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2007 DIGILAW 509 (ORI)

Biswanath Gochhayat v. Mayadhar Parhi

2007-07-05

A.S.NAIDU

body2007
JUDGMENT A. S. NAIDU, J. : In this Writ Petition the petitioner seeks to assail the order dated 7th February, 2005 passed by the learned Addl.Civil Judge (JD), Basudevpur in Execution Case No.3 of 1985 refusing to stay further proceedings of the said Execu¬tion Case till final disposal of T.S. No.15 of 1990 pending in that very Court. 2. The point in dispute which needs determination in this case is as to whether a decree under execution which has attained finality can be stayed only on the ground that another suit has been filed challenging the said decree. 3. The dispute has a chequered career, inasmuch as several Writ applications had earlier been filed before this Court. Sworn of unnecessary details it would be prudent to mention the facts in short. Opposite parties 1 to 3 as plaintiffs had filed O.S. No.64 of 1980-I in the Court of the learned Addl.Munsif, Bhadrak pray¬ing for a decree of eviction against the petitioner who was the defendant in that suit. The suit was thereafter transferred to the Court of the learned Addl.Civil Judge (JD), Basudevpur. The suit was decreed of by judgment passed on 7th January, 1985 and a decree for eviction was passed. The present petitioner and oppo¬site party No.4 assailed the said decree by filing an appeal before the Addl.District Judge, Bhadrak which was registered as T.A. No.14/129 of 1985/1987. The said Title Appeal was dismissed on 4th April, 1989, and thereby the decree of eviction passed by the trial Court was confirmed. A Second Appeal filed being S.A. No.215 of 1989 was also dismissed on 26.8.1989. Thereafter the plaintiff-decree holders filed the aforesaid Execution Case for taking delivery of possession of the disputed property. To stall the proceedings of the said Execution Case the present petitioner-judgment debtor filed T.S. No.15 of 1990 in the very same Court of the Addl.Civil Judge (JD), Basudevpur praying to declare that the decree of eviction passed in O.S.No.64 of 1980-I illegal and without jurisdiction and conse¬quently was a nullity as the civil Court lacked jurisdiction and to pass a decree of injunction. After receiving notice of the said suit (T.S. No.15 of 1990)), present opposite-parties 1 to 3 being the defendants filed their written statement taking the stand that the suit was hit by the principles of res judicata and was not maintainable and the same was liable to be dismissed. After receiving notice of the said suit (T.S. No.15 of 1990)), present opposite-parties 1 to 3 being the defendants filed their written statement taking the stand that the suit was hit by the principles of res judicata and was not maintainable and the same was liable to be dismissed. On the basis of the pleadings of the parties, the trial Court framed several issues for adjudication of the dispute. As prayed for, the issues relating to the question of res judicata, maintainability and jurisdiction of the Court to set aside a decree passed by it in an earlier suit, were decided to be taken up as preliminary issues. In deciding the aforesaid three prelim¬inary issues the trial Court held that the suit was barred by the principles of res judicata; that the suit was not maintainable; and that the Court had no jurisdiction to try the suit. Being aggrieved by the order of the trial Court in deciding the aforesaid preliminary issues, the present petitioner filed Title Appeal No.41 of 2001 in the Court of the learned Addl.District Judge, Bhadrak. The appellate Court by judgment dated 12th September, 2003 allowed the appeal and remitted the matter back to the trial Court with a direction to the trial Court to simply go through the judgment in the latter suit, i.e. O.S. No.64 of 1989-I, the pleadings of the parties in that suit and the prayer/pleadings of the plaintiff in T.S. No.15 of 1990 (latter suit) and decide whether res judicata operates or not. The decision of the trial Court to hear preliminary issues was held to be correct and was confirmed. Thereafter T.S. No.15 of 1990 was taken up and the trial Court decided the preliminary issue as to res judicata. Being aggrieved by the said decision, present opposite parties 1 to 3 filed Civil Revision No.25 of 2003 before the Addl.District Judge, Bhadrak. The said revisional Court issued notice and stayed further proceedings of T.S. No.15 of 1990. After the suit was stayed, the decree-holders proceeded with the Execution Case. Being aggrieved, the petitioner and another approached this Court in OJC No.2521 of 1996 which was disposed of on 22nd April, 1996 granting liberty to the petitioner to approach the appropriate forum. It appears that the petitioner had also approached this Court in OJC No.12558 of 2000 praying to stay the further pro¬ceedings of the Execution Case. Being aggrieved, the petitioner and another approached this Court in OJC No.2521 of 1996 which was disposed of on 22nd April, 1996 granting liberty to the petitioner to approach the appropriate forum. It appears that the petitioner had also approached this Court in OJC No.12558 of 2000 praying to stay the further pro¬ceedings of the Execution Case. The said Writ application was dismissed on 5.2.2002 observing that as by then T.S. No.15 of 1990 had already been disposed of, the Written application was not maintainable. While matter stood thus, T.S. No.15 of 1990 was resorted. Being aggrieved by the order passed by the Addl.District Judge, Bhadrak in Civil Revision No.25 of 2005, the petitioner once again approached this Court in W.P.(C) No.6843 of 2005. The said Writ Petition was disposed of with an observation that the ques¬tion as to whether in view of the bar stipulated under Section 67 of the Orissa Land Reforms Act, the Court deciding an earlier suit, i.e. O.S. No.64 of 1980-I had jurisdiction to entertain the latter suit, i.e. T.S. No.15 of 1990 is a mixed question of facts and law. The reasons given by the trial Court were upheld. The judgment of the revisional Court was quashed and the trial Court was directed to decide all the issues without being influenced by any order. This Court further observed that the Execution Case filed with regard to the decree passed in O.S. No.64 of 1980-I was to proceed in accordance with law. Thereafter another petition was filed in the Execution Case by the petitioner-judgment debtor praying to stay further pro¬ceedings of that case mainly on the ground that he was residing in the disputed property and if evicted therefrom pending final decision of T.S. No.15 of 1990, great prejudice would be caused to him. The executing Court after hearing the counsel for the parties rejected the petition mainly on the ground that a peti¬tion filed earlier seeking the self-same relief had been reject¬ed. The said order, as stated earlier, is challenged in this Writ Petition. 4. According to learned counsel for the petitioner, the right of the petitioner in respect of the suit property needs to be protected until disposal T.S. No.15 of 1990 filed by him, and the executing Court has acted illegally and with material irregularity in rejecting the petition filed to stay further proceedings of the Execution Case. 5. 4. According to learned counsel for the petitioner, the right of the petitioner in respect of the suit property needs to be protected until disposal T.S. No.15 of 1990 filed by him, and the executing Court has acted illegally and with material irregularity in rejecting the petition filed to stay further proceedings of the Execution Case. 5. The submission of the learned counsel for the petition¬er is strongly repudiated by the learned counsel for opposite party Nos.1 to 3- decree holders. He submitted that in spite of the decree having been passed as long back as in the year 1985 and the appeal preferred by the petitioner against the said decree having been dismissed, the decree-holders are still de¬prived of enjoying the fruits of the decree. He added that the petitioner-judgment debtor is adopting dilly dally tactics and is all along trying to put monkey-wrench in execution of the decree, thereby prejudicing the aforesaid opposite parties. 6. This Court heard the learned counsel for the parties patiently, perused the records meticulously and considered the matter most diligently. Fact remains, a decree for eviction was passed against the petitioner in O.S. No.64 of 1980-I on 7th of January, 1985. The appeal preferred by the unsuccessful petition¬er being T.A. No.14/129 of 1985/1987 was dismissed on 4.4.1989. The Second Appeal preferred against the confirming judgment, being numbered as 215 of 1989, was also dismissed on 29th August, 1989. Therefore for all purposes, the decree of the trial Court stood confirmed. Opposite parties 1 to 3, the decree-holders, filed the aforesaid Execution Case No.3 of 1985 which is pending before the learned Addl.Civil Judge (JD), Basudevpur. The decree has not been executed for the last about twenty-two years and the decree-holders are deprived of enjoying the fruits of the decree after the same has been confirmed at this Court’s level. The petitioner-judgment debtor has successful evaded the decree of eviction till now. 7. In the aforesaid scenario while dealing with a petition filed by the petitioner for staying further proceedings of the Execution Case on the ground that another suit for setting aside the earlier decree is pending, the Court should be very very cautious and unless there are valid and cogent reasons, should refrain from depriving opposite party-decree holders of enjoying the fruits of the decree. No doubt the Court should is always willing to extend its hand to protect a litigant who is deprived of or is going to be deprived of his property without any authori¬ty or following the due process of law, but at the other hand the power of Court should not be invoked to protect a litigant at whom a decree stares, and the said decree has attained finality. The submission that if the petitioner is evicted from the suit property he may be put to irreparable loss and his fundamental rights may be shattered cannot be a ground to stall the execution of the decree passed twenty-two years before. 8. Even otherwise, the Legislature in its wisdom has made provisions for restitution of the property in the event possession taken thereof while executing a decree which is subse¬quently annulled and/or set aside. Section 144 of the Code of Civil Procedure deals with such eventuality and clearly stipu¬lates that where a decree is varied or reversed or modified either in appeal or revision or in any other subsequent suit instituted with regard to the very same property, the Court which passed the decree shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made and place the party in possession which he would have occupied, but for such decree, and for the said pur¬pose the Court may make any orders. In short, the doctrine of restitution means that on reversal of a judgment or a decree being set aside, law raises an obligation on the party to the lis who has received benefit of the erroneous judgment to make resti¬tution to the other what he had lost and it is the duty of the Court to enforce that obligation unless it is shown that restitu¬tion would be clearly contrary to the interest of justice. The basic principle underlining the restitution is “actus curiae neminem gravabit” which means that the act of the Courts should not cause any harm to a litigant. 9. The basic principle underlining the restitution is “actus curiae neminem gravabit” which means that the act of the Courts should not cause any harm to a litigant. 9. Thus law makes it clear that in the event a party succeeds in a subsequent suit, the benefits achieved by his opponent on the basis of an earlier decree would be nullified and the property in question shall be restored and/or brought back to the anterior position, of which the party was deprived of, due to execution of a decree. 10. The provisions of Section 144 CPC can be invoked when a party deprived of his right seeks relief as a sequel to an order or a decree setting aside an earlier decree or order. The afore¬said provisions enable a party to relegate to its original posi¬tion blotting out the changed situation pursuant to a wrong de¬cree. The party wronged is retrieved and restored to the position prevailing at the earlier stage prior to causing of the initial order. 11. In view of the aforesaid clear position of law, this Court holds that absolutely no prejudice will be caused to the petitioner-judgment debtor if the decreeing question passed twen¬ty-two years back and confirmed at this Court’s level is execut¬ed, or else a party in whose favour a decree has been passed will be deprived of enjoying the fruits of the decree still further. Thus the balance of convenience tilts in favour of the opposite part-decree holders. 12. In view of the aforesaid discussion, this Court is not inclined to interfere with the impugned order and dismisses the Writ Petition. However, this Court directs that the opposite party-decree holders shall not alienate the suit property taken delivery of in the Execution Case or create any interest thereon in favour of any third party until disposal of T.S. No.15 of 1990. Petition dismissed.