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2017 DIGILAW 237 (ORI)

Rita Mohanty v. Mamata Kumari Sasmal

2017-03-03

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 4.9.2014 passed by the learned Civil Judge (Jr. Division), 2nd Court, Cuttack in not accepting the objection of the J.Drs. no. 5 and 7 to the Execution Petition No.3 of 2010. 2. The mother of the petitioners, Chanchal Behera as plaintiff instituted the suit for permanent injunction impleading the opposite parties as defendants. The defendants filed a counter claim for a decree of mandatory injunction against the plaintiff directing her to remove encroachment from the suit land. The suit and counter claim were tried by the learned Civil Judge (Junior Division), 2nd Court, Cuttack. The suit was dismissed, whereas the counter claim was decreed. Aggrieved by the judgment and decree, the plaintiff filed R.F.A.No.54 of 2004 and R.F.A.No.55 of 2004 before the learned 2nd Additional District Judge, Cuttack, which were eventually dismissed. Thereafter she filed Review Petition No.7 of 2009 under Order 47 Rule 1 C.P.C. to review of the judgment. The same was dismissed. While the matter stood thus, the D.Hrs. levied Execution Case No.3 of 2010. Notice was issued to the judgment debtor under Order 21 Rule 22 C.P.C., but she did not file any objection. Thereafter the D.Hrs. filed requisite for issuance of writ for delivery of possession. They also filed an application for appointment of Civil Court Commissioner. The learned trial court held that on 8.10.2012 the J.Drs.no.5 and 7 appeared. They took several adjournments for filing of objection. Since no objection was filed, the case was posted for taking steps by the D.Hrs. On 25.8.2014 the D.Hrs. filed PCR bearing No.918 dated 25.8.2014 towards the drummer cost along with a petition for appointment of Civil Court Commissioner. The J.Drs. had an opportunity to file objection. Since no objection has been filed to the executability of the decree before the order of allowing the D.Hrs. for depositing cost towards drummer cost, the objection filed subsequent thereto must be deemed to be barred by res judicata. 3. Heard Mr. Pattnaik, learned Advocate for the petitioner and Mr.Dhal, learned Advocate for the opposite parties. 4. Mr. Pattniak, learned Advocate for the petitioners submitted that the learned executing court committed an illegality in not providing an opportunity to the J.Drs. to file objection to the executabiity of the decree. According to him, the decree cannot be executed since the J.Drs. Pattnaik, learned Advocate for the petitioner and Mr.Dhal, learned Advocate for the opposite parties. 4. Mr. Pattniak, learned Advocate for the petitioners submitted that the learned executing court committed an illegality in not providing an opportunity to the J.Drs. to file objection to the executabiity of the decree. According to him, the decree cannot be executed since the J.Drs. are using a portion of the suit plot for their passage. The same has been reflected in the mutation R.O.R. He further submitted that the J.Drs. are illiterate. They had engaged a counsel, who could not take steps. Thereafter they engaged another counsel to conduct the case. He further submitted that a litigant should not suffer for the mistake committed by his counsel. Further the executing court has to find out the true effect of decree and for the said purpose, it ought to take into consideration the pleadings as well as the proceedings leading up to the decree. He relied on the decision of the apex Court in the case of Bhavan Vaja and others Vs. Solanki Hanuji Khodaji Mansang and another, AIR 1972 SC 1371 and this Court in the case of Union of India represented through General Manager, S.E. Railway Vs. Orissa State Electricity Board and another, 90 (2000) C.L.T. 639. 5. Per contra, Mr. Dhal, learned Advocate for opposite party no.1 submitted that after receipt of notice under Order 21 Rule 22 C.P.C. the J.Drs. have chosen not to file any show cause with regard to execution of the decree. The principle of constructive res judicate is applicable to execution proceedings since the J.Drs. did not file objection. They took several adjournments. The D.Hrs. filed PCR dated 25.8.2014 towards drummer costs. Thus it is deemed that the plea of limitation had been raised and rejected. He relied on the decisions of the Full Bench of this Court in the case of Rajkishore Mohanty and another Vs. Kangali Moharana and others, AIR 1972 Ori 119 (FB) and the Patna High Court in the case of Baijnath Prasad Sah Vs. Ramphal Sahni, AIR 1962 Pat. 72 (F.B.) 6. Before delving deep into the matter, it is apt to refer the decision cited by the learned counsel for the parties. Kangali Moharana and others, AIR 1972 Ori 119 (FB) and the Patna High Court in the case of Baijnath Prasad Sah Vs. Ramphal Sahni, AIR 1962 Pat. 72 (F.B.) 6. Before delving deep into the matter, it is apt to refer the decision cited by the learned counsel for the parties. In Rajkishore Mohanty (supra), the Full Bench in paragraph 19 of the report held thus:- (1) Sub-rules (1) and (2) of Rule 23 of Order 21, Civil P. C. deal with the same stage of the execution proceedings, namely, the stage where notice under Order 21, Rule 22 is served on the judgment-debtor. (2) If after receipt of the notice the judgment-debtor does not appear or does not show cause to the satisfaction of the Court why the decree should not be executed, the Court shall order that the decree be executed. (3) Such an order passed by the Court is not automatic, but involves an implied adjudication that the decree-holder has a right to execute the decree, that the judgment-debtor is liable to satisfy the decree and that the execution application is not barred by limitation. (4) The principle of constructive res judicata is applicable to execution proceedings. (5) Where in response to the notice under Order 21, Rule 22, Civil Procedure Code, the judgment-debtor either does not appear in Court or having appeared does not object to the execution on the ground that the execution application is barred by limitation, and the Court thereupon orders that the execution do proceed then by application of Explanation IV to Section 11 of the Civil Procedure Code, it would be deemed that the plea of limitation had been raised and rejected and consequently the judgment-debtor would not be permitted at a later stage of the same execution proceedings to raise the plea of limitation.” 7. The Full Bench of Patna High Court in Baijnath Prasad Sah (supra) held that the principle of constructive res judicata applies to an execution proceeding as well. It was laid down in that decision that there are five important stages in an execution proceeding of a money decree, namely, (1) issue of notice under Order 21, Rule 22, (2) the order for issue of attachment, (3) order for sale of the property, (4) sale of the property, and (5) confirmation of the sale. It was laid down in that decision that there are five important stages in an execution proceeding of a money decree, namely, (1) issue of notice under Order 21, Rule 22, (2) the order for issue of attachment, (3) order for sale of the property, (4) sale of the property, and (5) confirmation of the sale. It was held that if in spite of service of notice, the judgment debtor fails to raise an objection which he might and ought to have raised at that stage, for instance, an objection on the ground of limitation, the court in passing the order for execution of the decree must be deemed to have decided the objection against him. It was further observed that ordinarily the court does not pass an express order to the effect that the decree be executed. That order is implied in the order for the issue of attachment. All objections, therefore, to the executability of the decree have to be raised in such cases before the order for issue of attachment. Similarly, when the court orders sale of the judgment-debtor's property at the third stage of the proceeding under Rule 64 of Order 21, any objection on the ground of non-saleability of the property must be raised before that stage and in case the judgment-debtor fails to raise any such question at that stage, the court must be deemed to have decided it against him by passing an order for sale of the property, because, unless the property is liable to sale the court cannot pass that order. 8. In Union of India represented through General Manager, S.E. Railway (supra), this Court held that no suitor should suffer for the mistake committed by a Court. Similarly a litigant should not suffer for the bona fide mistakes committed by his counsel. There is no quarrel over the proportion of law. 9. In the instant case, the defendants had unsuccessfully challenged the judgment and decree of the learned trial court before the learned 2nd Additional District Judge, Cuttack, which were eventually dismissed. The said judgments had attained finality. Pursuant to issuance of notice, the J.Drs. entered appearance on 8.10.2012. They took successive adjournments for filing objection. On 16.12.2013 a memo was filed the J.Drs. that they had removed the encroachment. On 1.7.2014, it was brought to the notice of the Court by the D.Hrs. that encroachment had not been removed. The said judgments had attained finality. Pursuant to issuance of notice, the J.Drs. entered appearance on 8.10.2012. They took successive adjournments for filing objection. On 16.12.2013 a memo was filed the J.Drs. that they had removed the encroachment. On 1.7.2014, it was brought to the notice of the Court by the D.Hrs. that encroachment had not been removed. On 25.8.2014, D.Hrs filed PCR No.918 dated 25.8.2014 evidencing deposit of drummer cost along with one petition to appoint Civil Courts Commissioner. The order of the executing court directing the D.Hrs. to deposit the drummer cost amounts to an order under Rule 23 for executing the decree. No objection therefore having been filed to the executability of the decree before that order, the objection filed subsequent thereto must be deemed to be barred by the principle of constructive res judicate. 10. Before parting with the case, it is apt to refer the decision of the apex Court in the case of Bhavan Vaja (supra). It was held: “19. Our conclusions, therefore, on the point of law involved in the reference are these :- “19. It is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading up to the decree. In order to find out the meaning of the words employed in a decree the court, often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution court and if that court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it.” xxx xxx xxx” The learned court below shall keep in view the enunciation of law laid down by the apex Court in Bhavan Vaja (supra) while executing the decree. 11. In the result, the petition, being devoid of any merit, is dismissed. No costs.