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2012 DIGILAW 1017 (PAT)

Devi Nandan Singh v. Deonandan Singh

2012-07-24

JYOTI SARAN

body2012
ORDER Heard Mr. Mrigendra Kumar, learned counsel appearing on behalf of the petitioners and Mr. Rai Shivajee Nath, learned senior counsel appearing on behalf of the opposite parties. 2. This civil revision application is directed against the order dated 5.7.2010 passed by the learned Sub-Judge-I, Aurangabad in Execution Case No.08 of 2009, whereby the petition filed on behalf of the defendants (petitioners herein) raising objection as to the maintainability of the execution case was rejected. 3. The facts of the case in brief is that the plaintiffs (opposite parties herein) had filed a title suit giving rise to Title Suit No.78 of 1993/16 of 1994 seeking declaration of title over the suit property, confirmation of possession and in the alternative for recovery of possession in relation thereto. The suit being put on trial, the learned trial court by judgment and decree dated 21.12.1995 and 5.1.1996 respectively decreed the suit in terms of the relief prayed in the plaint in favour of the plaintiffs. The learned trial court even while declaring the title and possession of the plaintiff-opposite parties over the suit property held that if the plaintiffs are found dispossessed from the suit property during the pendency of the proceedings, they would be entitled for recovery of possession thereof. The decree passed in the title suit is placed at Annexure-1 to the present proceedings. 4. The defendant-petitioners being aggrieved by the judgment and decree passed by the learned trial court preferred an appeal giving rise to Title Appeal No.02 of 1996/13 of 1998 and the appellate court by a judgment and decree dated 5.4.2003 dismissed the appeal. The judgment and decree of the appellate court has been placed on record by the plaintiff-opposite parties in their counter affidavit at Annexure-B thereof. The appellate court while affirming the judgment of the learned trial court reiterated the position that if the plaintiffs were found dispossessed from the suit property they would be entitled to get back the possession. It is a matter of record and not disputed that the Second Appeal No.130 of 2003 preferred by defendant-petitioners was dismissed on 1.5.2008 and the special leave petition preferred by them giving rise to S.L.P. (Civil) No.16779 of 2009 met the same fate when it was dismissed on 31.7.2009. 5. It is a matter of record and not disputed that the Second Appeal No.130 of 2003 preferred by defendant-petitioners was dismissed on 1.5.2008 and the special leave petition preferred by them giving rise to S.L.P. (Civil) No.16779 of 2009 met the same fate when it was dismissed on 31.7.2009. 5. Following the judgment and decree passed in the title suit the plaintiff-opposite parties filed an execution case bearing Execution Case No.1 of 1996 for execution of the decree. The executing court by order dated 31.1.1997 placed at Annexure-2 rejected the execution case while taking note of the fact that there was no averments by the plaintiffs of dispossession from the suit property. It further held that the prayer for recovery of possession in the light of the decree was inconsistent in absence of any such plea of dispossession. The executing court even while rejecting the execution case observed that as the appeal is pending, the parties would have the opportunity to press the same if the appellate court grants a decree for recovery of possession. The proceedings in the execution case was dropped by a subsequent order dated 23.7.1997 placed at Annexure-3 and finally the records were consigned under order dated 17.1.2009 as contained in Annexure-4. 6. The challenge by the defendant-petitioners to the judgment and decree passed by the learned trial court as affirmed by the superior courts attained finality when the Supreme Court dismissed the special leave petition preferred by the defendant-petitioners on 31.7.2009. As by that time the execution proceedings stood dropped, the plaintiff-opposite parties preferred the execution case in question giving rise to Execution Case No.08 of 2009 which was filed on 30.10.2009 for recovery of possession of the suit property. An objection to the very maintainability of the execution case being raised by the judgment-debtor-petitioners having been negated by the impugned order, hence the present revision application. 7. Mr. Mrigendra Kumar, learned counsel appearing on behalf of the judgment debtor-petitioners has questioned the maintainability of the execution proceedings on several grounds. An objection to the very maintainability of the execution case being raised by the judgment-debtor-petitioners having been negated by the impugned order, hence the present revision application. 7. Mr. Mrigendra Kumar, learned counsel appearing on behalf of the judgment debtor-petitioners has questioned the maintainability of the execution proceedings on several grounds. It is contended that the judgment and decree having been passed by the learned trial court on 21.12.1995 and 5.1.1996, the decree became enforceable with effect from 5.1.1996 and the failure on the part of the plaintiff-opposite parties to get it executed within the prescribed period of 12 years as provided under Article 136 of the Limitation Act, the execution case was hit by the law of limitation. It is further contended that the attempt on the part of the plaintiff-opposite parties for recovery of possession by filing the earlier Execution Case No.1 of 1996 was rejected in absence of specific plea of dispossession made by the plaintiff-opposite parties and which order of the executing court dated 31.1.1997 being challenged in a civil revision application bearing Civil Revision No.537 of 1997 a Bench of this Court by order dated 27.8.1997 dismissed the same, thus affirming the order of the executing court and which order was never put to challenge. It is contended that the revisional court also considering the absence of any specific plea of dispossession by the plaintiff-opposite parties before the court below, did not consider it proper to interfere with the order of the executing court of dropping the execution case seeking recovery of possession. 8. Learned counsel thus submits that the earlier execution case having been dropped in absence of circumstances warranting recovery of possession, the second proceeding was barred by law of limitation as well as the principles of res-judicata. In support of his contention that the period of limitation would be counted from the date of the judgment and decree passed by the learned trial court, learned counsel has relied upon the judgment of the Supreme Court rendered in the case of Bimal Kumar Vs. Shakuntala Devi reported in (2012)3 SCC 548 , paragraphs 41 and 44. 9. In support of his contention that the period of limitation would be counted from the date of the judgment and decree passed by the learned trial court, learned counsel has relied upon the judgment of the Supreme Court rendered in the case of Bimal Kumar Vs. Shakuntala Devi reported in (2012)3 SCC 548 , paragraphs 41 and 44. 9. It is next contended that an executing court cannot go beyond the decree and as the decree passed by the learned trial court does not grant the relief of recovery of possession, the very institution of the second proceedings and its continuation is without sanction of law. He finally submits that the plaintiff-opposite parties having never raised a plea of dispossession at any stage of the proceedings, the execution case in question is not maintainable in absence of such plea. 10. The contentions have been contested by Mr. Rai Shivajee Nath, learned counsel appearing for the plaintiff-opposite parties. With reference to the decree passed by the learned trial court placed at Annexure-1, it is submitted that the decree itself provides for recovery of possession during the pendency of dispute in case of dispossession of the plaintiff-opposite parties at the hands of the defendant judgment debtor-petitioners. It is submitted that the judgment and decree of the learned trial court was affirmed by the appellate court with categorical affirmation of the finding of the lower court that if the plaintiff-opposite parties are dispossessed they are entitled for recovery of possession of such property. Mr. Nath countering the submission of learned counsel for the defendant-petitioners on the issue of limitation submits that the judgment and decree of the trial court having been affirmed by the appellate court it stood merged in the judgment and decree of the appellate court which was pronounced on 5.4.2003 and the execution case in question having been filed within 12 years of the judgment and decree of the appellate court, it was well within the period of limitation prescribed under Article 136 of the Limitation Act. Learned counsel for the plaintiff-opposite parties in support of his submission has relied upon the following judgments: (i) (1997)1 BLJR 847 (Deoki Nandan Poddar and others vs. Ramesh Kumar Goenka and others); (ii) 1987 BLJ 233 : 1987 PLJR 172 (F.B.) (Jokhan Rai vs. Baikunth Singh); and (iii) (2004) 8 SCC 724 (Chandi Prasad and others vs. Jagdish Prasad and others). 11. 11. With reference to the judgment referred to above, it was submitted that it is the specific pronouncement of the courts in each of the judgments that when the appellate court passes a decree it supersedes the decree of the trial court irrespective of the fact where the decree is affirmed, modified or reversed. It is stated that the courts have held that the period of limitation for executing a decree thus begins from the date of the judgment and decree passed by the appellate court. 12. Learned counsel for the opposite parties submits that it was all along the case of the plaintiff-opposite parties that they apprehended threat of dispossession by the defendants and it is in this background the trial court had by the judgment and decree provided for recovery of possession in case of their dispossession and which fact was also taken note by the executing court while considering the Execution Case No.1 of 1996. It is submitted that the executing court even while rejecting the execution case by order dated 31.1.1997 (Annexure-2) had given liberty to the plaintiffs to press for the said relief upon decree being granted by the appellate court and which has since been granted which is manifest from Annexure-B. Responding to the contention of the defendant-petitioners as regarding affirmation of the order passed by the executing court dated 31.1.1997 by this Court in Civil Revision No.537 of 1997, it is stated that the same was at the stage of execution proceedings in the backdrop of the decree passed in suit proceedings and the moment the appellate court had affirmed the decree passed by the trial court with specific relief of recovery of possession to the plaintiff-opposite parties which was in addition to the liberty granted by the executing court itself while rejecting the earlier execution proceedings, the plaintiff-opposite parties were well within their right to prefer the second execution case. 13. Mr. 13. Mr. Nath has relied upon a Division Bench Judgment of the Orissa High Court reported in AIR 1988 Orissa page 9 to submit that the Orissa High Court even while noticing the correct legal position that the executing court can not venture behind the decree has upheld the jurisdiction of the executing court to consider the relief sought in the plaint and if the circumstances required a delivery of possession of the suit property, the executing court would be within its jurisdiction effectuate the same. Learned counsel submits that the judgment (supra) has taken note of judgments of the Supreme Court reported in AIR 1972 SC 1371 and AIR 1976 SC 1476 . 14. I have heard learned counsel for the parties and have perused the materials on record as also the judgments relied upon by the contesting parties. The facts are not in dispute rather are admitted and the defendant-petitioners have lost the contest at each stage of the suit proceedings. The decree being levied for execution it is a different case that the executing court did not consider the circumstances warranting any delivery of possession at the relevant stage and reserved liberty for the plaintiff-opposite parties to press the said relief upon culmination of the appeal. Observing as such the executing court rejected the execution case. It is manifest that there was no determination of rights in the earlier round of execution proceedings and the issue was left open. As the execution proceedings itself stood rejected under the order dated 31.1.1997 while reserving liberty for the plaintiffs. The subsequent orders dated 23.3.1997 (Annexure-3) and 17.1.2009 (Annexure-4) were only follow up orders consigning the proceedings. It is again a matter of record that the contest finally ended before the Supreme Court when the special leave petition of the defendant-petitioners was dismissed on 31.7.2009. Much prior thereto the earlier Execution Case No.1 of 1996 stood consigned on 17.1.2009. Thus the plaintiff-opposite parties having no other option and in the light of liberty granted under order dated 31.1.1997 (Annexure-2) and the judgment and decree in appellate proceedings (Annexure-B) chose to file the execution case in question on 13.10.2009 giving rise to Execution Case No.8 of 2009 and which has been entertained. 15. Thus the plaintiff-opposite parties having no other option and in the light of liberty granted under order dated 31.1.1997 (Annexure-2) and the judgment and decree in appellate proceedings (Annexure-B) chose to file the execution case in question on 13.10.2009 giving rise to Execution Case No.8 of 2009 and which has been entertained. 15. Article 136 of the Limitation Act provides limitation period of 12 years for execution of a decree and which period begins from the date the order becomes enforceable or where the decree or the order directs for payment of money or the delivery of any property, from a date when default takes place in making the payment or delivery in respect of which execution is sought, takes place. The said Article came up for consideration before the Full Bench of this Court in the case of Jokhan Rai vs. Baikunth Singh (supra), and paragraph 14 of the said judgment runs as follows: “To sum up, the answer to the question posed at the outset is rendered in the terms that the terminus a quo for computing the limitation of twelve years under Article 136 of the Act is the date of the appellate decree in the event of an appeal and not that of the original decree.” 16. The views expressed by the Full Bench of this Court are re-affirmed in the Supreme Court judgment of Chandi Prasad Vs. Jagdish Prasad (supra). The judgment relied upon by learned counsel for the defendant-petitioners does not deal with this aspect of the matter and the same to that extent is not applicable to the present situation. The judgment rendered in the case of Ratan Singh as noticed in paragraph 41 of the judgment rendered in the case of Bimal Kumar (supra) relied upon by learned counsel for the defendant-petitioners was also taken note by the Supreme Court in the case of Chandi Prasad (supra) and explained. 17. The decree passed by the learned trial court as affirmed by the appellate court, itself provided with the relief of recovery of possession to the plaintiff-opposite parties in the event of dispossession. The opinion of the executing court while rejecting the earlier execution case could not operate as a res-judicata to the subsequent proceeding for the reason that the executing court at that relevant stage did not find circumstances warranting any recovery of possession. The opinion of the executing court while rejecting the earlier execution case could not operate as a res-judicata to the subsequent proceeding for the reason that the executing court at that relevant stage did not find circumstances warranting any recovery of possession. The very fact that the plaintiff-opposite parties have been forced to file the second execution case is but obvious of the facts situation that they stand dispossessed of the suit property. The second Execution Case No.8 of 2009 having been entertained by the executing court, no jurisdictional error could be found in the same nor the same could be held to be violative of any statutory provisions. The title and possession of the plaintiffs over the suit property is no more in contest. The only question that is posed is whether or not the plaintiff-opposite parties were ever dispossessed. This is an arena reserved for the executing court. The executing court having admitted the execution proceeding has full jurisdiction to deal with the same. No jurisdictional error can be found therewith nor would this Court venture to interfere with a matter which is well within the jurisdiction of the executing court. 18. For the reasons aforesaid, this Court does not find sufficient reasons to interfere with the order impugned. 19. The Civil Revision application is dismissed.