Delhi District Court
Union Of India vs Suresh Chand Gupta on 28 February, 2022
In the Court of Ms. Gurmohina Kaur: Additional District Judge-03
(South District) Saket Court Complex, New Delhi.
RCA No. 76/17
In the matter of :
Union of India
Through Director General
Archaeological Survey of India
Janpath, New Delhi. ......... Appellant
Versus
1. Suresh Chand Gupta
S/o. Late Kishan Lal
R/o. 10, Yusuf Sarai, New Delhi
Through its GPA Holder
Dinesh Kumar Gupta S/o. Late Kishan Lal
R/o. N-18, Green Park Extension, New Delhi.
2. Suresh Kumar Garg
S/o. Om Prakash Garg
R/o. 711, Bhola Nath Nagar
Kotla Mubarakpur, New Delhi-110019
Through its GPA Holder
Rajender Kumar Gupta, S/o. Late Kishan Lal
R/o. N-18, Green Park Extension, New Delhi ........ Respondents
Appeal preferred on : 21.09.2019
Judgment pronounced on : 28.02.2022
RCA no. 76/17 Page no. 1 of 7
UOI Vs. Suresh Chand Gupta and Anr.
JUDGMENT
1. Vide this order, I shall disposed off an appeal under Section 151 CPC filed on behalf of Judgment Debtor against the order/acts of the Bailiff who was appointed by the Court. It is stated in the Appeal that a decree was passed by the Ld. Trial Court on 22.08.2005 in Suit No. 63/2002 titled Suresh Chand Gupta and Anr., Vs. Union of India in favour of Decree Holders and the final order in the Execution Petition No. 5 of 2016 was thereafter passed on 13.02.2017. It is stated that as per the relevant portion of the Decree was "an exparte decree of mandatory injunction has been passed in favour of Plaintiff and against the Defendants who are directed to remove the iron railing/fencing installed by them from Khasra No. 541/519/170/02 Village Kharera, Delhi". It is stated that the Attorneys of the Decree Holder filed Execution Petition No. 5 of 2016 on behalf of Decree Holders on 25.10.2016, before the Ld. Executing Court. Vide order dated 22.12.2016, a Bailiff was appointed by the Ld. Executing Court for execution of the Decree. It is stated that the after appointment of Bailiff, the Bailiff visited the suit property on 19.01.2017 and in the presence of the said Bailiff, Appellant/JD removed the Iron Railing/fencing thereby complying with undertaking recorded in the order dated 25.10.2016 to the satisfaction of the Decree Holder. It is further stated in the plaint that however, from the report of the Bailiff dated 19.01.2017 the Bailiff exceeded his authorities by permitting the Decree Holder to install iron angles/wire fencing which was not part of the Decree order of the Executing Court and was illegal being in violations of Ancient Monuments and Archaeological Sites Remains Act, 1958. It is further stated that the final order in the Execution Petition did not deal with the objections which have been raised by the Appellant/Judgment Debtor and the grievance RCA no. 76/17 Page no. 2 of 7 UOI Vs. Suresh Chand Gupta and Anr.
of the Judgment Debtor that the Ld. Executing Court failed to consider the objections in respect of the limitation in respect of the enforcement of the mandatory injunction. It is further stated that the prescribed period of execution was three years and a decree was passed on 22.08.2005 and the Execution Petition was filed around 10.02.2016 and therefore the execution petition was clearly barred by the limitation. It is further stated that the execution application was filed on behalf attorney of Decree Holders and the authority of the attorney were challenged but the same was not decided by the Ld. Executing Court. It is further stated that the area of suit which forms the basis of the suit property fell within the area where constructed was prohibited under the AMASR Act and no such order would have been passed or implemented which had the effect of violating any provision of law. It is further stated that the Decree Holder failed to disclose before the Ld. Executing Court that the Decree Holder had sold the property, which was subject matter in the year 2011 and therefore, before the filing of the Execution Petition, the Decree Holder has no right, title rights or interest in the property and therefore the execution petition was not maintainable and not executable.
2. The appellant is aggrieved on the ground that the Ld. Executing Court did not take any objections raised by Appellant/Judgment Debtor into account and the entire executing proceedings therefore stood vitiated. It is the grievance of the Appellant that under Section 20(a) of the AMASR Act, no construction or erection of structure was permitted within 100 meter of monument protected under AMASR Act and that the decree dated 28.02.2005 only gave relief to the Decree Holders to the extent of removal of existing RCA no. 76/17 Page no. 3 of 7 UOI Vs. Suresh Chand Gupta and Anr.
boundary wall and no order was passed permitting the Decree Holders to erect his own boundary fencing. It is prayed that the appeal be allowed and the Decree Holder be directed to remove the fence erected by Decree Holder on 19.01.2017 in Khasra No. 541/519/170/02 Village Kharera, Delhi being beyond the terms of decree and contrary to law and further declare that the execution petition filed on behalf of Decree Holder in 2016 being not maintainable as the Decree Holder had no title, rights or interest.
3. Despite giving opportunities to the Respondent no reply was filed on behalf of the Respondents and arguments were heard on behalf of both the parties.
4. During arguments, it was argued on behalf of Appellant that the Bailiff was appointed by Ld. Executing court only for removing the wall of fence, however, as per the report of the Bailiff, the Bailiff had given the entire possession of the suit property to the Decree Holder, which was beyond the Decree passed by the Ld. Trial Court. It is also argued that the fencing of the suit property by the Decree Holder was in a violation of Section 20 (a) of AMASR Act.
5. Per contra, the appeal has been orally opposed on behalf of the Respondent, that the Bailiff did not demarcate the suit property and the suit property was already demarcated. It was further stated that the execution was carried out by the Bailiff only as per the Decree pursuant to the directions of the Ld. Executing Court. It was further submitted that there was no dispute regarding the area of the suit property and the possession of the defendant and RCA no. 76/17 Page no. 4 of 7 UOI Vs. Suresh Chand Gupta and Anr.
the Ld. Counsel for Respondents further challenged the maintainability of the present appeal during arguments.
6. Arguments heard. Trial Court record perused. Considered.
7. At the outset, it is pertinent to mention that it is a trite position of law that an executing court cannot go beyond the terms of a decree passed by the court of competent jurisdiction. Reliance in this regard is placed on the judgment of Hon'ble Apex Court in Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman and Ors, 1970 (1) SCC 670, wherein it has been held in para no. 6 that "a court executing a decree cannot go beyond the decree; between the parties or their representatives it must take the decree according to its, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceedings in appeal or revision, a decree even if it be erroneous is still binding between the parties".
8. Furthermore, it is relevant to reiterate the provisions of Order 43 Rule 1 CPC, which are as under :-
"An appeal shall lie from the following orders under the provisions of Section 104, namely, (a) an order under ruel 10 of Order VII returning a plaint to be presented to the proper Court [except where the procedure specified in rule 10 A of Order VII has been followed];
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(c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex-parte.
RCA no. 76/17 Page no. 5 of 7
UOI Vs. Suresh Chand Gupta and Anr.
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(f) an order under rule 21 of Order XI;
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(i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;
(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale; (ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that Order is appealable.
(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;
(l) an order under rule 10 of Order XXII giving or refusing to give leave;
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(n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
(na) an order under rule 5 or rule 7 of order XXXIII rejecting an application for permission to sue as an indigent persons:
(p) orders in interpleader-suits under rule, rule 4 or rule 6 or Order XXXV;
(q) an order under rule 2, rule 3 or rule 6 of Order XXXVIII;
(r) an order under rule 1, rule 2 [rule 2A], rule 4 or rule 10 of Order XXXIX;
(s) an order under rule 1 or rule 4 of Order XL;
(t) an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal; (u) an order rule 23 [or rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;
(w) an order under rule 4 of Order XLVII granting an application for review.
9. Furthermore, it is also worthwhile to mention Order 43 Rule (1) CPC specifies the order against which an appeal lies. Sub Clause (I), (j) and (ja) of Rule (1) of order 43 CPC provides for the provision of appeal against the orders in different rules of Order 21 CPC. Accordingly, sub clause (i) an order passed under Rule 34 of Order 21 CPC, as per Sub RCA no. 76/17 Page no. 6 of 7 UOI Vs. Suresh Chand Gupta and Anr.
Clause (j) an order passed under Rule 72 or Rule 92 of Order 21 CPC and as per Sub Clause (ja) an order passed under Sub Rule (1) of Rule 106 of Order 21 CPC an appeal would lie under Order 43 Rule (1) CPC. Besides these three sub clause no appeal would lie in a case of an order passed under any other Rule of Order 21 CPC.
10. In the present case, perusal of the record of the Ld. Executing Court reflects that the impugned order passed by the Trial Court/Executing Court not covered either under clause (i) or (j) (ja). Appeal is a statutory right, one can avail it only when statue provides it. In view of this legal position the appeal as filed is not maintainable.
In view of the aforesaid observations, the appeal is dismissed. File after due compliance be consigned to the Record Room. Trial Court Record be sent back to Trial Court along with copy of the judgment.
Pronounced through Video Conferencing on 28.02.2022 (Gurmohina Kaur) Additional District Judge-03, South/Saket/New Delhi RCA no. 76/17 Page no. 7 of 7 UOI Vs. Suresh Chand Gupta and Anr.