Pukhraj v. Ramwati Bai — 1989 DIGILAW 804 (RAJ)

D.L. MEHTA, J.—In both these revision petitions common question of law and facts arise, as such, both are being disposed of by a common judgment. 2. Shri Nathmal instituted a suit in the court of Munsiff, Ajmer City and prayed that the defendant, Onkar Lal and his son Ghasi Lal should be ejected from the shop. Ejectment decree was passed on 18.9.61. 3. Appeal was preferred against the ejectment decree which was also dismissed on 13.1.67. Second appeal was preferred before this court. Plaintiff Nathmal applied for the execution of the decree. According to the present petitioners Shri Pukhraj and others, the possession of the first floor was taken in execution of the decree on 21.7.63. However, this fact is denied by the opposite party. On 22nd March 1964 defendants handed over the possession of the ground floor in satisfaction of the decree. During the pendency of the second appeal Rajasthan Premises (Control of Rent and Eviction) Act, 1950 was amended in the year 1965. In the light of the amended provisions of the said Act, the defendant-appellant was allowed to deposit the arrears of rent and the decree passed by the trial court was set aside. It will not be out of place here to mention that it is alleged that a plea was raised before the trial court that compromise was entered into between the parties on 22-3-64. However, this plea was not accepted by the Court below. Being aggrieved with the order dated 16.5.66, holding that there was no compromise appeal was preferred which was also dismissed on 23rd December 1966. During the pendency of the suit the rent was determined on 10.12.65 and the same was deposited by the defendant in the court as such, the plaintiffs suit was dismissed on 13.8.66. Directions were given in the decree of the trial court while dismissing the suit that the shop, the possession of the premises which has been taken over by the plaintiff-decree-holder should be restored to the defendant under sec. 144 C.P.C. Appeal was preferred against the decree dated, 13.8.66 which was also dismissed. Second appeal was preferred before this court and the same was also dismissed on 18 9.72. Application was moved by Onkar Lal and Gyarsi Lal for the execution of the decree dated 13-8-66 for possession. Objections were filed by the plaintiff and the same were decided on 3.4.76. Second appeal was preferred before this court and the same was also dismissed on 18 9.72. Application was moved by Onkar Lal and Gyarsi Lal for the execution of the decree dated 13-8-66 for possession. Objections were filed by the plaintiff and the same were decided on 3.4.76. The order dated 3.4.76 is very important order in which learned Munsiff hed that possession of the first floor was not envisaged by the decree and the decree only provided for the possession of the suit shop; and that even though the possession of the first floor was handed over it was not in consequence of the decree but independent of the decree. Learned Munsiff also held as under :- "In the result, the objections of the plaintiff judgment debtor are upheld as above. Therefore, the defendant decree holder is directed to take step for necessary amendments in the execution petition otherwise, his application for execution of the decree is unable to be rejected." 4. During the course of passing of restitution order decree for possession Laxmi Narain was inducted as a tenant. He raised objections and also obstructed the execution of the said decree. Objections were rejected on 4.7.78 Laxmi Narain contested upto this Court. However, he could not succeed. In the execution of the decree for restitution of the possession, the possession of the ground floor was restored on 28.1.83. Second application was moved on 17th March 1983 and it was prayed therein that the possession of the first floor should also be restored as it was taken in execution of the decree which has been set aside. Trial Court considered the submissions made by both the parties and held that the points stand decided vide order dated 3.12.76 and no further order can be passed and the order dated 3.4.76 will stand and the principles of resjudication will apply. Being aggrieved with the finding dated 2.6.83, this revision petition has been preferred by Pukhraj and others against Ramwati and others. 5. Mr. Kishan Gopal has preferred revision petition against Pukhraj and others being aggrieved with the order of the trial court dated, 24.1.83. Application was moved by the plaintiff that after the death of the original tenant the tenancy comes to an end. 5. Mr. Kishan Gopal has preferred revision petition against Pukhraj and others being aggrieved with the order of the trial court dated, 24.1.83. Application was moved by the plaintiff that after the death of the original tenant the tenancy comes to an end. It was submitted that the sons of the deceased tenant were minor at the relevant time and were not doing the business of Halwai with their father. A query was made during the course of argument whether the sons are doing the business of Halwai today ? It was answered by the counsel for the plaintiff that they are doing the business of Halwai but not in this very shop, but they are selling the sweets and other products on the Thelas. Plaintiff instituted a suit against the defendant and, in the plaint it was mentioned that the defendants be ejected from the shop, Teen khandi which has been let out to them. Thus, the specification of the shop given in the plaint is that the shop is Teen Khandi. I have also gone through the decree passed in the original civil suit No. 386/60 in the year 1963 and in that decree also the same specification has been given as mentioned in the plaint, that the shop is Teen Khandi. There is no reference in the plaint or in the decree which was passed in the year 1963 about the first floor. After the filing of the application for the restitution of the possession under section 144, objection was raised by the plaintiff that the petition has been moved by only one person and it is not maintainable. During the pendency of the objections other decree-holders appointed Mr. R.N. Agrawal as their Advocate and he submitted his power on 24.8.84. Application under section 151 C.P.C. was also moved by the legal representatives of the deceased, Shri Gyarsi Lal that they accord consent to the execution petition which has been filed by Onkar Lal, one of the decree holder. It was also submitted that the action taken by Shri Onkar Lal in the the above execution petition will be binding upon them and Shri Onkar Lal can give full discharge to the decree and they will raise no objection against the same. It was also submitted that the action taken by Shri Onkar Lal in the the above execution petition will be binding upon them and Shri Onkar Lal can give full discharge to the decree and they will raise no objection against the same. Thus, it was submitted by implication that Onkar Lal has submitted the execution petition on behalf of all the decree holders and for the benefit of the decree-holders. 6. Mr. B.P. Agrawal appearing on behalf of the petitioners Pukhraj and others, submitted that photo copy of the proceedings relating to the year 1963 was applied. He has produced the copy of the application for the execution which was filed before the trial court. Execution petition was registered as Execution Petition No. 102/63. In the said application, the plaintiff-decree holders submitted that- ^^;g fd dCtk ckeqftc fMØh fMØhnkj dks en;quku ls fnyk;k tk; He submits that in pursuance of the said application the warrant was issued and the possession of the first floor was delivered to the plaintiff-decree-holders. He submits that because of the weeding of the records, the proceedings of the execution and the report of the Nazir who went on the spot is not available. He submits that on 17-5-83 Pukhraj and others submitted an application and they have mentioned therein about the delivery of the possession of the first floor. Mr. Agrawal has also submitted that in the memo of appeal filed by the present non-petitioners who are the legal representatives of Nathmal, it has been mentioned that on 21-7-63 appellant went with the warrant for the possession. It was also stated therein that the respondent-dependant vacated the portion of the property on the first floor and requested to vacate the shop. 7. Mr. Mehta appearing on behalf of the plaintiff submitted that the first floor was not vacated by them in execution of the decree, but, it was an independent act under a different agreement as the first floor was not let out to them and it has nothing to do with the decree. Mr. Agrawal submits that on 21-5-86 his client filed an application in the Court and submitted that on 21-7-63 the possession of the part of the property consisting of the first floor was handed over to the plaintiff. However, the demand made by the petitioner cannot be used in his favour. Mr. Mr. Agrawal submits that on 21-5-86 his client filed an application in the Court and submitted that on 21-7-63 the possession of the part of the property consisting of the first floor was handed over to the plaintiff. However, the demand made by the petitioner cannot be used in his favour. Mr. Agrawal also invited my attention to the copy of the judgment dated 16-2-67 passed by the Senior Civil Judge, Ajmer. He submits that in the said judgment there is a reference that the defendant was evicted from the first floor. On the other hand, Mr. Mehta appearing on behalf of the plaintiff submits that on 30th July 1966 an application was mpve4 by the defendant and in the said application it was stated by the defendant petitioners that they were evicted and the plaintiff has taken the possession in execution of the decree on 22-3-64. A prayer was also made in the said application that the possession of the property referred above may be delivered. Mr. Mehta submits that in the year 1966 when the first application under section 144 was moved prayer was made only in relation to the ground floor knowing it that they have been ejected only from the ground floor and not from the first floor. No case was made out even in the year 1966 when the first application was moved for possession of the first floor. Mr. Mehta submits that by implication the petitioner-defendant admits that they were not ejected in pursuance of this decree from the first floor. 8. I have heard rival contentions of both the parties and it is necessary for me to determine (i) whether the impugned order passed under section 144 can be treated as a decree under section 2(2), (ii) whether the order dated 3rd April 1976 will deprive the defendant-petitioner from agitating his point again and it will fall within the purview of the principles of resjudicata. Section 2(2) C.P.C. reads as under :— "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final." It shall be deemed to include the rejection of a plaint and the determination of any question within (" " ") Section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. 9. Prior to the amendment of 1976, in the definition clause of the decree it was specifically provided that the decree shall be deemed to include the rejection of the plaint and determination of any question within the secs. 47 and 144 C.P.C. However, vide Amendment Act of 1976, the determination of any question within sec. 47 was deleted and now only the determination of any question under sec. 144 falls within the purview of the decree. It is necessary for me to consider and interpret the words "any question" as used in sec. 2(2) of the definition clause of the decree. 10. Mr. B.P. Agarwal appearing on behalf of the defendant Pukhraj submits that "any question" within sec. 1 44, should ordinarily be interpreted in the context of the main definition given in the earlier part of the section. He submits that "any question" means the determination of the rights of the parties conclusively. He submits that the inter-locutory orders passed while dealing with the matter relating to sec. 144 should not be considered as a decree and narrow interpretation should be given to the word "any question" under sec. 144 C.P.C. as used in Sec. 2(2) of the definition clause of the decree. He has relied upon the judgment in the case of Karuppaya vs. Ponnuswami (1). Their Lord-ships held that when there is no final order no appeal lies. The words any question under Section 144, C.P.C. has not been discussed at all; Mr. Agrawal has also cited before me the case of Barkat Ram vs. Bhagwan Singh (2). Their Lordships held that determination of incidental question is not a decree. 11. Mr. Their Lord-ships held that when there is no final order no appeal lies. The words any question under Section 144, C.P.C. has not been discussed at all; Mr. Agrawal has also cited before me the case of Barkat Ram vs. Bhagwan Singh (2). Their Lordships held that determination of incidental question is not a decree. 11. Mr. Mehta appearing on behalf of the opposite party-plaintiff invited my attention to AIR Commentaries of the Code of Civil Procedure by Chitley and submitted that the wider interpretation should be given to the word any question under section 144. The word any some-times means one or more out of several and includes all. I am of the view that the word "any" should be interpreted taking note of the reference of the context in which the word any has been used in the law. It is not necessary that the word any must be interpreted as meaning all in each and every case irrespective of the context in which the same has been used. 12. The second word which needs consideration is question as used in Section 2(2) C.P.C. Question in the reference and context of Section 2(2) should ordinarily be interpreted as any point in dispute under the provisions of Section-144 C.P.C. Decree is the final determination of the rights and liabilities of the parties; some-times, even before the final determination of the rights of the parties some points are determined and on the basis of the points determined final determination is made. Preliminary decree is passed though it is not a final determination of the rights and Labilities of the parties and on the basis of the points/issues decided in preliminary decree final decree is passed and final rights and liabilities of the parties are specifically determined. So, it cannot be said that always there should be the final decision of all the points in dispute. Final determination of a point in dispute under section 144 may fall within the purview of decree if it determines the rights and liabilities of the party finally may be to a limited extent. In the instant case, on 3rd April 1976, one of the question for the determination was whether the possession of the first floor was taken in pursuance of the execution of the decree which was passed in favour of the plaintiff in the year 1963. In the instant case, on 3rd April 1976, one of the question for the determination was whether the possession of the first floor was taken in pursuance of the execution of the decree which was passed in favour of the plaintiff in the year 1963. Court below held on 3.4.76 that the possession of the first floor was obtained by the plaintiff out of the Court and not in execution of the decree, as such, lower court has specifically mentioned in the said order that the possession of the first floor was not envisaged by the decree as the decree only provided for the suit shop. Court has further observed that even if the possession of the first floor was handed over it was not in consequence or cover of the decree but independent of the decree. Thus, it finally determines whether the possession of the first floor was obtained in pursuance of the decree or under the cover of the decree or not. The restitution of the property can only be made under section 144 C.P.C. if the property has been obtained in pursuance of the execution of the decree. Thus, the determination of this point that the property was not obtained by the plaintiff in execution of the decree or in pursuance of or in cover of the decree passed in the year 1961 is a final determination of that point which needs a determination for the purpose of restitution and cannot be said to be an inter-locutory order or an incidental order. 13. In the result, I am of the view that the order dated, 3.4.76 falls, within the purview of decree as defined under section 2(2) C.P.C. 14. Mr. Agarwal submits that the execution petition was only filed by one of the decree holders and the Court while dealing with the second objection directed the defendant to take steps for the necessary amendment in the execution petition, and, in pursuance of the said direction he has amended the execution petition. Firstly by impleading other decree holders as a party in the execution petition, secondly, by deleting the word possession of the first floor. 15. Mr. Agarwal submits that the decree-holders Who were not party prior to the order dated, 3.4.76 in the execution proceedings cannot be deprived of their right of challenging the order dated 3.4,76. Firstly by impleading other decree holders as a party in the execution petition, secondly, by deleting the word possession of the first floor. 15. Mr. Agarwal submits that the decree-holders Who were not party prior to the order dated, 3.4.76 in the execution proceedings cannot be deprived of their right of challenging the order dated 3.4,76. He submits that the order dated 3.4.76 cannot be used under the doctrine of constructive res judicata against those who were not party. He further submits that in the circumstances of the case of doctrine of res judicata or constructive res judicata or even the doctrine of estoppel does not apply. On the other hand, Mr. Mehta appearing on behalf of the plaintiff submits that Mr. R.N. Agarwal filed power on behalf of the decree-holders before passing of the order dated 3rd April 1976. He submits that application was moved on 8.2.75 by all the legal representatives of Gyarsi Lal that they accord consent to the execution petitions filed by Shri Onkar Lal and will not object if the possession of premises be delivered to him. They also submitted that the execution petition filed by Onkar Lal will be binding on them. It was also submitted that act treated done by Onkar Lal should be treated as done on behalf of all for the benefit of all the decree-holders. 16. Any decree holder has a right to move the execution petition. The only question which needs consideration of the court is that the petition should be moved for the benefit of all the decree-holders and not for the individual benefit. In the instant case, Onkar Lal filed the execution petition before the passing of the order dated 3.4.76. Other decree-holders filed the power of Mr. R. N. Agrawal Advocate and submitted the application that the execution petition filed by Onkar Lal should be treated as an application on behalf of all and for the benefit of all. Thus, it was not necessary to direct that the other decree holders should be impleaded as party after the filing the power of R. N. Agrawal and moving of an application that the execution petition filed by Onkar Lai should be treated as an application on behalf of all and for the benefit of all. It should be deemed that they were parties in the execution petition itself. It should be deemed that they were parties in the execution petition itself. They have further stated that they will be bound by the action taken by Onkar Lai and even if the possession of the shop is delivered only to Onkar Lal they will have no objection. Thus, the passing of the order which was not necessary to be passed relating to the adding of the parties will not take away the case out of the purview of the principles of section-11 C.P.C. Thus, it is a matter in which ail were the parties, all were represented by the counsel and the point at issue was whether the possession of the first floor was obtained in execution decree which was reversed subsequently. Thus, these questions have been finally determined that the possession of the first floor was not obtained by the plaintiff. Thus, it falls within the purview of the case decided or the point decided or any question and the principles doctrine of res judicata and particularly constructive res judicata will apply in the facts and circumstances of the case against all the decree holders as the order has been passed after hearing all of them. 17. The third question which needs determination is about the amendment of the execution petition. Petitioner-defendant filed the execution petition and submitted therein the possession of the shop consisting of first storey and the three khands in the ground floor may be delivered to them. 18. On 17th March 1983 application was moved under section 47 read with Section 144 and 151 C.P.C. In the said petition petitioner prayed that the defendant may be allowed to lead defence about the fact that he was in possession of the first floor, portion of the suit shop as a tenant of the plaintiff and he was dispossessed there from during the pendency of the second appeal in execution proceedings from the first floor portion of the suit shop as he is. entitled for the possession of the same. It will not be out of place here to mention-that in the suit or the decree there is no reference about the first floor only this fact has been mentioned that the shop consisting of three khands. None of the parties denied this fact that in the ground floor there exists three khands. entitled for the possession of the same. It will not be out of place here to mention-that in the suit or the decree there is no reference about the first floor only this fact has been mentioned that the shop consisting of three khands. None of the parties denied this fact that in the ground floor there exists three khands. In the first application moved for the restitution of the property the first floor has been mentioned at all and it has been mentioned only that the possession of the shop consisting of three khands be restored to them. There is nothing on record to show that the possession of the first floor was obtained by the plaintiff in execution of the decree as submitted by the defendant. It will not be out of place here to mention that the warrant was only issued for the delivery of the shop for which the decree has been passed. Even the petitioner defendant has stated in his petition that the shop referred to in the decree may be delivered to him, I have already stated that the decree of the shop was only of the shop referred to in the plaint and not of the first storey. One has to specify in the decree the property for which the execution petition is filed. Some-times the words and specifications cannot be given the same meaning and may carry different meanings. Describing the four boundaries of the property may fall within the purview of the description of the property. As far as the specification is concerned, ordinarily the details about the property are given whether the property consists of two storeyed . building or three storeyed building and what are the specifications of the building including the projections if any, in the instant case nothing is there on the record. 19. Mr. Agrawal has invited my attention to the memo of appeal filed in the court of District Judge, Ajmer. In the said memo it has been mentioned that the respondent-defendant vacated possession of the property on the first floor and requested the time for vacation of the shop. I have already discussed this part of the memo of appeal. At the most, it can be used as an admission of the party making it. In the said memo it has been mentioned that the respondent-defendant vacated possession of the property on the first floor and requested the time for vacation of the shop. I have already discussed this part of the memo of appeal. At the most, it can be used as an admission of the party making it. Vacation of the portion of the property cannot be equated with the delivery of the property in pursuance of the execution of the decree. Some-times, there may be two tenancies of any other contractual obligations and to obtain a time for vacating one of the property which is to be vacated will not effect other one. The party may vacate the other property which is not a part of the decree and may obtain the time in other respect under a contract and it cannot be said to be vacated property in execution of the decree. Apart from that, I have already discussed that on 3rd April 1976 the court has decided that the first floor was not vacated in execution of the decree, but was vacated and possession was delivered on account of other reasons. No appeal or revision has been filed by the present petitioner defendant against the said order. Order dated 3.4.76 has been held by him as a decree under Section 2 (2) of the C.P.C. The decree has become final and the doctrine of res-judicata will apply as stated above. Even for arguments sake if it is assumed that it is not a decree but it is an order, even then, the petitioner cannot be allowed to reagitate the matter which has already been decided earlier and the doctrine of estoppel will also apply in addition to the principles of constructive res judicata. 20. For the reasons mentioned above, I do not find any force in this revision petition No. 656/83 and the same is dismissed. 21. As far as the revision petition No. 569/83, Kishan Gopal v. Pukhraj and others is concerned, I do not also find any force in this revision petition and the same is also dismissed. No order as to costs. 22. Record of the court below may be sent back.