Noor Mohammad v. Ganga Prasad — 1976 DIGILAW 326 (ALL)

JUDGMENT S.S. Ahmed, Member. - This is a plaintiff's second appeal arising out of the order of Additional Commissioner, Lucknow Division, dated July 1, 1970 filed by Noor Mahammad against the order dated November 7, 1970 passed by an Assistant Collector 1st Clause, Unnao, in proceeding for execution of decree in a case under section 209 of the U.P.Z.A. and L.R. Act. 2. The facts of the case are, briefly, that Noor Mohammad, appellant filed a suit for ejectment under section 209 of U.P. Act no. 1 of 1951 which was decreed by the trial court on May, 23 1966. Ganga Prasad and others that went up in appeal which was dismissed by the Additional commissioner, Lucknow, on November 10, 1969. Noor Mohammad applied for execution of decree after more than two years on March 1, 1969. In September 1969, he also moved and application for delivery of possession. The lower court ordered delivery of possession which was done on October 27, 1969 and the Kurk Amin submitted his report on November 3, 1969. On November 25, 1969, the judgment-debtor Ganga Prasad applied for cancelling the delivery of possession. The trail court, by is order dated January 7, 1970, allowed that application and dismissed the application for execution of the decree. He also ordered that possession be restored to the judgment-debtor. Aggrieved by this order, Noor Mohammad filed an appeal before the Additional Commissioner who dismissed it on July 1, 1970. It is against this order of the Additional Commissioner that Noor Mohammad has come up in second appeal before the Board. 3. After hearing learned counsel for the parties and perusing the records of the case, I fined that this appeal poses two short and neat question of law. The First is whether section 5 of the limitation Act applies to proceedings under the U.P.Z.A. and L.R. Act and the second is whether the principles of constructive res judicata comes into play after a decree has duly executed. 4. The learned counsel for the appellant has pointed out that the Additional Commissioner has taken an erroneous view of law in holding that the application for execution of decree was beyond time and delay could not be condoned because section 5 of the Indian Limitation Act did not apply to order XXI Code of Civil Procedure. 4. The learned counsel for the appellant has pointed out that the Additional Commissioner has taken an erroneous view of law in holding that the application for execution of decree was beyond time and delay could not be condoned because section 5 of the Indian Limitation Act did not apply to order XXI Code of Civil Procedure. Relying on the case of Deshraj v Deputy Director Consolidation 1970 R.D Page, 362, he has argued that it is not doubt true that section 5 of the Indian Limitation Act does not apply to proceedings under Order XXI C.P.C. yet court of section 341 of the U.P.Z.A and L.R. act this section has become fully applicable to proceedings under the U.P.Z.A. and L.R. Act. In the aforementioned case their Lordships of the Allahabad High Court have clearly held that if there is any conflict between the provision of section 341 of the U.P.Z.A. and L.R. Act with any provision of Indian Limitation Act, the provision of section 341 must prevail. Learned counsel for the respondent mentioned that this ruling was not fully applicable to the instant case because here it was not question of conflict between section 341 of the U.P.Z.A. and L.R. Act with the real issue was whether order XXI C.P.C. was applicable to proceedings under the U.P.Z. A. and L.R. Act or not. However, he could not show or cite any case law on the point. 5. It is appears that both the Additional Commission as well as the learned counsel for the respondent have not gone through the judgment of their Lordships in Deshraj's case in detail. After reproducing section 341 of the U.P.Z.A. and L.R. Act, there Lordships have observed as follows:- "a perusal of section 341 of the Act shows that:- (a) the whole of the Limitation act 1908, has been applied, and (b) in order to emphasise that provisions other than those enumerated in section 29(2)(b) were also applicable, the words 'inducing sections 5 thereof, were inserted in it by section 282 of the U.P. Act 37 of 1957. (c) In case the intention of the Legislature was not to apply section 5 to 8 and 19 to 21 of the Limitation Act, it was not all necessary to provide in section 341 of the Act that the Limitation Act would apply to the proceedings under section. (c) In case the intention of the Legislature was not to apply section 5 to 8 and 19 to 21 of the Limitation Act, it was not all necessary to provide in section 341 of the Act that the Limitation Act would apply to the proceedings under section. Even without such a provision is the Act, certain provisions of the Limitation Act, such as sections 4, 9 to 18 and 22 would have applied to such proceedings as they were under a special or local law (vide section 29(2) of the Limitation Act). It must be in order to emphasise that the whole of the Limitation Act would apply to proceedings under the act that a mention of the Limitation act was made also in section 341 of the Act" 6. It is thus abundantly clear that the Additional Commissioner was ignorant of the amendment of section 341 of the U.P.Z.A. and L.R. Act by which the words 'including section 5 thereof shall apply to the proceedings under this Act was inserted by section 282 of the U.P. Act XXXVII of 1957. On this point, therefore, it will have to be held that section 5 of the Indian Limitation Act is fully applicable to the proceedings under the U.P.Z.A. and L.R. Act and that it was fully within the competence of the trial court to have condoned the delay in the presentation of the application for execution of the decree made under section 209 of the U.P.Z.A. and L.R. Act No.1 of 1951. It is true that limitation for execution of decrees under this section is 1 year only but in the instant case, once section 5 of the Indian Limitation Act is held to be applicable it was fully within the jurisdiction and discretion of the trial court to have condoned the delay in the presentation of the appeal for execution of a decree of ejectment. 7. As regard the second point, the learned Additional Commissioner held that 'if possession had wrongly been delivered, restitution could be made'. According to the learned counsel for the appellant, this is an incorrect view of law. Once the decree has been executed and actual eviction has taken place, the application for restoring possession is infructuous and the principle of constructive res-judicata come into play. According to the learned counsel for the appellant, this is an incorrect view of law. Once the decree has been executed and actual eviction has taken place, the application for restoring possession is infructuous and the principle of constructive res-judicata come into play. While the learned Additional commissioner has referred to the case of Mahijibhai Mohanbhai Barot v. Patel Manibhai Gokalbhai 1965 A.L.J. (S.C.) p. 525, the learned counsel for the appellant has relied on the cases of Mohan Lal Goenka v. Benay Krishana Mukherjee A.I.R. 1953 S.C. p.65 and Sheo Bux Mohata v. Bengal Breweries Ltd. A.I.R. 1961 S.C. p. 137, and has pointed out that the Supreme Court 1965 A.L.J. 525 case is clearly distinguishable from the facts of the Instant appeal. In the case of Barot v. Gokalbhai 1965 A.L.J. (S.C.) p. 525, their Lordships of the Supreme Court have held that an application for restitution is an application for execution of a decree and is governed by Art. 182 of the Limitation Act. Here, again, it appeal that the learned Additional Commissioner has not gone through the judgment of their Lordships in detail. The position envisaged in this case is completely different form the fact of the instant case. Actually, this ruling pertain to section 114 of the C.P.C. and the applicability of Articles 182 of the Limitation Act. In the instant case, there is neither a question of the section 144 C.P.C. nor of Article 182 of the Limitation Act. For more material for the purposes of the instant appeal are the two cases of Supreme Court Mohanlal v. Vinay Krishna (supra), and Sheo Bux v. Bengal Breweries Ltd (supra), which have been relied upon by the learned counsel for the appellant. For more material for the purposes of the instant appeal are the two cases of Supreme Court Mohanlal v. Vinay Krishna (supra), and Sheo Bux v. Bengal Breweries Ltd (supra), which have been relied upon by the learned counsel for the appellant. In the former case their Lordships of the Supreme Court observed as follows:- "Thus neither at the time when the execution application was made and a notice served upon the judgment-debtor not in the application for setting aside the two sales made by him does the judgment-debtor raise any objection to execution being proceeded with on the ground that the execution Court had no jurisdiction to execute the decree, the failure to raise such an objection which goes to the root of the matter preclude him from raising the plea of jurisdiction of the principle of constructive res judicata after the properly has been sold to the auction purchaser has been sold to the auction purchaser who had entered into possession". In the other case, their Lordships of the Supreme Court have clearly held that when a decree has been executed by delivery of possession to the decree-holder, the decree will be deemed to have been fully satisfied and it cannot again be executed. In other words, the kurk Amin's report regarding delivery of possession is conclusive proof of the satisfaction of the decree and it is no longer open to the court to reverse the position because the principle of res-judicata has come into play. The kurk Amin's report is dated November 3, 1969 which means that the Judgment-debtor allowed himself to be evicted from the land and permitted the kurk Amin to effect delivery of possession on the 3rd of November, 1969. It was 22 days later i.e. on November 25, 1969 that the Judgment-debtor applied for the cancellation of delivery of possession. In view of the case law, referred to above, such an application is clearly barred by the principles underlying the theory of res-judicata. 8. Learned counsel had nothing to add to the observations made by the learned Additional Commissioner and only mentioned that the court had wide powers to correct its mistake. In view of the case law, referred to above, such an application is clearly barred by the principles underlying the theory of res-judicata. 8. Learned counsel had nothing to add to the observations made by the learned Additional Commissioner and only mentioned that the court had wide powers to correct its mistake. This is not at all the correct view and it seems that both the learned counsel as well as the learned Additional Commissioner have overlooked the observations of the Supreme Court that even an erroneous decision operates as res judicata between the parties to it. Thus, inherent powers of the court cannot be invoked to rectify in incorrect order once that order has been executed and the principle of res judicata has come into play. In fact the application of the Judgment debtor dated November 25, 1969 was infructuous and the trial court had become functus officio' which could not have passed any order reversion the decree which had already been carried out. 9. In the result, the appeal succeeds and is hereby allowed. The orders of both the courts below are set aside and the decree of eviction will be deemed to have been fully satisfied on 3rd of November 1969 when delivery of possession took place through the kurk Amin. 10. In the circumstances of the case, no orders are passed as to costs.