KAUSHALYABAI v. JUDGE TO THE COURT OF DISTT. JUDGE, INDORE
1993-03-03
R.D.SHUKLA, V.S.KOKJE
body1993
DigiLaw.ai
( 1 ) HEARD Shri Joshi for the petitioner. This is a petition under Art. 227 of the Constitution of India. The petitioner is a landlady who has filed a suit for ejectment against her tenant/respondent No. 4 in this case. On 12-7-1991 the trial Court passed a decree in her favour directing ejectment of the respondent No. 4 from the premises. An appeal was preferred by the tenant, which was registered as Civil Regular Appeal No. 10/91. On 12-8-1992 the District Court passed an order staying the execution of the decree on condition that the appellant/tenant furnishes security in the amount of Rs. 1,000/- for due performance of the decree which may ultimately be passed and deposits arrears of rent as also goes on depositing the rent regularly in the Court. It was also provided that in default of compliance with the aforesaid conditions, the stay order would be deemed to have been automatically vacated. A certified copy of this order is annexed to the petition as Annexure C. It is clear from the perusal of the order dated 12-8-92 that the appellate Court did not take care to specify the time within which the conditions should be fulfilled. ( 2 ) IT appears that on 13-8-91 the landlady had already filed an execution but from the proceedings of the execution case annexed to the petition as Annexure N, it appears that on 16-8-91 the stay order was communicated by the tenant Mansingh to the executing Court and security of Rs. 1000/- was also furnished before the executing Court. On 19-8-91 in the presence of both the parties the execution was stayed and 6-9-91 was fixed. It appears that on that date some murmur was raised on behalf of the landlady about non-compliance with the condition of deposit of rent and the Court observed that the judgment-debtor should show receipts evidencing deposit of rent on the next date, failing which some order would be passed. On 14-9-1991 at 4. 40 p. m. counsel for the decree-holder was present but counsel for judgment-debtor was not present. Curiously the Court observed that the case was fixed for orders on that date, where as it was not so fixed for orders. The execution was stayed, and it was only observed on the earlier date that if the receipts were not produced the order will be passed.
Curiously the Court observed that the case was fixed for orders on that date, where as it was not so fixed for orders. The execution was stayed, and it was only observed on the earlier date that if the receipts were not produced the order will be passed. This cannot mean that the Court had heard arguments on any point and reserved the case for orders. However, it appears that the Court was under impression that it had heard arguments on the point of default and observed that the appellate Court had given time for depositing decretal amount which was not shown to have been deposited and passed an order for issuance of warrant for possession. The case was then fixed for 17-9-91. It appears that the warrant was executed in between and on 17-9-91 the counsel for judgment-debtor appeared before the Court and complained that despite stay from appellate Court possession has been taken away from the judgment-debtor. The executing Court perusing the record without hearing the other side directed restoration of possession immediately, if necessary by breaking open locks and even if the property is found to be in possession of someone else than the decree-holder. On the same day at 3. 30 an application was moved by the judgment-debtor that police help be made available for taking back possession as there was possibility of violence on the spot. At this time the previous warrant for possession issued in favour of decree-holder had come back duly executed. The warrant issued in favour of the judgment-debtor was received unexecuted with some report which was perused by the Court and the Court observed that the judgment-debtor has shown the receipts of deposit of rent and granted the application for police help also. There is another post-script to the proceedings of 17-9-91 at about 4. 45 p. m. This time the counsel for the landlady appeared with an application for stay of the warrant for possession issued in favour of the tenant. The Court observed that it was necessary to hear the tenant on the application. However, the execution warrant for possession issued in favour of the tenant was again stayed and the case was fixed for 15-9-91. ( 3 ) THEREAFTER the case was adjourned on a couple of occasions and on 25-9-91 the executing Court allowed the application of the landlady and allowed her to continue in possession.
However, the execution warrant for possession issued in favour of the tenant was again stayed and the case was fixed for 15-9-91. ( 3 ) THEREAFTER the case was adjourned on a couple of occasions and on 25-9-91 the executing Court allowed the application of the landlady and allowed her to continue in possession. This order was challenged in a revision application by the tenant and on 25-4-92 the District Court set aside the order of the executing Court and directed the executing Court to proceed in accordance with law. This revisional order of the District Court was challenged in this Court in M. P. No. 1122/92 by the landlady under Art. 227 of the Constitution. This petition was also dismissed by this Court. ( 4 ) WHEN after the order dated 25-4-1992 passed by the District Court in Revision No. 52/92 the matter went back to executing Court, the tenant/judgment-debtor again applied for being put in possession. The prayer was naturally opposed by the landlady. After hearing the parties the executing Court directed the tenant to be put in possession, if necessary by taking help of the police. It appears that thereafter the executing Court passed order on 21-1-1993. The copy of this order has not been produced by the petitioner but it appears from the discussions in the order dated 12-2-93 passed by the Court hearing revision application against that order (Annexure E to petition) that it is a repetition of the order for restoring possession to the tenant and making available police help in the process of execution of the warrant. The revisional Court refused to interfere. The petitioner has also filed proceedings of the first appellate Court which has directed that the first appeal shall not be heard till the possession is restored to the tenant. That was an order passed on 10-2-93 against which a civil revision was filed before this Court by the landlady. Naturally as it was a revision application against the order passed in appellate proceedings the Court refused to entertain the revision application and observed that a petition under Art. 227 is the only remedy. This is how the matter has again come up before us. ( 5 ) THIS case is an example of as to how a small step in haste makes a person repent at leizure.
This is how the matter has again come up before us. ( 5 ) THIS case is an example of as to how a small step in haste makes a person repent at leizure. The landlady exasperated by law's delays wanted to seize an opportunity to dislodge the tenant. In her enthusiasm to execute the decree she persuaded the executing Court to bye-pass the process of law and obtained a warrant for possession and got it executed posthaste. This was despite stay order passed against the execution of the decree. The executing Court did not care to enquire into and find out whether the conditions of the stay were not fulfilled and the stay order has been vacated automatically. As already observed the first appellate Court had not taken care to put a time limit for performance of the conditions imposed on the tenant for staying the execution of the decree. It was not, therefore, simply a case where the conditions of the stay order not having been complied with within the time given by the appellate Court. Some enquiry was absolutely necessary before the stay order could have been treated as automatically vacated for, non-compliance of the conditions imposed by the stay order. The District Court had rightly interfered with the order of the executing Court and directed restoration of the possession to the tenant. This Court confirmed the order of the revisional Court. There was, therefore, no doubt that the executing Court had to proceed only after putting back the tenant in possession. There was no question of any enquiry as to whether the stay order stood vacated or not taking place before the tenant was put back in possession. It is preposterous on the part of the landlady to think that without making amends for her conduct of throwing out the tenant despite the stay order she could retain the possession and get an enquiry made as to whether the stay order stood vacated or not or get the tenant's appeal heard keeping possession obtained illegally with her. This petition has, therefore, absolutely no force and deserves to be dismissed and is hereby dismissed without notice to the other side. ( 6 ) WHILE going through the record we find that the entire trouble has been created by the lack of understanding on the part of the executing Court.
This petition has, therefore, absolutely no force and deserves to be dismissed and is hereby dismissed without notice to the other side. ( 6 ) WHILE going through the record we find that the entire trouble has been created by the lack of understanding on the part of the executing Court. As the District Court has rightly observed in its order dt. 25-4-92, the executing Court betrayed a lack of understanding of the procedure of law and acted callously and in a cavaliour manner. It went on issuing warrants for possession without understanding implications of such orders. We would, therefore, direct that after the proceedings in execution are over the file shall be sent by the District Judge to the High Court for Administrative action as may be deemed fit in the matter. However, it would not be proper to allow the matter to linger on any further and therefore, it would be proper to make certain time bound directions for disposal of the appeal as well as the execution. We, therefore, direct that the petitioner herein shall restore possession back to the tenant within a month from today failing which the executing Court shall put the tenant in possession by issuing a warrant of possession with police help. If the petitioner in compliance with this order puts the tenant back in possession or surrenders possession to the executing Court for being handed over to the tenant/respondent No. 4 the appeal of the tenant C. R. A. No. 10/91 pending in the Court of XVth A. D. J. to D. J. Indore shall be heard and disposed of before 10-5-93. The executing Court shall at the time of putting the tenant in possession shall direct the tenant and the landlady to appear before the first appellate Court on a date in the second week of April, 1993 for getting a date for final hearing of the appeal to be fixed. If the petitioner does not voluntarily put the tenant in possession or does not surrender possession back to the executing Court for being handed over to the tenant and possession is required to be taken from the petitioner/ landlady by executing the warrant of possession the appeal shall be decided by the appellate Court in its due course and the aforesaid direction would not apply. With these directions the petition is disposed of.
With these directions the petition is disposed of. A copy of this order be sent to the Registrar of the High Court at Jabalpur for being placed before the Chief Justice/administrative Committee. C. C. on payment of charges. Order accordingly. .