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Allahabad High Court · body

2000 DIGILAW 747 (ALL)

RAVI KRISHNA v. MURALIDHAR AGRAWAL

2000-05-17

D.K.SETH

body2000
D. K. SETH, J. ( 1 ) THE order dated 17. 4. 1998 passed by the learned Additional Judge (Small Cause Court ). Allahabad in Execution Case No. 1 of 1992. In pursuance of the Misc. Case No. 178 of 1995, has since been challenged by the petitioner. ( 2 ) SHRI Vishnu Gupta, learned counsel for the petitioner contends that no final decree has been drawn pursuant to the preliminary decree pursuant to the compromise arrived at between the parties on 4th March. 1955. In Suit No. 97 of 1949, therefore, the decree is not executable. He further contends that the requisite stamp fee was not paid for drawing up of the decree. According to the definition of instrument of partition under Section 2 (15) of the Stamp Act. a decree of civil court is included. The decree being an Instrument of partition is required to be on proper stamp paper. He further contends that a final decree is to be drawn showing the shares of the parties in respect of the property by metes and bounds. He drew the attention of the Court to the certified copy of the decree pointing out that the decree that was drafted is not a final decree but a preliminary decree as is apparent from the form of the expression used in the decree itself. According to him, since the decree is not executable, therefore, the part of the decree which was sought to be executed from Madras Court on transfer of the decree by the executing Court at allahabad, cannot be proceeded with. As such, the petitioner had filed an application for stay of further proceedings of the execution case since been transferred for being executed through the city Civil Court, at Madras. This application was rejected by the impugned order dated 17th april, 1998, which according to Mr. Gupta is liable to be set aside. ( 3 ) SHRI Prakash Krishna, learned counsel for opposite parties, on the other hand, contended that the petitioner has filed Writ Petition No. 15500 of 1994, which is pending disposal before this court. This fact is also not disputed by Shrl Vishnu Gupta. ( 4 ) SHRI Prakash Krishna draws my attention to the order dated 17. 4. 1998 and point out that the court had dismissed the stay application on proper reasoning, as is apparent from the face of the said order. This fact is also not disputed by Shrl Vishnu Gupta. ( 4 ) SHRI Prakash Krishna draws my attention to the order dated 17. 4. 1998 and point out that the court had dismissed the stay application on proper reasoning, as is apparent from the face of the said order. It was pointed out that from the order sheet dated 7th March. 1983, the final decree has since been prepared and has been notified. ( 5 ) FROM the order sheet dated 14th March. 1983, it appears that after the preparation of the final decree, the same was signed and was made part of the final decree and other papers were ordered to be destroyed. Thus, the Court has come to the finding on the basis of the order sheet dated 7th march. 1983, that the final decree was prepared by the Court. He further contends that when the court had come to the finding on the basis of the order sheet and the compromise which was arrived at in the year 1981, having not been challenged on the ground of its executability and the issue of transfer certificate for execution of decree through the City Civil Court. Madras, having not been objected to at that point of time, it is not open to the petitioner to oppose the execution at a later stage and pray for stay of execution on the alleged ground. He further contends that from the copy of the decree that has been annexed as Annexure-3 to the revision it shows that it is a copy of the final decree and it was only ministerial mistake committed by the ministerial clerk while preparing the decree who had, by mistake, copied the portion of the decree from the compromise petition. It is only, according to him, a mistake of the clerk. According to him, a document is to be interpreted on the basis of its substance and the contention of the parties which is to be gathered from the reading of the documents as a whole. It cannot be decided on the basis of the reference to selected portion of the same. He pointed out from the said decree that certain amounts were direct to be paid in instalments within certain specified time, which itself shows that it was a final decree. Otherwise such a direction would not have been Incorporated. It cannot be decided on the basis of the reference to selected portion of the same. He pointed out from the said decree that certain amounts were direct to be paid in instalments within certain specified time, which itself shows that it was a final decree. Otherwise such a direction would not have been Incorporated. He further pointed out that the receivers who were managing the property were discharged and the management was handed over to the respective parties in whose share the propertys were allotted. According to me. It is clearly Indicated that the final decree was drawn otherwise there cannot be an order of discharge of receivers. According to him, preliminary decree was passed sometimes on 4th March. 1955, on the basis of the compromise arrived at between the parlies. There cannot be a subsequent preliminary decree -drawn on 14th March. 1983. He also pointed out that the application for execution was in respect of the final decree prepared on 4. 12. 1982 and not on 4th March. 1983, which was found part of the decree. Thus, according to him final decree having been prepared in 1983 and the same having been put into execution in 1991 and thereupon no objection having been raised by the predecessors-in-interest of the petitioner. It is not open for them to challenge the same at this later siage. However, he contends that it was a challenge in respect of the executability of the decree on the ground mentioned in the stay order. Unless there is a challenge to the decree, there is no scope of stay of execution. It is also not pointed out that no objection under Section 47 has ever been filed or is pending. Then again he pointed out that this is a decree by compromise which cannot be objected except on the grounds of fraud or otherwise. Therefore, this application for stay was fraudulent and frivolous and this application as well as the writ petition are sheer abuse of process of law. Therefore he prays for dismissal of the revision. ( 6 ) I have heard both the counsel at length. Once a suit for partition was filed sometimes in the year 1926. Subsequently, another suit was filed in the year 1949 being O. S. No. 97 of 1949, which is the subject-matter of the present proceeding. Annexure-1 is the application for stay. ( 6 ) I have heard both the counsel at length. Once a suit for partition was filed sometimes in the year 1926. Subsequently, another suit was filed in the year 1949 being O. S. No. 97 of 1949, which is the subject-matter of the present proceeding. Annexure-1 is the application for stay. The petitioner, Ravi Krishna had pointed out that an application for compromise was filed by the plaintiff and the defendants in the said Original Suit No. 97 of 1949, on 4th March. 1955, and prayed that a final decree be prepared. Accordingly, it was prayed that the properties shown in lot No. 2 have fallen to the share of the plaintiff and the properties shown in lot No. 1 have fallen to the share of the defendants. Accordingly, the learned Civil Judge, Allahabad by order dated 4th March, 1955, as prayed by the plaintiff, appointed Shri Vasudeo Prasad as receiver for lot no. 1 and Shri Ramdas as receiver for lot No. 2 and discharged earlier receivers and a preliminary decree was accordingly drawn on 9th April. 1955. ( 7 ) IF this allegation is correct, in that event, there cannot be any question of doubt with regard to the passing of the preliminary decree on 9. 4. 1955. This statement is a part of the application filed by the petitioner himself in O. S. No. 97 of 1949 and has since been registered as Misc. Case No. 17 of 1995. Therefore, on his own admission, the petitioner has admitted that the preliminary decree was drawn on 9. 4. 1955. There is no question of drawing of further preliminary decree at any subsequent stage. Therefore, it cannot He on the part of the petitioner to state that the decree which was drawn on 14th March. 1983, was preliminary decree. ( 8 ) IT was further pointed out in para 6 of the said application by the petitioner that from the record. It appears that the plaintiff and the defendants in O. S. No. 97 of 1949, moved another application bearing No. 75a in Misc. Case No. 97 of 1949 praying for partition of the property nos. 31 to 37, First Line North Beach Madras and Nos. 38/39 and 40/41 First Line. North Beach madras, according to the scaled map and as per details given in the application which was moved on 15. 11. 1978. Case No. 97 of 1949 praying for partition of the property nos. 31 to 37, First Line North Beach Madras and Nos. 38/39 and 40/41 First Line. North Beach madras, according to the scaled map and as per details given in the application which was moved on 15. 11. 1978. The plaintiffs moved a further application being application No. 88-Con, 23. 5. 1981 for taking into consideration the revised plan of properties No. 38/39 and 40/41. First line North Beach, Madras. ( 9 ) THUS, the applicant clearly admits that a plan was also prepared showing details of the property to be allotted to the parties which Itself goes to show that it is a part of final decree that has been prepared on the basis whereof the Court has to pass appropriate order. ( 10 ) IN para 7 of the said application, it has been further pointed out that the plaintiffs moved another application No. 110a, on 20. 11. 1982 informing the Court that the property of lot No. 2 be allotted to the plaintiffs in the manner given in application No. 100a, and prayed for preparation of final decree. Thus, it is also apparent that the final decree was prepared on the basis of the application as Indicated therein. It has been pointed out that these applications were never objected to on behalf of the predecessors-in-interest of the petitioner, since as pointed out by Shri Prakash Krishna that the predecessors-in-interest of the petitioner in 1989. There was no dispute between the predecessors in interest of the petitioner and those of the opposite parties. ( 11 ) IN para 8, it has further been pointed out that by the order dated 4. 12. 1982, a final decree was directed to be prepared in the light of the applications 75a, 88c. 90a and 100a, and further directed to make them part of the decree. ( 12 ) THUS, it appears that the decree is to be prepared on the basis of the applications filed by the parties referred to in para 8 and that no further ministerial act for the purpose of drawing up of the decree was required to be performed by the Court. ( 12 ) THUS, it appears that the decree is to be prepared on the basis of the applications filed by the parties referred to in para 8 and that no further ministerial act for the purpose of drawing up of the decree was required to be performed by the Court. It was only a formal ministerial job to draw up a decree in a proper form in the light of the respective applications referred to in para 8 as part of the decree which itself has shown partition according to the map drawn on scale giving details therein. It has also been pointed out that the allegation that final decree was prepared on 4. 12. 1982, and signed on 4. 3. 1983 made by the opposite parties is not correct. ( 13 ) THE Annexure-3 to the application for stay appears to be a xerox copy of the certified copy of the decree. The title to the said certified copy shows that it was certified copy of the final decree. The form shown is also a form for final decree and. therefore, the decree was drawn, stating that the papers 75a, 90a and 100a, will form part of the decree but while preparing a decree, it appears that some ministerial mistake has been committed. It has clearly been quoted that order passed by the Court on 4. 12. 1982 while preparing the decree on 14th March. 1983, which appears to have been signed on 14th March. 1983, though stated to have been signed on 4th march. 1983. The said decree further proceeds with the maps which also form part of the decree and that certain amounts ought to have been paid in Instalments within the time and the amounts mentioned therein. The said order further proceeds with discharge of the receiver who were managing property directing them to hand over charge of the property to the respective owners according to the final decree Immediately and if the charge is made over by the receiver they would stand discharged. ( 14 ) THE expression used in the said decree refers to the date 14th March. 1983. It does not refer to the date after 14th March. 1983 and as such, the very substance of the contents of the decree shows that it is a final decree. ( 14 ) THE expression used in the said decree refers to the date 14th March. 1983. It does not refer to the date after 14th March. 1983 and as such, the very substance of the contents of the decree shows that it is a final decree. There cannot be any necessity to draw up a further preliminary decree after a preliminary decree is drawn up on 1. 4. 1955. The Court is not required to undertake any infructuous exercise in preparing further preliminary decree when the final decree was applied for in terms of the maps or plan prepared on scale showing details of the partition of the property allotted to the respective parties, as has been shown in application Nos. 75a, 88c. 90a and 100a. These are the basis for drawing up of the final decree. ( 15 ) IN order to Interpret an instrument, it is not the form but substance which is to be looked into. It has been a settled principle of the law that has been laid down in the decision in Katikara chintamani Dora and others v. Guatreddi Annamanatdu and others, AIR 1974 SC 1069 , that in order to Interpret an instrument, the substance is to be found out which is to be gathered upon reading the Instrument as a whole and Intention of the parties. In the present case, the application nos. 75a. 88c and 100a, clearly indicate the intention of the parties to obtain a final decree on the basis of the map or the plan drawn to scale together with the details and which was also revised in respect of the properties mentioned therein. Since none of the applications were ever objected to and the final decree having been drawn since not been challenged. It is not open to the petitioner to question the same. As signing of the final decree was in the year 1983. It was not open to the petitioner to prefer an appeal against said final decree. The final decree having been drawn in terms of the compromise, there is no right of appeal to the petitioner. The final decree could have been challenged only on the ground that it was obtained through fraud or misrepresentation or otherwise. No such a challenge has since been taken to the final decree prepared in 1983. The predecessor-in-interest of the petitioner died on 19. 6. 1989. The final decree could have been challenged only on the ground that it was obtained through fraud or misrepresentation or otherwise. No such a challenge has since been taken to the final decree prepared in 1983. The predecessor-in-interest of the petitioner died on 19. 6. 1989. He had never objected to the decree till then. The decree was put into execution in 1991. No objection was taken to the execution by the petitioner until the present application 36ga, was filed on 30. 10. 1995. Thus, by conduct, the petitioner did not question either the compromise decree after the death of his predecessor-in-interest and even after the execution was levied till October, 1995. Thus, by his own conduct, he is estopped from challenging the same in future. ( 16 ) THUS, it appears that there was a final decree drawn up and, therefore, the decree that was put into execution is executable. ( 17 ) SO far as the contention that the decree was not prepared on proper stamp paper as pointed out by Shri Vishnu Gupta, learned counsel for the petitioner is concerned. It also does not appear to be sound. In as much as from the order sheet dated 7. 3. 1983, as is found by the Court below, the final decree was prepared. It is not expected that the Court will prepare a final decree on an insufficient stamp paper. It further appears that the final decree was so prepared and signed on 14th March, 1983, which is apparent from the order sheet of the relevant date. The Court is executing the same. Thus, it cannot be accepted that the Court has failed in its initial duty to look into that the decree was prepared on insufficient stamp paper. Every Judicial and official act shall be deemed to have been properly performed unless contrary is proved, as provided in section 114 (e) of the Evidence Act. There is no allegation that it was not no properly done. If it is questioned in that event, the burden lies on the person who questions. It is for him to produce the material and show that there was insufficient stamp paper. The petitioner has not come out with the statement that the decree was drawn on Insufficient stamp paper. There is no allegation that it was not no properly done. If it is questioned in that event, the burden lies on the person who questions. It is for him to produce the material and show that there was insufficient stamp paper. The petitioner has not come out with the statement that the decree was drawn on Insufficient stamp paper. In view of the fact that it was for him to show or make out the proposition that it was not so drawn and the judicial or official function has not been discharged properly. Mr. Gupta has failed to show anything to the court, either to the executing court or before this Court to that extent. It is not possible to accept such proposition, The decree that has been sought to be executed has not been challenged and it has also not been challenged by him thereafter. If it is not so challenged and if it is challenged before appropriate Court in that event there was no question of stay of execution. The stay was sought for only on that part of the execution which was transferred for execution to the City civil Court, Madras. There was no prayer for stay of execution so far as that part of the decree, which is sought to be executed at Allahabad. Thus, it shows that the petitioner had been seeking to postpone the execution of the decree so far as it relates to the Madras property. Shri Prakash krishna submits that the Madras property is in possession of the petitioner. ( 18 ) IN the facts and circumstances of the case, having regard to the conduct and contention made by the petitioner. It (s an abuse of the process of Court to seek stay of execution in respect of that part of the property which is in Madras on the frivolous ground after being awakened after 5 years from the levy of execution and 12 years after the decree. This clearly, indicates Ill-motive on the part of the petitioner to prevent execution of a decree which was arrived at between the predecessors-in-interest of the parties who were brothers through compromise without any objection at any stage until the application 36ga was filed. It is sheer mala fide on the part of the petitioner to get the execution stayed on the ground which was never thought of by the predecessors-ln-lnterest. It is sheer mala fide on the part of the petitioner to get the execution stayed on the ground which was never thought of by the predecessors-ln-lnterest. It is being invented at this later stage. It appears the original suit was filed in 1926 and then again in 1949. Unless the Court Intervenes, the petitioner is not put into proper place the proceeding will be dragged on in abuse of Its process and will never end. In the result, I do not find any reason to Interfere with the impugned order. Therefore, the revision fails and is accordingly dismissed. Let the execution be expedited by the respective courts. Let the request be sent to the City Civil Court. Madras, to expedite the execution of the decree along with a copy of this order. At the same time, the execution of the decree at allahabad be also expedited. In view of the conduct of the petitioner, this Court propose to Impose cost so as to apprise the petitioner about the consequences, for abuse of process of Court, but for the fair stand taken by shri Vishnu Gupta, no cost is being awarded.