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2015 DIGILAW 419 (MP)

Lata Pal v. Mahesh Pal through LRs Smt. Renu Pal

2015-04-10

B.D.RATHI

body2015
ORDER : 1. Heard on I.A.No.4644/13. 2. The aforesaid I.A. has been preferred under section 144 read with 151 of CPC by the appellant Smt. Lata Pal for the relief which is extenso below : “By allowing the said application, the respondents/decree-holders be directed to handover possession of the disputed suit premises within two weeks to the appellant judgment debtor, which was allegedly taken back from the appellant during the pendency of the present appeal.” 3. Briefly stated, the facts of the case for the purpose of disposal of the said application are that one Civil Suit bearing No.45-A/07 was filed by one Mahesh Pal against Man Singh Pal. The petitioner is the legal representative being daughter of late Man Singh Pal. Similarly, respondents are also legal representatives of late Mahesh Pal. The suit was filed for specific performance of the contract having regard to suit property as described in the plaint. Said civil suit was decided by the Second Additional Sessions Judge, Gwalior on 9.5.2008. The decree was passed in favour of original plaintiff Mahesh Pal by declaring him to be entitled to get vacant possession of the suit premises numbered as 249/39, presently numbered as 322/39, situated at Labhetapura, Naka Chandrawadni, Lashkar, Gwalior. During the pendency of that suit, defendant Man Singh Pal, father of appellant had died. Petitioner Smt. Lata Pal being his daughter with other two legal representatives, namely, Narayani, widow of Man Singh and one Kusum another daughter of late Man Singh Pal were brought on record and in their presence suit was decreed by the trial Court vide judgment dated 9.5.2008. When the execution proceedings were initiated, an objection under Order 21 rule 97 CPC was preferred. Same was dismissed vide order dated 24.12.2009. Now, in between pendency of the execution proceedings, original plaintiff Mahesh Pal also expired and Smt. Renu Pal and Rahul were brought on record as his legal representatives. Against dismissal of the objection under Order 21 rule 97 by the trial Court, the first appeal under Order 21 rule 103 CPC, has been preferred to this Court by one of the legal representatives Lata Pal, daughter of late Man Singh, the original defendant. Against dismissal of the objection under Order 21 rule 97 by the trial Court, the first appeal under Order 21 rule 103 CPC, has been preferred to this Court by one of the legal representatives Lata Pal, daughter of late Man Singh, the original defendant. This appeal has been admitted vide order dated 17.2.2010 and on the same day while considering the prayer for grant of interim relief it was directed by this Court as under : “Considering the aforesaid facts and findings of the Court below purely as an interim measure it is directed that the Appellant shall not be dispossessed from the suit premises till further orders of this Court.” At subsequent stage, the first appeal was dismissed in default on 9.7.2013 as no one appeared on behalf of the appellant. Thereafter, MCC No.170/13 was preferred by the appellant. Same was allowed on 29.7.2013 and it was ordered as following : “The appeal is restored to its original number subject to payment of Rs.500/- which shall be paid in favour of M/s. Institute of Advocate Continuing Legal Education Gwalior.” During the intervening period of dismissal and restoration of the first appeal, possession of the suit property was taken by the decree-holders/respondents. 4. Now, the contention of the counsel for the petitioner on the strength of the application preferred under section 144 of CPC, is to the effect that the first appeal has already been restored, means the interim protection granted by this Court has already been revived automatically soon after the restoration of the appeal to its original position and when the stay order granted in favour of the appellant was in operation the possession taken by the respondent was not lawful and the same has to be restored to the appellant. Thus, it is contended that once appeal has been restored, the stay order stands revived automatically and in view of that it is the duty of the Court to direct the respondents to handover the possession of the suit premises to the appellant. In support of his contention learned counsel for the appellant placed reliance on the decision of Hon’ble apex Court in the case of Vareed Jacob v. Sosamma Greevarghese and others [ AIR 2004 SC 3992 ]. 5. In support of his contention learned counsel for the appellant placed reliance on the decision of Hon’ble apex Court in the case of Vareed Jacob v. Sosamma Greevarghese and others [ AIR 2004 SC 3992 ]. 5. On the contrary, it is urged by the counsel Shri Khedkar on behalf of the respondents that when application under section 144 of CPC, itself is not maintainable, this court has no jurisdiction to entertain the same because as per provision given under section 144 of CPC, the application should be filed before the Court of first instance. The second objection raised by the counsel is that it is not a case where decree or any kind of order is varied or reversed in any appeal, revision or other proceedings or is set aside or modified in any suit, therefore,the application under dection 144 of CPC is not maintainable. The third objection taken by the counsel is that the civil suit was decided in presence of the appellant. The decree was passed vide impugned judgment dated 9.5.2008. That judgment and decree has attained finality because same was never challenged in any Court of law. Therefore, the said judgment and decree are having binding effect on the appellant as well as respondents. It is further argued that this appeal was dismissed in default. Same was directed to be restored vide order dated 29.7.2013 on depositing payment of costs of Rs.500/-. The amount of costs was deposited by the appellant on 26.9.2013. Intermittently, the record of the case was transmitted to the trial Court and the execution proceedings which were kept in abeyance by the stay order passed by this Court came into existence and in pursuance of such proceedings by issuing Kabja warrant possession of the suit property was handed over to the respondents. It is also submitted by the respondents that notice of forthcoming execution warrant was well within the knowledge of the appellant. In such events, looking to the principles of natural justice with further keeping into consideration the law of equity, it is submitted that the application should not be accepted and dismissed at the threshold. 6. In support of the above arguments, learned counsel for the respondents has placed reliance on the decisions in the cases of Inderam Mansaram and another v. Ramdin Bhagwant Prasad and others [ AIR 1961 MP 200 ], Khayali Ram etc. v. Mast Ram etc. 6. In support of the above arguments, learned counsel for the respondents has placed reliance on the decisions in the cases of Inderam Mansaram and another v. Ramdin Bhagwant Prasad and others [ AIR 1961 MP 200 ], Khayali Ram etc. v. Mast Ram etc. ( AIR 1977 HP 41 ), Math Sauna and others v. Kedar Nath Chaube [ AIR 1977 All. 115 ], Jagat Bandhu Shaw and others v. Ram Nagina Pandey [ AIR 1977 Cal. 281 ]. 7. Having regard to the arguments put forth by the learned counsel for the parties, the entire pleadings, the order impugned and all the annexures and documents filed along with the appeal are perused. 8. Admittedly, judgment and decree was passed on 9.5.2008 in Civil Suit No.45-A/07 in presence of the appellant-Smt. Lata Pal, daughter of late Man Singh, original defendant of the case along with other legal representatives of him. Same was never challenged before any of the Court of law and sequelly attained finality. The objection raised by the appellant under Order 21 rule 97 CPC was also dismissed Though, this first appeal has been preferred against the dismissal of the objection, but it was dismissed in default on 9.7.2013 in which the stay order was passed in an ex parte manner on 17.2.2010. The restoration order of the appeal was passed by this Court on 29.7.2013 and subject to payment of Rs.500/- as costs, the appeal was restored to its original number. The costs imposed was deposited on 26.9.2013. Meanwhile, the record of the trial Court was sent back to take up with further proceedings in the matter. The execution proceedings recommenced eventually after dismissal of the appeal and implied rejection of order of interim stay. Before restoration of the appeal to its original position, the possession of the suit property was handed over to the respondents. 9. The facts on record suggested that the possession was taken over in pursuance of commencement of the execution proceedings on 21.9.2013 from respondent No.3 Smt.Narayani Pal and Pawan Shrivastava. They have not preferred an application under section 144 of CPC. The possession was not taken back from appellant Smt. Lata Pal. She has filed this application though as per provisions under section 144 of CPC, such kind of application should be led before the Court of first instance, i.e., the Court which passed the initial decree. They have not preferred an application under section 144 of CPC. The possession was not taken back from appellant Smt. Lata Pal. She has filed this application though as per provisions under section 144 of CPC, such kind of application should be led before the Court of first instance, i.e., the Court which passed the initial decree. If during the pendency of the appeal preferred by the judgment-debtor, possession is handed over to decree-holder and if ultimately appeal is allowed and decree is set aside, in that event under section 144 of CPC possession can be restored with judgment-debtor. But in this case, facts are altogether different. 10. The decree has not been challenged, on the strength of which, possession has been taken by the legal representative of plaintiff Mahesh Pal. Apart that such kind of application cannot be entertained directly by the appellate Court. 11. So far as the principles laid down by Hon’ble apex Court in the case of Vareed Jacob (supra), no doubt with restoration of the appeal, the order of interim stay is also revived automatically but in spite of that no relief can be granted in favour of the appellant in this case in view of the application under section 144 of CPC. Because in the order of dismissal of the appeal, it was impliedly said that the order of stay became non est inventus and when appeal was restored it was not directed by this Court that the said stay order also got revived automatically. 12. It is also evident on bare perusal/reading of the ex-parte stay order dated 17.2.2010 that same was passed “purely as an interim measure”. It was directed that the appellant shall not be dispossessed from the suit premises till further orders of this Court. This order has not been confirmed by giving opportunity of hearing to the respondents and the same was passed only “till further orders of this Court” which by itself shows that as soon as the appeal was dismissed in default this ex parte stay order was also vacated and when appeal was restored it was not directed that the stay order dated 17.2.2010 is also hereby restored. The proven facts on record are showing that the order of stay automatically went away after dismissal of the appeal. The proven facts on record are showing that the order of stay automatically went away after dismissal of the appeal. By directing that record of the lower Court be sent back along with copy of this order, itself shows that it was impliedly directed to execute the decree forthwith. Said judgment and decree was passed in presence of the parties. Same was not challenged therefore the decree-holders have right to enjoy the fruits of the decree and was also one of the reason of implication of rejection of stay order at the time of dismissal of the appeal. Situation could be different if suit was decreed against the appellant without giving opportunity of hearing. Here it is not the case. 13. When implication of rejection of stay order is there in that event it cannot be presumed that the stay order has already been revived automatically and if it is not so then the appellant is not entitled to get back the possession from the decree-holders who have better right and title over the suit property under unchallenged decree of the trial Court. Such principle was laid down by Andhra Pradesh High Court in the case of Nandipati Rami Reddi v. Nandipati Padma Reddy [ AIR 1978 AP 30 ]. Same was also considered by Hon’ble the apex Court at the time of decision in the case of Vareed Jacob (supra), in para 20 of the judgment. 14. Apart that in view of the natural principle of justice and law of equity, decree-holder is entitled to get possession under unchallenged judgment and decree of the civil Court. It is the duty of the Court to protect the interest of the decree holder. Indisputably, the stay order was passed in this appeal without giving an opportunity of hearing to the decree-holders/respondents No.1and 2. There seems no reason to justify why the decree holders be deprived of to enjoy the suit property even after the judgment and decree passed in their favour. The balance of convenience and prima facie case are also not found in favour of the appellant. 15. Accordingly, the application is dismissed but in the interest of justice, respondents No. 1 and 2/decree holders are directed not to transfer any kind of interest or possession of suit premises to any other person till final decision of the present appeal. The balance of convenience and prima facie case are also not found in favour of the appellant. 15. Accordingly, the application is dismissed but in the interest of justice, respondents No. 1 and 2/decree holders are directed not to transfer any kind of interest or possession of suit premises to any other person till final decision of the present appeal. Let the matter be listed for final hearing as per turn. ............