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2008 DIGILAW 99 (UTT)

RAM AGARWAL v. BRIJENDRA KAUR

2008-03-10

PRAFULLA C.PANT

body2008
JUDGMENT This Civil Revision, preferred under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred as C.P.C.), is directed against the order dated 22.05.2001, passed by Civil Judge (Senior Division)/Fast Track Court VI, Dehradun, in Misc. Case No. 19 of 2000, whereby the objections moved by the respondents/judgment debtors under Section 47 read with Section 151 of C.P.C. were partly allowed by said court. 2. Heard learned counsel for the parties. 3. Brief facts of the case are that Rameshwar Prasad Agarwal (party no. 1) predecessor-in-title of decree holder (present revisionist) entered into an agreement with Sardar Mukund Singh (party No. 2) predecessor-in-title of the judgment debtors (present respondents) on 11.07.1961, in respect of property known as Kandy Lodge Estate situated at Dick Road, Mussoorie having areas of 298 acres of land for the purpose of converting and raising an orchard on a commercial scale over said land and for said purpose possession of certain part of aforesaid Estate appears to have been transferred to the predecessors of judgment debtors, for five years. Clause 19 of the agreement between the predecessors-in-title of the parties provides that any dispute or difference which may arise between the parties or their representatives with regard to the construction, interpretation, meaning, affect of the deed or any part thereof or respecting the accounts, profits or losses of the business or the rights and liabilities of the parties under the deed of the separation of the business or any other matter whatsoever pertaining to the undertaking under reference shall be referred to two arbitrators appointed by the parties. It appears that some dispute arose between the concerned parties and Mr. O.P. Sapra, Advocate, was appointed arbitrator by the predecessor-in-title of the decree holder (present revisionist) but predecessor-in-title of judgment debtors (present respondents) did not appoint any arbitrator, even after being served with the notices, as such, the sole arbitrator entered into arbitration and vide his award dated 19.05.1986 gave following directions in the concluding part of the award : “(i) The claim of Rs. 50,000/- plus interest towards sale of jungle trees is hereby rejected. (ii) The second party will hand over physical vacant possession of all the buildings situated in Kandy Lodge Estate, Dick Road, Mussoorie, within one month from today to the first party; failing which the first party will be entitled to take its possession through the process of the court. 50,000/- plus interest towards sale of jungle trees is hereby rejected. (ii) The second party will hand over physical vacant possession of all the buildings situated in Kandy Lodge Estate, Dick Road, Mussoorie, within one month from today to the first party; failing which the first party will be entitled to take its possession through the process of the court. (iii) The second party will hand over the possession of Kandy Lodge Estate to the First party except the portion marked by letters B C D E in the map attached with this Award which shall form part of the Award, within one month from today. On their failure to do so, the first party will be entitled to take possession of Kandy Lodge Estate, Dick Road, Mussoorie, except the portion marked by letters B C D E through the process of the court. In the event of second party willing to sell the portion shown by letters B C D E at any time to any one, they will have to offer same to the first party for first purchase at the price available from the market to the second party at that time and first party will have a lien over the said trees and land if the same is ever offered at any time for sale to any one and the first party will be entitled to get this clause executed through the process of the court. (iv) An amount of Rs. 80,000/- is awarded to the first party against the second party as compensation whom he will be required to incur in restoring the building in original condition. In case of failure to pay the said amount by the second party to the first party within a month from today, the first party will also be entitled to claim interest at the rate of 6% per annum from the date of the award upto the date of actual payment.” 4. Against said award (judgment debtors/present respondents) filed objections under Section 30/33 of Arbitration Act, 1940 before Civil Judge (Senior Division), Dehradun, which was registered as Misc. Case No. 101 of 1991. After hearing the parties, learned Civil Judge (Senior Division), Dehradun, dismissed the objections vide his judgment and order dated 27.05.1996, and award was made rule of court. Against said award (judgment debtors/present respondents) filed objections under Section 30/33 of Arbitration Act, 1940 before Civil Judge (Senior Division), Dehradun, which was registered as Misc. Case No. 101 of 1991. After hearing the parties, learned Civil Judge (Senior Division), Dehradun, dismissed the objections vide his judgment and order dated 27.05.1996, and award was made rule of court. From the record it appears that the present respondents aggrieved by said judgment and order preferred Civil Appeal No. 88 of 1997 under Section 39 of the Arbitration Act, 1940. After hearing the parties the said appeal was also dismissed vide judgment and order dated 17.09.1999, passed by II Additional District Judge, Dehradun. Then, the present respondents filed Civil Revision No. 376 of 1999, before the Allahabad High Court. However, after hearing the parties the same was also dismissed vide judgment and order dated 14th October 1999. Finally, the present respondents approached the Supreme Court of India. However, their Special Leave to Appeal (Civil) No. 7601 of 2000, was dismissed by the Apex Court vide its order dated 28.09.2000. The arbitration proceedings being finally stood disposed of, the decree holder (present revisionist) filed Execution Cases No. 30 of 1999 and 31 of 1999, for execution of the award passed by the arbitrator. At this stage, present respondents/judgment debtors filed their objections under Section 47 read with Section 151 of C.P.C., which was registered as Misc. Case No. 19 of 2000. By the impugned order dated 22.05.2001, the executing court allowed said objections partly holding that the decree holders are not entitled to possession of building of Kandy Lodge. It is directed by said order that in respect of other properties excluding New Brewery and Gravel Lodge the decree holder shall file particulars and measurements so that judgment debtors may be evicted from such remaining property. 5. Mr. Alok Singh, learned Senior Counsel appearing on behalf of the respondents/judgment debtors argued that the revision against the impugned order is not maintainable. In this connection it is contended on behalf of the respondents that the proceedings disposed of by the executing court are not ‘other proceedings’ for the purposes of Section 115 of C.P.C. He further argued that Section 141 of C.P.C., which pertains to other proceedings does not include execution proceedings. In this connection it is contended on behalf of the respondents that the proceedings disposed of by the executing court are not ‘other proceedings’ for the purposes of Section 115 of C.P.C. He further argued that Section 141 of C.P.C., which pertains to other proceedings does not include execution proceedings. However, after going through all the relevant provisions of law, this Court finds that the argument advanced on behalf of the respondents relating to maintainability of the revision is misconceived. Section 141 of C.P.C. pertains to ‘miscellaneous proceedings’ while the words used in Section 115 of C.P.C. are ‘suits and other proceedings’. No doubt, ‘miscellaneous proceedings’ does not include execution proceedings, as Order XXI of C.P.C. provides separate procedure for the execution proceedings and does not require assistance of Section 141 of C.P.C. but proceedings under Section 47 of C.P.C. are miscellaneous proceedings, as its procedure is not provided under Order XXI of the Code as such expression ‘other proceedings’ in Section 115 does include proceedings under Section 47 of C.P.C. Therefore, the objections under Section 47 of C.P.C. which are registered as Miscellaneous Case are the miscellaneous proceedings for the purposes of Section 141 of C.P.C., and as such, there is no doubt as to the maintainability of civil revision against the impugned order passed rejecting the objections under Section 47 of C.P.C. 6. On behalf of the revisionist (decree holder) it is argued that executing court which rejected the objections under Section 47 of C.P.C. has no jurisdiction to go behind the decree under execution. In this connection it is contended that property of Kandy Lodge Estate has an area of 298 acres which includes New Brewery and Gravel Lodge. In reply to this learned counsel appearing on behalf of the respondents submitted that there is no mention of New Brewery and Gravel Lodge in the award, and as such, the executing court has rightly allowed the objection of the judgment debtors. 7. Having gone through the record of the case, I find that the argument of the respondents (judgment debtors) is misconceived. What is being confused by the judgment debtors is ‘Kandy Lodge’ with ‘Kandy Lodge Estate’. The arbitration agreement, which is Annexure-2 of the affidavit filed with the revision, shows that the agreement was in respect of ‘Kandy Lodge Estate situated at Dick Road, Mussoorie, having an area approximately 298 acres of land’. What is being confused by the judgment debtors is ‘Kandy Lodge’ with ‘Kandy Lodge Estate’. The arbitration agreement, which is Annexure-2 of the affidavit filed with the revision, shows that the agreement was in respect of ‘Kandy Lodge Estate situated at Dick Road, Mussoorie, having an area approximately 298 acres of land’. The award of the arbitrator, which is Annexure-4 to the affidavit filed with the revision, also shows that the property in respect of which there was dispute was ‘Kandy Lodge Estate’. The directions given by the arbitrator in its concluding part of the award, as quoted above, makes it clear that the award is given in respect of ‘Kandy Lodge Estate’ not ‘Kandy Lodge’ only. Learned counsel appearing for the respondents (judgment debtors) contended that the property over which possession is sought by the decree holder is not identifiable, and as such, the decree cannot be executed. The contention advanced on behalf of the respondents, in my opinion, is baseless for the reason that with the award sought to be executed, a map is attached of the Kandy Lodge Estate in which all the required details are already given. The said map with the award itself shows where the New Brewery is situated within the Kandy Lodge Estate. Not only this, the counter affidavit filed in the Special Leave to Appeal (Civil) by the decree holders (respondent No.1 before the Apex Court), a copy of which is Annexure-13, shows that in para 5 of the affidavit it was clearly stated that property known as Kandy Lodge Estate includes Kandy Lodge, Gravel Lodge and New Brewery Lodge having total area approximately 298 acres. 8. 8. Apart from what has been discussed above, in the opinion of this Court, the executing court while allowing the objection of the judgment debtor under Section 47 of C.P.C. has not only gone behind the decree but also ignored the order of the District Judge, Dehradun, passed in Civil Revision No. 74 of 2000, decided on 30th March 2001, which was against one the orders earlier passed by the executing court, on an application moved in proceedings under Section 47 of C.P.C. Lastly, it is also pertinent to mention her that copy of the U.P. Gazette dated 30th April 1966, which contains copy of Notification No. 2361/XIV-B-394-60 dated April 21, 1966, annexed as Annexure-19 to the affidavit filed with the civil revision, enumerates all the estates within the limits of City Board, Mussoorie. This does not show any lodge names as New Brewery or Gravel Lodge. It only shows at SI. No. 40 Kandy Lodge Estate having area 298 acres. In said Gazette Notification boundaries of the Kandy Lodge Estate are given as under: North : Murry Spring Block of MPL/Forest South-West : Bansi Estate separated by a Nala West : Kandi Gaon block of MPL/Forest East : Hollow Oak Estate South : Abboy and Spring Cottage Estate With the clearcut area and boundaries mentioned in the official Gazette, the executing court should have no difficulty in executing the award given by the arbitrator, which has been made the rule of the court. 9. Learned Senior Counsel arguing on behalf of the respondents (Judgment debtors) drew attention of the Court to Section 2-A of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) and argued that a person occupying a building as owner or as tenant or in any other capacity may permit any other person to occupy for purely temporary residential accommodation for a period not exceeding three months and where such license is given it is only the District Magistrate (and not the civil court) who can get the building or the property vacated under the aforesaid Act. I have gone through the provision referred on behalf of the respondents (judgment debtors). I have gone through the provision referred on behalf of the respondents (judgment debtors). Said provision has been inserted by U.P. Act No. 28 of 1976 in the aforesaid enactment, while the present occupation of the predecessor-in-title of the present respondents is in pursuance to the agreement of the year 1961, much before the aforesaid Section 2-A was added in the U.P. Act No. 13 of 1972. Not only this, the license referred in Section 2-A of the U.P. Act No. 13 of 1972, is a license for a short term of three months which can at the most be extended to six months only. The present occupation of the predecessor-in-title of the judgment debtors was not for three months but for five years under the agreement and from no stretch of imagination it can be termed as a short license as envisaged under Section 2-A of the U.P. Act No. 13 of 1972. 10. In the above circumstances and for the reasons as discussed above, this revision deserves to be allowed. The revision is allowed. The impugned judgment and order dated 22.05.2001, passed by Civil Judge (Senior Division)/Fast Track Court VI, Dehradun, in Misc. Case No. 19 of 2000, is hereby set aside. The objections under Section 47 of C.P.C. filed by the judgment debtors (present respondents) are rejected. The executing court is directed to execute the decree in terms of the award passed by the arbitrator in the light of the observations made by this Court, as above.