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2018 DIGILAW 1691 (RAJ)

Satya Narain Garg v. Learned Additional District Judge No. 2, Ajmer

2018-08-09

ALOK SHARMA

body2018
JUDGMENT : SHARMA, J. Under challenge is the order dated 28.1.2011 whereby the Executing Court has dismissed the objections filed by the petitioner-judgment debtor (hereafter ‘JD’) apparently under Section 47 CPC following a notice on an application under Order 21 Rule 22 CPC at the instance of the respondent- decree-holder (hereafter ‘DH’) for the execution of the final judgment and decree dated 2.7.1987 passed by the Additional District Judge No. 2, Ajmer in the DH's eviction suit. 2. Ms. Anita Agrawal, counsel for the JD submitted that the decree of eviction by the trial court having been passed on 2.7.1987, the execution application filed on 21.11.2008, was beyond the limitation of 12 years as provided for under Article 136 in the Schedule to the Limitation Act, 1963 (hereafter ‘the Act of 1963’) and hence was not maintainable. She further submitted that the execution application sought possession of properties differently described than the property set out in the eviction decree passed on 2.7.1987. Ms. Anita Agrawal further submitted that even otherwise the execution application seeking recovery of Rs. 3,500/- per month as mesne profits was not maintainable as the decree of the Trial Court passed on 2.7.1987 did not so provide. It was submitted that in any event the decree dated 2.7.1987 passed by the trial court having merged with the judgment dated 18.9.2007 passed by the First Appellate Court and yet no decree of the appellate court ever having been drawn, the execution proceedings vis-a-vis decree dated 2.7.1987 passed by the Trial Court was in fact not at all maintainable. The JD's objection application under Section 47 CPC ought to have been hence allowed, on this count, submitted Ms. Anita Agrawal, but was dismissed on the Executing court acting perversely and without jurisdiction on the said execution application. Hence this petition under Article 227 of the Constitution of India against the order dated 28.1.2011 passed by the Executing Court be allowed and the DH's execution application be dismissed. 3. Per Contra, Mr. Siddharth Bafna counsel for the DH submitted that the argument of limitation against the maintainability of the execution application is raised for the first time in this Court without any factual foundation in the JD's desperation to avoid eviction. It was never raised by the JD before the Executing Court. Mr. Siddharth Bafna submitted that the effort of the JD is to create confusion on factually vacuous arguments. It was never raised by the JD before the Executing Court. Mr. Siddharth Bafna submitted that the effort of the JD is to create confusion on factually vacuous arguments. The defence of limitation against the execution of the decree dated 2.7.1987 is just an attempt to continue enjoying the possession of the premises, tenancy of which stands terminated. And the JD has successfully been able to do for the last about 21 years. This kind of litigant's conduct, resultant delays in adjudication and fruition of legal rights gives out a message of easy misuse of the Court's process and that the Court are not so much a forum for vindication of legal rights, but instruments for mischievous litigant/s to oppress and harass the innocent opposite party. Mr. Siddharth Bafna, submitted that while setting up the ground of limitation allegedly barring the execution application, the JD has also suppressed from this court two important aspects; first, that the judgment and decree dated 2.7.1987 was stayed on 8.9.1987 in the Civil First Appeal laid by him before this court and second, that the said stay order was only vacated on 18.9.2007. Mr. Siddharth Bafna submitted that during this period of stay by the appellate court from 8.9.1987 till 18.9.2007 the decree of the trial court passed on 2.7.1987 was not enforceable. The period of stay of the decree dated 2.7.1987 has to be excluded from the computation of limitation for its execution as is apparent from a bare reading of Art. 136 in the Schedule appended to the Act of 1963. Mr. Siddharth Bafna submitted that following the vacation of the stay on the execution of the decree vide the appellate court's order dated 18.9.2007, the execution application was filed on 21.11.2008. No issue of limitation can thus arise in the facts of the case, Mr. Siddharth Bapna submitted. 4. Mr. Siddarth Bafna then submitted that the decree dated 2.7.1987 passed by the Trial Court is final. The executing court has found that no mesne profits were paid after 31-10-2007 even while the JD continues in possession of the tenanted premises. Mr. No issue of limitation can thus arise in the facts of the case, Mr. Siddharth Bapna submitted. 4. Mr. Siddarth Bafna then submitted that the decree dated 2.7.1987 passed by the Trial Court is final. The executing court has found that no mesne profits were paid after 31-10-2007 even while the JD continues in possession of the tenanted premises. Mr. Siddharth Bafna further submitted that the argument of the counsel for the JD with regard to the DH seeking execution of the decree dated 2-7-1987 in respect of property other than the subject matter of the decree is wholly fallacious and the Executing Court in the impugned order dated 28.1.2011 has held that the DH was not so seeking possession of immovable property other than the property to which the eviction decree dated 2.7.1987 pertained. Only the description of the property in the execution application was with reference to the temporary construction meanwhile made by the JD in the tenanted property—its boundaries remaining the same. Referring to the case of Brakewel Automotive Components (India) Private Limited v. P.R. Selvam Alagappan in [ (2017) 5 SCC 371 ; 2017 (3) RLW 1798 (SC)] Mr. Siddarth Bafna submitted that the scope of Section 47 CPC application at the instance of a JD is “microscopic” and is limited to evaluating as to whether the decree under execution is vitiated for reasons of lack of the trial court's jurisdiction or otherwise invalid on grounds such as denial of principles of natural justice where a decree has been passed against the JD without summons served on him or in the event of his death prior to the decree—in a contested case, on his LRs. And neither of the aforesaid grounds were even remotely set up by the JD in his application under Section 47 CPC, Mr. Siddarth Bafna submitted. 5. Heard. Considered. 6. Execution of decree lawfully obtained is the last mile in the administration of justice. Easy and casual obstruction to a decree under execution cannot and should not be countenanced by the Courts. The scope of Section 47 of CPC has been delineated by the Apex Court in the case of Brakewell Automotive Components (India) Private Limited (supra) and limited to situations of lack of jurisdiction of the Court which passed the decree or the decree being invalid for being passed in denial of principles of natural justice. The scope of Section 47 of CPC has been delineated by the Apex Court in the case of Brakewell Automotive Components (India) Private Limited (supra) and limited to situations of lack of jurisdiction of the Court which passed the decree or the decree being invalid for being passed in denial of principles of natural justice. Perusal of the impugned order dated 28.1.2011 indicates that the ground of lack of jurisdiction of the Trial Court or of decree being passed without notice were not even set out in the objections filed (following notice under Order 21 Rule 22 CPC) to the execution of the decree dated 2.7.1987. Palpably the said application was lightly filed in a complete abuse of the process of the Court. Therefore it was rightly dismissed by the Trial Court which specifically found that the execution was not being sought in respect of any property, which was not the subject matter of the eviction decree dated 2.7.1987. Yet the matter has now been again mischievously carried to this Court, misusing the law's easy access. The law's process has been resorted to for stalling, without any good cause at all legal/factual, the execution of the decree passed on 2-7-1987. The JD appears to think that as the Courts are overcrowded, an ex—parte order if forthcoming will sustain for several years, as it indeed has in the instant case where the interim order dated 18.2.2011 has only now finally came to be evaluated on the question of its continuation. This state of affairs of farcical cases crowding the dockets of this Court will continue to be perpetuated if the Courts deal with such cases on a one to one basis instead of considering the necessity to message the litigating public that frivolous cases will be dealt with a heavy hand and no litigant allowed litigious advantage from a Court overflowing with dockets and with paucity of time to evaluate and scrutinize a case closely for its merits in the first instance. It is the duty of the Court/s to reduce litigation and in discharge of that duty exemplary costs must be visited on the party which has invoked the Court's jurisdiction under Article 227 of the Constitution of India cynically and without a just cause in a case where no question of jurisdictional error, patent illegality or palpable perversity arise and where the discretion of the court below has not been exercised in a manner leading to manifest injustice. 7. In this background it will be appropriate to deal with the arguments of the counsel for the JD in support of the petition i.e. with regard to the DH's application for execution filed on 21.11.2008 purportedly being beyond limitation. For one this argument was not taken before the Executing court. It cannot be now permitted. The jurisdiction under Article 227 of the Constitution of India is supervisory and corrective. To allow first time raising of contention in the aforesaid jurisdiction will transform it into original jurisdiction. That cannot be permitted for maintaining the sanctity of the limitation of jurisdiction conferred by the law on the court. Besides the argument even otherwise is wholly baseless with reference to the facts on record for reasons following: Admittedly the decree dated 2.7.1987 passed by the Trial Court was stayed on 8.9.1987 by the appellate Court in the statutory first appeal filed under Section 96 of the CPC. The decree dated 2.7.1987 as on the aforesaid date i.e. 8.9.1987 was rendered unenforceable under Article 136 of the Limitation Act, 1963 which states that for the execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court, the period of limitation would be 12 years from the date when the order becomes enforceable. The word ‘enforceable’ makes it pellucid that once a decree is stayed, the period of limitation will have to go into abeyance and limitation would begun to run only after the stay has been vacated. Admittedly in the instant case stay of the trial court's decree dated 2.7.1987 was dismissed on 18.9.2007. Admittedly the execution application was filed thereafter on 21.11.2008 within a period of 14 months. It was thus clearly well within 12 years limitation for execution of the Trial Court's decree dated 2-7-1987. Admittedly in the instant case stay of the trial court's decree dated 2.7.1987 was dismissed on 18.9.2007. Admittedly the execution application was filed thereafter on 21.11.2008 within a period of 14 months. It was thus clearly well within 12 years limitation for execution of the Trial Court's decree dated 2-7-1987. There is thus no force in the contention of counsel for the JD with regard to the decree not being executable for reasons of being filed beyond the twelve year limitation. 8. The argument of the counsel for the JD with regard to the decree dated 2.7.1987 being merged with the judgment of the Appellate Court on 18.9.2007 and no executable decree thereon being drawn, can not be agitated in this petition under Article 227 of the Constitution of India, as it was not so taken and agitated before the Executing Court. Also if this court were to allow to such an argument in this petition, the respondent DH would be prejudiced, for had the argument been taken earlier before the Executing Court, the DH if advised would have taken timely corrective action warranted by law. Besides the objection is a patently technical one, as admittedly the decree dated 2-7- 1987 has not been modified even in appeal, nor the appellate court directed drawing a decree following its judgment of affirmation. 9. It would be appropriate to note the plight of the DH and rapaciousness of the JD in the instant case. The suit for eviction was filed in the year 1979. It is now the year 2018—39 years later — over a human generation. Despite an eviction decree of 2.7.1987 in his favour the decree-holder still awaits the fruition thereof. All on misuse of due process? Due process — is indeed an important component of liberty/protection of rights. But its misuse an increasing trend has to be nipped by the courts. Misuse of court's process when espied has to be called out and visited with consequences to keep the streams of justice pure. The first appeal against the decree dated 2.7.1987 took two decades for this Court to dismiss on 18.9.2007. There was still no light at the end of the tunnel for the DH and the execution process of the decree was to be gone through. The first appeal against the decree dated 2.7.1987 took two decades for this Court to dismiss on 18.9.2007. There was still no light at the end of the tunnel for the DH and the execution process of the decree was to be gone through. Another opportunity for the JD to obstruct the flow of justice not on any ground valid under Section 47 CPC but by wagering on the Court's delay for reason of overcrowded dockets obtained and he took it. The Section 47 CPC objections of the JD were not premised on legally permissible grounds as set out in the case of Bakewell Automotive Components (India) Private Limited (supra) but on quite irrelevant technical and factual grounds, which the executing court found wholly unsustainable. Dismissal of objections by the executing court on 28.1.2011 was yet not a dampener for the JD. The door of a Article 227 of the Constitution of India petition was forced open despite the fact that such jurisdiction is available only in cases of error of jurisdiction, palpably perversity or patent illegality in the orders of the Courts below. The JD was able to persuade this Court to pass ex-parte ad-interim order dated 18.2.2011. 10. The two early hearing applications and one application for vacation of ex-parte ad-interim order dated 18-2-2011 passed by this court were not very fruitful as the court is overwhelmed by overcrowded dockets and processual issues. The issue has now only come to a head and this petition finally heard. 11. I am of the considered view that for reasons detailed earlier in this judgment, the petition is wholly without merit and a complete misuse of the process of this Court. Aside of the petition deserving dismissal, the petitioner-JD is also liable to be visited with exemplary costs. 12. The petition is therefore dismissed. I would in the facts of the extremely baseless and merit-less foundation of this petition and the palpable misuse of the Court's process visit the petitioner-JD with costs of Rs. 1,00,000/- to be paid to the respondent-DH within a period of two months failing which the respondent-DH would be free to recover the costs as arrears of land revenue and also by invoking the contempt jurisdiction of this Court for non- compliance with the Court's direction. The interim order dated 18.2.2011 stands vacated.