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2012 DIGILAW 68 (CHH)

VIMLA MEHTA v. SHANTI MEHTA

2012-02-23

T.P.SHARMA

body2012
ORDER 1. By this petition under Article 227 of the Constitution of India petitioners have challenged the legality and propriety of the order dated 20/7/2011 passed by 4th Additional District Judge, Durg in Execution Case No 10A/10 whereby application for maintainability of execution proceeding, anti maintainability of amendment application for amending execution application has been rejected 2. Ms. Fouzia Mirza, Advocate for the petitioners & Mr. P.R. Patankar, Advocate for the respondent No. 1 are heard. 3. Copy of the order dated 8/3/2010 passed by this Court in F.A. No. 104/2008, copy of the order dated 14/1/2011 passed in S.L.P. (Civil) No.(s) 19867/2010, copy of the objection filed on behalf of the petitioners and copy of the order impugned perused. 4. Learned counsel for the petitioners submits that judgment and decree passed by trial Court was challenged before this Court in F.A. No. 104/2008. Vide order dated 8/3/2010 judgment and decree of trial Court has been modified, same was challenged by petitioners before the Supreme Court in S.L.P. No. (Civil) No.(s) 19867/2010. While dismissing S.L.P. vide order dated 14/1/2011 Apex Court has modified the order of this Court relating to amount of monthly damages. 5. Learned counsel for the petitioners further submits that in the light of modification of the judgment/decree/order of this Court, respondents were required to file appropriate petition under Order 45 Rule 15 of the Civil Procedure Code, 1908 (in short "the Code") for execution of order/decree passed by Supreme Court but they have not filed any petition before this Court even this Court has not transmitted the decree/order passed by Supreme Court for execution to trial Court. 6. Learned counsel for the petitioners also submits that provisions of order 6 Rule 17 of the Code is only applicable to the pleading in a suit and not in execution proceeding therefore, by allowing amendment of execution application in execution proceeding and dismissing the objection filed on behalf of the petitioners Court below has committed an illegality. 7. Learned counsel for the respondent No.1 opposed the petition and submits that amendment in execution application is permitted in terms of Order 6 Rule 17 read with Section 141 of the Code. Supreme Court has not granted S.L.P. and finally not decided civil appeal therefore transmission of decree by this Court was not possible in accordance with the provisions of Order 45 Rule 15 of the Code. 8. Supreme Court has not granted S.L.P. and finally not decided civil appeal therefore transmission of decree by this Court was not possible in accordance with the provisions of Order 45 Rule 15 of the Code. 8. Learned counsel for the respondent No. 1 placed reliance in the matter of Nandkishore Vs. Sau. lnderabai Holkar, AIR 1981 MP 21 in which High Court of Madhya Pradesh has held that in case of dismissal of S.L.P. which some concession or modification and absence of judgment and decree or order in appeal provisions of Order 45 Rule 15 of the Code has no application. 9. Learned counsel for the respondent No.1 further submits that Court below has rightly rejected objection filed on behalf of the petitioners and has rightly allowed the amendment application in execution proceeding. 10. As per order dated 14/1/2011 passed in S.L.P. (Civil) No.(s) 19867/ 2010 Supreme Court has dismissed the S.L.P. with modification in the condition of the order. Hon'ble Supreme Court has not granted leave to appeal and has not heard and decided the appeal. In case of execution of decree or order passed by Supreme Court party who desires obtain execution is required to file petition before the High Court or the Court whose decree or order has been challenged in appeal before Supreme Court in accordance with Rule 15 of Order 45 of the Code which reads as follows: 11. Order 45 Rule (1) ......................... Rule (2) ......................... Rule (3) ......................... Rule (4) ......................... Rule (5) ......................... Rule (6) ......................... Rule (7) ......................... Rule (8) ......................... Rule (9) ......................... Rule (10) ....................... Rule (11) ........................ Rule (12) ....................... Rule (13) ....................... Rule (14) ....................... Rule-"15. Procedure to enforce orders of the Supreme Court-(1) Whoever desires to obtain execution of any decree or order of the Supreme Court shall apply by petition, accompanied by a certified copy of the decree passed or order made in appeal and sought to be executed, to the Court from which the appeal to the Supreme Court was preferred. Rule-"15. Procedure to enforce orders of the Supreme Court-(1) Whoever desires to obtain execution of any decree or order of the Supreme Court shall apply by petition, accompanied by a certified copy of the decree passed or order made in appeal and sought to be executed, to the Court from which the appeal to the Supreme Court was preferred. (2) Such Court shall transmit the decree or order of the Supreme Court to the Court which passed the first decree appealed from, or to such other Court as the Supreme Court by such decree or order may direct and shall upon the application of either party give such directions as may be required for the execution of the same and the Court to which the said decree or order is so transmitted shall execute if accordingly, in the manner and according to the provisions applicable to the execution of its original decrees. [***] [(4) Unless the Supreme Court otherwise directs, no decree or order of that Court shall be inoperative on the ground that no notice has been served on or given to the legal representative of any deceased opposite party or deceased respondent in a case, where such opposite party or respondent did not appear either at the hearing in the Court whose decree was complained of or at any proceedings subsequent to the decree of that Court, but such order shall have the same force and effect as if it had been made before the death took place." 12. S.L.P. (Civil) No.(s) 19867/2010 has been dismissed vide order dated 14/1/2011. Hon'ble Apex Court, has not granted leave to appeal against-judgment/order of this Court but while dismissing the petition for leave to appeal Apex Court has modified the order of this Court relating to amount of monthly damages. Apex Court has not passed any decree in any appeal before it. As held in case of Nandkishore, AIR 1981 MP 21 (Supra) in case of dismissal of S.L.P. provisions of Rule 15 of Order 45 of the Code is no application. 13. It is clear from the plain reading of Rule 15 of Order 45 of the Code that in case of execution of decree or order of Supreme Court passed in appeal party who desire to obtain execution is required to file petition before the Court against whose decree or order Apex Court has passed the decree or order. 13. It is clear from the plain reading of Rule 15 of Order 45 of the Code that in case of execution of decree or order of Supreme Court passed in appeal party who desire to obtain execution is required to file petition before the Court against whose decree or order Apex Court has passed the decree or order. In the present case Apex Court has not passed any decree or order in appeal therefore provisions of Rule 15 of Order 45 of the Code will not apply in execution of decree. 14. As regard application of Order 6 Rule 17 of the Code in proceeding is concerned, aforesaid provision is also applicable in proceeding in accordance with Section 141 of the Code. Consequently, by rejecting the objection filed on behalf of the petitioners and allowing the amendment of execution application, Court below has not committed any illegality requiring any interference in exercise of supervisory jurisdiction. Consequently, petition is liable to be dismissed and is hereby dismissed. 15. Interim application is also dismissed. No order as to costs. Petition Dismissed.