Research › Search › Judgment

Kerala High Court · body

2001 DIGILAW 666 (KER)

Varghese v. Kausalya

2001-11-20

P.K.IYER BALASUBRAMANYAN, T.M.HASSAN PILLAI

body2001
ORDER P.K. Balasubramanyan,J. 1. This is a petition for correction of an error in the order of this court and also for a direction to the executing court to proceed with the execution in EP No. 1194 of 1997 in RCPNo. 128 of 1984 on the file of the Rent Control Court, Trichur. 2. We have heard counsel on both sides. 3. The correction prayed for is obviously of a typographical error. In para.9 of our order, what we confirmed was the order of the Rent Control Court and the Appellate Authority under S.11(2) of the Act. But instead of that, it is seen typed as order under S.11(4)(iii) of the Act. The Rent Control Court and the Appellate Authority have only passed an order for eviction under S.11(2) of the Act. Therefore, the showing of S.11(4)(iii) of the Act in para.9 of the order can only be considered to be an inadvertent error. We therefore, allow the prayer and correct the order. In para.9, the concerned sentence as corrected will read as follows: "In view of our conclusions as above, we confirm the order of the Rent Control Court and the Appellate Authority under S.11(2) of the Act and dismiss CRP No. 1708 of 1997". 4. The petitioner has also prayed that the executing court may be directed to proceed with the execution. This court confirmed the order for eviction under S.11(2) of the Act and passed an order for eviction under S.11(4)(i) of the Act by order dated 18-6-2001. The decree holder has sought execution of that order. It may be noted that the rent control proceeding was initiated in the year 1984, more than 17 years ago. It will really be unfortunate if an executing court, moved to execute the order, is not alive to the need for promptly executing an order passed in a proceeding initiated 17 years before. We cannot forget the mandate that a rent control proceeding, atleast in the Rent Control Court, is to be disposed of within six months of the initiation of the proceeding. But our justice system being what it is, delay has become inevitable, whenever a party seeking relief, approaches the court and in that process years go by and the present case is one such instance. But our justice system being what it is, delay has become inevitable, whenever a party seeking relief, approaches the court and in that process years go by and the present case is one such instance. Atleast in such cases, where there has been inordinate delay in the proceeding coming to a conclusion, the executing court must ensure that the proceedings are not further allowed to drag on and that the person who has secured the order is given effective relief for which he had approached the court. 5. We find that a strage course was adopted by the judgment debtors. The judgment debtors are seen to have filed an application EA No. 1302 of 2001 dated 21-8-2001 before the executing court invoking S.151 of the Code of Civil Procedure praying that the proceedings in execution may be kept in abeyance for a period of two months in view of the fact that the judgment debtors have moved a petition for special leave to appeal in the Supreme Court and the matter had been adjourned for hearing after it came up on 10-8-2001. It is to be noted that this was not an application under O.XXI R.26 of the Code of Civil Procedure, which is the provision under which an executing court is given the power to keep in abeyance the execution of the decree or order. S.14 of the Rent Control Act provides that an order for eviction is to be executed as if it were a decree. There is nothing to show that the petition was pressed before the executing court and a judicial order was sought for, from that court. But it is seen that the judgment debtors filed OP No. 28010 of 2001 in this court invoking Arts.226 and 227 of the Constitution of India. The prayers in that original petition are for the issue of a writ of mandamus directing the Munsiff's Court, Trichur to keep the execution proceedings in EP No. 1194 of 1997 in RCP No. 128 of 1984 in abeyance till the disposal of the special leave petition filed by the judgment debtors and pending before the Supreme Court. The further prayer is to pass an interim order directing the executing court to keep the delivery in abeyance until the petition for special leave is posted before the Supreme Court. The further prayer is to pass an interim order directing the executing court to keep the delivery in abeyance until the petition for special leave is posted before the Supreme Court. It appears that this court entertained the original petition and granted an interim order dated 24-9-2001 and on the decree holder appearing, is seen to have dismissed the original petition as withdrawn, on 5-11-2001. 6. As far as we can see, in addition to the power available to an executing court under O.XXI R.26 of the Code of Civil Procedure, the only other power available to keep the execution of a decree in abeyance, is the power under O.XLI R.5 of the Code of Civil Procedure. Under O.XLI R.5(2) of the Code of Civil Procedure, it may be open to a judgment debtor to pray to the court which passed the decree, to keep the execution of the decree in abeyance as provided in that provision. Or, it is open to the judgment debtor to move the appellate court and seek an order of tay of execution of the decree or order, until disposal of the appeal or revision. It was, therefore, for the judgment debtors to have filed an application before the executing court under O.XXI R.26 of the Code of Civil Procedure and to have sought an order on the same and if they were aggrieved by any order made therein, to approach this court in a straight forward manner, by invoking the jurisdiction of this court under S.115 of the Code of Civil Procedure. Or, it was for the judgment debtors to have moved this court in CRP No. 653 of 1998 invoking O.XLI R.5(2) of the Code of Civil Procedure and to have sought the suspension of the execution of the order for a reasonable period so as to enable the judgment debtors to further pursue the matter in appeal. 7. The third alternative for the judgment debtors, was to obtain an interim order of stay from the Supreme Court. Not having done any of these things warranted by the Code of Civil Procedure and justified by a fair dealing with the court, what the judgment debtors did in this case waste invoke the jurisdiction of this court under Arts.226 and 227 of the Constitution of India. Not having done any of these things warranted by the Code of Civil Procedure and justified by a fair dealing with the court, what the judgment debtors did in this case waste invoke the jurisdiction of this court under Arts.226 and 227 of the Constitution of India. It appears to us that the jurisdiction of this court under Arts.226 and 227 of the Constitution of India does not extend to jettisoning all known procedure of law. The court exercising jurisdiction under Art.226 of the Constitution of India is not an appellate court or a court superior to the High Court which disposes of a revision filed under S.20 of the Rent Control Court. When clear remedies are available to a judgment debtor in appropriate cases, to seek the keeping in abeyance of the execution of the order for eviction, this court purporting to exercise jurisdiction under Arts.226 or 227 of the Constitution of India, should not allow the judgment debtor to bypass all those provisions and pass orders staying the execution of orders or decrees validly passed or affirmed by this court. It is settled that this court cannot exercise jurisdiction under Art.226 of the Constitution to quash an order of this court in a proceeding in revision. (See Shankar v. Krishna, AIR 1970 SC 1 ). 8. The encouraging of such approaches with petitions under Art.226 of the Constitution of India would tend to undermine the very system. We are, therefore, of the view that this court when called upon to exercise jurisdiction under Art.226 of the Constitution of India, must be more circumspect and should not give room for criticism that this court is not doing anything to stop abuses of process of court, by encouraging such approaches. In fact, learned senior counsel appearing for the petitioner in this petition, was quite critical of the manner in which, according to him, the jurisdiction of this court under Art.226 of the Constitution of India was being invoked, misused or abused by litigants. We think that this court should guard against laying itself open to criticism that it is not doing anything to curb such misuse. 9. In the circumstances of the case, it is not for the executing court to indefinitely await the pleasure of the judgment debtors to proceed with the execution of the order for eviction. We think that this court should guard against laying itself open to criticism that it is not doing anything to curb such misuse. 9. In the circumstances of the case, it is not for the executing court to indefinitely await the pleasure of the judgment debtors to proceed with the execution of the order for eviction. The execution has not taken place even though this court passed the order on 18-6-2001. The judgment debtors have had more than breathing time. We are informed that the execution petition stands posted to 21-11-2001. The executing court is directed to execute the order on that date unless in the meanwhile any order stopping, staying or postponing delivery is obtained from the Supreme Court in the petition for special leave stated to have been filed by the judgment debtors.