage of close to 45 years, by some method or the other adopted by the judgment debtors or their vendors. He would submit that it is a case where the present petition has to be dismissed with exemplary costs as the orders passed by this Court that, though have been mentioned, but have not been produced as annexures before this Court by the 10 petitioners and an interim order is obtained by suppression of all the orders.
10. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
11. The afore-narrated facts, dates, link in the chain of events are not in dispute as they are all a matter of record. What drives the petitioners to this Court is an order in the execution case directing handing over of possession of the property which was the subject matter of execution proceedings to the decree holders. Therefore, a little history to the case is required to be noticed.
12. As observed hereinabove, agreement of sale was executed on 23-08-1978 by Sri D.Syed Younus, vendor of the suit schedule property in favour of Sri B.R. Rangaswamy, father of the present decree-holders. The agreement of sale was not acted upon by Syed Younus which led B.R. Rangaswamy to the civil Court in O.S.No.8443 of 1980. The suit comes to be dismissed in terms of the decree of the civil Court dated 15-04-1989. B.R. Rangaswamy 11 files R.F.A.No.374 of 1989 before this Court calling in question the said judgment of dismissal of the suit - O.S.No. 8443 of 1980 in which cross-objections were also filed by Sri D. Syed Younus. A Division Bench of this Court by its judgment dated 05-03-1999 allows R.F.A. by the following order:
"In the result the appeal is allowed. In modification of the judgment and decree passed by the trial Court, it is held that the suit of the plaintiff for specific performance of the agreement of sale dated 23-08-1978 is decreed directing defendant No.1 to execute the registered sale deed on receipt of the balance of the sale consideration of `4,90,000/- along with interest at 16% per annum (now directed) from the plaintiff by defendant No.1 in respect of the suit schedule property on or before 5-05-1999 failing which the Court shall get executed the registered sale deed in favour of the plaintiff on depositing the entire amount, as directed in the court.
For the reasons mentioned above, the Cross-objections are dismissed.
The plaintiff is also entitled for costs from the defendants throughout."
In terms of the aforesaid decree, the suit for specific performance was decreed and a direction was issued to execute the sale deed on or before 05-05-1999. The cross-objections filed by Sri D.Syed Younus comes to be dismissed. Against the judgment, in the R.F.A. the matter was taken up to the Apex Court in Civil Appeal Nos. 1159 and 1160 of 2000 which come to be dismissed on 12 08-02-2006. Thus ended the subject matter of proceeding i.e., agreement of sale dated 23-08-1978 which by then had been 28 years old. After all these proceedings and being a defendant/judgment-debtor, Sri D.Syed Younus executed an agreement of sale on 10-03-2006 of the very suit schedule property immediately after dismissal of civil appeal by the Apex Court in favour of the father of petitioners 1, 3, 4 and 5 herein, one Sri S.M.Muneer. Since the Apex Court had rejected civil appeals, the decree-holders as legal heirs of B.R.Rangaswamy filed execution case in Execution Case No.15061 of 2006. During the pendency of the said execution case in which the judgment debtor was a party, the judgment debtor Sri D.Syed Younus represented by GPA holder executed a sale deed in favour of Sri S.M.Muneer, the father of petitioners 1, 3, 4 and 5 and husband of petitioner No.2 on 28-02-2008. Therefore, the petitioners herein are purchasers from the hands of Sri.D.Syed Younus, the judgment debtor during the pendency of execution proceedings. They are therefore purchasers pendente lite.
13
13. After execution of the sale deed as aforesaid, the efforts of the petitioners move on to somehow stall the pending proceedings. On 17-06-2020 Sri S.M.Muneer dies and after his death, the 1st petitioner Sri M.Abdul Kareem filed an application before the concerned Court in the execution proceedings under Order XXI Rules 58, 97, 101 and 103 of the CPC for determination of his claim. The said application comes to be dismissed by the concerned Court on 04-10-2021 by a detailed order, relevant portion of which reads as follows:
"20.01. Applying the above principles of law to the instant case at hand, it is seen that the objector contends that his father has purchased the Execution Schedule Property from the original judgment debtor, through his General Power of Attorney holder Mr. Syed Iqbal, by virtue of a registered sale deed dated 28-02-2008.
20.02. Already this court has held supra, that the father of the objector is a pendent lite transferee.
20.03. The objector, when he is claiming the right through his father, as his legal heir, he also become such transferee, as he steps into the shoes of his father.
20.04. When the objectors or his father are pendent lite transferee, then they or anyone claiming under them have no right to resist.
(a) in view of the clear language employed in Rule 102 of Order XXI of CPC;14
(b) as per the salutary principles enshrined in Section 52 of the Transfer of Property Act, such pendent lite transferee have been excluded from raising further contentions or from extending resistance for execution of a decree.
20.05. So the objector will not get any independent right to resist the decree, as required U/Order XXI Rule 102 of CPC.
20.06. Thus, the objector cannot maintain the present application without having independent right, title and interest to resist from realizing the fruits of the decree passed in R.F.A.No.374 of 1989.
21. Viewing from all the angle, it can be concluded that,
(a) the objector is claiming the right from his father Mr. S.M.Muneer, who is a pendent lite transferee.
(b) He is ot having independent right to resist the decree, as required U/O XXI Rule 102 of CPC
(c) no any rights in respect of the petition schedule property have remained to be adjudicated or decided on the plea of the objector.
Thus, the resistance made by the objector for realizing the fruits of the decree passed inR.F.A.No.374 of 1989, in favour of the legal heirs of decree-holder, is unsustainable.
Hence, I answer point No.1 in the Negative.
22. Point No.2:
In view of the findings on Point No.1, I proceed to pass the following:
ORDER 15 Application filed by the objector U/Order 21 Rules 58, 97, 101, and 103 r/w Section 151 of CPC is hereby dismissed.
No order as to costs.
Draw decree accordingly."
(Emphasis added) Another application was filed by Abdul Kareem, petitioner No.1 in Execution case No.15061 of 2006 under Section 47 of the CPC contending that the decree obtained by Sri B.R. Rangaswamy was obtained by playing fraud. The concerned Court for answering the application under Section 47 frames the following points for consideration:
"1. Whether the applicant shows that the grounds taken up by him in the present application, renders the decree under execution, as void ab initio; null and void and cannot be executed at all?
2. Whether the applicant shows that the said grounds urged by him under the present application can be considered under Section 47 of CPC?
3. What order."
(Emphasis added) The ground taken by the 1st petitioner was that the decree was seeped in fraud and, therefore, a nullity in law. This is answered in 16 the negative by the concerned Court while rejecting the application under Section 47 of CPC. The reasons rendered that are germane are as follows:-
"15. Thirdly, the Executing Courts cannot sit as an Appellate Court or as a Revisionary Court; or as a Review Court, to reconsider the entire case of the parties. Re-consideration of the case, is not within the realm of the Execution Court, muchtheless it would not form the matter, within Section 47 of CPC.
Power of the Executing Court vested under Section 47 of CPC are very narrow, it has power only to consider the objections, with regard to or relating to execution, discharge or/and satisfaction of the decree. But the Executing Court cannot determine the objections, which had or ought to have raised either in the suit or inn the appeal or prior to the execution proceedings, or when the parties had opportunity to raise the same, but they did not have raised it.
16. Fourthly, the Executing Courts are empowered to determine the questions resulting to find the decree itself as void ab initio; null and void; and it cannot be executed at all.
17. In order to conclude, it can be said that, the objections raised by the applicant under the present application, may form defence to the Original judgment debtor, who was the defendant in the original suit; who was the respondent in the appeal. Such type of objections cannot to determined U/Sec.47 of CPC.
Further, the objections raised by the applicant, will not lead/result to find the decree under execution, as void ab initio; null and void; and it cannot be executed at all. So they can note considered at all, at this stage.
Hence, I answer point Nos. 1 and 2 in the negative.
18. Point No.3:17
In view of the aforesaid discussion on Point Nos. 1 and 2, I proceed to pass the following:
ORDER Application filed by the applicant U/Sec.47 of CPC is hereby dismissed.
No order as to costs."
Therefore, the application which had sought to stall the execution proceedings on the ground of fraud comes to be rejected.
14. The 1st petitioner files R.F.A. No.1177 of 2021 before this Court calling in question the order dismissing the application filed under Order XXI Rules 58, 97, 101 and 103 r/w Section 151 of CPC and sought a prayer to stall execution proceedings. The challenge to the order is noted by this Court reading as follows:
"Challenging impugned order dated 4-10-2021 passed by LXXII Additional City Civil & Sessions Judge, Bangalore CCH 73 Mayo Hall Unit, rejecting application filed under Order 21 Rules 58, 97, 101 and 103 r/w Section 151 of CPC by Sri M.Abdul Kareem - objector (third party) this appeal is filed."
This comes to be dismissed by a co-ordinate Bench of this Court on 15-11-2022. The points that arose for consideration before the co- ordinate Bench and answers rendered thereon are as follows:
"28. From above submissions, points that arise for consideration are:18
(i) Whether impugned decree dated 4-10-2021 passed by LXXII Addl. City Civil & Sessions Judge, at Mayo Hall, Bengaluru (CCH-73) in Ex.P.No.15061 of 2006 on application filed under Order XXK Rules 58, 97, 101 and 103 r/w Section 151 of CPC, call for interference?
(ii) Whether applicant establishes that judgment and decree dated 5-03-1999 in R.F.A.No.374 of 1989 is vitiated by fraud?
29. Since both points are interconnected, they are taken up together.
First ground of challenge is that agreement of sale Ex.P1 was unregistered and therefore, decree for specific performance could not be granted by relying upon decision of Hon'ble Supreme Court in Balram Singh v. Kelo Devi reported in 2022 SCC OnLine SC 1283.
30. On perusal of said decision, it is seen that Hon'ble Supreme Court was dealing with an unregistered agreement of sale under which possession was delivered. Ratio of said decision is, if on an agreement of sale, plaintiff was unable to get substantive relief of specific performance, then he would be disentitled from securing incidental relief also. It is therefore, respectfully stated that said decision is not an authority for proposition that suit for specific performance cannot be maintained on an unregistered agreement of sale. Therefore, even said contention would fall to ground.
31. Insofar as next ground of challenge viz., that stamp paper on which Ex.P1 - agreement of sale was executed, was issued to KHDC and therefore agreement of sale drawn on such stamp paper between individuals would be vitiated by fraud, it is seen that agreement of sale was subject matter of suit for specific performance in O.S.No.8443 of 1980. After full fledged trial, though suit was dismissed, R.F.A.No.374 of 1980 filed against such dismissal was allowed on 5-03-1999 and suit was decreed directing defendant No.1 in O.S.No.8443 of 1980 to execute registered sale deed on or before 05-05-1999. 19 Said decree, challenged by judgment debtor in Civil Appeal Nos. 1159/2000 and 1160 of 2000 were dismissed on 8.02.2006. Thus, validity of agreement of sale was upheld in said proceedings.
32. Even substantial contention that Ex.P1 - agreement of sale was intended to be in favour of Trust, applicant sought to substantiate said contention reliance is placed on application dated 4-06-1980 written by Syed Younus to Assistant Commissioner, seeking permission to sell suit property to 'Trust' marked as Ex.P3 and order dated 22-10-1986 passed by Assistant Commissioner rejecting it marked as Ex.D22.
33. On perusal of Ex.P1, it reveals that specific performance was sought for in O.S.No.8443 of 1980. It is seen that agreement of sale was not executed in favour of 'Trust', but it was in favour of an individual. Secondly, said suit was decreed by holding agreement of sale as proved. Thirdly, there is no reference in it to any permission or proceedings before Assistant Commissioner. In any case, parties in O.S.No.8443 of 1980 went to trial on validity and enforceability of the said agreement. Therefore, instant ground of challenge does not deserve consideration.
34. On other hand, it is seen that, instant third party objector, purchased suit property under sale deed dated 28-02-2008, executed by GPA holder of original judgment debtor. As per Rule 102 of Order XXI of CPC, prohibits invocation of Rule 98 and 100 by a transferee pendent lite. Therefore, application insofar as Rules 97 and 101 of Order XXI of CPC would not be available to applicant.
Application would thus be confined only to examining its tenability under Order XXI Rule 58 of CPC.
35. Incidentally, applicant herein is none other than father of judgment debtor No.1, who had not only contested said proceedings, tooth and nail, but also availed all remedies of appeals. It would be relevant to reiterate that R.F.A. No.374 of 1989 was decreed on 5- 20 03-1999 and appeal before Hon'ble Supreme Court in Civil Appeal Nos. 1159/2000 and 116/2000 were dismissed on 8-02-2006.
36. Hon'ble Supreme Court in Usha Sinha's case (supra) while specifically dealing with third party objectors application filed by pendente lite purchaser after referring to Order XXI Rule 102 of CPC and Section 512 of T.P.Act, 1882, held that such transferee pendente lite cannot seek for adjudication of his rights, as third party since, he could claim to be stranger to suit. Therefore, instant application would not merit consideration and is rightly dismissed.
For above stated reasons, points for consideration are answered in negative. Consequently, following:
ORDER Appeal is dismissed with costs.
Since decree under Execution is dated 5-03-1999 i.e., more than 23 years old, Executing Court is directed to expedite proceedings keeping in mind directions issued by Hon'ble Supreme Court in Rahul S.Shah's case (supra)."
(Emphasis supplied) The co-ordinate Bench considered the very argument that the entire transaction was vitiated by fraud. This is negatived and a direction is issued to the Executing Court that despite passage of 23 years the decree holders have not been able to enjoy fruits of the decree and, therefore, directed to expedite the proceedings bearing in mind the directions of the Apex Court in the case of Rahul 21 S.Shah. This order is carried on to the Apex Court in S.L.P No.27997 of 2022 which dismissed it by order dated 20.02.2023. Therefore, the findings rendered by the co-ordinate Bench in its order dated 15-11-2022 have attained finality by the dismissal of the S.L.P. insofar it concerns this Court. After all these proceedings since this Court had directed the concerned Court to expedite the proceedings, the Executing Court passed an order which is impugned in the subject petition. Answering an application seeking possession the Executing Court ordered issuance of possession warrant as prayed for. The order reads as follows:
"11. Point No.2:
In view of findings on the above point, the application filed by the legal heirs of decree holder deserves to be allowed. Accordingly, I proceed to pass the following:
ORDER I.A. No.4/2023 filed U/Or.21 Rule 35(1) & (3) R/w Sec. 151 of CPC filed by the legal heirs of decree holder is hereby allowed.
Issue possession warrant as prayed for and if necessary to break open the lock with the aid of the jurisdictional Police.
Issue necessary instructions to the jurisdictional police to assist the Court Bailiff to execute the possession warrant.
Await report by 22-02-2023."
22After passing of the order supra, the present petition is preferred on 16-02-2023 again contending all that have been contended in the applications filed before the executing Court and the proceedings in R.F.A. No.1177 of 2021 which had clearly negatived every contention of the present petitioners since the regular first appeal was preferred by the 1st petitioner. The order in the other application which the 1st petitioner has preferred under Section 47 of the CPC is left unchallenged.
15. On a coalesce of the afore-narrated dates and events what would unmistakably emerge is that the efforts of the petitioners is to somehow stall the decree holders' getting fruits of the decree. The petitioners are legal heirs of purchaser of the suit property pendente lite i.e., during the execution proceedings. All these issues have been clearly gone into by the civil Court and co- ordinate Bench of this Court. Yet, those orders do not form part of the present writ petition filed. It is respondents 6 to 11 who have filed the statement of objections appending every order that has been passed right from 1989 in O.S.No.8443 of 1980. 23
16. In the aforesaid circumstances and glaring facts, reference being made to the judgment of a three Judge Bench of the Apex Court in the case of RAHUL S.SHAH v. JINENDRA KUMAR GANDHI AND OTHERS1, becomes apposite. The Apex Court has held as follows:
"21. The High Court has directed the executing court to complete the process within six months. That direction is affirmed. The parties are hereby directed to cooperate with the executing court; in case that court finds any obstruction or non- cooperation it shall proceed to use its powers, including the power to set down and proceed ex parte any party or impose suitably heavy costs. Therefore, in light of the above observations these appeals are liable to be dismissed.
22. These appeals portray the troubles of the decree- holder in not being able to enjoy the fruits of litigation on account of inordinate delay caused during the process of execution of decree. As on 31-12-2018, there were 11,80,275 execution petitions pending in the subordinate courts. As this Court was of the considered view that some remedial measures have to be taken to reduce the delay in disposal of execution petitions, we proposed certain suggestions which have been furnished to the learned counsel of the parties for response. We heard Mr Shailesh Madiyal, learned counsel for the petitioner and Mr Paras Jain, learned counsel for the respondent.
23. This Court has repeatedly observed that remedies provided for preventing injustice are actually being misused to cause injustice, by preventing a timely implementation of orders and execution of decrees. This was discussed even in the year 1872 by the Privy Council in General Manager of the Raj Durbhunga v. Coomar Ramaput Sing [General Manager of the Raj Durbhunga v. Coomar Ramaput Sing, 1872 SCC OnLine PC 16: (1871-72) 14 Moo IA 605] which observed that the actual difficulties of a litigant in India begin when he has obtained a 1 (2021) 6 SCC 418 24 decree. This Court made a similar observation in Shub Karan Bubna v. Sita Saran Bubna [Shub Karan Bubna v. Sita Saran Bubna, (2009) 9 SCC 689: (2009) 3 SCC (Civ) 820], wherein it recommended that the Law Commission and Parliament should bestow their attention to provisions that enable frustrating successful execution. The Court opined that the Law Commission or Parliament must give effect to appropriate recommendations to ensure such amendments in the Code of Civil Procedure, 1908, governing the adjudication of a suit, so as to ensure that the process of adjudication of a suit be continuous from the stage of initiation to the stage of securing relief after execution proceedings. The execution proceedings which are supposed to be a handmaid of justice and subserve the cause of justice are, in effect, becoming tools which are being easily misused to obstruct justice.
24. In respect of execution of a decree, Section 47 CPC contemplates adjudication of limited nature of issues relating to execution i.e. discharge or satisfaction of the decree and is aligned with the consequential provisions of Order 21 CPC. Section 47 is intended to prevent multiplicity of suits. It simply lays down the procedure and the form whereby the court reaches a decision. For the applicability of the section, two essential requisites have to be kept in mind. Firstly, the question must be the one arising between the parties and secondly, the dispute relates to the execution, discharge or satisfaction of the decree. Thus, the objective of Section 47 is to prevent unwanted litigation and dispose of all objections as expeditiously as possible.
25. These provisions contemplate that for execution of decrees, executing court must not go beyond the decree.
However, there is steady rise of proceedings akin to a retrial at the time of execution causing failure of realisation of fruits of decree and relief which the party seeks from the courts despite there being a decree in their favour. Experience has shown that various objections are filed before the executing court and the decree-holder is deprived of the fruits of the litigation and the judgment-debtor, in abuse of process of law, is allowed to benefit from the subject-matter which he is otherwise not entitled to.
25
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30. As to the decree for the delivery of any immovable property, Order 21 Rule 35 provides that possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.
31. As the trial continues between specific parties before the courts and is based on available pleadings, sometimes vague description of properties raises genuine or frivolous third- party issues before delivery of possession during the execution. A person who is not party to the suit, at times claims separate rights or interests giving rise to the requirement of determination of new issues.
32. While there may be genuine claims over the subject-matter property, the Code also recognises that there might be frivolous or instigated claims to deprive the decree-holder from availing the benefits of the decree. Sub-rule (2) of Rule 98 of Order 21 contemplates such situations and provides for penal consequences for resistance or obstruction occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by the transferee, where such transfer was made during the pendency of the suit or execution proceedings. However, such acts of abuse of process of law are seldom brought to justice by sending the judgment-debtor, or any other person acting on his behalf, to the civil prison.
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39. If the above suggested recourse is taken and subsequently if an objection is received in respect of "suit property" under Order 21 Rule 97 or Rule 99 CPC at the stage of execution of the decree, the executing court shall deal with it after taking into account the fact that no such objection or claim was received during the pendency of the suit, especially in view of the public notice issued during trial. Such claims under Order 21 Rule 97 or Rule 99 must be dealt with strictly and be considered/entertained rarely.
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42.8. The court exercising jurisdiction under Section 47 or under Order 21 CPC, must not issue notice 26 on an application of third party claiming rights in a mechanical manner. Further, the court should refrain from entertaining any such application(s) that has already been considered by the court while adjudicating the suit or which raises any such issue which otherwise could have been raised and determined during adjudication of suit if due diligence was exercised by the applicant."
(Emphasis supplied) The Apex Court clearly holds that the Court exercising jurisdiction under Section 47 or under Order 21 of the CPC must not issue notice on the application of a third party claiming right in a mechanical manner. The Court should refrain from entertaining any such application that has already been considered by the Court while adjudicating the suit. The Apex Court also notices that there is steady rise of proceedings akin to a retrial at the time of execution, causing failure of realization of fruits of decree and relief which the party seeks from the Court despite there being a decree in their favour. The Apex Court records that the decree-holder is deprived of the fruits of litigation and the judgment-debtor, in abuse of process of law, is allowed to benefit from the subject matter which he is otherwise not entitled to. The findings of the Apex Court (supra) would become applicable in all its fours, to the 27 case at hand, as the petitioners are wanting to stall the fruits of the decree, which the Respondent Nos.6 to 11 are entitled to; by one way or the other, contending that it was a fraud, which have all been answered against them by the co-ordinate Bench and the Apex Court has rejected the S.L.P. against those findings. In the light of the unequivocal facts and the judgment of the Apex Court in the case of RAHUL S.SHAH (supra), I deem it appropriate to dismiss the petition with exemplary costs.
17. For all the aforesaid reasons, the writ petition lacking in merit, stands dismissed, with exemplary costs of `2,00,000/- payable to respondents 6 to 11. The petitioner shall pay such costs within eight weeks from the date of receipt of a copy of this order.
Sd/-
JUDGE Bkp CT:MJ