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2018 DIGILAW 684 (JK)

Abdul Aziz Mir v. Mushtaq Ahmad Khan

2018-09-06

RASHID ALI DAR

body2018
JUDGMENT : 1. Order dated 10.07.2018, passed by learned 1st Additional District Judge, Srinagar, on an application seeking execution/implementation of the decree dated 24.09.1997, is under challenge in this revision petition. 2. Precise factual background of the case, which emerges from the pleadings of the parties, is as under : (I) In the year 1997, the decree holder, Mst. Zainab Begum, filed a suit for pre-emption against her son, namely, Mushtaq Ahmad (vendor), as defendant No.1 therein (respondent No.1 herein) and Ghulam Nabi Shah (vendee), as defendant No.2 therein, respondent No.2 herein (now dead) for enforcing her right of prior purchase in respect of a piece of land including a shed thereon, which the respondent No.1 had sold to respondent No.2 by virtue of a sale deed registered on 30.01.1991. During pendency of that suit, respondent No.2 further sold the suit property to respondents 3, 4 and 5 and the decree holder (plaintiff) therefore, amended the plaint by impleading respondents 3, 4 and 5 as additional defendants therein. (II) Respondents did not contest the suit at all and were set ex parte. Respondents (defendants) 3 to 5 were also set ex parte, however, after they had filed their written statement. The suit was allowed and decreed by the trial court in favour of the decree holder (plaintiff) vide ex parte judgment and decree dated 24.06.1997. The decree holder filed execution proceedings on 04.12.1997 against respondents 1 to 5. (III) The petitioner challenged the ex parte judgment and decree in OWP No. 45/1998 before this Court with the prayer for quashing the same, claiming that he has acquired right in the suit property on the basis of an oral gift made in his favour by respondents (defendants) 3 to 5. A learned Single Bench of this Court vide judgment dated 12.04.2007, allowed the writ petition and set aside the judgment and decree dated 24.06.1997. The judgment of the learned Single Bench, however, was set aside by a learned Division Bench in LPA No. 73/2007 filed by the decree holder (plaintiff). (IV) The petitioner preferred SLP against the judgment of the learned Division Bench in the Supreme Court, which was withdrawn reserving liberty to seek such other remedy as may be permissible under law. The petitioner thereafter filed an application under Section 47 of the Code before the trial/executing court. (IV) The petitioner preferred SLP against the judgment of the learned Division Bench in the Supreme Court, which was withdrawn reserving liberty to seek such other remedy as may be permissible under law. The petitioner thereafter filed an application under Section 47 of the Code before the trial/executing court. The petitioner also filed an appeal against the ex parte judgment and decree before this Court along with an application for leave to appeal for not being party to the said judgment and decree as also an application for condonation of delay. (V) The leave to appeal was granted by a learned Single Bench of this Court by order dated 24.03.2015, LPA against which was dismissed on 20.05.2015. However, another Bench of this Court dismissed the application for condonation of delay vide order dated 12.10.2017 in COD No. 105/2015 taking the view that the petitioner having filed objections in terms of Section 47 of the Code, he cannot be permitted to prosecute the appeal. The application under Section 47 came to be dismissed by the trial/executing court vide order dated 22.07.2013. (VI) The petitioner challenged the order dated 22.07.2013 before this Court in C. Rev. No. 43/2013 which was dismissed vide judgment dated 03.07.2018 by observing that the order of the executing court is not without jurisdiction. Against the said order, the petitioner filed a review petition No. 06/2018 but the same stand dismissed by an order dated 25.07.2018. 3. Heard learned counsel for the parties. 4. Mr. Reshi, learned counsel appearing for the petitioner referred to the provisions of Order 21 Rule 29 of the Code of Civil Procedure along with Section 47 of the Code and contended that the application filed by the present petitioner before the Court of learned 1st Additional District Judge, Srinagar, was required to be allowed in the light of the grounds urged therein. His contention is that since the petitioner has made out a good case for exercise of supervisory jurisdiction, the execution proceedings are required to be deferred till the matter pending before the Division Bench is finally disposed of. He also made reference of Section 44 of the Evidence Act. He gave a narration of the development which have taken place from February, 1985, i.e. alienation of land by Mst. He also made reference of Section 44 of the Evidence Act. He gave a narration of the development which have taken place from February, 1985, i.e. alienation of land by Mst. Zainab Begum, attestation of mutation No. 921 and 922, establishment of small scale industrial unit in the shape of band saw for manufacture of shook, execution of agreement to sell on 28.02.1991, filing of suit for pre-emption under J&K Right to Prior Purchase Act on 23.05.1991, amendment made in the suit in view of the property being sold during the pendency of the suit, passing of exparte judgment and decree on 24.06.1997, filing of execution petition on 04.12.1997, the petitioner herein having filed OWP No. 45/98, same having been allowed on 14.02.2007, later the judgment of the Single Judge having been set aside by the Division Bench, the petitioner having approached the Hon’ble Apex Court by way of an SLP and later having withdrawn the same with a liberty to avail the whatever remedies available under law. Learned counsel for the petitioner also conceded that the objections were filed by the petitioner to the execution proceedings under Section 47 and Order 21 Rule 58 of the Code of Civil Procedure earlier, appeal having been filed along with an application for permitting the petitioner to file an appeal as he was not a party to the suit and the decree, the trial court having dismissed the objections filed to the execution holding that it cannot go behind the decree as the same has attained finality. It is also being admitted by the learned counsel that Civil Revision No.43/2013 was filed before this Court against the order passed by the executing court on the application filed under Section 47 of the Code. Reference has also been made to LPA No.73/2015. Division Bench having not been apprised of the order passed in SLP is also being canvassed. It is also conceded that Civil Revision No. 43/2013 was disposed of by a Coordinate Bench vide order dated 03.07.2018 and thereafter review petition filed also dismissed. It is also contended that the approach of the learned 1st Additional District Judge in not acceding to the prayer of the petitioner herein for deferment of the execution proceedings, was improper coupled with the observations made while disposing of the application/objections filed in terms of Section 47 of the Code. 5. Mr. It is also contended that the approach of the learned 1st Additional District Judge in not acceding to the prayer of the petitioner herein for deferment of the execution proceedings, was improper coupled with the observations made while disposing of the application/objections filed in terms of Section 47 of the Code. 5. Mr. Qayoom, learned counsel for the respondents, submitted that the revision petition was misconceived. The orders passed by the learned 1st Additional District Judge, to which challenge is thrown in terms of the instant revision petition, was proper in the light of developments taking place from the institution of the suit. According to him, the reasons given by the learned 1st Additional District Judge for disallowing the application filed before him cannot be termed to be erroneous on any count. It is also his contention that the petitioner herein is making abortive attempts to scuttle what was required to be done in terms of the judgment and decree passed by the learned 1st Additional District Judge and the orders passed in the proceedings by the Division Bench and a Coordinate Bench of this Court. It sounds strange, according to him, to ask the Court, in a circuitous manner, to nullify the order passed n 03.07.2018 in the Civil Revision, in consonance whereof learned 1st Additional District Judge proceeded in the matter and passed the order. The learned counsel also made reference of the remarks made by the Division Bench on 14.09.2012 with regard to the proceedings wherein it was stated that for some people litigation is a passion and it is used as an engine of harassment to others. If one set of litigant has lost the litigation (as observed by the Division), the other group is kept ready for inflicting fresh dose of litigation knowing fully well the results. They tend to take chances and wait for the result that judicial administration might accept their point of view. The cycle of litigation might have ended in the higher courts unfavourably, yet a new beginning is made by initiating another judicial process, are also the observations made therein. The appeal of Mst. Zainab, plaintiff, was allowed and the judgment passed by the Single Judge was set aside, is also one of the contentions raised by the learned counsel for the respondents. The appeal of Mst. Zainab, plaintiff, was allowed and the judgment passed by the Single Judge was set aside, is also one of the contentions raised by the learned counsel for the respondents. The arguments raised in terms of the application now filed before learned 1st Additional District Judge have already been dealt with as is evident, according to the learned counsel, from the bare perusal of the said judgment. 6. Considered the rival submissions and have gone through the available record. The judgment of the learned Division Bench, referred hereinabove, makes mention of some of the contentions raised at the relevant time by the petitioner herein including the applicability of the provisions of Right to Prior Purchase Act and the doctrine of lis pendens. It has been observed by the Division Bench in para 19 of the judgment that “in the absence of principle of lis pendens, transfer and alienation during the pendency of a suit would become permissible, which would result into defeating rights of a claimant/plaintiff. Such a defeat of the rights of a claimant/plaintiff would cause failure of justice…” 7. In the judgment passed by a Coordinate Bench on 03.07.2018, the order dated 22.07.2013, passed by the learned 1st Additional District Judge, has been upheld. Petitioner herein had filed an application before the executing court under Section 47 of the Code claiming therein that he had acquired the suit property on the basis of oral gift. It is also his contention that besides land measuring 5440 sft, a single storeyed structure with a band saw run therein, was existing. According to the petitioner, no right of prior purchase was available to the plaintiff and the trial court did not have inherent jurisdiction to pass the decree. 8. Repelling the contentions of the petitioners, the Coordinate Bench upheld the order passed by the learned 1st Additional District Judge. A reference was made of the compliance report furnished on behalf of Deputy Commission, Srinagar, on 03.12.2013 and 21.11.2014 and of the factum that the suit property is in the custody of Tehsildar. The trial/executing court was, thus, asked to go ahead with the execution of the decree by asking the Deputy Commissioner, Srinagar, and the Tehsildar, Shalteng, to handover the suit property to the decree holder. 9. The executing court has made reference of the order passed by the Coordinate Bench and the observations made therein. The trial/executing court was, thus, asked to go ahead with the execution of the decree by asking the Deputy Commissioner, Srinagar, and the Tehsildar, Shalteng, to handover the suit property to the decree holder. 9. The executing court has made reference of the order passed by the Coordinate Bench and the observations made therein. It is observed by the executing court that the objections /contentions raised in terms of fresh application under Section 47 of CPC have already been dealt with by the said court, so there is no scope to entertain the application of the objector (petitioner herein). 10. As noticed hereinabove, it is not being disputed by the petitioner herein that he had earlier filed an application under Section 47 of the Code raising certain contentions with regard to maintainability of the execution petition and allied issues. It is also not being disputed that the said application was dismissed and the order passed thereon was upheld by this Court. It requires to be noted here that in the fresh application filed under the style “under Section 47 of the Code” nothing has been spelled out as to how it was permissible for the petitioner herein to raise objections afresh. It may not be out of place to mention herein that subsequent to the filing of application under Section 47 CPC in 2013, no leave was sought from the executing court or any other court for raising additional objections or for filing of additional pleadings or subsequent pleadings. The provisions of the CPC amply make it clear that the pleadings cannot be successively filed at will by any party. If at one point of time, a party had an opportunity to project its stand before a Court, it cannot, on its own, subsequently present fresh set of pleadings/objections, more so when a finding was returned by the Court on it. It may need to be underscored herein that the objections filed under Section 47 CPC earlier have been dealt with by the executing court and the petitioner herein has not been able to satisfy the Coordinate Bench that the reasoning given by the executing court was erroneous on any point. General principle of res-judicata engrafted in all judicial systems give recognition to the rule that an earlier adjudication is conclusive on the subject matter. General principle of res-judicata engrafted in all judicial systems give recognition to the rule that an earlier adjudication is conclusive on the subject matter. It is well settled that the principle of res-judicata can be invoked not only in separate subsequent pleadings but get attracted in subsequent stage of same proceedings. Petitioner has, thus, failed to depict that the Court of learned 1st Additional District Judge exercised jurisdiction not vested in it by law or failed to exercise jurisdiction so vested in it or has acted in exercise of its jurisdiction illegally or with material irregularity. 11. Viewing the case of the petitioner in the light of above facts and circumstances, I am of the opinion that no case is made out for exercise of powers under Section 115 of the Code of Civil Procedure. That being so, revision petition being without merit is dismissed along with connected IA. 12. Copy of the order be sent to the learned executing court for information.