Patna High Court
Devi Kant Mishra And Ors. vs Shri Kant Pathak And Ors. on 21 December, 1971
Equivalent citations: AIR1972PAT429, AIR 1972 PATNA 429
JUDGMENT S. Sarwar Ali, J.
1. This miscellaneous appeal is directed against the order of the 1st Subordinate Judge, Arrah, allowing miscellaneous case No. 105 of 1968. By this order the learned Subordinate Judge held that the execution case, being execution case No. 170 of 1965, was barred by time.
2. The relevant facts may be stated. Title suit No. 25 of 1944 was filed for partition of the suit properties by the appellants who were plaintiffs in the suit. On 15th January, 1946 a compromise decree was passed. This compromise decree not only defined the shares of the parties but on the basis of the compromise petition made allotment of specific properties to the different parties. No further step appears to have been taken for a long time. On 27th July, 1965 defendant No. 6 filed an application for preparation of the final decree. Non-judicial stamp was filed on 14th August, 1965. On 28th August, 1965 the final decree was signed. The final decree gives the date of decree as 15th January, 1946. Execution case No. 1.70 of 1965 was filed on 14th December, 1965 by the plaintiffs. Notice under Order XXI, Rule 22 of the Code of Civil Procedure was served. Shrikant Pathak appeared and filed a petition praying for stay of the execution case till the disposal of miscellaneous case No. 71 of 1965. This miscellaneous case was filed by Shrikant Pathak and others under Order IX, Rule 13 of the Code of Civil Procedure for setting aside what was termed as ex parte decree. The application for stay was rejected on 15th September, 1966. On the rejection of this application, an application was filed praying for time in order to bring stay order from the High Court. On the same date the decree-holders filed an application praying for an order for issue of delivery of possession. The learned Subordinate Judge directed that an affidavit should be filed by the judgment-debtor stating that he is moving the High Court for stay. Subsequently he granted time in order to enable the judgment-debtor to obtain order of stay from the High Court. On 12th October, 1966 an order of interim stay passed by the High Court in First Appeal No. 407 of 1965 was received. This order stayed the execution case, except in respect of cost. The learned Subordinate Judge, therefore, ordered the execution proceeding to be stayed. The matter remained pending for a long time. The final order of the High Court dated 22nd August, 1968 passed in the aforesaid First appeal was received by the learned Subordinate Judge on 26th August, 1968 which was not the date fixed in the execution case. On that date, i.e., 26th August, 1968 the following order was passed:
"Copy of order No. 33 dated 22nd August, 1968 passed in F.A. No. 407/65 received today from the Hon'ble High Court, Patna, under Memo No. 7432 dated 23rd August, 1968 vacating the stay order of the execution case put up. The order staying the entire execution case is vacated subject to this condition that no delivery of possession of the house mentioned in the order will be given. The execution, case will proceed with regard to agricultural lands and cost. Decree-holder to take further steps by the date fixed. Inform."
On the next date which was the date fixed in the execution case, the Court below directed the decree-holders to comply with the order quoted above by 19th September, 1968 which was extended later to 14th November, 1968. On 14th November, 1968 the decree-holders filed the process fee only. The Court, therefore, directed them to file other requisites on 26th November, 1968 and adjourned the case for that date for further orders. On 16th November, 1968 an objection under Section 47 of the Code of Civil Procedure was filed by Devikant Mishra and others objecting to the executability of the decree on the ground of limitation giving rise to Misc. Case 105 of 1968. After hearing the parties, the Court below, as already mentioned, has allowed this miscellaneous case. The plaintiffs have, therefore, filed this miscellaneous appeal in this Court.
3. Two contentions have been raised on behalf of the appellants by Mr. Thakur Prasad. Firstly, he contended that the execution petition was not barred by limitation and, secondly, he urged that the objection to the executability of the decree was barred by the principles of constructive res judicata. This, he says, is because of the order dated 26th August, 1968 which, according to the learned counsel, amounts to an implied adjudication that the decree was executable.
4. The first contention, as noted above, cannot be accepted. A decision of the Calcutta High Court in the case of Kishori Mohan Pal v. Provash Chandra, AIR 1924 Gal 351 is directly on this point. In that case a decree in a partition suit was passed in the year 1914 but as there was delay in the filing of stamp duty, the decree was drawn up in 1920. An application for execution of the decree was filed the same year. It was held that the decree was of the year 1914 when the judgment was pronounced, and the fact that the decree was actually drawn up later would not affect the date of the decree. Such is the position in this case as well. Here also, on 25th January, 1946 the judgment was delivered allotting specific portions of the suit properties to different parties. The date of decree will, therefore, be 25th January, 1946 and not 28th August, 1965 when the decree was actually drawn up. If that is so, the conclusion of the Court below that the decree was barred by limitation cannot be said to be erroneous. The Calcutta case referred to above has been approved by this Court in the case of Hakim Mohd. Idris v. Mohd. Kabir, AIR 1950 Pat 524 as also in the case of Mohd. Sadique Mian v. Mahabir Sao, AIR 1942 Pat 410.
5. Learned counsel for the appellants relied on a Bench decision of this Court in Raghubir Sahu v. Ajodhya Sahu, AIR 1945 Pat 482. This decision, in my view, does not help the appellants. In that case a decree was passed on compromise. By that compromise, properties were allotted to the share of each party and those properties were specified and schedule of properties allotted to each were appended to the compromise petition. In those circumstances it was held that the decree that was passed was not really a preliminary decree but a final decree. It was further held that there was no time limit prescribed for the engrossment of the partition decree on stamp of requisite value. Mere delay, therefore, in engrossment of the decree on stamped paper did not effect the right of' the parties in respect of the properties though changes might have taken place in regard to the properties since the decree had been made. If at all, this case helps the respondents. I have already indicated that the compromise in the present case was not in respect of the Specification of share to which the parties to the partition suit were entitled but by the compromise arrived therein, specific properties were allotted to the various parties. This being the position, the date of the decree in this case has been rightly taken to be 25th January, 1946.
6. I will now deal with the contention relating to the applicability of the principles of constructive res judicata to the present execution proceeding. In this connection, I may refer to two cases relied upon by both the parties, and they are (i) Mungul Pershad Dichit v. Grija Kant Lahiri Chowdhry, (1881) 8 Ind App 123 (PC) and (ii) Baijnath Prasad Sah v. Ramphal Salmi, AIR 1962 Pat 72 (FB). In Mungul Prasad Dichit's case the executing Court had made an order that attachment should issue. This was held by the Judicial Committee to amount to an implied adjudication that the decree under execution was executable. In Baijnath Prasad Sah's case, the holding of sale and confirmation thereof was held to amount to an implied adjudication that there was no impediment to the executability of the decree. The principle, therefore, is not in dispute. What has to be seen and examined in this case is whether there has been any order passed, which would amount to holding that there was either express or implied adjudication regarding executability or the decree. The facts of the present case have, therefore, to be re-examined in the light of the principle just enunciated, I have already mentioned the relevant facts in the preceding paragraphs of this judgment. When respondent No. 1 appeared in the execution case on 21st April, 1966 he filed an application for stay of the execution case till the disposal of Miscellaneous Case No. 71 of 1965. This application was rejected on 15th September, 1966, On that very day there was a prayer for issue of delivery of possession. Respondent No. 1 filed an application praying for time in order to enable him to bring stay order from the High Court This prayer was allowed. Subsequently, the order of the High Court in F.A. No. 407 of 1965 was received on 12th October, 1966 intimating that further proceedings in the execution case should be stayed, except in respect of the decree for cost. In compliance of this order of the High Court the executing Court ordered the execution proceeding to be stayed. After numerous adjournments the order of the High Court was received on 26th August, 1968. This order modified the previous order of the High Court which I have already mentioned. The concluding portion of the order of the High Court may be quoted:
"In these circumstances there is no reasonable cause for staying the entire execution case and we, therefore, vacate the order passed by the Registrar except that the house mentioned in the order will not be taken possession of by respondents 1 to 3. The execution for the agricultural land should proceed."
The order passed by the executing Court on receipt of the aforesaid order of the High Court has to be read and understood in the light of the order already quoted. The High Court modified the previous order by staying the execution of the decree only in respect of the house and permitted the execution in respect of agricultural land. It may also be stated that execution in respect of the decree for cost had not been stayed earlier. The order passed by the learned Subordinate Judge on 26th August, 1968 on receipt of the order of the High Court, therefore, appears to be in compliance or furtherance of the order of the High Court in the stay matter. This conclusion is fortified by the fact that 26th August, 1968 on which date the order mentioned above was passed by the executing Court, was not the date fixed earlier in the execution case, rather it was 9th September, 1968 which was the date fixed in the case and that is why the Court directed that information of the order being passed on 26th August, 1968 should be given to the parties. The argument of learned counsel for the appellants would have been correct provided the order dated 26th August, 1968 could be interpreted to be an order on application of the mind by the Court on the question of executability of the decree either directly or by necessary implication. Taking the totality of circumstances into consideration, it appears that this order was passed only in compliance and furtherance of the order of the High Court and in modification of the earlier order regarding stay. This order was not even an implied adjudication by the executing Court on the question or executability of the decree. I am, therefore, not able to accept even the second contention raised on behalf of the appellants.
7. In the result, this miscellaneous appeal is dismissed but without costs.