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2018 DIGILAW 495 (ORI)

Ghanashyam Pradhan v. Ram Pratap Kheria

2018-05-02

D.DASH

body2018
JUDGMENT The petitioners by filing this application have invoked the jurisdiction of this Court under Article 227 of the Constitution in impeaching the direction given by the learned Senior Civil Judge, Bhubaneswar to the salaried amin by correcting the name of the mouza of the land in question which is the subject matter of the Execution Case No.109 of 1999. 2. The litigation between the parties has been going on for more than three and half decades by now. The opposite party as the plaintiff having filed the suit i.e. O.S. No.59 of 1983 on 20.02.1983, it stood decreed by judgment and decree dated 23.12.1998 and 23.01.1999 respectively. The decree holder who is the opposite party here having levied the execution proceeding on 03.02.1999, is yet to receive the fruit of the decree through the Court of law. This shows that indeed the difficulties for the decree-holder in real and practical sense has commenced after getting a decree attaining finality being tested in first appeal and after withdrawal of the second appeal about nine years back. 3. At this juncture, it is felt apposite to have a quick run through the facts relating to the long journey that the lis has undertaken which would also throw light as to how and for what reason, the execution proceeding has not been culminated despite lapse of more than nineteen years, few months left to reach two decades, providing justification to the general impression of the litigant public that the miseries start after obtaining the decree and its only few fortunate decree holders who actually enjoy the real fruit of the decree during their life time. The opposite party as the plaintiff filed a suit in the trial court i.e. O.S. No.59 of 1983 for declaration of his right, title and interest over the suit schedule ‘B’ and ’C’ property and for eviction of the petitioner-defendant Nos. 1 to 3 from the property described in schedule - ‘B’ with other ancillary relief. The petitioners defended the suit by asserting in the written statement that they have purchased the property described in Schedule ‘B’ for valuable consideration by registered sale deeds and as such are the owners of the same. An alternative plea had also been taken as regards acquisition of the title over the said suit property by way of adverse possession. The petitioners defended the suit by asserting in the written statement that they have purchased the property described in Schedule ‘B’ for valuable consideration by registered sale deeds and as such are the owners of the same. An alternative plea had also been taken as regards acquisition of the title over the said suit property by way of adverse possession. The suit standing decreed; the opposite party as the decree holder shortly thereafter initiated the execution proceeding which was numbered as Execution Case No.109 of 1999. Shortly thereafter, the petitioner-defendants (judgment debtors) being aggrieved by the judgment and decree passed by the trial Court in favour of the opposite party, carried the first appeal under Section 96 of the Code of Civil Procedure (for short, Code) before the Court of District Judge, Khurda at Bhubaneswar which stood numbered as T.A. No.8/7 of 2002/1999. In the said appeal the ground of questioning the judgment and decree was the non-consideration of the alternative case projected by the petitioner-defendants to have acquired the right, title and interest by way of adverse possession. They claimed that having remained in possession of the property for upward of the prescribed period exercising the rights as owners by denying the title of the true owner to the knowledge of all including the true owner, when they have acquired right, title and interest over the said suit property, that had not been duly considered by the trial court. The first appeal did yield no fruitful result to them. Then questioning the judgment and decree passed in the said first appeal confirming the judgment and decree passed by the trial court, the petitioners further approached this Court by filing an appeal under Section 100 of the Code standing numbered as R.S.A. No.118 of 2002.During pendency of the appeal, the opposite party-plaintiff filed a petition for appointment of receiver in respect of the properties involved in the suit. The court appointed petitioner No.1-defendant No.1 as the receiver in so far as the schedule ‘B’ property is concerned and he was accordingly, directed to deposit the rent in the Court. For making assessment of fair market rent, the local Tahasildar was directed to demarcate the said land under Schedule-‘B’. The Tahasildar then reported that he was not allowed by defendant Nos. 1 to 3 to demarcate. So he was again directed to do so. For making assessment of fair market rent, the local Tahasildar was directed to demarcate the said land under Schedule-‘B’. The Tahasildar then reported that he was not allowed by defendant Nos. 1 to 3 to demarcate. So he was again directed to do so. But then also he could not do so because of attributing various causes posed by the defendant Nos. 1 to 3 standing on the way and on 13.10.2009 he filed an affidavit to that effect. 4. When the matter stood thus, on the application of the defendant Nos. 1 to 3 (appellants therein), the second appeal stood dismissed as withdrawn on 29.10.2009. Thereafter, the petitioners as the judgment debtors objected to the execution of the decree on the ground of non-existence of the property involved in the suit and as has been decreed. In support of the contention, a report of the local Tahasildar was filed. The executing court overruled the said objection by recording a fact finding that the suit property described in Schedule- ‘B’ covered under the decree is well identifiable. So when the executing Court declined to accept the objection of the petitioner-judgment debtors, they filed Civil Revision under Section 115 of the Code in the Court of District Judge, Khurda at Bhubaneswar. The revision being dismissed, the writ application was filed before this Court i.e. W.P. (C) No.21538 of 2010 and that application was dismissed by this Court by order dated 21.07.2011.The court on that occasion directed the executing court to incorporate the boundary of the schedule-‘B’ property as given in the decree in consonance with what has been mentioned in the plaint schedule. The local police was also directed to provide necessary assistance for causing proper measurement of the suit property for delivery of the same to the opposite party-decree holder. Pursuant to the order, the decree was corrected by the executing court. However, the petitioner-judgment debtors without stopping there, after disposal of the writ application questioned the order passed therein by carrying writ appeal vide Writ Appeal No.421 of 2011.This Court by order dated 10.04.2012 in that writ appeal while setting aside the order passed in the writ application to the extent that the executing court had been directed to correct the decree, further provided the decree holder an opportunity to file the appropriate application for correction of the same. In pursuance of that order, the opposite party-decree holder filed an application under Section 152 read with Section 151 of the Code. The petition was allowed on 16.08.2012.So again the petitioner-judgment debtors questioned that order by filing W.P. (C) No.15717 of 2012.The writ application having been dismissed on 27.03.2014, again writ appeal was filed. In the writ appeal i.e. Writ Appeal No.123 of 2014 the order of the learned Single Judge had been questioned. This appeal was dismissed on 08.05.2015.Thereafter, the petitioner-judgment debtors made another move for dropping the execution proceeding by filing an application under Order 21, Rule 11 (2) read with Section 151 of the Code contending therein that the petition for execution is wholly defective. The opposite party-decree holder filed his objection. In the meantime, the petitioner-judgment debtors also filed another application praying for similar relief. The executing Court rejected both the applications by recording specific findings that the defects pointed out by the opposite party-decree holder are trivial in nature which are to be simply ignored. That order was again challenged by the petitioner-judgment debtors by filing an application invoking the jurisdiction of this Court under Article 227 of the Constitution vide CMP No.404 of ;2016.The said application was dismissed and the order of the executing court stood confirmed with an observation that after disposal of the objection under Section 47 of the Code, the petitioner-judgment debtors have no locus standie to raise further objection. However, this Court on that occasion directed the executing court to examine the execution petition and do all the needful in directing the decree holder to amend the execution petition. This order being sought to be reviewed vide RVWPET No.11 of 2016, beyond the prescribed period, it is stated to be lying without any progress being not further moved. 5. The executing court then examined the matter and concluded that there is no need for correction of the execution petition. It has been further stated that without even correction, the decree can be executed. This order was again challenged by the petitioner-judgment debtors in CMP No.967 of 2016.Then the petitioner-judgment debtors filed petition before the executing court not to issue the writ of delivery of possession on the basis of the requisites filed by the decree holder in the year 2010 which is before correction of the description of the property in the decree. This order was again challenged by the petitioner-judgment debtors in CMP No.967 of 2016.Then the petitioner-judgment debtors filed petition before the executing court not to issue the writ of delivery of possession on the basis of the requisites filed by the decree holder in the year 2010 which is before correction of the description of the property in the decree. They also filed another application under Section 47 and section 151 read with order 21, rule 97 and rule 101 of the Code vide I.A. No.01 of 2016 again making prayer to drop the execution case. This petition met the same fate of rejection. While doing so, the executing court directed the opposite party-decree holder to submit requisites afresh. Pursuant to that, the requisites were filed on 25.07.2016.The petitioner-judgment debtors on 25.07.2016 filed another petition praying for dismissal of the execution case, as wholly barred by limitation. On that very day, they also filed a memo for scrutiny of the steps taken for issuance of delivery of possession of the property described under Schedule-‘B’. It be stated that the objection to the executability of the decree as made in the petition under Section 47 and Section 151 read with Order 21, Rule 97 and Rule 101 of the Code in I.A. No.01 of 2016 being overruled, the petitioner-judgment debtors filed FAO No.148 of 2016 which had been continuing there on the board before the 4th Additional District Judge, Bhubaneswar. However, the above petition and the memo dated 25.07.2016 were rejected on 21.12.2016. So on 26.12.2016 these petitioner-judgment debtors sought for clarification of the said order of the executing court. They also filed an application before this Court vide CMP No.1928 assailing the said order. This Court directed the executing court to dispose of the petition of the petitioner-judgment debtors dated 26.12.2016 after giving opportunity of hearing to them before issuance of writ of delivery of possession. The petition of the petitioner-judgment debtors filed on 26.12.2016 was disposed of on 09.01.2016 with a finding that the requisites filed by the opposite party-decree holder for issuance of writ of delivery of possession are wholly in conformity with the decree under execution and are in order, carrying no defect. The petition of the petitioner-judgment debtors filed on 26.12.2016 was disposed of on 09.01.2016 with a finding that the requisites filed by the opposite party-decree holder for issuance of writ of delivery of possession are wholly in conformity with the decree under execution and are in order, carrying no defect. On 12.01.2017, the petitioner-judgment debtors prayed for review of the order dated 09.01.2017 in the Review Petition no.01 of 2017.That was dismissed reiterating the earlier finding as regards scrutiny of the requisites having no such defect. The next move by the petitioner-judgment debtors was on 20.04.2017 with an application that the learned Counsel for the opposite party-decree holder has committed fraud upon the Court by advancing submission that the revenue map had been filed, though in fact it was then not available on record. So a prayer was made before the executing court to stay its hands by not issuing the writ of delivery of possession will submission of the survey map by the opposite party-decree holder. The executing Court then scrutinized the records and found the revenue map to have been filled and the requisites to be absolutely in order. This was challenged by the petitioner-judgment debtors before this Court by filing an application vide CMP No.482 of 2017.This Court after hearing by order dated 21.07.2017 found the said petition to be devoid of merit and it was accordingly dismissed. This Court on that occasion has found the petition as laid by the petitioner-judgment debtors urging upon the court to direct the opposite party-decree holder to produce the village map to be a ruse. Prior to passing of this order in CMP No.482 of 2017 and even prior to hearing of said petition before this Court, on 04.05.2017 the petitioner-judgment debtors had filled one more petition before the executing court to dismiss the execution case taking a plea that the opposite party-decree holder cannot proceed with the execution of the decree standing in his favour as he had filed affidavit in another proceeding during the suit stating to have been in possession of the suit property and to have so delivered to a third party after disposal of the CMP No.482 of 2017.The executing court took up the petition dated 04.05.2017 for consideration. The petition stood dismissed on 02.08.2017 by giving observation that such move is sheer abuse of process of court. The petition stood dismissed on 02.08.2017 by giving observation that such move is sheer abuse of process of court. The opposite party-decree holder on the next date i.e. 03.08.2017 filed an objection that heavy cost be imposed upon the petitioner-judgment debtors for such abuse of process of court. The first one was dismissed and that of the decree holder was allowed. At this juncture, questioning the above order, the petitioner-judgment debtors filed a revision under Section 115 of the Code before the District Judge, Bhubaneswar in C.R.P. No.06 of 2017 which has been dismissed on merit on 28.11.2017. In the meantime on 26.09.2017, the FAO No.148 of 2016 which was simultaneously moved while questioning the order before this Court was also dismissed. However, the above revision having been dismissed, the review petition was again filed which was Review Petition No.02 of 2017.This was also dismissed on 16.01.2018. It may be stated that said C.R.P. No.06 of 2018 had been filed questioning re-issuance of writ of delivery of possession. 6. Now in this present petition before this Court, the petitioner-judgment debtors question only the correction of the name of the mouza in schedule- ‘B’ in the writ of delivery of possession of the land covered under the decree standing in favour of the opposite party decree holder 7. Before going to examine the sustainability of the challenge made by the petitioner-judgment debtors to the correction of the mouza as aforesaid; it is felt apposite to take note of the position of law enunciated by the Apex Court. In case of Bhavan Vaja Vrs. Solanki Hanuji reported in AIR 1972 SC 1371 (para-19), the Apex Court has been pleased to observe that : “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 pleadings leading upto 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”. 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”. 8. And in case of Biswanath Vrs. Smt. Uttara Bewa, AIR 1988 Orissa 9 (para-6) and Chloride India Ltd. Vrs. District Judge, Puri, AIR 1997 Orissa 135, it has been held as under : “The principle is also well established that ordinarily the executing court cannot go behind the decree. But it is within the competence of the executing court to interpret the decree sought to be executed and for doing so the court can refer to reliefs sought for in the plaint and discussion in the judgment to ascertain the true import of the decree”. 9. Mr. B. Baug, learned Counsel for the petitioner-judgment debtors submitted that such correction of mouza at this highly belated stage without providing opportunity to the petitioner-judgment debtors to have their say is uncalled for and therefore the correction of the name of mouza from “Berana @ Gobindaprasad” as “Berana” without any legal basis is not permissible and it has to be quashed. He also submitted that the executing court could not have done so in the manner as has been done. In support of his contention, reliance has been placed in case of Dologobinda Sahu vrs. Chakradhar Mohapatra land others, AIR 1955 Orissa 94 and Tirthananda Jena vrs. Bairagi Tripathy, 70 (1990) CLR 749. 10. Mr.S.P. Mishra, learned Senior Counsel for the opposite party-decree holder submitted that no such illegality has been committed by the executing court in directing the salaried amin for change of name of mouza as “Berana” in place of “Berana @ Gobindaprasad” and to treat it as such. It is submitted that the mouza name is not totally changed from ‘X’ to’Y’ but here the addendum name to the original name of the mouza has been corrected so as to avoid confusion with which the petitioner-judgment debtors have nothing to do and have no concern at all. He strenuously argued that identity of the land in the execution proceeding is not at all in dispute and the petitioner-judgment debtors are in no way prejudiced by such correction. He strenuously argued that identity of the land in the execution proceeding is not at all in dispute and the petitioner-judgment debtors are in no way prejudiced by such correction. Referring to the written statements as well as the discussion of the courts below in their judgment in the original suit and first appeal, he contended that the petitioner-judgment debtors having staked their claim of right, title, interest and possession over schedule-‘B’ land, the opposite party-decree holder has been found to be the rightful owner and thus entitled to possession. He submitted that the claim of these petitioner-judgment debtors to have acquired title over that land since has been negated, they have no further say in the matter of execution. He with vehemence contended that all these moves from the side of the petitioner-judgment debtors are just to stall the execution of a valid decree abusing the process of the Court. 11. Indisputably, the judgment and decree under execution have attained their finality in all respects since long. These petitioner-judgment debtors having filed petition under Section 47 of the Code questioning the execution of the decree have failed. As it appears, the petitioner-judgment debtors thereafter have been filing several petitions one after another, before the executing court and approaching the next higher forum on some plea or other to thwart the execution of that decree which is not at all permissible in the eye of law. A judgment debtor is not allowed to raise pleas, in piecemeal in phase manner according to his own sweet will and desire in an execution proceeding in saying that the decree is not executable which is seen to have been repeatedly done in the case and that to every time on failure, the doors of the higher forum are being knocked. 12. in case of Satyawati vrs. Rajinder Singh; 2013 (II) CLR (SC) 238 (para 13-17), the Hon’ble Supreme Court while referring with approval to its earlier decisions as well as that of the Privy Council and deprecating the practice of the judgment-debtors employing dilatory tactics to deny the fruits of the decree to the decree-holder has observed that the courts should be careful to see that the process of the court and law of procedure are not abused by the judgment-debtors in such a way as to make courts of law instrumental in defrauding creditors, who have obtained decrees. In accordance with that, it has been observed as under:- “As stated by us hereinabove, the position has not improved till today. We strongly feel that there should not be unreasonable delay in execution of a decree because if the decree holder is unable to enjoy the fruits of his success by getting the decree executed, the entire effect of successful litigant would be in vain.” 13. In case of Rabinder Kaur Vrs. Ashok Kumar, AIR 2004 SC 904 (Para 22) the view is that:- “Therefore, raising a dispute in regard to the description or identity of the suit schedule property or a dispute in regard to the boundary of the suit schedule property is only a bogey to delay the eviction by the abuse of the process of Court. Courts of law should be careful enough to see though such diabolic plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These types of error on the part of the judicial forum only encourage frivolous and cantankerous litigations causing laws delay and bringing bad name to the judicial system.” 14. Learned Counsel for the petitioner-judgment debtor has relied upon the decision in case of Dolagobinda Sahu (supra) where an amendment of a substantial nature by way of substitution of property sought to be attached and sold in execution was held to be impermissible which is not the case here. The other case relied upon i.e. case of Tirthananda Jena (supra) also concerns with addition of new property at the stage of execution which is not in the case in hand. Thus these decisions do not come to the aid of the petitioner-judgment debtors so as to provide any such support to the present challenge. 15. Present is a case where after several rounds of challenge to the execution of decree and all those being overruled, the executing court has corrected the mouza’s name by deleting the addendum name to it. Here, on perusal of the rival case, the findings of the trial court as well as the appellate court, it is quite clear that there is no dispute as to the identity of the property. Here, on perusal of the rival case, the findings of the trial court as well as the appellate court, it is quite clear that there is no dispute as to the identity of the property. The petitioner-judgment debtors’ claim over the property in question both on the ground of purchase as well as acquisition of title by adverse possession has been conclusively negated and thus the present challenge to the deletion of the addendum name to the mouza of the property involved in the execution does not at all hold water and they can have no complain in the matter in view of failure to establish their claim over that specific property; further more, after so many challenges to the executability raised from time to time having been overruled, the present challenge has to be whittled down at the threshold. When in the first appeal, as against the finding of title of the decree holder they raised that their case of acquisition of title by adverse possession be considered on the basis of evidence, they now are not permitted to question the writ of delivery of possession by such correction with respect to the mouza’s name that to by deletion of addendum name. They have absolutely nothing to say on that score. The executing court has all the authority to do so and the complain that these petitioners ought to have been allowed to have their say over the matter has absolutely no such significance as they do not have any say at all in the matter and this is no way touch upon their right which had already been negated. A fortiori execution proceeding is purely a matter of procedure. Undoubtedly procedural safeguard is an ingrained facet of fair play in action to subserve the legal right but not to extinguish it. In the case in hand, the petitioner-judgment debtors after having failed in all their attempt to declare the decree as in-executable, they have no such further say in the matter of such formal and trivial correction in the writ of delivery of possession. Therefore, the challenge to the enforceability of the decree having failed on several occasion, present challenge to the correction of the name of mouza that to striking out one name is bound to bite dust. Therefore, the challenge to the enforceability of the decree having failed on several occasion, present challenge to the correction of the name of mouza that to striking out one name is bound to bite dust. The faith of the people is the saviour and succour for the sustenance of the rule of law and any weakening link in this regard would reap apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The time has come for the courts of law to pragmatic but not pedantic or rigmarole. Under the guise of purely technical mistake which has nothing to do with any right of the judgment debtors, the diabolical plans of the judgment debtors to deny the decree holder the fruits of the decree obtained by him is to be discouraged as those come to stand on the way of administration of justice and shake the confidence of the citizens on this institution. 16. For the aforesaid discussion and reasons, the application stands dismissed. The executing court is directed to take all such effective steps as provided in law to see that the execution proceeding stands culminated with fruitful execution of the decree in accordance with law as expeditiously as possible preferably by the end of June, 2018 under a compliance report to this Court by the end of July, 2018. Application dismissed.