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2013 DIGILAW 504 (HP)

Anil Kumar v. Dharamvir Sood

2013-05-31

SURINDER SINGH

body2013
JUDGMENT Surinder Singh, J: The Judgment-debtors felt aggrieved and dissatisfied by the order dated 6.5.2013 passed in the Execution Petition No.20 of 2011 by the Civil Judge (Senior Division) (1), whereby the objections filed by the Judgment-debtors were dismissed and warrants of possession were issued to the concerned agency directing to hand over the possession of the disputed premises comprised of one room of the size of 10’X10’, situated over 4th storey of building No.15/2, Lakkar Bazaar, Shimla, hence they filed the present petition to set it aside and remand the case to some other Court to decide afresh. 2. The respondent-Decree-holder had filed caveat and put in appearance through counsel on 23.5.2013. The matter was posted for 24.5.2013 as the time was sought to file reply to the interim application for stay (CMP No.647 of 2013). Since the learned counsel for the respondent submitted that till date the warrants of possession were not issued and the application filed by the petitioners was fixed for 1.6.2013 for orders, in interim, however till then the execution of the warrants of possession, if not already issued was ordered to be stayed. Now the reply to the interim application has been filed. 3. I have heard the learned counsel for the parties on the point of admission, as well as on stay application. A- Background Facts. 4. The respondent-Decree-holder had filed a suit for possession of disputed premises against the petitioners herein and also for recovery of the mesne profits in the Court of Civil Judge, which was decreed, but in appeal, learned District Judge reversed and set-aside the judgment and decree passed by the learned trial Court, consequently, the suit of the respondent-Decree- holder was dismissed. 5. Plaintiff- respondent Sh. Dharamvir filed Regular Second Appeal, which was allowed and vide its judgment dated 24.8.2011 set-aside the judgment passed by the first Appellate Court and restored the judgment and decree dated 27.11.1999 of the learned trial Court, whereby the possession of room of the size of 10’x10’ alongwith a decree for mesne profits to the tune of ‘.10,500/- with interest @ 12% per annum was passed. The first respondent herein was also held entitled to ‘.50/- per day as damages till the room is not vacated by the petitioner and non­applicant-respondent No.2. 6. The first respondent herein was also held entitled to ‘.50/- per day as damages till the room is not vacated by the petitioner and non­applicant-respondent No.2. 6. Feeling aggrieved by the judgment passed by the High Court in RSA No.90 of 2001, the petitioners-Judgment Debtors filed SLP, which was converted into Civil Appeal No.5005 of 2012, which is still pending and they also applied for staying the operation/ execution of the impugned judgment. Vide order dated 5.7.2012, the Supreme Court issued notice on the petitioners (Judgment-debtors) on the prayer for interim relief returnable in ten weeks. However, in the meanwhile, operation of the impugned judgment was stayed subject to the condition that within two months from the date of passing of the said order, i.e. on 5.7.2012, the petitioners-Judgment- debtors shall hand over the possession of one room of the size of 10’x10’ to the respondent- decree-holder. If the petitioner-Judgment debtors failed to comply with the directions contained in the said order or served a notice upon the respondents, the interim order passed shall stand automatically vacated. 7.It is alleged that the petitioners-Judgment- debtors failed to hand over the possession of the room, as such stay granted by the Supreme Court stood vacated, thus, according to the respondent-Decree-holder, JD’s were not entitled to take any benefit of the interim orders, as such respondent-Decree-holder filed execution petition before the Civil Judge. 8.In the execution petition, the petitioners- Judgment-debtors filed the objections under Section 47 read with Section 151 of the Code of Civil Procedure (Annexure P-1). According to him, the matter is pending decision in the Supreme Court, therefore, the application was not maintainable. On merits submitted that the executing Court cannot go beyond the decree of the trial Court by delivering the possession of the room in the 4th storey of the building, which otherwise did not exist at the spot as there is no room of the size of 10’x10’ in existence in building No.15/2, Lakkar Bazaar, Shimla. On merits submitted that the executing Court cannot go beyond the decree of the trial Court by delivering the possession of the room in the 4th storey of the building, which otherwise did not exist at the spot as there is no room of the size of 10’x10’ in existence in building No.15/2, Lakkar Bazaar, Shimla. The building in question after it got damaged has not been reconstructed as per the old location due to the bar in passing of the site plan by the Town and Country Planning and no permission was given to the Judgment-debtors for reconstructing the building upto 4th storey, but they were allowed construction of the damaged building upto two storeys only, therefore, there was no question of handing over the possession of the room of above size and further that the agreement was void being hit by Section 23 and 56 of the Indian Contract Act and for impossible performance etc. etc. 9. The reply was also filed to the objections aforesaid by the Decree-holder controverting the above allegations and the matter was listed for 6.4.2013. 10. On 6.4.2013, the Presiding Officer vide notice dated 5.4.2013 (Annexure P-3) informed the General Public, litigants and Advocates that he shall be on leave on that day, all the cases fixed shall be taken up on 19.6.2013 for effective hearing. B- Contention before this Court. 11. It is alleged by the petitioner herein that he received caveat notice sent by the first respondent on 9.5.2013, then it transpired that the objections filed by the petitioners-Judgment- debtors were dismissed vide Annexure P-4 on 6.5.2013. Thereafter, he made request to his counsel to look into the matter. They were astonished to note that the learned trial Court had recorded the presence of Shri Pankaj Bhardwaj, learned counsel for Judgment-Debtors while disposing of the objections petition on 6.5.2013 whereas, he had no notice and never attended the Court on that date. He also filed his affidavit Annexure P-5 with this petition. Further on 14.5.2013, the copy of the impugned order was attested and delivered on 15.5.2013. Therefore, it was not known as to how and under what circumstances, the matter was taken up on 6.5.2013 without notice to the respondents. Thereafter, petitioner moved application (Annexure P-7) seeking stay of the warrants of possession for 15 days. Further on 14.5.2013, the copy of the impugned order was attested and delivered on 15.5.2013. Therefore, it was not known as to how and under what circumstances, the matter was taken up on 6.5.2013 without notice to the respondents. Thereafter, petitioner moved application (Annexure P-7) seeking stay of the warrants of possession for 15 days. Further proceedings in this application are pending before the learned executing Court for 1.6.2013 for final orders. 12.Now the petitioners-Judgment-debtors challenged the impugned order dated 6.5.2013 on the grounds that his counsel was not present on 6.5.2013 and in fact vide notice Annexure P-3 the case was ordered to be fixed on 19.6.2013, therefore, there was no question of its preponement and passing the impugned order on 6.5.2013 when even his counsel was not present. 13. I have heard the learned counsel for the parties and have carefully gone through the annexures appended with the petition as well as in reply. 14.The perusal of the record shows that the objection petition was ordered to be taken up on 19.6.2013 vide Annexure P-3, because the Presiding Officer was to proceed on leave. Vide application under Section 151 of the Code of Civil Procedure, the respondent-Decree-holder requested for its preponement. As per the note in the column thereof the main file was ordered to be put up on 6.5.2013, on which date the objections of the petitioner-Judgment-debtors were disposed of wherein the presence of Shri Pankaj Bhardwaj, Advocate for the petitioner- Judgment-debtors stands reflected. 15. Pertinently, the petitioners-Judgment- debtors did not file any correction application to review the impugned order before the learned executing Court to the effect that his presence was wrongly recorded and he was not present. 16. It has been held by the Supreme Court in Central Bank of India v. Vrajlal Kapurchand Gandhi and another [ (2003) 6 SCC 573 ] that the statements of fact as to what transpired in the hearing recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by an affidavit or by other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judge, to call the attention of the very Judge who made the record. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judge, to call the attention of the very Judge who made the record. That is the only way to have the record corrected. If no step is taken, the matter must necessarily end there. 17. Therefore, against the above settled legal proposition, the High Court cannot launch into an enquiry as to what transpired in the Court. Matters of judicial record in that sense are unquestionable. 18. The petitioner had made no such prayer before the learned Executing Court to get corrected the impugned order, but only the permission was sought to stay the execution of the warrants of possession for 15 days in his application Annexure P-7. 19. Further, I also do not find any illegally, impropriety or incorrectness in the impugned order worth interference. The suit for possession and mesne profits was filed by the Judgment-debtors in the year 1989. Both the parties are fighting for more than 25 years, one for getting the possession of the demised premises and another for retaining it. The conditional stay granted by the Supreme Court stood automatically vacated for non-compliance of the orders by the petitioners. It appears by filing objections the petitioners want to ling on the execution and also did not comply with the conditional order passed by the Supreme Court, which stood automatically vacated. Therefore, the consequences are to follow. 20. For the afore-stated reasons, the revision petition is dismissed in liminie, so also the pending application(s), if any. The interim order passed by this Court in this petition stands vacated.