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2000 DIGILAW 1055 (PAT)

Sri Shyam Shankar Sahai v. Hari Shankar Sahai

2000-08-28

P.K.DEB

body2000
Judgment 1. The order dated 11.10.1999 passed by Sub-Judge-l, Bhagalpur in Title Execution Case No. 1/1983 has been challenged in this revision petition. By the said order the petitioner-judgment- debtor has been asked to pay the opposite party-decree-holder a sum of Rs. 11,827.72 paise and also another sum of Rs. 14,91,774.89 paise towards encumbrance allegedly created by the petitioner over the cinema hall. 2. The above-mentioned execution case has been filed on the basis of the decree dated 15.10.1982 passed in Title Suit no. 84 of 1975. The dispute amongst the family members over the properties had culminated into the above-mentioned suit wherein arbitrator was appointed and the decree was passed on the basis of the arbitration award and a subsequent award dated 24.8.1979. As per that subsequent award the cinema hall in the name and style of Picture Palace situated at Bhagalpur came under the proprietorship of the decree-holder-opposite party and it was awarded that the on going cinema hall shall be taken over possession by the opposite party-decree- holder from the judgment-debtor-petitioner without any obstruction or hindrance and if such obstruction is created then the decree-holder shall be entitled to recover from the petitioner as a compensation to the tune of Rs. 1,000/- per day till the possession of the cinema hall. The decree was drawn up in terms of the award in the above-mentioned suit on 16.11.1982 and against that decree Misc. Appeal No. 294 of 1982 was preferred by the petitioner before this Court which was dismissed on 17.8.1985. Against that appellate order the petitioner went to Apex Court in Civil Appeal no. 3806 of 1986 but the award was confirmed by the Apex Court also only with an alteration to the effect that the payment of compensation at the rate of Rs. 1,000/- per day be converted to Rs. 50,000/- per year with effect from 1.1.1983. For the delay in implementation of the award, there was also direction by the Apex Court for delivery of possession of the cinema hall to the opposite party within four weeks free from all encumbrances. As the execution case was already filed, the same was notified as per the alteration made in the award by the Apex Court. For the delay in implementation of the award, there was also direction by the Apex Court for delivery of possession of the cinema hall to the opposite party within four weeks free from all encumbrances. As the execution case was already filed, the same was notified as per the alteration made in the award by the Apex Court. It appears that after such modification was made in the decree then on on initiation from the side of the opposite party for determination of the liabilities of the cinema hall an advocate commissioner was appointed. The cinema hall during the pendency of the suit was under the receivership of the petitioner. On the basis of the writ issued the advocate commissioner submitted his report on 2.6.1987 mentioning the existing liability on the cinema hall to the tune of Rs. 14,91,774.89 paise. The report was accepted by the original court on 6.6.1987 as there was no objection from the side of the petitioner. It does not appear that any objection was called for from the side of the petitioner rather within four days of submission of the commissioners report, the same was accepted by the original court. When the cinema hall could not be taken into possession by the opposite party, he moved before the Hon ble Supreme Court again and by order dated 9.8.1996 the District Judge, Bhagalpur, was asked to deliver the possession of the cinema hall to the opposite party forth-with so that the decree can be executed immediately. On 13.10.1996 the cinema hall was taken over possession by the opposite party and an interlocutory petition was filed by the petitioner before the Supreme Court and one Ratnesh Narayan Singh also filed an application for intervention but vide order dated 22.4.1997 the application filed by Ratnesh Narayan Singh was rejected and on the interlocutory petition filed by the petitioner the Apex Court held that the cinema hall had already been handed over to the opposite party-decree holder but regarding the delivery possession of the cinema theatre free from encumbrance the Apex Court clarified that regarding such encumbrance the executing court shall probe into the matter and then and then only the satisfaction of the decree shall be recorded at appropriate time. On this the opposite party filed a petition by amending the execution petition to grant compensation to the tune of Rs. On this the opposite party filed a petition by amending the execution petition to grant compensation to the tune of Rs. 11,000/- and odd as already mentioned above and also towards the encumbrance i.e. liability on the cinema theatre on the basis of the advocate commissioners report to the tune of Rs. 14 lacs and odd as mentioned above. Objection was raised but the learned court below by the part of the impugned order allowed the claim of the decree-holder-opposite party and hence the present revision petition has been filed. By the second part of the order the intervention petition filed by Ratnesh Narayan Singh under Order 21 Rule 99 of the Code of Civil Procedure has been rejected as in the meantime, Ratnesh Narayan Singh has already filed another Title Suit claiming Title and possession over the cinema theatre. 3. The present revision petition is confined to the first part of the impugned order relating to recovery of the amounts as claimed from the side of the opposite party. In this respect it becomes an admitted fact that the amount of Rs. 11,000/- and odd has already been paid by the petitioner and about that amount there is no objection now pending to be considered by the revisional court. Regarding the amount of Rs. 14 lacs and odd, it is the contention of the petitioner that the learned court below had not probed into the matter rather passed the order only on the basis of the advocate commissioners report which was not on the records of the execution case. To verify that fact the records of, the execution case was called for and it could be found that there is substance in the statement of the petitioner that the advocate commissioners report was never being brought in the execution proceeding nor such report was ever being made in the execution proceeding itself. It appears from the records itself that after the suit was decreed an order was passed by the Apex Court regarding the delivery of possession of the cinema theatre free from encumbrance (emphasis supplied by me) then and then only the opposite party filed a petition before the original court for appointment of an advocate commissioner to investigate the liabilities created on the cinema theatre. Although at that time the execution case was already in vogue still then the advocate commissioner was sought to be appointed in the original suit itself which had already been disposed of. The advocate commissioner after investigation submitted report to the effect that a sum of Rs. 14 lacs and odd, as already mentioned above, was the created liability on the cinema theatre but that report was accepted by the original court without having any objection being called for from the side of the petitioner and the same was accepted within four days of the filing of the report by the advocate commissioner. It is the contention of the petitioner that such report of the advocate commissioner is inadmissible and the same cannot be construed to be an authentic paper regarding the liabilities in the form of encumbrance on the cinema theatre. On the other hand, by referring to the contents of the advocate commissioners report it is submitted by the learned senior counsel that the report of the advocate commissioner was prepared after giving proper notice to the petitioner and on perusal of the documents which were at the relevant time in custody of the petitioner himself and as such, it does not lie on the mouth of the petitioner that such report regarding the liability was behind the back of the petitioner rather it was within his knowledge and when he did not make any objection regarding such report the original court had rightly accepted the same. Some irregularity is definitely there in the way the advocate commissioners report was accepted by the original court. The proper course ought to have been to get the report through the executing court as the matter of execution was before the Apex Court in which order was passed regarding delivery of possession of the cinema theatre free from encumbrance but the same was done through original court which had already become functus officio but on going through the commissioners report it could be found that the commissioner prepared the report after giving proper notice to the petitioner and at that point of time no objection was raised from the side of the petitioner and if at this stage on such irregularity the advocate commissioners report is rejected then it will open up again a Pandoras Box. From the trend of the argument as placed from the side of the petitioner it could be found that some amounts as mentioned in the commissioners report were there creating some liability against the cinema theatre but, according to the petitioner, those liabilities are the liabilities of the petitioner although subject matter might be the same of the disputed cinema theatre but the money claim is against the petitioner if it comes in proper form. According to the petitioner, all the amounts in different heads as mentioned by the Commissioner related to the actionable claim and, as such, does not come within the scope of the encumbrance. The encumbrance as has been mentioned by the Apex Court in the present context of the case related to the barriers being created in the free enjoyment of the cinema theatre. According to the petitioner, regarding the tax liabilities, some certificate proceedings have been proceeded against the petitioner and he himself is contesting the same and in no way the cinema theatre was being involved or the opposite party in no way. In that way those amounts in the certificate proceeding cannot be construed to be encumbrances or liability of the cinema theatre. It has further been stated that some of the items as mentioned in the commissioners report have already become time barred and there was no scope of demand of the same by the person claiming and up-till-now it is contention of the petitioner that nothing could be shown from the side of the opposite party that any claimant has approached the opposite party after taking delivery of possession regarding any previous claim and in that way it cannot be said that the amounts mentioned in the commissioners report were the encumbrance or creating the barriers in the free enjoyment of the cinema theatre by the opposite party- decree-holder. It has been contended by the senior counsel appearing for and on behalf of the opposite party that even if time barred claims are there by the distributors then also opposite party would not be in a position to get pictures from different distributors having huge claim pending and in that way the opposite party would not be in a position to exhibit pictures in the cinema theatre itself. The question of limitation is not there rather the claim of the distributors if not satisfied, the opposite party would not be in a position to exhibit pictures/cinema in the Picture Palace itself. On this it has been submitted by the petitioners counsel that if the opposite party could show any such claim in the form of encumbrance in the cinema hall which creates hindrance in free running of the cinema hall then the petitioner shall be duty bound to pay up the same to the said claiment. It has further been stated that the petitioner may give proper security or guarantee with an undertaking to the executing court that the opposite party would never be in a position to stop the running of the cinema hall because of the claim of the distributors. It is also contended that the direction to the petitioner to pay up the alleged amounts to the opposite party would be in the form of a windfall gain in favour of the decree-holder opposite party. On this it has been submitted by the senior counsel for the opposite party that such objections regarding actionable claim, limitation had never been raised by the petitioner before the executing court rather for the first time these are being pressed before the revisional court. It appears that very acceptance of the advocate commissioners report in the execution proceeding was challenged by the petitioner and in that way, he has raised such objection before this court as the matter was not taken up in proper way by the executing court to probe the liabilities/encumbrance on the cinema theatre. The advocate commissioners report was construed to be the gospel truth and then on the basis of that the petitioner has been asked to pay up the same. 4. On the above discussion I arrive at the finding that the learned executing court has not properly probed regarding the encumbrance as ordered by the Apex Court. The executing court ought to have taken up the claims/liabilities itemwise mentioned by the advocate commissioner in his report and then consider whether those can be construed as encumbrance on the cinema hall itself. In that view of the matter, this revision petition is partly allowed and the order of payment of Rs. 14 lacs and odd against the petitioner is hereby set aside. In that view of the matter, this revision petition is partly allowed and the order of payment of Rs. 14 lacs and odd against the petitioner is hereby set aside. The matter is sent back to the court below for proper adjudication/probe into the claims of the opposite party by way of encumbrance as ordered by the Apex Court after giving proper opportunity to both the parties to produce documents and oral evidence, if necessary, for the purpose. The advocate commissioners report may be taken as basis to start with the irregularity regarding its acceptance may not stand in the way as already mentioned in the for going paragraph. 5. It is further ordered that the learned executing court shall make all endeavour to expeditiously dispose of the matter without giving any unnecessary adjournment to either of the parties and it is expected that the matter shall be disposed of within a period of three months from the date of receipt of the records of the executing case. Office is hereby directed to send down the lower court records immediately.