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2013 DIGILAW 1167 (ALL)

Vijay Dembla v. Sanjay Dembla

2013-04-17

MAHENDRA DAYAL

body2013
JUDGMENT Mahendra Dayal,J. Heard Shri Prashant Chandra, learned Senior Advocate, assisted by Shri Jaspreet Singh Advocate, for the revisionist and Shri Deepak Seth and Shri Ratnesh Chandra, on behalf of caveator opposite party no.1. The instant revision under Section 115 C.P.C. has been filed challenging the order dated 11.3.2013, passed by District Judge, Lucknow, in Execution Case No. 6/1998. 2. By means of the impugned order, learned District Judge has required the counsel for the parties to appear before the court on 16.3.2013 so that the execution case may be decided finally, but as per the revisionist while passing the impugned order, the learned District Judge has also recorded his definite opinion as to the property in respect of which the execution order is to be passed. However, no final order has yet been passed by the District Judge. 3. The learned counsel for the opposite party no.1 has raised a preliminary objection with regard to the maintainability of the revision and has argued that the learned District Judge while passing the impugned order has not committed any illegality or any material irregularity. The learned District Judge was well within his jurisdiction to pass the impugned order and as such the revision should be dismissed at the admission stage. 4. The learned counsel for the opposite party no.1 has placed reliance on a case reported in (2007) 14 SCC 719 Prabhat Kumar Mahapatra and others Vs. Madhabika Dutta Biswas and others; in which the Supreme Court has held that the right of appeal is a substantive right but there is no such substantive right in respect of revision. The courts should not interfere with the order while exercising the power of revisional court unless it is shown that the order was without jurisdiction. Reliance has also been placed on a case reported in AIR 1999 Supreme Court 745 State of Andhra Pradesh Vs. Vatsavyi Kumara Venkata Krishna Verma; in which the Supreme Court has observed that the courts can interfere in a revision only when it is satisfied that the findings reached by the court below suffers from any jurisdictional error. 5. The submission on behalf of the opposite party no.1 is that the learned District Judge has not passed any final order till today and it is still open to the parties to place their submissions before the learned District Judge. 6. 5. The submission on behalf of the opposite party no.1 is that the learned District Judge has not passed any final order till today and it is still open to the parties to place their submissions before the learned District Judge. 6. In view of this, the revision under Section 115 C.P.C. is not maintainable. 7. Shri Prashant Chandra, the learned Senior Advocate has admitted that by the impugned order dated 11.3.2013, the learned District Judge has only required counsel for the parties to appear before the court but he has submitted that while passing the impugned order the learned District Judge has recorded a finding as to which of the properties were to be put to execution. This finding recorded by the learned District Judge is a final adjudication between the parties and as such the impugned order has attained the finality so far as the details of the properties are concerned. He has further submitted that the learned District Judge without discussing the pleadings of the parties and the documents available on record has come to a definite conclusion that the second award given by the Arbitrator referred only to the property situated at Barabanki and have no relevance with the property situated at Lucknow. 8. The submission on behalf of the revisionist is that in fact the entire property was owned by late Shri Srichand Dembla. It is stated that after the death of Shri Srichand Dembla an agreement was arrived at between the revisionist, the opposite party no.1 and their mother Smt. Rekha Dembla, so that there may not be any future dispute with regard to the properties left by late Shri S.C. Dembla. The parties to the agreement also appointed Shri Dharam Raj Santwani as the sole Arbitrator who gave partial award on 18.8.1996 but after this partial award the revisionist and the opposite party no.1 again entered into an agreement on 17.8.1997. This agreement has been referred to as the second award. The revisionist applied for execution of the aforesaid two awards against the opposite party no.1 and his mother Smt. Rekhan Dembla. However, during the pendency of the execution proceedings Smt. Rekha Dembla died. 9. This agreement has been referred to as the second award. The revisionist applied for execution of the aforesaid two awards against the opposite party no.1 and his mother Smt. Rekhan Dembla. However, during the pendency of the execution proceedings Smt. Rekha Dembla died. 9. The learned counsel for the revisionist has argued that after passing of the impugned order the learned District Judge has again passed an order on 19.3.2013, whereby he required to opposite party no.1 to place certain documents before the court, but while passing the order dated 19.3.2013, the learned District Judge mentioned that the facts and the spirit of the order dated 11.3.2013 were in his mind and would be disclosed at the relevant stage and relevant time. It is further submitted that learned District Judge while passing the impugned order has completely overlooked the relevant orders passed by the High Court prior to filing of this revision. If the revision is not admitted and the parties are not heard at length, the revisionist would suffer irreparable loss and injury. 10. With regard to the preliminary objection raised by the learned counsel for opposite party no.1, he has relied upon a case reported in (2009) 5 SCC 162 ; in which the Supreme Court has held that in the case of wrong interpretation of statute relating to jurisdiction of a court enable it to issue a direction would amount to a jurisdictional error. A jurisdictional question may arise not only when a court acts without jurisdiction but also in a case where jurisdictional errors are committed while exercising jurisdiction. He further submits that the order impugned passed by the learned District Judge is not appeal-able but the fact that a revision is provided under Section 115 CPC itself suggests that a revisional jurisdiction can be exercised when a question of law arises. 11. Since the learned District Judge has recorded a definite opinion with regard to the property to be put to execution and the order has attained the finality, it is open for the revisional court to examine the legality of the order as to whether the said opinion is based on correct appraisal of evidence. 12. In these circumstances the revision should be admitted for hearing and in the meantime the proceedings of the execution case pending in the court of District Judge, Lucknow be stayed. 13. 12. In these circumstances the revision should be admitted for hearing and in the meantime the proceedings of the execution case pending in the court of District Judge, Lucknow be stayed. 13. Having heard learned counsel for the parties and perusal of paper book it appears that there has been a series of litigation between the parties with regard to the properties left by late Shri Srichand Dembla. Some properties are situated at Barabanki while some of them are situated at Lucknow. These properties are in the shape of various business, house, land, accounts and factories. It appears that an effort was made by the parties to settle their dispute by entering into an agreement and again referring their dispute to the Arbitrator, but their dispute has not come to an end after a lapse of more than 20 years. The learned District Judge has passed a very detailed order and has required the counsel for the parties to appear and produce the documents in respect of business etc. so that the execution case may be finally decided but the learned District Judge while passing the impugned order has also recorded a definite opinion with regard to the property which is to be covered by the execution. There are serious disputes between the parties with regard to the properties in respect of which the assistance of the court is required. The matter requires detailed hearing and appraisal of documents. There are also arguable points of law and as such the revision deserves to be admitted for hearing. 14. I, therefore, admit the revision. The opposite party no.1 has already appeared through counsel. 15. Issue notice to the opposite party no.2 returnable within two weeks. 16. Necessary steps may be taken within three days. 17. Since the execution case is pending since 1998, I therefore, fix 14.5.2013 for hearing of this revision. The office is directed to list this revision for hearing on 14.5.2013 before the appropriate Bench. 18. Till the next date of listing, no final order shall be passed in Execution Case No. 6 of 1998 pending in the court of District Judge, Lucknow. 19. It is also made clear that this revision shall not be treated as part heard or tied up with this Bench.