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2016 DIGILAW 284 (ORI)

Ghanashyam Pradhan v. Ram Pratap Kheria

2016-04-11

K.R.MOHAPATRA

body2016
JUDGMENT : K.R. Mohapatra, J. The petitioners in this CMP assail the order dated 5.3.2016 passed by the learned Civil Judge (Senior Division), Bhubaneswar in Execution Case No. 109 of 1999. 2. Order dated 5.3.2016 arises out of two petitions filed by the judgment debtors-petitioners i.e. the petitions dated 25.6.2015 and 5.8.2015 under Annexures-5 and 6 respectively wherein the petitioners prayed that the decree holder-opposite party may be directed to correct/rectify the defects in execution petition and on failure thereof to drop the execution proceeding. 3. Brief facts necessary for adjudication of this CMP are stated hereunder: O.S. No. 50 of 1983 was filed by the opposite party-decree holder for declaration of his right, title and interest over ‘B’ and ‘C’ Schedule property and for eviction of the petitioners-judgment debtor nos. 1 to 3 from ‘B’ Schedule property and for a decree of eviction of petitioners-judgment debtor nos. 4, 6 and 8 from ‘C’ Schedule property of the suit. He also prayed for a decree for permanent and prohibitory injunction. The suit was decreed vide judgment dated 2.12.1998 on contest against the petitioners-judgment debtor nos. 1 to 3 & 5 and ex parte against other judgment debtors. Since the possession of the suit property was not delivered to the decree holder within the time stipulated, Execution Case No. 109 of 199 was initiated. During pendency of the execution case, the judgment debtor nos. 4, 6 and 8 delivered vacant possession of ‘C’ Schedule property to the decree holder. Thus, the execution case continued as against the judgment debtor nos. 1 to 3 (present petitioners). The judgment debtors (present petitioners) challenged the judgment and decree passed in O.S. No. 50 of 1983 in T.A. No. 8/7 of 2002/99 in respect of ‘B’ Schedule property. The said Title Appeal was dismissed on contest vide judgment and decree dated 17.7.2002 with a modification that the suit was decreed in presence of defendant no. 5 with cost of appeal. Thus, the petitioners approached this Court in RSA No. 118 of 2002. However, RSA No. 118 of 2002 was dismissed as withdrawn and the judgment and decree passed in O.S. No. 50 of 1983 was accordingly confirmed. 5 with cost of appeal. Thus, the petitioners approached this Court in RSA No. 118 of 2002. However, RSA No. 118 of 2002 was dismissed as withdrawn and the judgment and decree passed in O.S. No. 50 of 1983 was accordingly confirmed. Subsequently, the petitioners filed their objection to the execution case under Section 47 of the C.P.C., which was registered as I.A. No. 524 of 2010 on the plea that the decree was not executable as the suit Schedule ‘B’ property as described in the schedule of the decree was non-existent. On hearing both the parties on merit, objection/petition under Section 47 of the C.P.C. was rejected vide order dated 13.4.2010 holding that the suit Schedule ‘B’ property is identifiable and the decree was executable. The said order was challenged by the petitioners before the learned District Judge, Khurda at Bhubaneswar in CRP No. 8 of 2010. The said CRP was also dismissed vide order dated 23.7.2010. Thus, the petitioners approached this Court in W.P.(C) No. 21538 of 2010 assailing the order passed in CRP No. 8 of 2010. The said writ petition was disposed of vide order dated 21.7.2011 without interfering with the impugned order. It was also directed therein that the learned trial court shall correct the said decree by including the boundary of ‘B’ Schedule property within a period of two weeks from the date of production of certified copy of the order before the said court. It was further directed that on correction of the decree, the Executing Court shall proceed with the execution for delivery of the possession of the schedule ‘B’ properties to the decree holder by getting the same measured as per the boundary along with some other consequential direction. 4. Against the order dated 21.7.2011 passed in W.P.(C) No. 21538 of 2010, the petitioners preferred W.A. No. 421 of 2011, which was disposed of vide judgment dated 10.4.2012 giving liberty to the opposite party-decree holder to move an application seeking amendment of the decree. Liberty was also granted to the petitioners-judgment debtors to file their objection taking all such plea available to them under law. Accordingly, an application for correction of the decree of the trial court by incorporating the boundary of ‘B’ Schedule property was filed, which was allowed vide order dated 16.8.2012. Liberty was also granted to the petitioners-judgment debtors to file their objection taking all such plea available to them under law. Accordingly, an application for correction of the decree of the trial court by incorporating the boundary of ‘B’ Schedule property was filed, which was allowed vide order dated 16.8.2012. The said order was challenged by the petitioners in W.P.(C) No. 15717 of 2012, which was dismissed vide order dated 27.3.2014. Being not satisfied, the petitioners preferred W.A. No. 123 of 2014, which was also dismissed vide order dated 8.5.2015. When the matter stood thus, the petitioners filed the aforesaid two petitions for amendment of the execution case and in the alternative to drop the execution proceeding. The opposite party-decree holder filed his objection to the aforesaid two petitions contending that the petitions being misconceived are not maintainable in the eye of law. There is no cause of action to file such petition and the same is otherwise barred by principles of res judicata inasmuch as the petitioners are estopped in law to take 5 such a stand at that stage of execution proceeding. Reiterating the factual aspects of the case, the opposite party contended that the petitioners, who are judgment debtors, had filed a petition under Section 47 of the C.P.C. raising certain objection which travelled up to this Court in W.A. No. 421 of 2011 and the objection raised by the petitioners were set at rest vide judgment dated 10.4.2012 passed in the said writ appeal. Pursuant to the liberty granted by this Court in W.A. No. 421 of 2011, the petitioners had already filed a petition under Section 152 read with Section 151 C.P.C. for amendment of the decree and the same was allowed. The petitioners had also unsuccessfully challenged the said order of amendment of the decree in W.P.(C) No. 15717 of 2012. The matter relating to the amendment of the decree was set at rest in W.A. No. 123 of 2014 vide order dated 8.5.2015. Thus, it is not open to the petitioners to agitate their grievances with regard to amendment of the execution petition again at a belated stage. Thus, they prayed for dismissal of both the petitions. 5. The learned trial court taking into consideration the rival contentions of the parties and relying upon the case laws of both Hon’ble Supreme Court as well as this Court rejected those petitions. Hence, this CMP. Thus, they prayed for dismissal of both the petitions. 5. The learned trial court taking into consideration the rival contentions of the parties and relying upon the case laws of both Hon’ble Supreme Court as well as this Court rejected those petitions. Hence, this CMP. 6. Mr. Sinha, learned counsel for the petitioners vehemently submitted that when the decree of the trial court is carried in appeal and the appeal is disposed of on contest, it is the decree of the appellate court, which is to be executed and not that of the trial court. He relied upon the decision at paragraph-15 in the case of Gojer Brothers (P) Ltd. v. Sri Ratan Lal Singh, reported in AIR 1974 SC 1380 , which reads as follows: “15. In cases where the decree of the trial court is carried in appeal and the appellate court disposes of the appeal after a contested hearing, the decree to be executed is the decree of the appellate court and not of the trial court. In Jowad Hussain vs. Gendan Singh & Ors., the, Privy Council while holding that the limitation of three years within 'which an application for a, final decree must be made runs from the date of the decree of the appellate court, quoted with approval the statement of law contained in the judgment of a learned judge of the Allahabad High Court to the following effect : "When an appeal has been preferred, it is the decree of the Appellate Court which is the final decree in the cause".(2) The Privy Council also adopted the statement contained in a judgment of Tudball J. to this effect : "When the Munsif passed the decree it was open to the plaintiff or the: defendant to accept that decree or to appeal. If an appeal is preferred, the final decree is the decree of the Appellate Court of final jurisdiction. When that decree is passed, it is that decree and only that which can be made final in the cause between the parties." Thus, when the decree of the court of first instance is confirmed by the High Court and the latter decree is confirmed by the Privy Council the decree capable of execution is the decree of the Privy Council.(3) In that case the decree passed by a District Judge in 1887 awarded "future mesne profit" to the plaintiff. That decree was reversed by the High Court but was confirmed by the Privy Council on May 11, 1895. When the matter came back in execution proceedings the Privy Council held that the decree which the courts had to execute was the one Passed by it in 1895 and since by that decree the District Judge's decree-was confirmed, the decree of 1895 clearly carried the mesne profits up to its own date.” The same view is taken by the Court in a decision reported in (1975) 41 CLT 438 (Ajoy Kumar Moharana Vs. Ghanashyam Moharana and others), paragraph-5 of which reads as follows: “5. Law is now well settled that where a trial Court decree is reversed, modified or confirmed in appeal it is the decision of the appellate authority which is operative in law. The principle is simple and clear when the trial Court decree is reversed or modified by the appellate authority. The position is not in any way different when the appellate Court decree is one of affirmance. The trial Court decree merges in the appellate decision which alone subsists and is capable of enforcement….” 7. Thus, Mr. Sinha submitted that it is the decree passed in T.A. No. 8/7 of 2002/99, which is to be executed. He further submitted that though the matter was carried to this Court in RSA No. 118 of 2002 and the same having been withdrawn, no decree is drawn up in RSA as per Rule 141 (11) of the G.R.C.O. Thus, the decree of the first appellate court ought to have been put to execution. He also submitted that in Col. 3 of the execution petition, the date of the decree has not been stated and it is the date of the judgment, which is reflected therein. Thus, the execution petition is incompetent and the decree holder should be directed to amend the execution petition and on failure thereof, the execution proceeding should be dropped. 8. Mr. S.P. Mishra, learned Senior Advocate appearing for the opposite party, per contra, submitted that the petitioners had filed their objection to the execution case under Section 47 of the C.P.C., which was registered as I.A. No. 524 of 2010. The said petition being dismissed was carried to this Court and direction given in W.A. No. 421 of 2011 has already been carried out. The said petition being dismissed was carried to this Court and direction given in W.A. No. 421 of 2011 has already been carried out. No such objection with regard to executability of the decree having been raised at any stage of the execution proceeding, the same is deemed to have been waived. Moreover, the objection raised at a belated stage is hit by principles of res judicata. He further submitted that principle of res judicata is also applicable to different stages of the same proceeding. He relying upon the decision in the case of Gadadhar Mohapatra v. Bisweswar Bhutia, reported in 69 (1990) CLT 335, contended that it is the duty of the executing court to see that the petition does not suffer from any defect of non-compliance of the Rules 11 to 14 of Order 21 C.P.C. The Court may, if it finds any defect in the execution proceeding, in its discretion, direct the decree holder to rectify the same. When the Executing Court in due discharge of its duty has not pointed out the said defect in the execution petition, the judgment debtor cannot be allowed to take advantage of it. Thus, he submitted that the judgment debtor has no locus standi to raise any such objection at this stage. The judgment and decree of the first appellate court passed in T.A. No. 8/7 of 2002/99 has already been filed and is available in the execution case record. Thus, the executing court has considered the matter from its proper perspective holding the defect to be trivial in nature and ignored it. As such, the impugned order needs no interference. 9. Upon hearing learned counsel for the parties, it is clear that Col. 3 of the execution petition bears the date of the decree to be 23.12.1998. In fact, the date mentioned in Col. No. 3 of the execution petition is the date of the judgment of the trial court in O.S. No. 50 of 1983. In an execution proceeding, the date of the decree means the date of the judgment as held in ILR 1950 (Cuttack Series) 253. Thus, no exception can be taken to the date mentioned in Col. 3 of the execution petition. In an execution proceeding, the date of the decree means the date of the judgment as held in ILR 1950 (Cuttack Series) 253. Thus, no exception can be taken to the date mentioned in Col. 3 of the execution petition. The case of the petitioners is that the decree holder-opposite party has put the decree of O.S. No. 50 of 1983 to execution, which has already been confirmed by the learned District Judge, Khurda at Bhubaneswar in T.A. No. 8/7 of 2002/99. Thus, applying the principles of doctrine of merger, it is the decree of the first appellate court which should be executed and not the decree of the trial court. Law is no more res integra on this issue as held in the case of M/s. Gojer Brothers (P) Ltd. (supra). However, the judgment debtors-petitioners have not raised any such objection in their petition filed under Section 47 of the C.P.C. (I.A. No. 524 of 2010). The objection raised in the petition under Section 47 of the C.P.C. has already been complied with and the matter has been set at rest. Further, Order 21 Rule 17 C.P.C. casts an obligation on the executing court to verify whether there is any defect in the execution petition for non-compliance of the Rules 11 to 14 of Order 21 C.P.C. If the Court finds any defect in the execution petition, it shall call upon the decree holder to rectify the same either then and there or grant some time to the decree holder for removal of the same. Such power of the Court can be exercised at any stage of the execution proceeding. The judgment debtors-petitioners cannot take advantage of such non-compliance as their objection with regard to maintainability of the execution proceeding can only be raised under Section 47 of the C.P.C. Admittedly, the objection as has been raised under Annexures-5 and 6 were not raised by the petitioners-judgment debtors in their petition under Section 47 of the C.P.C. Thus, the petitioners have no locus standi to raise such an objection at the fag end of the execution proceeding. It appears from the impugned order that the decree holder-opposite party has already filed the judgment and decree of the first appellate court, which is available in the proceeding of the execution case record. It appears from the impugned order that the decree holder-opposite party has already filed the judgment and decree of the first appellate court, which is available in the proceeding of the execution case record. The first appellate court while confirming the decree passed in O.S. No. 50 of 1983 has only modified the same to the extent that the suit was decreed in presence of defendant no. 5 and the cost of appeal. Thus, the objections of the petitioners-judgment debtors are trivial in nature and the same cannot stand on the way in executing the decree. The execution proceeding has been instituted in the year, 1999 and the opposite party-decree holder is yet to enjoy the fruit of the decree. Thus, while confirming the impugned order, this Court disposes of the CMP with a direction that the executing court shall examine the execution petition and shall do all needful to direct the decree holder to amend the execution petition keeping in view the ratio decided in the case of Gojer Brothers (P) Ltd. (supra), if the same is necessary for execution of the decree.