Research › Search › Judgment

Madhya Pradesh High Court · body

2014 DIGILAW 183 (MP)

Ganga Bai v. Subhash Chandra Mangal

2014-02-11

SUJOY PAUL

body2014
ORDER 1. By invoking jurisdiction of this Court under Article 227 of the Constitution, the petitioner has challenged the order dated 1.10.2013 passed by the executing Court in case No.32A/2004 Csx50A/2012. By this order, the application preferred by the petitioner under section 47 read with section 151 CPC is rejected. 2. The brief facts necessary for adjudication of this matter are that the respondent preferred a civil suit No.32A/2004 before Civil Judge Class-II, Jaura for eviction of the petitioner/tenant. Civil suit aforesaid, was allowed by the judgment and decree dated 24.10.2005. Feeling aggrieved by the judgment and decree, the present petitioner preferred an appeal before the lower appellate Court bearing case No.5A/2011. The said appeal was disallowed. In other words, in civil appeal No.5A/2011 the lower Appellate Court confirmed the judgment and decree of eviction dated 24.10.2005. Petitioner/defendant then tested the judgment and decree by filing SANo.247/2012. The said SA was dismissed on 31.3.2013 by this Court. This Court granted three months time to appellants vacate the suit premises on the condition that they shall pay the rent regularly to the landlord. The petitioner/defendant unsuccessfully challenged this order before the Supreme Court. The apex Court affirmed the order of this Court. The decree holder/respondent initiated the execution proceedings before the executing Court. Notices were received by the present petitioner. During the course of execution proceeding, the petitioner preferred an application under section 47 of the Act stating that the property in question belongs to one Meena Sharma and, therefore, execution proceeding be stayed. The Court below rejected the said application on the ground that judgment and decree against the petitioner/defendant has attained finality. In view of dismissal of SLP before the Supreme Court, judgment and decree qua petitioner/defendant has attained finality and, therefore, the application preferred by the petitioner is infact an attempt to delay the proceedings and deprive the decree holder from the fruits of the litigation. 3. Criticizing this order, Shri Ankur Maheshwari, Advocate for the petitioner relied on 2013 (I) MPWN 123 (Mohammad Khan v. Ramgopal). He submits that although in the application under section 47 it is stated that the suit property belongs to Meena Sharma, this objection can be raised by the petitioner. 4. Per Contra, Shri N.K. Gupta, learned counsel for the other side supported the order passed by the Court below. 5. He submits that although in the application under section 47 it is stated that the suit property belongs to Meena Sharma, this objection can be raised by the petitioner. 4. Per Contra, Shri N.K. Gupta, learned counsel for the other side supported the order passed by the Court below. 5. I have heard learned counsel for the parties and perused the record. 6. section 47 reads as under :- 47. Questions to be determined by the Court executing decree:- (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. 7. A bare perusal of the provisions shows that the question relating to execution, discharge or satisfaction of decree arising between the parties to the suit are required to be determined in execution proceedings. Admittedly, in the present case, petitioner is raising objection on the ground that the plaintiff is intending to execute the decree by including the dwelling house of one Meena Sharma. This is clearly impermissible and beyond scope of judgment and decree. Thus, petitioners are not raising objection with regard to any piece of land / property which is related to them. The Court below has rejected the application on the ground that the petitioners cannot be permitted to raise objection with regard to a portion of suit property which is allegedly belongs to Meena Sharma. If aggrieved, Meena Sharma can file appropriate proceedings. In this petition also, the petitioners have confined their attack on the ground that some portion of the property belongs to Meena Sharma (paras 5.5, 6.1 and 6.2 of the petition). During the course of argument also, no other point is pressed by the learned counsel for the petitioner. 8. On the basis of aforesaid factual backdrop, the only question is whether the Court below has rightly considered and decided the application of the petitioner raising objection regarding ownership of one Meena Sharma. 9. The language of section 47 is clear, which shows the intention of the Legislature that the dispute between the parties may be raised and decided in this application. So far the plaintiff and respondents are concerned, their inter-se dispute has been decided till Supreme Court. 9. The language of section 47 is clear, which shows the intention of the Legislature that the dispute between the parties may be raised and decided in this application. So far the plaintiff and respondents are concerned, their inter-se dispute has been decided till Supreme Court. section 47 of CPC, in the opinion of this Court, does not permit the petitioners to raise objection regarding alleged ownership of suit property by Meena Sharma. In 1997 (1) JLJ 364 (Balaji Industries (M/s) and another v. State Bank of India and others) this Court opined that section 47 envisages the consideration of “all questions” arising between “parties of the suit”. Indisputably, Corporation was not the party to the suit and as such, no question can arise for consideration vis-a-vis a party foreign to the suit”. It is further opined that no application under section 47 r/w section 151 could properly lie, on this point in execution case. Although Shri Mahehwari relied on 2013 (I) MPWN 123 (Mohammad Khan v. Ramgopal), in the considered opinion of this Court the said judgment has no application in the present case.Para 5 of said judgment shows that there was an inter se dispute between the decree holder and the judgment debtor and, therefore, this Court opined that section 47 is attracted. In the present case, ground regarding possession of Mrs.Meena Sharma cannot be treated to be a dispute between the decree holder and judgment debtor. Thus, this contention is rejected. 10. In the considered opinion of this Court, whole attempt of the petitioners is to buy time and delay the proceedings on frivolous grounds. Petitioners have no locus after having lost the battle till the highest Court of the country, to create hindrance and to deprive the petitioner from the fruits of the litigation. Whole attempt of the petitioners in filing application under section 47 is in fact an attempt to create unnecessary and unwarranted hindrance which amounts to abuse of process of law. Court below has rightly rejected said application in view of clear finding by this Court in SA No. 247/2012 dated 21.3.2013. At the cost of repetition, petitioners cannot be permitted to raise the grievance of somebody else, who was not party to the litigation. 11. The scope of interference under Article 227 of the Constitution is limited. Court below has rightly rejected said application in view of clear finding by this Court in SA No. 247/2012 dated 21.3.2013. At the cost of repetition, petitioners cannot be permitted to raise the grievance of somebody else, who was not party to the litigation. 11. The scope of interference under Article 227 of the Constitution is limited. If order is shown to be without jurisdiction, suffers from manifest procedural impropriety or perversity, interference can be made. Another view is possible is not a ground for interference. Interference is made to ensure that Courts below act within the bounds of their authority. Interference cannot be made in a routine manner on drop of hat. This was held by the Supreme Court in (Shalini Shyam Shetty and another v. Rajendra Shankar Patil), reported in (2010) 8 SCC 329 . 12. In the considered opinion of this Court, order impugned is in accordance with law and cannot be said to be an illegal order or order passed without authority of law. Petition deserves to be dismissed with cost because of oblique attempt of petitioners to deprive the plaintiff from the fruits of the litigation. For this abuse of process of law, I deem it proper to dismiss this petition with costs. Petition is dismissed with Rs.10,000/- (Rs. Ten Thousand Only) as cost. Petitioners shall deposit this amount before the Court below on the next date of hearing. Plaintiff shall be entitled to get said amount of cost. 13. Petition is dismissed with costs.