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2002 DIGILAW 165 (KAR)

Abdul Sattar v. Gurlingayya

2002-02-27

V.GOPALA GOWDA

body2002
ORDER V. Gopala Gowda, J.--This revision petition is filed by the Petitioners/obstructors questioning the correctness of the order passed by the Learned Civil Judge (Junior Division) and JMFC and Basavakalyan in E.P. No. 6 of 91 dated 13.02.2002 rejecting the application filed under Section 151 read with Section 47 Code of Civil Procedure for the reasons recorded by it in the impugned order and they have sought for setting aside the same urging various legal contentions. 2. Learned Senior Counsel Mr. V. Tarakaram placed strong reliance upon the Division Bench judgment of this Court reported in Paramound Industries Vs. C.M. Malliga, ILR (1991) KAR 254 , that the Petitioners who are the obstructors, not parties to the Original Suit No. 128 of 1980, which decree was sought to be executed by the decree holder, the first Respondent herein have got right of objection to execute the decree though they are not parties to the decree by filing an application under Order 21, Rule 97 Code of Civil Procedure, which application requires to be enquired into by following the procedure contemplated under Sub-rule (1) of Rule 98 read with Section 101 Code of Civil Procedure as if it is an original suit. Further Learned Senior Counsel placed strong reliance upon the judgment of the Apex Court reported in Brahmdeo Chaudhary, Adv. Vs. Rishikesh Prasad Jaiswal and another, AIR 1997 SC 856 at paragraphs 5, 6, 8 and 9 in support of the proposition that if the obstructors obstruct the execution of the decree by filing an application before their dispossession from the property, the Executing Court is duty bound to treat that application as if it is an original suit and their rights and title claimed in the application shall be determined as provided under the said provisions of Code of Civil Procedure. That has not been done in the instant case. Therefore it is not a deemed decree under Rule 103 and it is not an appealable order. Hence, this revision petition is maintainable and it requires to be allowed, as the Executing Court failed to discharge its statutory duty in rejecting the application and further erred in holding that execution petition is maintainable. 3. Therefore it is not a deemed decree under Rule 103 and it is not an appealable order. Hence, this revision petition is maintainable and it requires to be allowed, as the Executing Court failed to discharge its statutory duty in rejecting the application and further erred in holding that execution petition is maintainable. 3. Learned Senior Counsel further submits that though there was an earlier order dated 11.11.1992 on the similar application filed by the Petitioners, the said order was challenged before this Court in Civil Revision Petition No. 4878 of 1992. This Court by its order dated 10.12.1992 rejected the revision petition, with a direction to the Petitioners therein to pursue the remedy. It is further urged that pursuant to the liberty given to the Petitioners, O.S. No. 10 of 1993 filed by the Petitioners seeking for a declaration and consequential relief of permanent injunction that the judgment and decree passed by the Trial Court in O.S. No. 128 of 1980 cannot be executed, as they are in lawful possession of the property in question as tenants under Smt. Khaja Begum. In support of the said submission, Learned Senior Counsel has placed strong reliance upon 2 judgments of the Apex Court reported in Noorduddin Vs. Dr K.L. Anand, JT (1994) 7 SC 652 and Shreenath and Another Vs. Rajesh and Others, (1998) 3 AD SC 624 that the order passed on I.A's does not operate as res-judicata, particularly so in the instant case for the reason that they are the obstructors who filed application obstructing the execution of the decree and contending that they are in lawful possession of the property in question as tenants under Smt. Khaja Begum, which is a statutory right requires to be determined by the Executing Court as if it is a original suit following the procedure contemplated under Sub-rule (1) under Rules 98 and 101 code of civil Procedure . That procedure has not been complied with by the Executing Court in the instant case. Therefore it is urged that the order is wholly unsustainable in law and prayed for setting aside the same and remit back the same to the Executing Court for its reconsideration in accordance with law. 4. Learned Counsel Mr. D.L.N. Rao appearing on behalf of the Caveator's Counsel Mr. Therefore it is urged that the order is wholly unsustainable in law and prayed for setting aside the same and remit back the same to the Executing Court for its reconsideration in accordance with law. 4. Learned Counsel Mr. D.L.N. Rao appearing on behalf of the Caveator's Counsel Mr. Shivakumar Kalloor submits that the application in which impugned order is passed operates as res-judicata, having regard to the undisputed fact that at the instance of the Petitioners on the similar contentions raised in their earlier application before the Executing Court, the said Court has rejected their application vide its order dated 11.11.1992 after considering the rival contentions urged by the parties holding that the obstruction made by the Petitioners are wholly untenable in law. The said order was challenged before this Court. This Court has rejected the revision petition referred to supra. Similar application, after lapse of 10 years is filed by them and sought to obstruct the execution of the decree by the decree holder. Therefore it is urged that the principle of res judicata under Section 11 Code of Civil Procedure with all force applicable to the facts of the present case placing reliance upon the judgment of the Apex Court reported in AIR 1977 SC 392 Y.B. Patil and Ors. v. Y.L. Patil. In support of the submission, he has placed reliance on three judge bench judgment of the Apex Court reported in Hope Plantations Ltd. Vs. Taluk Land Board, Peermade and Anr., JT (1998) 7 SC 404 . at para 26, wherein the Apex Court has laid down the principles of estoppel and resjudicata after extensively considering the relevant provisions of Code of Civil Procedure and Evidence Act. Further it is held that "Plea of estoppel can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings, once an order made in the course of the proceeding becomes final, it would be binding at the subsequent stage of the proceeding." Therefore, on these grounds, the learned Counsel for the first Respondent submits that the revision petition is liable to be rejected. 5. 5. Alternatively, Learned Counsel for the first Respondent submits that the findings recorded by the Executing Court on the application filed by the Petitioners is on merits holding that the objections raised by the obstructors are wholly untenable in law having regard to the long drawn history of the case between the parties and by Smt. Khaja Begum under whom the Petitioners are claiming as tenants and the proceedings are being agitated by her from the year 1973. The Petitioners after their revision petitions were rejected, filed O.S. No. 10 of 1993 before the Civil Judge (Senior Division), Basavakalyan seeking for a declaratory relief as stated above. Further in the said original suit, an application for grant of temporary injunction was filed. The Trial Court by allowing I.A. 2, granted ad-interim order of temporary injunction, which order was challenged by the decree holder in Miscellaneous Appeal No. 4 of 1995 before the Principal Civil Judge (Senior Division), Basavakalyan and the same came to be set-aside by the Appellate Court after recording prima facie finding disbelieving the case of the Petitioners that they are in occupation of the premises Nos. 26-177 to 26-186 as claimed by them and the Appellate Court has rightly recorded a prima facie finding holding that they have failed to make out a case in support of the application IA 2 filed before the Trial Court in their original suit and the order passed by the First Appellate Court in the Miscellaneous Appeal No. 4 of 1995 dated 12.11.1997 was unsuccessfully challenged before this Court in Revision Petition No. 543 of 1998. This Court has elaborately considered the previous litigation of Smt. Khaja Begum in O.S. No. 596 of 1973 and also O.S. No. 190 of 1992, the earlier revision petition and the writ petitions referred to in the order and has also placed reliance upon the judgments of this Court and Apex Court and has affirmed the findings of the First Appellate Court and held that the Petitioners are not in possession of the property in question. Therefore Learned Counsel for the first Respondent submits that the claim of the Petitioners that they are in possession of the property in question as tenants prima facie is found to be untrue and therefore the First Appellate Court has rightly set-aside the interim order of temporary injunction granted by the trial Court in favour of the Petitioners by allowing the Miscellaneous Appeal No. 4 of 1995 against which CRP was filed, which came to be dismissed. The order passed in the CRP was also challenged by the Petitioners before the Supreme Court in SLP (Civil) No. 11470 of 1999. The Apex Court, dismissed the SLP by affirming the order of this Court vide its order dated 27.08.1999. Therefore the objections raised by the obstructors, the Petitioners herein contending that they are in possession as tenants in the property in question is wholly untenable in law, which cannot be accepted by this Court. For this reason also, the impugned order passed by the Executing Court is perfectly legal and valid and therefore the same cannot be interfered with by this Court in exercise of its revisional jurisdiction. 6. The learned Counsel for the decree holder has also placed reliance upon judgment of the Calcutta High Court reported in Ram Charan Sikdar Vs. Sm. Jogamaya Basu and Anr., AIR 1978 Cal 193 wherein this Court's judgment reported in AIR 1961 Mys 268 is referred to at para 7 which has been considered. The said High Court has held that a decree for injunction can be executed against the obstructors who have no right, title to obstruct the lawful possession of the Decree holder. Therefore, learned Counsel for the decree holder/first Respondent prayed for dismissal of this revision petition, as the Petitioners have been successfully filing application after application trying to obstruct the execution of the Decree passed by the competent Civil Court in favour of the Decree holder in respect of the property in question after recording a finding that he is the absolute owner of the property in question and he is in possession of the same. 7. 7. With reference to the above said rival contentions urged by the Learned Counsel on behalf of the Petitioners and the first Respondent-decree holder, I have examined the correctness of the submissions made by them in the background of the previous litigation referred to in the impugned order between the parties in the same proceedings at an earlier occasion in the year 1992. It is an undisputed fact that the Petitioners have filed similar application before the Executing Court taking the very same contention as has been urged in the application on which the impugned order is passed contending that they are not parties to the Decree passed by the Trial Court in favour of the decree holder in respect of the property in question and the decree passed in the original suit filed by the Decree holder would affect their rights of their alleged lawful possession and contention urged on their behalf that before issuing a delivery warrant their objections on the execution proceedings required to be decided as provided under Sub-rule (1) of Rule 98 read with Rule 101 of Order 21 Code of Civil Procedure., the very same contention urged in the earlier similar application has been rightly negatived by the Executing Court by its order dated 11.11.1992, against which order, Revision Petition Nos. 4878 of 1992 and 4992 of 1992 were filed by the Petitioners and other objectors, whose revision petitions were rejected by this Court with liberty to pursue their remedy available to them under law. Pursuant to the said order, the Petitioners have filed O.S. No. 10 of 1993 for the reliefs referred to supra. After lapse of nearly one decade, again, similar application was filed by the Petitioners and the same was rightly opposed by the Decree holder placing reliance upon the earlier order passed on the similar application. 8. Further, learned Counsel for the decree holder placed reliance upon the order passed by this Court in CRP No. 543 of 1998 wherein this Court has affirmed the order passed in M.A. No. 4 of 1995 by the First Appellate Court setting aside the interim order of temporary injunction granted on I.A. 2 in the Original Suit No. 10 of 1993 filed by the Petitioners vide its order dated 12.11.1997. Therefore the finding recorded by the Executing Court in the impugned order holding that application is not maintainable is perfectly justified for the reason that the same is in conformity with the law laid down by the Apex Court on three judge bench judgment reported in AIR 1977 SC 392 Y.B. Patil and Ors. v. Y.L. Patil upon which the Learned Counsel Mr. D.L.N. Rao appearing on behalf of first Respondent has placed reliance. At para 4 of the above judgment, law has been succinctly laid down with regard to the principles of res-judicata, the relevant portion of the said judgment is extracted hereunder: It is well settled that principles of res-judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings, once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding. 9. Learned Counsel for the decree holder has also rightly placed reliance upon another three judge bench judgment of the Supreme Court reported in Hope Plantations Ltd. Vs. Taluk Land Board, Peermade and Anr., JT (1998) 7 SC 404 . at Para 26, wherein the Apex Court had an occasion to consider the policy behind Section 11 Code of Civil Procedure the principles of estoppel and res-judicata and its public policy. At para 26 of the above judgment, law has been succinctly laid down which is extracted as hereunder: It is settled law that the principles of estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are "cause of action estoppel" and "issue estoppel". These two terms are of common law origin. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are "cause of action estoppel" and "issue estoppel". These two terms are of common law origin. Again, once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is to approach the higher forum if available. The determination of the issue between the parties given rise to, as noted above, an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operates in subsequent suits between the same parties in which the same issue arises. Section 11 of the Code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. Legal principles of estoppel and resjudicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice. In view of the law laid down by the Supreme Court in the case referred to supra the subsequent similar application filed by the Petitioners in the execution proceedings has to be held as res-judicata and therefore they are estopped from filing such application again in the execution proceedings. Though the Executing Court has not dealt with this aspect of the matter, Learned Counsel appearing on behalf of the decree holder has rightly pointed out in this case with regard to the ratio laid down by the Apex Court in the cases referred to supra, which are with all force applicable to the facts situation of the present case. On this ground alone the revision petition filed by the Petitioners is liable to be rejected. 10. Further contention urged by the Learned Senior Counsel Mr. Tarakaram on behalf of the Petitioners is that the principle of res-judicata is not applicable to the case on hand placing reliance upon two judge bench judgments of the Supreme Court reported in Noorduddin Vs. Dr K.L. Anand, JT (1994) 7 SC 652 and Shreenath and Another Vs. 10. Further contention urged by the Learned Senior Counsel Mr. Tarakaram on behalf of the Petitioners is that the principle of res-judicata is not applicable to the case on hand placing reliance upon two judge bench judgments of the Supreme Court reported in Noorduddin Vs. Dr K.L. Anand, JT (1994) 7 SC 652 and Shreenath and Another Vs. Rajesh and Others, (1998) 3 AD SC 624 The reliance placed upon the said judgments cannot be applied to the facts of this case, as the Learned Counsel appearing on behalf of the decree holder has rightly placed strong reliance upon three judge bench judgments which has not been referred in the above referred subsequent judgments of the Supreme Court and the reliance placed upon by the Decree Holder's Counsel upon the judgments are of the three judge bench which are binding on this Court under Article 141 of the Constitution of India and therefore as law declared by the Apex Court in the cases upon which reliance is placed by Counsel on behalf of Decree Holder/first Respondent are applicable to the facts of the present case, as the same supports the legal submission made by him, this Court has to hold that the Petitioners are not only estopped from filing similar application again obstructing the execution of the decree as the order passed on the similar previous application by the Executing Court operates as res-judicata though it is an interlocutory order which became final. 11. The last contention urged on behalf of the decree holder is that the decree of declaration and permanent injunction granted by the trial Court in his favour can be executed against the obstructors who are trying to obstruct the lawful constructive possession of the premises in question. In support of his submission, the Learned Counsel has aptly placed reliance upon Calcutta High Court judgment reported in Ram Charan Sikdar Vs. Sm. Jogamaya Basu and Anr., AIR 1978 Cal 193 in which judgment, the judgment of this Court reported in AIR 1961 Mys 268 is referred to and considered and the said High Court has laid down the law at Para 7, which is extracted as hereunder: The next case referred to by Mr. Mitter has been reported in AIR 1961 Mys 268 Gundila Manjappa Shetty v. Manjakke Shedthi. Mitter has been reported in AIR 1961 Mys 268 Gundila Manjappa Shetty v. Manjakke Shedthi. In this case it has been held that "A person disobeys an injunction not only if he fails to perform an act which he is directed to do but also when he does an act which he is prohibited from doing. There is as much disobedience in the one case as in the other." It was further held that "If during execution of a decree granting permanent injunction to the decree-holder it is found that circumstances have altered and the question whether such alteration of circumstances was the consequence of the acts of the judgment- debtor becomes a complicated question of fact the executing court, may possibly in appropriate cases, direct the aggrieved party to institute another suit; but, even if it could do so, the question as to whether execution should be disallowed on the ground in a particular case is a matter depending on the discretion of the executing Court and on the facts of the case which it has to consider." In para 11 it is observed "It is not easy to understand how the judgment-debtor in this case can contend that since the injunction granted against him was merely in the nature of a prohibition, and not mandatory, the executing court cannot find him guilty on having disobeyed it, although it was satisfied that he has done the very thing which he was forbidden from doing. The decree-holder was therefore clearly entitled to ask the executing Court to direct the judgment-debtor to obey the injunction and in default to commit to civil prison." In the present case as has already been stated the decree-holder got a decree for permanent injunction and the judgment-debtors were restrained from interfering with the decree-holder's possession in respect of the disputed pathway and it is the admission of the judgment-debtors that such obstruction was made after the decree was passed. In such circumstances, Mr. Mitter submits that the executing court is within its right to pass appropriate orders for removal of the obstruction in order to give effect to the decree passed by the Court. Mr. Mitter also refers to a decision reported in Ondipudur Weavers co-operative Production and Sales Society Ltd., represented by its Special Officer and Others Vs. Velumani and Others, (1977) 2 MLJ 19 . Mr. Mitter also refers to a decision reported in Ondipudur Weavers co-operative Production and Sales Society Ltd., represented by its Special Officer and Others Vs. Velumani and Others, (1977) 2 MLJ 19 . It was laid down "It is a well established rule that while the machinery and remedy provided under Order 21, Rule 32(1) of the Code of Civil Procedure would cover cases of both prohibitory and mandatory injunction, Sub-rule (5) of that rule will apply only to cases of mandatory injunction because it speaks of a positive act to be done by the judgment-debtor under the decree and wherever there is no mandatory injunction directing the judgment-debtor to do a positive act, the remedy open to decree holder is to file a fresh suit seeking a mandatory injunction." Though such a legal proposition was laid down, in the case before His Lordship there was a decree declaring the Respondents' right to use the pathway and in injunction restraining the Appellants from interfering with such right. When the Respondents, decree holder, found that the pathway is so covered with thorny bushes that the right of pathway declared in their favour could not be properly exercised, normally they are entitled to clear the thorny shrubs for facilitating their use of the pathway. But when it was found that the Appellants, judgment-debtors, resisted that attempt of the Respondents, decree-holders, in clearing the thorny shrubs found on the pathway, naturally they have to approach the executing court complaining that the judgment-debtors who have been restrained from interfering with the user of the pathway by the decree-holder are obstructing the clearance of the thorny shrubs and therefore they have virtually disobeyed the orders of preventive or prohibitory injunction. Order 21, Rule 32(5) of the Code is not invoked by the decree-holders on the ground that the Appellants as judgments-debtors have not performed any positive act directed by the Court but that they are preventing the clearance of the shrubs by the decree-holders for the proper use of the pathway. Such interference with the clearance of the thorny shrubs will amount to an indirect attempt on the part of the judgment-debtors to interfere with the Plaintiff's user of the pathway. Such interference with the clearance of the thorny shrubs will amount to an indirect attempt on the part of the judgment-debtors to interfere with the Plaintiff's user of the pathway. If, in fact, the judgment-debtors have not obstructed or prevented the clearance of the shrubs by the decree-holders, they would not have approached the executing court for the appointment of a Commissioner to clear the thorny shrubs. As such circumstances, it was held that the application under Order 21, Rule 32(1) and (5) was maintainable. Relying on the decisions referred to above and considering the facts and circumstances of the case, I am of the opinion that the learned Munsiff was right in rejecting the application under Section 47 of the Code. 12. The reliance placed upon the above judgment by the Learned Counsel for Decree holder/first Respondent with all force applicable to the facts of the present case having regard to the undisputed prima facie finding recorded by the First Appellate Court in Miscellaneous Appeal No. 4 of 1995 by its order dated 12.11.1997 holding that the Petitioners are not in possession of the property in question, as it has set-aside the order passed by the trial Court on I.A. No. 2 in O.S. No. 10 of 1993 dated 21.01.1995 and this Court has concurred with the said finding of the First Appellate Court after referring o the long drawn litigation initiated by Smt. Khaja Begum and also has considered the claim of the Petitioners with reference to the judgments of this Court, other High Courts and Apex Court reported in 1982 (2) KarLJ 289 Lalithakshi v. Basappa, Krishna Ram Mahale (Dead) , by his Lrs. Vs. Mrs. Shobha Venkat Rao, AIR 1989 SC 2097 , Laxmikant and others Vs. Satyawan and others, (1996) 4 AD SC 132 and K.V. Narayan Vs. S. Sharana Gowda and Another, AIR 1986 Kant 77 and held that prima facie, the obstructors are not in possession of the property in question. The said order was challenged before the Supreme Court in SLP (Civil) No. 11470 of 1999, the same came to be rejected by affirming the order of vacating interim order of temporary injunction passed by the First Appellate Court. The said order was challenged before the Supreme Court in SLP (Civil) No. 11470 of 1999, the same came to be rejected by affirming the order of vacating interim order of temporary injunction passed by the First Appellate Court. The finding recorded by the First Appellate Court in the Miscellaneous Appeal referred to above is concurred with this Court in the CRP referred to supra holding that the obstructors/Petitioners are not in possession of the property in question and the decree sought to be executed in the execution proceedings by the first Respondent cannot be prevented. In this view of the matter, the reliance placed upon the judgment of the Calcutta High Court by the Learned Counsel for first Respondent is with all force applicable to the facts situation of the present case. For the reasons stated supra, the trial Court was not required to determine their alleged claim of tenancy upon the property in question and they are in possession and therefore their rights shall be determined on their application by following the procedure contemplated under Sub-rule (1) of Rule 98 read with Rule 101 under Order 21 Code of Civil Procedure cannot be accepted, as the subsequent similar application filed by the Petitioners is not maintainable in law, as held by the Apex Court in the cases referred to supra since it is barred by res judicata under Section 11 Code of Civil Procedure . 13. For the reasons stated supra, absolutely there is no merit in this case. Hence, petition is liable to be rejected. Accordingly, it is rejected.