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2004 DIGILAW 1391 (ALL)

Lal Devendra Pratap Singh v. Bilkis Masood

2004-07-29

S.N.SRIVASTAVA

body2004
JUDGMENT : S.N. SRIVASTAVA, J. 1. Impugned herein the order dated 2.4.2004 passed by District Judge, Azamgarh thereby dismissing the revision summarily at admission stage. The order impugned herein stemmed from order dated 29.3.2004 passed by Addl. Civil Judge, Azamgarh in Execution Case No. 59 of 2003 whereby applications 341 Ga-2, 350 Ga-2 and 352 Ga-2 and objections preferred were disallowed. 2. Few facts as are imperative to shed light on he; controversy involved in this petition, may be recapitulated. The dispute revolves rovind property known as Hafiz Manzil situated in village Narauli Tappa, Harbansh School, Pargana Nizambad, Tahsil Sadar, District Azamgarh. The property originally belonged to Dr. Hafiz Ullah, a retired civil surgeon who expired in the year 1948 and was survived by plaintiffs and proforma defendants 0 to 15 arrayed In the plaint. In the wake of his death, the property was entailed upon plaintiffs and proforma defendants and out of them proforma defendants 9 to 15 and Anis Ahmad, Rais Ahmad and Hamlra Bibi migrated to Pakistan. The share of the migrated persons in the property being 35/128th part as computed under the Mohammedan Law, was declared evacuee property under the Administration of Evacuee Property Act which came to be acquired by the Central Government. Since shares of evacuee and non- evacuee remained conjoint, ultimately final order; were passed on 14.3.1956 by the competent officer on separation of shares and on 15.7.1959 the plaintiffs were communicated with to part with the management of the portion which had been demarcated as evacuee property. In the ultimate analysis the evacuee property was sold off through sale certificate dated 14.8.1964. It would transpire that plaintiffs felt aggrieved by the sale certificate as It subsequently trickled to their knowledge that a larger area had been acquired as evacuee property, and instituted a suit being suit No. 55 of 1965, alleging that the sale certificate was collusive and prayed for relief that the sale certificate was declared null and void. The suit for possession eventuated into a decree whereby the defendant No. 1 was directed to remove encroachments over the portion within three months. A Civil Appeal Bearing No. 457 of 1991 passed by 7th Addl. District Judge, Azamgarh was preferred by which decree passed by the trial court was reversed. The suit for possession eventuated into a decree whereby the defendant No. 1 was directed to remove encroachments over the portion within three months. A Civil Appeal Bearing No. 457 of 1991 passed by 7th Addl. District Judge, Azamgarh was preferred by which decree passed by the trial court was reversed. However, in Second Appeal No. 800 of 1995 preferred by this Court, the Judgment and decree passed by the High Court was set aside and that of the trial court was restored. Thereafter, leave to petition was preferred before the Supreme Court, which ended up in dismissal on 3.2.1997. It was in the above perspective that execution proceeding in Execution Case No. 59 of 1996 commenced. Pursuant to commencement of execution proceeding, court amin was deployed to execute decree and at that time, petitioner who was accompanied by his counsel namely, Sri Ram Singh Sharma, advocate hindered the execution of decree and consequently, court amin submitted his report 34 C2 to that effect from the execution court. It would transpire from the record that petitioner in the instant petition preferred objection in the said proceeding under Order XXI Rule 97, C.P.C. on 16.3.2004 to the effect that he had obtained an ex parte decree dated 27.10.2001 against some of the decree-holders in Suit No. 826 of 1997 from the Court of Civil Judge (J.D.) Azamgarh containing edict; restraining by permanent injunction not to interfere with the possession of petitioner. It would further appear from the record that after affording opportunity, Applications paper Nos. 341GA 2, 350 Ga 2 and 352 GA 2 were disallowed with cost quantified at Rs. 3,000 vide order dated 29.3.2004 passed by Addl. Civil Judge (S.D.) It is In the above backdrop that the present petition has been instituted by the petitioner. 3. Learned counsel for the petitioner canvassed that Suit No. 726 of 1997 instituted by the petitioner, culminated in being decreed vide judgment and decree dated 27.10.2001 and thus, the petitioner had a decree in his favour which had the effect that his rights over the property had come to be recognised and therefore, proceeds the submissions, he rightly resisted execution of decree in terms of the decree rendered in Suit No. 55 of 1965. To bolster up his contention, the learned counsel placed credence on a decision of Apex Court in Brahmdeo Chaudhary, Adv. Vs. To bolster up his contention, the learned counsel placed credence on a decision of Apex Court in Brahmdeo Chaudhary, Adv. Vs. Rishikesh Prasad Jaiswal and another, AIR 1997 SC 856 , and submitted that when under Order XXI Rule 97, C.P.C. a stranger occupying the premises in his own right and he offers resistance to the execution of the decree obtained by the decree holder against the judgment debtor qua such property, he can request the execution court to adjudicate upon his resistance and obstruction without being Insisted upon that first he must hand over possession and then only move an application under Order XXI, Rule 99, C.P.C. He further canvassed that his rights are liable to be executed at this stage. He further canvassed that the impugned order dismissing his application on the ground that earlier judgment and decree had attained finality upto the stage of Supreme Court, cannot be sustained in law Inasmuch as resistance by stranger i.e., the petitioner in the instant case is based on legitimate ground, the petitioner being equipped with the decree and the execution court, proceeds the submission erred In law in dismissing his objection in limine. He further canvassed that the order impugned herein is clearly vitiated In law inasmuch as the decree holders were parties to the original suit filed by the petitioner and therefore, the decree rendered in suit No. 55 of 1965 cannot be executed against the petitioner. 4. I have bestowed my anxious consideration to the facts and circumstances. Before scrutinising the respective contentions of the learned counsel with reference to the facts of this case and the position of law, 1 would first advert to the Judicial pronouncement relied upon by the learned counsel for the petitioner. In my considered view, the proposition of law expatiated in the decision cannot be made applicable to the acts of the instant petition inasmuch as execution court has considered the claim of the stranger i.e., the petitioner on merits and demolished the same and it rightly recorded a finding upon examining the original record which the Court had summoned in the course of execution proceeding that notices were neither issued nor served to the defendants of that suit and the decree in that suit was obtained ex parte without notice to the decree holders of the earlier suit. It was further observed by the execution court that suit No. 726 of 1997 was got instituted by Sri Ram Singh Sharma though petitioner, and it was a collusive suit and obstruction/ resistance was without a just cause. It has also been noticed that Sri Ram Singh Sharma who had represented defendant Dr. Rajdeo Singh, judgment-debtor in original suit had manoeuvred for an ex parte decree without notice to the decree holders with a view to benefit the defendant- judgment-debtor and to the detriment of decree holders in the earlier suit. It has also been noticed by the court below that proceeding in suit No. 726 of 1997 was ex parte and proceeded on without notice to the decree holders and converged to the conclusion that the proceedings were stage-managed and manipulated. It has also been observed by the execution court that Sri Ram Singh Sharma had set up the petitioner and had himself created obstruction in the execution of decree actuated by ulterior motive to benefit the judgment-debtor. From a perusal of the order of the execution court, it would crystallise that the execution court discussed in detail each and every aspect and converged to the conclusion that the counsel who had represented the defendant-judgment- debtor in the original suit No. 55 of 1965, was fully aware of the orders passed in the matter upto the stage of the Apex Court and he thus acted against the ethics of his profession by trying to over-reach and defeat the orders passed by High Court as well as the Apex Court in the matter. 5. Having considered the materials on record, I fully endorse the view of the court below that the conduct of the counsel to represent the petitioner in the subsequent suit and in trying to stultify the orders of the High Court and the Apex Court notwithstanding full knowledge that the decree had attained finality was in fact actuated by improper motive to benefit the judgment debtor of the earlier suit. The court below, as its order would reveal, came to this conclusion on the basis of vakalatnama filed in the case by Sri Ram Singh Sharma and thus it would be seen that he actually worked for the benefit of judgment-debtor. The court below, as its order would reveal, came to this conclusion on the basis of vakalatnama filed in the case by Sri Ram Singh Sharma and thus it would be seen that he actually worked for the benefit of judgment-debtor. In the conspectus of the above discussion, I have no reason or materials on record to disagree that Sri Ram Singh Sharma, who had represented the judgment-debtor in the original suit and had pitch forked himself to be used by the petitioner In the subsequent suit filed by the petitioner, as supported by the finding of the Court below, had manoeuvred for ex parte decree for the benefit of judgment-debtor and in pursuance of this design, he had set up the petitioner as stranger on the dint of decree obtained ex parte in order to over-reach the earlier decree and as such, resistance offered on the dint of ex parte decree as mentioned supra, was without a just cause and cannot be viewed charitably in the light of a valid resistance. The quintessence that flows from the order of the execution court is that ex parte decree was obtained without notice to the defendants and thus, it cannot be gainsaid, it is one obtained in flagrant violation of the principles of natural justice. It is enunciated in various pronouncements that order or decree passed ex parte without notice or without giving opportunity of hearing to the other party against the principles of natural justice Is void and is liable to be discounted. In Chintapalli Agency Taluk Arrack Sales Cooperative Society Ltd. and Others Vs. Secretary (Food and Agriculture) Government of Andhra Pradesh and Others, AIR 1977 SC 2313 : (1977) 4 SCC 337 , it was held that violation of the requirements of natural justice, by denying an opportunity to be heard, will render the impugned decision or order void. In dime a dozen cases, the Apex Court has urged the desirability of observing in compliance the principles of natural justice and departure from it has been viewed as having the effect of invalidating the order or rendering the same void. In Swadeshi Cotton Mills Vs. Union of India (UOI), AIR 1981 SC 818 , the Apex Court held the self-same view and deprecated violation with the principles of natural Justice to the extent of rendering the order void. 6. In Swadeshi Cotton Mills Vs. Union of India (UOI), AIR 1981 SC 818 , the Apex Court held the self-same view and deprecated violation with the principles of natural Justice to the extent of rendering the order void. 6. Reverting to the decision cited across the bar by the learned counsel for the petitioner as referred to above in vindication of his stand, It may be observed that it having been held that ex parte decree was obtained by the petitioner through Ram Singh Sharma and the resistance/obstruction offered by the petitioner and his counsel was without a just cause and was actuated by improper motive, and also considering that foundation set up by the petitioner through his counsel Sri Ram Singh Sharma had no grouting, the ratio flowing from the decision cannot be called in aid to the benefit of the petitioner. 7. Having viewed the matter in the above perspective, I am of the view that the suit No. 726 of 1997 in which ex parte decree was obtained behind the back and without notice to the decree holders of suit No. 55 of 1965 was instituted with the oblique motive of circumventing and over-reaching the effects flowing from the decree obtained in suit No. 55 of 1965 and by this reckoning, the decree rendered in suit No. 55 of 1965 which was slugged out upto the stage of the Apex Court, had since attained finality between the parties and subsequent ex parte decree obtained collusively in suit No. 726 of 1997 and that too without any Indicia of notice having been issued, would not be fraught with the consequence of operating as an obstacle in the execution of earlier decree. It may further be observed in the facts and. circumstances discussed above that resistance/ obstruction offered by the petitioner through Sri Ram Singh Sharma was without a just cause and was actuated by oblique motive of benefiting the cause of judgment-debtor. I cannot resist temptation to drauj-attention of the court below to the provisions contained in Order XXI Rule 99 (2) which envisages that "where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the Judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee..................... I cannot resist temptation to drauj-attention of the court below to the provisions contained in Order XXI Rule 99 (2) which envisages that "where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the Judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee..................... it shall direct that the applicant be put into possession of the property and where the applicant is stilt resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days" Resistance/obstruction having been held without a just cause, In my considered view, the execution court is clothed with ample power under Order XXI, Rule 99 (2), C.P.C., to deal with such obstruction/resistance in execution of decree rendered in suit No. 55 of 1965. Coming to the portion of order in which cost has been imposed on the petitioner, no interference is called for inasmuch as it has rightly been passed and it has been rightly held by the court below that resistance/obstruction offered was without a just cause. 8. As a result of foregoing discussion, the petition fails and is accordingly dismissed.