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2013 DIGILAW 719 (PAT)

Sajjan Rekha Ojhain v. Sheela Kant Thakur

2013-06-28

JYOTI SARAN

body2013
ORDER This Civil Revision is directed against the order dated 07.07.2009 passed in M.A. 3 of 2008 whereby the District Judge, Darbhanga while dismissing the appeal, has confirmed the order dated 15.05.2008 passed by Munsif-1st , Darbhanga in Misc. Case No. 10 of 2005 whereby the learned Munsif has rejected the application filed by the petitioner under Section 144 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’) praying for restitution. 2. This case has a very chequered history which requires to be discussed for better appreciation of the matter in controversy. The petitioner herein had filed a title suit bearing Title Suit No. 79 of 1981 for a declaration of title, confirmation of possession and in case the petitioner was found dispossessed during the course of trial, for recovery of the possession of the suit property which was a plot bearing No. 1248 admeasuring two kathas and ten dhurs situated in village Jalwara in the district of Darbhanga. The suit was decreed under a judgment and decree dated 29.10.1983 / 07.11.1983 and the possession of the petitioner was confirmed over the suit property. 3. As the petitioner was dispossessed in the meanwhile from the suit property, he filed a review application under Order 47 Rule 1 of the Code seeking a modification in the decree by substitution of a decree of recovery of possession, giving rise to Misc. Case No. 2 of 1984. The review case filed by the petitioner was dismissed in absence of any evidence regarding dispossession and being aggrieved the petitioner filed Civil Revision No. 547 of 1985 in this Court. As the defendants had neither responded to the summons issued in the review case nor had filed appearance despite service of notice in the Civil Revision, the matter was heard and allowed ex parte vide order passed on 29.11.1988. This Court while remitting the matter to the Munsif issued direction to consider whether there was any pleading with regard to the recovery of possession and decide the review petition in accordance with law. Upon remand the review case bearing Misc. Case No. 2 of 1984 was heard afresh and at this stage the defendants appeared and contested the matter. The trial court after considering the rival submissions, by judgment and order dated 30.5.1991 held the plaintiff entitled to recovery of possession together with cost and accordingly a decree followed the order. Upon remand the review case bearing Misc. Case No. 2 of 1984 was heard afresh and at this stage the defendants appeared and contested the matter. The trial court after considering the rival submissions, by judgment and order dated 30.5.1991 held the plaintiff entitled to recovery of possession together with cost and accordingly a decree followed the order. All along the matter was being contested by the opposite party nos. 1 and 2 only. 4. Being aggrieved by the judgment and order dated 30.5.1991 and the decree passed in the light thereof, the opposite party nos. 1 and 2 filed a Misc. Appeal No. 10 of 1991 in the court of 2nd Additional District Judge, Darbhanga. While the Misc. Appeal was pending consideration, the decree holder petitioner levied Execution Case No. 9 of 1991 for execution of the modified decree together with cost. As there was no response on the part of the judgment debtor in the execution proceedings, hence on a prayer made by the decree holder for auction sale of the land of the judgment debtor for realization of the cost, it is stated that 53 decimals of land belonging to the opposite party nos. 1 and 2 was auction sold under the provision of Order 21 Rule 82. An application was filed by the opposite party nos. 1 and 2 questioning the auction sale on grounds of non-compliance of the mandatory provisions underlying Order 21 giving rise to Misc. Case No. 1 of 1997. The Misc. Appeal No. 10 of 1991 filed by the opposite party nos. 1 and 2 was allowed under a judgment and order dated 21.05.1997 thus setting aside the order passed in Misc. Case No. 2 of 1984 and the matter was remitted to the trial court to decide the same afresh after taking into consideration additional evidence. 5. The order dated 21.05.1997 passed by the appellate court was questioned by the petitioner through C.R. No. 1078 of 1997 and which was subsequently converted to Misc. Appeal giving rise to M.A. No. 352 of 1997. A Bench of this Court after considering the entire matter vide order passed on 21.5.1998 (Annexure-4) set aside the order passed by the learned 2nd Additional District Judge, Darbhanga and remitted the matter back to the appellate court to decide the matter itself and dispose of the same in accordance with law. After remand the Misc. A Bench of this Court after considering the entire matter vide order passed on 21.5.1998 (Annexure-4) set aside the order passed by the learned 2nd Additional District Judge, Darbhanga and remitted the matter back to the appellate court to decide the matter itself and dispose of the same in accordance with law. After remand the Misc. Appeal No. 10 of 1991 was heard afresh by the appellate court below and was allowed vide judgment and order dated 16.6.1999 and the order passed in Misc. Case No. 2 of 1984 was set aside. The order of the appellate court dated 16.6.1999 is placed at Annexure-5. 6. Being aggrieved the petitioner moved this Court through C.R. No. 1337 of 1999. On the other hand the opposite party nos. 1 and 2 also filed an application before the trial court for restitution in view of the appellate order dated 16.6.1999 and which gave rise to Misc. Case No. 3 of 2000. While the Civil Revision application questioning the order passed by the appellate court below in M.A. No. 10 of 1991 was pending consideration before this Court in C.R. No. 1337 of 1999, the two Misc. Case filed by the opposite party nos. 1 and 2 bearing Misc. Case No. 1 of 1997 and Misc. Case No. 3 of 2000 was considered by the trial court and by a judgment and order dated 7.7.2001 the trial court while holding that Misc. Case No. 1 of 1997 filed under Order 21 Rule 90 by the opposite party 1 and 2 herein, had become infructuous in view of the order dated 16.6.1999 passed in Misc. Appeal No. 10 of 1991, the trial court taking note of the pendency of C.R. No. 1337 of 1999 filed by the petitioners questioning the order dated 16.6.1999 held that since there was no stay of the operation of the order passed by the appellate court hence the application filed by the judgment debtor i.e. the opposite parties for restitution of the auction sold lands, was fit to be allowed and thus holding, the judgment debtors were directed for restitution of the plots. In addition to the order dated 7.7.2001 passed in Misc. Case No. 3 of 2000 in Execution Case No. 9 of 1991, the trial court also modified the decree in the light of the appellate order passed in Misc. In addition to the order dated 7.7.2001 passed in Misc. Case No. 3 of 2000 in Execution Case No. 9 of 1991, the trial court also modified the decree in the light of the appellate order passed in Misc. Appeal No. 10 of 1991 vide order passed on 19.6.1999, thereby restoring the decree as it was originally passed before the passing of the order in the Review Case bearing Misc. Case No. 2 of 1984. 7. The Civil Revision application filed by the petitioner was heard and allowed by a Bench of this Court by order passed on 5.4.2005 (Annexure-6). This Court while setting aside the order passed in M.A. No. 10 of 1991 took notice of the fact that the petitioner had been put in possession of the suit land and their title having been declared by the trial court which was never questioned, the right needed to be protected. The opposite party nos. 1 and 2 filed an application seeking review of the order dated 5.4.2005 passed in Civil Revision giving rise to Civil Review No. 21 of 2006 raising apprehensions that the order passed in Civil Revision would affect even such land which was not included in the suit property but had been auction sold. The Civil Review No. 21 of 2006 filed by the opposite party nos. 1 and 2 was disposed of vide order dated 28.2.2007 (Annexure-7) while holding that the apprehension was baseless as the order passed in Civil Revision was in respect of the suit land and not any other land. 8. Since the petitioners although had been given possession over the suit property but had been dispossessed from the land which was auction sold in view of the order dated 7.7.2001 passed by the trial court in Misc. Case No. 3 of 2000 filed by the opposite party nos. 1 and 2, they filed an application under Section 144 of the Code giving rise to Misc. No. 10 of 2005 in the light of the order passed in Civil Revision No. 1337 of 1999 and in view of the legal position emanating upon setting aside of the order passed in M.A. No. 10 of 1991. According to the petitioner in view of the order passed in Civil Revision No. 1337 of 1999, the position as existing on the date of the passing of the judgment and order dated 30.5.1991, in Misc. According to the petitioner in view of the order passed in Civil Revision No. 1337 of 1999, the position as existing on the date of the passing of the judgment and order dated 30.5.1991, in Misc. 2 of 1984, stood restored, and hence the petitioner was entitled for restitution of the lands auction sold for realization of the cost awarded under the modified decree. The application was dismissed by the trial court vide order passed on 15.5.2008 in view of the order passed in Civil Review No. 21 of 2006 restricting the operation of the order passed in Civil Revision only to the suit land and not any other land. The order passed by the trial court was affirmed when the Misc. Appeal No. 3 of 2008 filed by the petitioner was dismissed on same grounds and hence this Civil Revision application. 9. I have heard Mr. Uma Shankar Singh No. 2 for the petitioner and Mr. Durga Nand Jha for the opposite party nos. 1 and 2, who were the only contesting party before the trial court. Whereas it has been the contention of Mr. Singh appearing for the decree holder-petitioner that the natural consequence of the setting aside of the judgment and order passed in Misc. Appeal No. 10 of 1991 would mean the restoration of the modified decree dated 30.5.1991 and the lands auction sold for recovery of the cost awarded under the modified decree, the position has been contested by Mr. Durga Nand Jha relying upon the order passed in Civil Review No. 21 of 2006 restricting the operation of the revisional order only to the suit lands and not other lands as also on the judgment and order dated 7.7.2001 passed in Misc. Case No. 3 of 2000 and the modified decree dated 19.6.1999 passed in consequence of the order dated 16.6.1999 passed in M.A. No. 10 of 1991, which orders according to Mr. Jha continue to hold the field and has not yet been set aside. 10. Mr. Singh responding to the said submission of Mr. Jha has submitted that the order passed in Civil Review in no manner affects the right of the decree holders inasmuch as the auction sold lands were never a part of the suit property rather were a consequence of non-compliance of the modified decree passed in Misc. 10. Mr. Singh responding to the said submission of Mr. Jha has submitted that the order passed in Civil Review in no manner affects the right of the decree holders inasmuch as the auction sold lands were never a part of the suit property rather were a consequence of non-compliance of the modified decree passed in Misc. 2 of 1984 and which order stands restored upon dismissal of Misc. Appeal No. 10 of 1991. He thus submits that even if the order in review mentions that the revisional order would not extend to any land other than the suit land yet it would not affect the right of the decree holder to seek restitution of the lands auction sold by the court for non-compliance of the modified decree. He has further submitted that since the modified decree dated 19.6.1999 is based upon the judgment and order dated 16.6.1999 passed in Misc. Appeal No. 10 of 1991, when the very foundation of the decree has been set aside in revision, the decree automatically would fall on the ground. 11. Upon hearing rival contentions of the parties and upon consideration of the materials on record and the various orders passed in this chequered litigation, the following issues emerge and which requires to be harmonized. The parties herein definitely cannot be left remediless. The issues which require answers from this Court are as follows:– (a) The modified decree passed in Misc. Case 2 of 1984 holding the petitioners entitled for recovery of possession as also to cost stands restored upon dismissal of the Misc. Appeal No. 10 of 1991 in the light of the order passed in C.R. No. 1337 of 1991; (b) As a consequence of the modified decree dated 30.05.1991 passed in Misc. 2 of 1984, the lands auction sold for realization of the cost, are yet to be set aside; (c) The order dated 07.07.2001 passed in Misc. Case 3 of 2000 filed by the opposite party nos. 1 and 2 rendering Misc. Case 1 of 1997 filed by the opposite party nos. 1 and 2 for questioning the auction sale, infructuous in the light of the order passed in Misc. Appeal No. 10 of 1991 and holding the opposite party nos. Case 3 of 2000 filed by the opposite party nos. 1 and 2 rendering Misc. Case 1 of 1997 filed by the opposite party nos. 1 and 2 for questioning the auction sale, infructuous in the light of the order passed in Misc. Appeal No. 10 of 1991 and holding the opposite party nos. 1 and 2 entitled to recovery of possession by virtue of the appellate order and which order has not been set aside; (d) The modified decree dated 19.6.1999 passed in consequence of the order passed in M.A. 10 of 1999, which has not been set aside; and (e) Last but not the least the import of the order passed in Civil Review No. 21 of 2006 clarifying that the order passed in C.R. No. 1337 of 1999 would govern only the suit land and not any other land. 12. As the foundation of the orders impugned in this application is the order passed by this Court in Civil Review No. 21 of 2006 i.e. item(e), I shall first be considering the said order and whether the same in any manner has affected the right of the petitioner to claim restitution in the light of the modified judgment and decree passed in Misc. Case 2 of 1984. 13. This Court while disposing of the Civil Revision application preferred by the petitioner questioning the order passed in Misc. Appeal No. 10 of 1991 which in turn questioned the order passed in Misc. Case 2 of 1984 filed by the petitioner for passing of a modified decree of restoration of possession, had taken note of the circumstance that the petitioner had been put in possession of the suit lands. This Court thus taking notice of the subsequent development, had disposed of the Civil Revision application while setting aside the order passed in Misc. Appeal No. 10 of 1991, while observing as such. The opposite parties apprehending disturbance in their possession over the auction sold land, sought review of the Revisional order giving rise to Civil Review No. 21 of 2006 and it was clarified that the Revisional order extended only to the suit lands. Appeal No. 10 of 1991, while observing as such. The opposite parties apprehending disturbance in their possession over the auction sold land, sought review of the Revisional order giving rise to Civil Review No. 21 of 2006 and it was clarified that the Revisional order extended only to the suit lands. The review order certainly did not affect the right of the parties created under the earlier orders passed in the matter rather the order passed in review merely clarified that the revisional order was restrictive only to the suit land and not to any other land. In the opinion of this Court the said observation of the Review Court, in no manner affected the right of the petitioner to claim possession of the auction sold land in the light of the modified decree dated 30.5.1991, which stood restored upon dismissal of Misc. Appeal No. 10 of 1991. But having said that, it is equally relevant to consider the effect of the order dated 07.07.2001 passed in Misc. Case 3 of 2000 and the modified decree dated 19.06.1999 passed in the light of the judgment and order passed in Misc. Appeal No. 10 of 1991. Taking the modified decree dated 19.06.1999 first, I am in no doubt that the reliance of Mr. Jha on the said decree appears to be completely misplaced for the simple reason that where the foundation of the decree itself stood removed under the Revisional court’s order passed in C.R. No. 1337 of 1999, the decree issued in pursuance thereof automatically falls on the ground and has no legal existence. A decree without a judgment is a nullity and has no legal existence. This would take care of item(d) and the objection raised by Mr. Jha relying upon the decree passed in consequence of the judgment and order passed in Misc. Appeal No. 10 of 1991. 14. That brings this Court to item(c) i.e. the order dated 7.7.2001 which again was passed in the light of the judgment and order passed in Misc. Appeal No. 10 of 1991 and in consideration whereof the trial court held Misc. Case 1 of 1997 questioning the auction sale as infructuous and also directed possession of the opposite party nos. 1 and 2 over the auction sold property. Since the order passed in Misc. Appeal No. 10 of 1991 and in consideration whereof the trial court held Misc. Case 1 of 1997 questioning the auction sale as infructuous and also directed possession of the opposite party nos. 1 and 2 over the auction sold property. Since the order passed in Misc. Case 3 of 2000 is simply based on the judgment and order dated 16.6.1999 passed in Misc. Appeal 10 of 1991, hence, once the order passed in Misc. Appeal No. 10 of 1991 was set aside in C.R. No. 1337 of 1999, the order passed in Misc. Case 3 of 2000 would also fall flat on the ground but then that would not leave the opposite party nos. 1 and 2 remediless and as a consequence of the order passed in C.R. No. 1337 of 1999, the contentions of the opposite party no. 1 and 2 as raised in Misc. 1 of 1997, would now require to be considered, afresh. 15. The legal position as it stands today is that a modified decree was passed in consequence of the order passed in Misc. Case 2 of 1984 directing for restoration of possession of the petitioner as also awarding cost. Whereas the possession was restored, the cost was not paid. The records transpire that for realization of cost of Rs. 956/-, the Court has auction sold about 53 decimals of land which according to the opposite party nos. 1 and 2, is valued at a much higher price than the cost awarded. It is in this circumstance that the opposite parties had filed Misc. Case 1 of 1997 questioning the auction sale as being in gross violation of the statutory requirements provided under Order 21 and which contest was rendered infructuous in view of the order passed in M.A. 10 of 1991. On the other hand the court below relying upon the order passed in Civil Review No. 21 of 2006, has by the impugned order(s) dismissed the application filed by the petitioner for restitution despite the modified decree passed in Misc. Case 2 of 1984 and the auction sale of the lands for realization of cost awarded under the modified decree. 16. Thus leaving no room for confusion, the best course in the opinion of this Court would be to remit the entire matter back to the trial court for consideration of the restitution application filed by the petitioner bearing Misc. Case 2 of 1984 and the auction sale of the lands for realization of cost awarded under the modified decree. 16. Thus leaving no room for confusion, the best course in the opinion of this Court would be to remit the entire matter back to the trial court for consideration of the restitution application filed by the petitioner bearing Misc. Case No. 10 of 2005 and the Misc. Case No. 1 of 1997 filed by the opposite party nos. 1 and 2 questioning the auction sale which should be considered and disposed of afresh, in accordance with law and after hearing the contesting parties. Since Misc. Case No. 3 of 2000 was filed by the opposite party 1 and 2 for restitution and as a consequence of the order dated 7.7.2001 passed in Misc. Case No. 3 of 2000, they continue to be in possession, their right to continue would be governed by the final outcome of the proceedings in Misc. Case No. 1 of 1997 and Misc. Case No. 10 of 2005 as it is but obvious that the plea of restitution made by the petitioner is conditional upon the outcome of the proceedings in Misc. Case 1 of 1997 filed by the opposite party nos. 1 and 2 questioning the auction sale. 17. Neither the right of the petitioner to recover cost/claim possession over the auction sold land, stood affected by the observation made in Civil Review No. 21 of 2006 nor the opposite party nos. 1 and 2 can be left remediless, by virtue of their dismissal of Misc. Case 1 of 1997 questioning the auction sale. As the relief prayed by the petitioner in Misc. Case 10 of 2005 and by the opposite party nos. 1 and 2 in Misc. Case 1 of 1997 are intrinsically interlinked, both the applications should be considered analogous and be disposed of expeditiously and preferably within a period of three months from the date of receipt/production of a copy of the order in accordance with law and after giving due opportunity of hearing to the contesting parties. Issue nos. (a) and (b) are answered accordingly. 18. In the result, the orders impugned are set aside. This application is allowed with the directions aforementioned but without any order as to costs.