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2002 DIGILAW 130 (PAT)

Domni Devi v. Dhrub Kumar Lal

2002-01-29

S.K.KATRIAR

body2002
Judgment S.K.Katriar, J. 1. The objector in the execution proceedings is the petitioner. This civil revision application is directed against the order dated 13-6-2001, passed by the learned Execution Munsif, Gaya, in Misc. Case No. 6 of 2001 {Dhrub Kumar V/s. Domni Devi), with respect to the proceedings in Execution Case No. 27 of 1998, whereby the petitioners application under Order XXI, Rule 97, CPC has been rejected. 2. Parvatia Devi and Satiya Devi were full sisters and the joint owners of the suit property. The northern portion was recorded in the name of Satiya Devi and was registered as Holding No. 40. The southern portion of the suit property was recorded in the name of Parvatia Devi and was registered as Holding No. 39. The suit property is a house with lands in the township of Gaya. Parvatia Devi died on 18-10-1990, leaving behind her husband Nanhku Tatwa, her son Nathun Prasad, and her two daughters, Smt. Domni Devi (the petitioner herein), and Chinta Devi. Nanhku Tatwa died on 9-1-1997. The decree-holders of the present case had instituted Eviction Suit No. 33 of 1995 for eviction of Nanhku Tatwa from the suit property. The plaintiff (decree-holder) claimed title to the suit property on the basis of a registerec deed of absolute sale from Nanhku Tatwa, whereafter, the latter was inducted as a tenant. He died during the pendency of the suit on 9-1-1997, and was substituted by his son, Nathun Prasad, Domni Devi and Chinta Devi also filed applications to be impleaded as party defendants in the Eviction suit which was allowed. It appears that they did not pursue it beyond that and did not contest the suit, which was ultimately decreed by judgment dated 6-8-1998, passed by the learned Munsif, 1st Court, Gaya. Nathun Prasad, Domni Devi and Chinta Devi preferred Civil Revision No. 945 of 1998 and Civil Revision No. 2093 of 1998, challenging the said judgment and decree in the Eviction Suit which have been dismissed by a learned Single Judge of this Court by judgment dated 4-7-2000. Nathun Prasad, Domni Devi and Chinta Devi preferred Civil Revision No. 945 of 1998 and Civil Revision No. 2093 of 1998, challenging the said judgment and decree in the Eviction Suit which have been dismissed by a learned Single Judge of this Court by judgment dated 4-7-2000. It has been noticed in the judgment that the petitioners therein had, during the pendency of the eviction suit, instituted Title Suit No. 69 of 1995 in the Court of learned Subordinate Judge, Gaya, which was later withdrawn with the liberty to institute a fresh suit for the same and/or a new cause of action, vide cansent order dated 16-2-1999, passed by this Court in C.R. No. 2323 of 1998, whereafter, they have instituted Title (Partition) Suit No. 71 of 1999, seeking declaration of their title with respect to the premises in question. Domni Devi and Chinta Devi are the plaintiffs in the T.S. No. 71 of 1999, and Nathun Prasad and the judgment-debtors are the defendants and is still pending. 3. The decree-holder in the meanwhile levied Execution Case No. 22 of 1998. Chinta Devi filed an application in the execution proceedings under Order XXI, Rule 97 CPC which was registered as Misc. Case No. 14 of 2000, praying therein that her title to the suit property be adjudicated in the execution proceedings. The same was rejected by the learned Munsif by order dated 29-11-2000, which was challenged by Chinta Devi in this Court by preferring Civil Revision No. 2326 of 2000, and was rejected by me by order dated 15-10-2001. Domni Devi filed a similar application under Order XXI, Rule 97, CPC which was registered as Misc. Case No. 6 of 2001, and has been rejected by the impugned order. Hence, this Civil Revision application at the instance of Domni Devi, the objector. 4. While assailing the validity of the impugned order, learned Counsel for the petitioner submits that the trial Court has failed to appreciate the purpose, scope and content of Order XXI, Rule 97, CPC. A dispute like the present one has to be adjudicated under the provisions of Rule 97 to 101, CPC of Order XXI. He relies on a Division Bench judgment of this Court reported in AIR 1999 Patna 130, Prahhat Kumar Sinhav. Nirmala Sinha, 5. Learned Counsel for the decree-holder (O.P. No. 1) has opposed this application on various counts. A dispute like the present one has to be adjudicated under the provisions of Rule 97 to 101, CPC of Order XXI. He relies on a Division Bench judgment of this Court reported in AIR 1999 Patna 130, Prahhat Kumar Sinhav. Nirmala Sinha, 5. Learned Counsel for the decree-holder (O.P. No. 1) has opposed this application on various counts. He submits that the brother and the sisters are harassing the decree-holder in a systematic manner so that the decree becomes a barren one. 6. Having considered the rival submissions, i am of the view that this application is fit to be rejected. It is manifest from the narration of facts set out hereinabove that the judgment-debtors are making every possible effect to frustrate the decree in question. After the death of Nanhku Tatwa, Nathun Prasad was substituted in his place. It appears that Domni Devi and Chinta Devi were left out by oversight. However, they themselves filed application(s) in the Eviction Suit to be impleaded as party defendants which was allowed. They did not take any interest in the suit purposely, or on account of sheer negligence, because the brother was contesting the suit, and the price is being paid by the decree-holder. After the Eviction Suit was decreed, the brother and the sisters have not allowed peace to him. The two Civil Revision applications, namely, C.R. No. 1945/98 and C.R. No. 2093/98, challenging the judgment and decree have been rejected by this Court on merits and has attained finality. This Court observed in paragraph 8 of the judgment that it will be open to Nathun Prasad, Domnni Devi and Chinta Devi to pursue the said T.S. No. 71 of 1999, which is essentially in the nature of a partition suit, wherein the registered deed of absolute sale conveying the suit property in favour of the decree-holder is also under challenge. Paragraph 8 of the judgment is set out hereinbelow for the facility of quick reference: 8. Shri Lalit Kishore expressed apprehension that the findings recorded by the Court below in the present suit on the point of title may be used against the petitioners in the suit filed by them. The apprehension, according to me, is wholly unfounded. In eviction suit, the Court is required to go into the question of title incidentally. Without recording the findings in that regard, the Court cannot apparently decree the suit. The apprehension, according to me, is wholly unfounded. In eviction suit, the Court is required to go into the question of title incidentally. Without recording the findings in that regard, the Court cannot apparently decree the suit. In that view, I do not think the findings occurring in the impugned judgment should stand in the way of the petitioners in seeking the reliefs in their suit. Nevertheless, in order to obviate any misgiving or apprehension in this regard, I would direct that any finding recorded in the impugned judgment would not cause any prejudice to the petitioners on the question of title nor stand in their way in seeking reliefs in Title Suit No. 71 of 1999 which shall be decided on the basis of the evidence placed before it by the parties. It is thus manifest that it is now concluded by the judgment of this Court in the litigations inter-parties that insofar as the shares of the heirs of Parvalia| Devi and Nanhku Tatwa is concerned, they shall pursue their claims in the said T.S. No. 71 of 1999. Therefore, the current efforts on the part of Domni Devi and Chinta Devi to prevent execution of the decree by filing applications under Order XXI, Rule 97, CPC in the execution case are clearly misplaced and mala fide. This Court records its strong sense of displeasure in the manner in which the heirs of Parvatia Devi and Nanhku Tatwa are trying to frustrate the decree. Similar application of Chinta Devi has been rejected by the execution Court, and upheld by this Court by order dated 15-10-2001 in C.R. No. 2326 of 2000, Chinta Devi V/s. Dhrub Kumar. 7. The judgment, debtors had earlier instituted T.S. No. 69 of 1995 in the Court of learned Subordinate Judge, 3rd Court, Gaya, with respect to the su t property giving rise to C.R. No. 2323 of 1998, Nathun Prasadv. Dhrub Kumar, in this Court which was disposed of by the following order dated 16-2-1999: 16-2-1999. After hearing Counsel for the parties, this revision is disposed of with the following consent order. The plaintiff would be permitted to withdrawal Title Suit No. 69/95 presently pending in the Court of IIIrd Subordinate Judge, Gaya, with a liberty to institute a fresh suit for the same and/or new cause of action, and the defendants shall not raise objection to its maintainability. The plaintiff would be permitted to withdrawal Title Suit No. 69/95 presently pending in the Court of IIIrd Subordinate Judge, Gaya, with a liberty to institute a fresh suit for the same and/or new cause of action, and the defendants shall not raise objection to its maintainability. The revision stands disposed of. Sd/-S.N. Jha. Consequently, Domni Devi and Chinta Devi have instituted the aforesaid T.S. No. 71 of 1999. In that view of the matter, the petitioner cannot be permittee to pursue her remedy under Order XXI, Rule 97, CPC. Her option to pursue the same cause in a Title Partition suit and affirmed by this Court precludes her from pursuing the remedy under Order XXI, Rule 97, CPC. Pendency of the suit cannot come in the way of execution of the decree in question. In my considered opinion, it is a gross abuse of the process of the Court and a mala fide attempt to prevent execution of the decree. Enunciation of the law governing this issue occurs in Halsburys Laws of England, Fourth Edition (Hailsham Edition), Volume-9 paragraph 38 at page 27, and is set out hereinbelow for the facility of quick reference: 38. Abuse of process in general. The Court has power to punish as contempt any misuse of the Courts process. Thus, the forging or altering of Court documents and other deceits of like kind are punishable as serious contempts. Similarly, deceiving the Court or the Courts officers by deliberately suppressing a fact, or giving false facts, may be a punishable contempt. Certain acts of a lesser nature may also constitute an abuse of process as, for instance, wanting in bona fides or which are frivolous, vexatious, or oppressive. In such cases, the Court has extensive alternative powers to prevent sin abuse of its process by striking out or staying proceedings or by prohibiting the taking of further proceedings without leave. Where the Court, by exercising its statutory powers, its power under rules of Court, or its inherent jurisdiction, can give an adequate remedy, it will not in general punish the abuse as a contempt of Court On the other hand, where an irregularity or misuse of process amounts to an offence against justice, extending its influence beyond the parties to the action, it may be punished as a contempt. The same was quoted with quoted with approval by the Supreme Court in its judgment reported in -, c. In fact, the Supreme Court has gone to the extent of stating that abuse of the process of the Court may be a punishable contempt. 8. In the result, this revision application is hereby dismissed. The Execution Court is hereby directed to proceed with execution of the decree.