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Madhya Pradesh High Court · body

2007 DIGILAW 39 (MP)

Ramji Bhai Patel v. Durgabai

2007-01-15

A.M.NAIK

body2007
ORDER 1. The degree holder-petitioner obtained a decree for possession against the respondents (except respondent No.9) for restoration of possession of the land shown by the letter 'BONML' in the plain map vide decree dated 16.1.1996 from the Court of XV Civil Judge, Class II, Jabalpur in Civil suit No.428-A/84 as revealed in Annexure-2. Plain map is contained at page No.11. The decree was confirmed by this Hon'ble Court up to the stage of Second Appeal in SA No.310/2001 vide order dated 3.9.2001 as revealed in Annexure- 3. An application under section 47 of Code of Civil Procedure Code was submitted by the judgment debtor on the ground that the decree holder in execution of the decree is trying to obtain possession of adjacent land shown by green ink which altogether is different from the subject matter of the decree. Certain other objections were also raised. This application was dismissed on 14.3.2002 by the Executing Court on a cost of Rs.300/- as revealed in Annexure-6. Thereafter, an application under O.21 R.97 of Code of Civil Procedure was submitted by respondent No.9 on the ground that he was in occupation of a piece of land admeasuring 15 x 156 ft. (2340 sq. ft.) for preceding 3540 years and was running his business in the name and style of "M/s. Narmada Timber" It was stated that the decree was obtained secretly without imp-leading him and the same was not binding on him. This application was dismissed by the Executing Court on 9.7.2002 on a cost of Rs.1,000/- vide Annexure-7. The rejection of the application under O.21 R.97 of Code of Civil Procedure was upheld in Civil Miscellaneous Appeal No.93/02 vide order dated 28.8.2002 contained in Annexure-8. This was further challenged before this Court in Second Appeal No.604/ 2002 which was disposed of vide Annexure-9 with the following directions: 1. Appellant-objector will file an undertaking within a period of one week before the executing Court that he will remove the super structure at his own costs within a period of 30 days upto the 15th January, 2003. 2. If the appellant informs to the executing Court that he is removing the super structure on a particular date and time (on working day) then the executing Court will appoint/sent Nazir or Naib Nazir on the spot, in whose presence the appellant will remove his super structure. 2. If the appellant informs to the executing Court that he is removing the super structure on a particular date and time (on working day) then the executing Court will appoint/sent Nazir or Naib Nazir on the spot, in whose presence the appellant will remove his super structure. But this will be done on or before 15th January, 2003 and for this purpose no further time will be granted to the appellant. 3. In case the super structure is not removed on or before 15th January, 2003 or appellant fails to file undertaking within a period of one week from today, then the executing Court will execute the decree, in accordance with law. 2. Respondent No.9 instituted a suit for perpetual injunction against the decree holder-petitioner and police authorities wherein his application under O.39 R.1 and 2 of Code of Civil Procedure was dismissed by the Court of IV Additional District Judge, Jabalpur in Civil Suit No.256-A/2002 vide order dated 28th August, 2002 contained in Annexure-10. In the meantime, a warrant of possession was issued by the executing Court on 19.7.2002. Execution report is contained in Annexure-II which establishes that the decree holder obtained possession of the portion which was occupied by Durgabai. However, the possession of the remaining portion could not be handed over as the same was found to have been occupied by one Awasthy and Sons which caused obstruction in the delivery of possession by using show of physical strength. Accordingly, it was reported by the execution employee of the Court that the possession of the entire suit property could not be delivered to the decree holder. 3. On 25.3.2003, the learned Executing Judge clearly observed vide Annexure-13 that the possession of the remaining portion is liable to be delivered to the decree holder in terms of the decree. Accordingly, the application of the decree holder for delivery of possession of the subject portion through police aid was allowed vide Annexure-13 and a warrant of possession as well as for recovery of amount was directed to be issued. Pursuant thereto, a warrant of possession was issued by the learned Executing Judge on 31.3.2003 which again could not be executed due to resistance. This is clearly revealed in the report contained in the warrant marked as Annexure-14. 4. Pursuant thereto, a warrant of possession was issued by the learned Executing Judge on 31.3.2003 which again could not be executed due to resistance. This is clearly revealed in the report contained in the warrant marked as Annexure-14. 4. Thereafter, the judgment debtor submitted an application under O.21 R, 97 of CPC read with section 47 and 151 of CPC stating thereby for the first time that the decree for possession has already been executed and the possession of the disputed property shown by letter BONML has been delivered to the decree holder. It was further stated that the adjacent portion shown by the letters BLJK is occupied by them which is shown by green colour. This green colored portion is not the subject matter of the decree and yet the decree holder is trying to obtain its possession in execution of decree. This was refuted by the decree holder. Executing Court vide its order dated 8.5.2006 contained in Annexure-16 clearly found that green colored portion is altogether different and the decree holder is merely claiming possession of the remaining land (distinct from green colored portion) as per the terms of the decree. The learned Executing Judge found that the execution was being obstructed on frivolous grounds and accordingly, the said application under O.21 R,97 read with section 47 CPC was dismissed vide Annexure-16 on a cost of Rs.1,000/-. 5. Thereafter, the respondents submitted an application under section 47 of the Civil Procedure Code (Annexure-18) for review/recall of order dated 8.5.2006. Two more applications captioned under section 151 of Civil Procedure Code were submitted on 27.6.2006 which are marked as Annexure-19 and 20. Vide Annexure-19 a prayer has been made for dismissal of the execution on the ground that the decree for possession has been fully satisfied. Vide Annexure-20, following prayer has been made: "It is, therefore, most humbly prayed that the Hon'ble Court may be pleased to hold enquiry before issuing warrant as to whether any structure/suit structure having in occupation of possession or non-applicants and objectors are standing over 'N' 'O' portion or not. OR Alternatively warrant map 22.7.2003 and map of green portion as was held by order dated 14.3.2002 is not subject-matter of decree be also tallied with the executing map. OR Whether the non-applicants structure are is really standing over Nazul land or suit land of D/Hrs. OR Alternatively warrant map 22.7.2003 and map of green portion as was held by order dated 14.3.2002 is not subject-matter of decree be also tallied with the executing map. OR Whether the non-applicants structure are is really standing over Nazul land or suit land of D/Hrs. and non-applicant Durgabai's structure marked by BOMNL already executed has no concern with objectors structure or 'N' 'O' portion. 6. All these applications were opposed by the decree holder. After hearing the parties, learned Executing Judge vide the impugned order contained in Annexure-21 dismissed the application for review of order dated 8.5.2006. However, he observed that the possession of the portion BONML has been delivered to the decree holder according to the map annexed to the decree dated 16.1.1996 and the decree for possession was fully satisfied. However, he found that the decree relating to money was not satisfied and a warrant for recovery may be issued with respect to it. 7. Aggrieved by the aforesaid in relation to Annexure-19 and 20, the present writ petition has been preferred by the decree holder, mainly, on the following grounds : (i) Possession of portion BONML has not been delivered to the decree holder in execution of the decree or otherwise. (ii) The alleged delivery of possession of the said portion was not certified by the Executing Court and the same could not be legally accepted contrary to O.21 R.2(3) of Civil Procedure Code. (iii) Finding of the learned Executing Court about satisfaction of the entire decree with respect to the possession of the suit property is perverse being contrary to the Nazir reports and other material on record. (iv) Decree holder is entitled to recover portion of the disputed property which remained undelivered after delivery of the portion occupied by Durgabai on 22.7.2002 (i.e. portion comprised between Durgabai's portion and 'N' 'O'). 8. Shri Vimal Gupta, learned counsel appearing for the contesting respondents strongly contended that the possession of the entire property has already been handed over to the decree holder as has been admitted by the letter in a repeated manner. According to him, the petitioner-decree holder is trying to take possession of the green colored portion which is not the subject-matter of the decree. According to him, the petitioner-decree holder is trying to take possession of the green colored portion which is not the subject-matter of the decree. Thus, according to the learned counsel, the Executing Judge has rightly found the decree holder to have obtained the possession of the entire suit property and the writ petition is there for liable to be dismissed. 9. Considered the submissions and perused the record. 10. First question which comes up for consideration is whether the possession of the entire disputed land was delivered to the decree holder and the decree was satisfied with regard to its possession part. Admittedly, the rights of the parties were crystallised and a decree for possession in respect of the land shown by the letters BONML in the plaint map was granted in favour of the decree holder vide order dated 16.1.1996 which ultimately attained finality. A warrant of possession was issued by the executing Court on 19.7.2002. In the execution report contained in Annexure-II it is clearly mentioned that the possession of the portion which was occupied by Durgabai was delivered to the decree holder and the remaining portion could not be handed over to the decree holder as the same was found to have been occupied by one Awasthy and Sons which caused obstruction in delivery of possession. This has been clearly found by the Executing Court in paragraph 9 and 10 of the impugned order. 11. Shri Vimal Gupta, learned counsel appearing for the respondents contended that the possession of the undelivered portion (i.e. land comprised between 'N' 'O' and the portion vacated by Durgabai) was delivered on 14.1.2003 as revealed in Annexure R-14 and R-15. Both these documents are private documents with no authenticity. Annexure R-14 is a 'Panchanama' allegedly executed by Beni Prasad Awasthy on 13.1.2003 and witnessed by certain persons wherein it is mentioned that the super structure standing on the said land has been demolished on 13.1.2003 in pursuance of the order dated 12.12.2002 of the Court in the presence of Naib Nazir. Shri Raju Sahu and certain witnesses and debris would be removed on 14.1.2003. This document was executed on 13.1.2003 and obviously the possession of the said portion was not delivered on that day. Annexure R-15 is the document unilaterally executed by Beni Prasad Awasthy on 14.1.2003. Shri Raju Sahu and certain witnesses and debris would be removed on 14.1.2003. This document was executed on 13.1.2003 and obviously the possession of the said portion was not delivered on that day. Annexure R-15 is the document unilaterally executed by Beni Prasad Awasthy on 14.1.2003. It is a photograph with remark put by Beni Prasad himself that the possession has been delivered to the decree holder of the said portion on 14.1.2003. It does not bear the signature of decree holder in acknowledgment of having received the possession. It is important to note that warrant of possession was further issued by the Executing Court on 7.4.2003 and it was reported by Nazir and Durgabai Uudgment debtor No.1 and certain other persons were present on the spot and that the possession of the said portion could not be delivered due to opposition. Had the possession been already delivered on 14.1.2003, such fact could have been easily brought into the notice of Nazir and the Executing Court could also have been informed of the same. This having not been done, the documents contained in Annexure R-14 and R-15 are not believable and it is found that the possession of said portion was not delivered to the decree holder. 12. Shri Vimal Gupta, learned counsel for the respondents much emphasised upon certain admissions contained in Annexure R-17 to R-20. In Annexure R-17, it has been mentioned that the objector is again trying to occupy the said land by making forcible construction but, it seems to be in the light of demolition of super structure which does not actually convey that the possession of the said land was delivered in execution of the decree. Annexure R-18 is an application submitted by the decree holder under section 151 CPC. On 14.12.2003 and Annexure R-19 is another application by the same decree holder. Annexure R-18 to R-20 seem to have contained an admission to the effect that the super structure on the said land was demolished and the debris were not permitted to be removed which could be ultimately removed through process server with lot of difficulty and the possession was delivered to the decree holder. All these documents contain description about the resistance caused in the execution. 13. All these documents contain description about the resistance caused in the execution. 13. Shri Deoras, learned counsel appearing for the petitioner contended that there were no admission in unequivocal and unambiguous terms and the drift of events narrated in Annexure R-18 to R-20 goes to show clearly that the statements containing alleged admissions were made in desperation and the decree holder failed to understand that merely removal of debris did not amount to delivery of possession. 14. It is true that an admission is a substantive piece of evidence, but the same may be proved erroneous as held by Hon'ble Supreme Court of India in the case of Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and others reported as AIR 1960 SC 100 . Case of the respondents is that the possession of the said undelivered portion (i.e. land comprised between 'N' 'O' and the same is found to be incorrect in the light of Nazir report dated 7.4.2003 (Annexure-14) wherein it was clearly mentioned that the possession of the said portion could not be delivered. It is not the case of the respondents that the possession was delivered after 7.4.2003. This being so, the contention of the respondents about delivery of possession on 14.1.2003 in the face of the report of Nazir is found to be incorrect. Accordingly, the alleged admissions are also equally found to be proved erroneous and the decree holder is obviously entitled to obtain possession as per the terms of the decree through machinery of the Court. 15. Shri A.D. Deoras, learned counsel relying upon O.21 R.2 CPC contended that the alleged delivery on 14.1.2003 in the absence of certification is not liable to be recognised by virtue of sub-rule 3 thereof. Order 21 rule 2 is reproduced below for convenience: "2. Payment out of Court to decree holder. -- (1) Where any money payable under a decree of any kind is paid out of Court for a decree of any kind is otherwise adjusted] in whole or in part to the satisfaction of the decree holder, the decree holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly. (2) The judgment debtor [or any person who has become surety for the judgment debtor] also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly. (3) A payment or adjustment, which has not been certified or recorded as aforesaid shall not be recognised by any Court executing the decree." 16. The word 'adjustment' within the meaning of this provision is not synonymous to the word 'satisfaction' in terms of decree. The Supreme Court of India in the case of Padma Ben Banushali and another v. Yogendra Rathore and others [2007(1) Vidhi Bhasvar 5= AIR 2006 SC 2167 ], has held: "It may be pointed out that an agreement, contract or compromise which has the effect of extinguishing the decree in whole or in part on account of decree being satisfied to that extent will amount to an adjustment of the decree within the meaning of the Rule." 17. This Court in the case of Gyasiram Kanairam Vaish v. Brij Bhushandas and another [ 1973 JLJ 125 = AIR 1973 MP 148 ], has held that a decree within the meaning of O.21 R.2 of the Code of Civil Procedure can be adjusted by a lawful agreement as long as it definitely extinguishes the decrial liability either in full or in part. O.21 R.2 deals with the procedure to be followed in a limited class of cases relating to discharge or satisfaction of decree where there has been payment of money or adjustment or satisfaction of the decree by conscious arrangement. Thus, adjustment is clearly not the same thing as satisfaction. It is a method of settling the decree which is not provided for in the decree itself. I may successfully refer to the statement of Wallace J. in the case of Thutta Venkataswami v. Vissamesetti Kotilingam and another [AIR 1926 Mad. 184]. Thus, adjustment is clearly not the same thing as satisfaction. It is a method of settling the decree which is not provided for in the decree itself. I may successfully refer to the statement of Wallace J. in the case of Thutta Venkataswami v. Vissamesetti Kotilingam and another [AIR 1926 Mad. 184]. Thus, O.21 R.2 of the Code of Civil Procedure contemplates an adjustment to the satisfaction of the decree holder and adjustment within the meaning of this provision to be binding must be one between the decree holder and the judgment debtor and by their consent and further the same must be certified in a manner provided there under. To understand the scope of the term 'adjustment' occurring in O.21 R.2 of the Code of Civil Procedure, Full Bench decision of Allahabad High Court in the case of Maharaj Kumar v. Hasan Khan [ AIR 1961 All. 1 ], needs to be referred, wherein it has been held that if the agreement between the parties has the effect of enhancing the liability of the judgment debtor it cannot be treated as bringing about any 'adjustment' of the decree within the meaning of O.21 R.2 of the Code of Civil Procedure. 18. In the present case, the respondents have merely stated that the possession of the entire disputed land having been handed over, the decree as per its terms stood satisfied and the execution case ought to have been dismissed. This specific plea of the judgment debtors does not amount to the plea of adjustment within the meaning of O.21 R.2 of the Code of Civil Procedure as it did not extinguish the rights of the decree holder. It has not been the plea of the judgment debtor that the decree was settled by some method which was not provided for in the decree itself. Thus, there being no plea of adjustment within the meaning of O.21 R.2 of the Code of Civil Procedure, I am of the considered opinion that no certification was needed within the meaning of the said provision. 19. Order 21 rule 2 of the Code of Civil Procedure may be invoked where adjustment of the decree in a manner not provided in the decree itself has been arrived at with the consent of the decree holder and it extinguishes the rights of the decree holder. 19. Order 21 rule 2 of the Code of Civil Procedure may be invoked where adjustment of the decree in a manner not provided in the decree itself has been arrived at with the consent of the decree holder and it extinguishes the rights of the decree holder. It cannot apply to a case in which the adjustment was not accepted by the decree holder. It is not open to the judgment debtor to decide for himself and act on the supposition that the decree has been wholly adjusted though the decree holder is unwilling to accept that position. In the present case, it is revealed in Annexure R-14 (Panchnama) dated 13.1.2003 that the super structure standing on the land was demolished on 13.1.2003 in pursuance of the Court order dated 12.12.2002. The debris were not removed from the land. Thus, obviously the possession of the said portion was not delivered. In addition to it a photograph with remark put by Beni Prasad on 14.1.2003, is on record that the possession has been delivered to the decree holder of the said land on 14.1.2003. In the absence of signature of the decree holder on this document it cannot be said that the possession was received by the decree holder and the decree in question was fully satisfied. 20. The learned Executing Judge has dismissed the application under section 47 read with section 151 of the Code of Civil Procedure upholding' thereby its earlier order dated 8.5.2006. Thus, the Nazir reports dated 19.7.2002 and 7.4.2003 are binding on the parties and the same on account of having attained finality by virtue of order dated 8.5.2006 may well be enforced in execution proceedings. Accordingly, the petitioner-decree' holder is found entitled to execute the decree for possession with respect to the undelivered portion (i.e. land comprised between 'N' 'O' and the portion vacated by Durgabai). 21. It is not the plea of the judgment debtors-respondents that the decree holder obtained the possession of part of the disputed land and in satisfaction of the entire decree he agreed to forego the remaining part which could have the effect of extinguishing the decree with regard to undelivered portion. 21. It is not the plea of the judgment debtors-respondents that the decree holder obtained the possession of part of the disputed land and in satisfaction of the entire decree he agreed to forego the remaining part which could have the effect of extinguishing the decree with regard to undelivered portion. However, I feel that in the fairness of the proceedings the principles enshrined in the said provision may be applied analogically in principle and the judgment debtors could have brought into the notice of the Executing Court in due time that possession of the said portion was delivered to the decree holder on 14.1.2003 and to this extent the report of Nazir dated 7.4.2003 could have been challenged. A judgment debtor who makes compliance of the decree without intervention of the Court, is expected to inform the Court in the due time about such compliance on his part. An executing Court may adjudge the truthfulness of the judgment debtor's contention about such compliance of decree in voluntary manner also on the basis of his conduct. This having not been done, it is not open to the judgment debtors to contend that the possession of the said portion (i.e. land comprised between 'N' 'O' and the portion vacated by Durgabai) was already delivered to the decree holder on 14.1.2003. Consequently, the decree holder is found to be entitled to obtain the possession of the said portion (i.e. land comprised between 'N' 'O' and the portion vacated by Durgabai) through Executing Court. 22. At this juncture, Shri Vimal Gupta, learned counsel for the respondents made a specific statement that the respondents are not concerned with the disputed land and a decree may well be executed for possession. He expressed an apprehension that the decree holder under the garb of the decree may obtain possession of adjacent land shown by green colour at page 23 of the writ petition which is not the subject-matter of the decree. 23. Shri Deoras, learned counsel made a statement at Bar that the decree holder will execute the decree as per the plaint map and he is not interested in any property which is not covered by the decree. The apprehension of the learned counsel for the respondents is not well founded because it is the duty of the Executing Court to ensure that the decree is executed with respect to the property described therein. 24. The apprehension of the learned counsel for the respondents is not well founded because it is the duty of the Executing Court to ensure that the decree is executed with respect to the property described therein. 24. In the aforesaid view of the matter, the petition is allowed. Finding of the learned Executing Judge that the decree holder has already obtained the possession of the entire disputed property is hereby set aside. The Executing Court is directed to execute the decree as it stands ensuring that the execution shall be effected with respect to the property described in the decree only and not with respect to any property which is not the subject-matter of the decree. 25. As regards the property shown in green colour, it is observed that the same being not the subject-matter of the lis before Executing Court, the parties would be free to agitate for their rights in an independent manner. No order as to costs.