Prasanta Kumar Mohapatra v. Janaki Ballav Moharana
2012-11-16
B.K.MISRA
body2012
DigiLaw.ai
JUDGMENT B.K.MISRA, J. The present petitioner, who was the judgment debtor in Execution Case No.69 of 2008, pending in the court of learned Civil Judge (Sr.Divn.), 1st Court, Cuttack questioning the executability of the decree in Civil Suit (1) No. 43 of 2007 filed a petition under Section 47 read with Order 21 Rule 58, Order 21, Rule 97 of the Civil Procedure Code (hereinafter referred to as “C.P.C.”). Further, another petition was filed on 7.1.2012 by the present petitioner as the judgment debtor (J.Dr.) in the aforementioned Execution Proceeding for issuance of summons to the Court Process Server as well as one Aditya Ranjan Das for their evidence. The learned Civil Judge (Sr.Divn.), 1st Court, Cuttack rejected such prayers of the judgment debtor, namely the present petitioner. The said order of the learned Civil Judge (Sr.Divn.), 1st Court, Cuttack (Annexure-1) was challenged by the present petitioner in a Civil Revision before the District Judge, Cuttack. When the said Civil Revision was dismissed being aggrieved the petitioner has approached this Court for quashing the impugned orders at Annexures-1 and 2. 2. Before adverting to the cases of the parties for better appreciation of the matter, it would be worthwhile to mention some admitted facts. The present opposite party had instituted a suit i.e., Civil Suit (1) No. 43 of 2007 against the present petitioner as defendant praying therein for eviction of the defendant from the suit house, realization of arrear house rent, damages and for permanent injunction. The said suit was decreed on contest against the defendant. Against the judgment and decree in Civil Suit (1) No. 43 of 2007 the loosing defendant namely, the present petitioner preferred an appeal before this Court which was registered as R.F.A. No. 237 of 2008. The said First Appeal was disposed of on 29.3.2011 in terms of the compromise effected in between the parties and it was directed that the terms and conditions of the compromise should form a part of the order in disposing of the First Appeal.
The said First Appeal was disposed of on 29.3.2011 in terms of the compromise effected in between the parties and it was directed that the terms and conditions of the compromise should form a part of the order in disposing of the First Appeal. As per the terms and conditions of the compromise effected in between the parties, the present petitioner as the defendant-appellant was to handover the vacant possession of the suit premises to the plaintiff-respondent i.e., the present opposite party on or before 31.5.2011 and also to pay Rs.10,800/-towards arrear house rent for the months from August to November, 2006 as per the judgment and decree and also pay the arrear house rent at the rate of Rs.2700/-to the present opposite party for the period from 27.11.2006 to 31.5.2011, etc. 3. It is seen from Annexure-1 that Execution Case No. 69 of 2008 was levied against the present petitioner by the present opposite party when the petitioner did not give the vacant possession of the suit premises despite the judgment and decree and compromise entered into between the parties. In that Execution Proceeding the present petitioner filed a petition contending therein that the decree is un-executable and cannot be enforced against him on the ground that he did not take the suit premises in his individual capacity, but had taken the same as the President of Vivekananda Sikhya Kendra. It was also his case that he is no longer functioning as the President of Vivekananda Sikhya Kendra as the General Body of the Society have reconstituted the Managing Committee of which one Sri Manoj Kumar Nath is functioning as President and management of the school has been vested with ‘Pradhan Acharya’ of the school, namely, Smt. Arnapurna Mohanty. 4. Learned Civil Judge (Sr.Divn.), 1st Court, Cuttack by the impugned order at Annexure-1 rejected the prayers of the present petitioner. Needless to mention here that the order passed by the learned Civil Judge (Sr.Divn. ), 1st Court in C.M.A. No.607 of 2011 arising out of Execution Case No.69 of 2008 was challenged in a Civil Revision before the District Judge, Cuttack and the learned Distrrict Judge,Cuttack by his order at Annexure-2 dismissed the same. 5.
Needless to mention here that the order passed by the learned Civil Judge (Sr.Divn. ), 1st Court in C.M.A. No.607 of 2011 arising out of Execution Case No.69 of 2008 was challenged in a Civil Revision before the District Judge, Cuttack and the learned Distrrict Judge,Cuttack by his order at Annexure-2 dismissed the same. 5. I have heard the learned counsel for the parties and similarly perused the materials placed before this Court i.e judgment in Civil Suit (1) No. 43 of 2007 (Annexure-A), the final order passed by this Court in R.F.A. No.237 of 2008 dated 29.3.2011 (Annexure-D) so also the further order of this Court in Misc. Case No.321 of 2011 arising out of R.F.A.No.237 of 2008 dated 3.2.2012, the compromise petition filed in R.F.A.No. 237 of 2008 (Annexure-C). Without delving into the detailed analysis of this case, suffice is to say that the concurrent findings of the court below is that it was the present petitioner who took the tenanted premises on rent to run an institution, namely Vivekananda Sikhya Kendra. When that fact has attained its finality and when the present petitioner in the suit as well as in the appeal did not raise the point that he had not taken the tenanted premises in his individual capacity, but took it as the President on behalf of the school, I am at a loss to understand as to how the present petitioner in utter derogation of the judgment and decree of the competent Civil Court including of this Court without delivering the vacant possession of the tenanted premises on or before 31.5.2011 as per the compromise entered into in between the parties in R.F.A. No.237 of 2008 and complying with the directions of the competent Civil Court, challenged the Execution Proceeding by raising pleas like un-executability of the decree on fallacious grounds. The learned Civil Judge (Sr.Divn.), Court, Cuttack in his order in Annexures-1 has categorically come to the conclusion that only with a view to delay the Execution Proceeding the judgment debtor, namely, the present petitioner has raised the question for the first time that he did not take the tenanted premises in his individual capacity, but had taken the same as the President of Vivekananda Sikhya Kendra and therefore the decree passed against him in Civil Suit (1) No.43 of 2007 is un-executable.
The reasonings assigned by the learned Civil Judge (Sr.Divn.), 1st Court, Cuttack while disallowing the prayer of the present petitioner in C.M.A No.607 of 2011 (Annexure-1) so also the finding of the learned District Judge, Cuttack while dismissing the Civil Revision No.1 of 2010 as at Annexure-2 in my humble view cannot be interfered with. I have no hesitation in my mind to conclude that the petitions filed by the judgment debtor, namely, the present petitioner in Execution Case No.69 of 2008 is a totally misconceived one and the same amounts to abuse of process of the Court. It is to be remembered that “no litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner as he wishes. Access to justice should not be misused as a licence to file misconceived and frivolous petitions.” ( AIR 1996 S.C. 2687 , Dr. Buddhi Kota Subbarao –v-K.Parasaran and others). 6. Thus, after giving my careful consideration to the submission made at the Bar as well as those contained in the memorandum of application, I am of the opinion that the present writ petition is totally misconceived, untenable and has no merit whatsoever and accordingly, the same stands dismissed. 7. Before I part with the case record, I feel tempted to quote the observations of the Apex Court in the case of Dalip Singh –v-State of Uttar Pradesh and others (2010) 2 SCC 114 . “For many centuries Indian society cherished two basic values of life i.e., “satya” (truth) and “ahimsa” (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain there values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, the post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth.
In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.”