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2018 DIGILAW 883 (RAJ)

LAL CHAND v. BHAGYAWATI

2018-04-03

ALOK SHARMA

body2018
ORDER : ALOK SHARMA, J. 1. Under challenge is the order dated 20.10.2005 passed by the Additional District Judge No. 1, Kota whereby the executing court in the exercise of its powers under section 151 CPC allowed the restoration application filed by the respondent-decree holder (hereinafter 'decree holder') and recalled its order dated 18.7.1981 dismissing for non-prosecution the decree-holder's execution application No. 4/1979 in respect of the eviction decree dated 23.12.1977. Also under challenge is the Executing Court's order dated 28.9.2015 whereby the petitioner-judgment debtor (hereinafter 'judgment debtor') application for recall of its order dated 29.11.2005 has been dismissed. Consequential orders dated 28.9.2015 and 28.10.2015 relating to warrants of possession for the property from which the judgment-debtor is to be disposed and the decree-holder put into possession pursuant to the final decree for the eviction are also under challenge. 2. Admittedly on an eviction petition laid by one Bhagywati Devi (now deceased and represented by LRs) against her tenant Lal Chand (now deceased and represented by LRs) the judgment-decree in regard thereto to the plaintiff's benefit was passed on 23.12.1977. The decree-holder thereupon moved an Execution Application No. 4/1979 to be put in possession pursuant to the decree dated 23.12.1977. 3. The judgment-debtor-Lal chand in the eviction decree dated 23.12.1977 then appears to have laid a suit on 9.1.1979 seeking cancellation of the sale deed dated 18.12.1973 whereby the property had been conveyed for valid consideration in favour of the decree-holder whereafter his status was altered from owner to tenant. In said suit for cancellation of sale deed dated 18.12.1973 on 24.9.1980 Bhagywati Devi as defendant in the suit gave an undertaking to the trial court that the eviction decree dated 23.12.1977 would not be executed till further orders of the trial court. Subsequently the trial court vide interim order dated 24.9.1980 in Lal chand's suit passed an interim order restraining the execution of the eviction decree dated 23.12.1977. 4. Bhagyawati's Devi execution application No. 4/1979 as decree holder in the eviction decree dated 23.12.1977 then came to be dismissed for non prosecution on 18.7.1981 after the execution of the eviction decree dated 23.12.1977 was stayed by the trial court on 24.9.1980 in Lal chand's suit for cancellation of the sale deed dated 18.12.1973. It has transpired that in the course of argument in this petition that prior to 18.7.1981 execution application no. It has transpired that in the course of argument in this petition that prior to 18.7.1981 execution application no. 4/1979 was listed on 2.5.1981 when the executing court had adjourned the execution application to 18.7.1981 awaiting the interim order dated 24.9.1980 staying the execution of the eviction decree dated 23.12.1977. 5. Yet on 18.7.1981 albeit the execution application in the circumstances aforesaid was not listed for "hearing" but only awaiting the order dated 24.9.1980 passed by the trial court in Lal chand's suit for cancellation of the sale deed dated 18.12.1973, the executing court dismissed the execution application no. 4/1979 for non-prosecution. 6. The suit for cancellation of the sale deed dated 18.12.1973 finally came to be dismissed by the trial court on 23.2.2005 and an appeal there against is stated to be pending before this Court. 7. Following the dismissal of the Lal Chand's suit on 23.2.2005 and the resultant vacation of the interim order dated 24.9.1980 passed in the course of its trial, the decree-holder in the eviction decree dated 23.12.1977 moved an application under section 151 CPC on 26.8.2005 for restoration of the execution application no. 4/1979 and recall of the order dated 18.7.1981 and whereby the execution application had been dismissed for non-prosecution. Vide order dated 20.10.2005 the Executing Court allowed the restoration application, recalled its order dated 18.7.1981 and restored the execution application to its original number. 8. Now aggrieved, the LRs of the Lal Chand-who appears to have expired on 30.12.2000, moved an application for recall of the Executing Court's order dated 20.10.2005. It was their case that dismissal for non-prosecution of the execution application No. 4/1979 on 18.7.1981 being relatable to Order 21, Rule 105 (2) CPC, the application for recall of the said order and restoration of the execution application no. 4/1979 filed on 26.8.2005 was way beyond the limitation of 30 days as provided under Order 21, Rule 106 (3) CPC. It was also submitted that even otherwise the order dated 20.10.2005 passed by the Executing Court restoring the execution application was vitiated for non compliance with the principles of natural justice inasmuch as prior to the order for restoration, the LRs of Lal chand were neither issued summons nor heard nor allowed to oppose the application of the decree holder for restoration of her execution application no. 4/1979. 4/1979. It was submitted that the execution application had been revived against a dead person as Lal Chand had expired on 30.12.2000. The Executing Court vide order dated 28.9.2015 has however dismissed the said application. 9. Hence this petition under Article 227 of the Constitution of India. 10. Mr. Rajvir Sharma, counsel for the judgment-debtor submitted that the dismissal of the execution application on 18.7.1981 has to be construed as one under Order 21, Rule 105 (2) CPC albeit the executing court's order on the prior date i.e. 2.5.1981 was for awaiting the interim order dated 24.9.1980 passed by the Trial Court in Lal Chand's suit for cancellation of sale deed dated 18.12.1973 in favour of Bhagyawati. It was submitted that the dismissal of the execution application so construed would render the application filed on 26.8.2005 for its restoration beyond the limitation of 30 days as provided under Order 21, Rule 106 (3) CPC. He also agitated the ground of contravention of the principles of natural justice in the passing of the order dated 20.10.2005 by the executing court on 18.7.1981 without notice to the LRs of the judgment debtor. 11. Mr. Rajvir Sharma, also referred to the provision of Order 21, Rule 22 CPC and to the judgment in the case of reported in ((AIR) 1986 Himachal Pradesh page 4) titled M/s. Shivalik Agro Poly Products Ltd. v. Jagdish Raj Mago & Others. to submit that before proceedings in an execution application it was necessary for the LRs of the deceased judgment debtor to be issued notice and heard. Reliance was also placed by Mr. Rajvir Sharma on the judgment in the case of (AIR 2006 Andhra Pradesh 209) titled M. Sheelamma (died per L.Rs.) & Ors. v. B.Alibert S/o. Anthony & Another broadly to the same effect. 12. Mr. R.K. Agarwal, Senior Counsel with Mr. Mamoon Khalid appearing for the decree-holder submitted that the entire case set up by the judgment debtor before the Executing Court as also before this Court is completely misdirected with the intent to further delay the execution of the judgment and decree passed on 23.12.1977 in an eviction suit. 12. Mr. R.K. Agarwal, Senior Counsel with Mr. Mamoon Khalid appearing for the decree-holder submitted that the entire case set up by the judgment debtor before the Executing Court as also before this Court is completely misdirected with the intent to further delay the execution of the judgment and decree passed on 23.12.1977 in an eviction suit. It was submitted that reference to Order 21, Rule 22 CPC and reliance placed on judgments rendered thereon is deliberately misplaced and irrelevant as admittedly the execution application in respect of the judgment and decree dated 23.12.1977 was filed on 18.5.1979 well within the period of two years. Mr. R.K. Agarwal further submitted that as evident from the relevant order sheet of the executing court, on 2.5.1981 the execution application No. 4/1979 in respect of the decree dated 23.12.1977 was adjourned to 18.7.1981 awaiting the interim order dated 24.9.1980 passed by the trial court in Lal chand's suit for cancellation of the sale deed dated 18.12.1973 in favour of Bhagywati Devi. The execution application on 18.7.1981 was thus not listed for "hearing". It could therefore not have been dismissed with reference to Order 21, Rule 105 (2) CPC. The dismissal would be relatable only to section 151 CPC. That being so the limitation of thirty days under Order 21, Rule 106 (3) CPC would not attract to the decree holder's application for restoration of the execution application no. 4/1979 and recall of the Executing Court order of dismissal for non-prosecution on 18.7.1981. In support of his contention, Mr. R.K. Agarwal relied on the judgment of the Madhya Pradesh High Court in the case of ((AIR) 1986 Madhya Pradesh page 66) titled Khoobchand Jain and another v. Kashi Prasad and Others. He submitted that word "hearing" in Order 21, Rule 105 CPC has been construed in the said judgment, as it should also inevitably otherwise be in the legal sense, as when an execution application is fixed for further proceedings relating to its merit. And where an execution application was adjourned, as in the said case before the MP High Court Khoobchand Jain (supra) for filing of a document it was held as not fixed for "hearing" on the said next date. Mr. And where an execution application was adjourned, as in the said case before the MP High Court Khoobchand Jain (supra) for filing of a document it was held as not fixed for "hearing" on the said next date. Mr. R.K. Agarwal submitted that in the instant case it cannot therefore be argued that when the execution application was listed before the Executing Court on 18.7.1981 awaiting the filing of the trial court's interim order dated 24.9.1980 in Lalchand's suit for cancellation of the sale deed dated 18.12.1973 in favour of Bhagyawati, it was fixed for "hearing". 13. Mr. R.K. Agarwal submitted that resultantly the dismissal of the execution application No. 4/1979 for non-prosecution on 18.7.1981 not being on a date fixed for its hearing, it could relate to Order 21, Rule 105(2) CPC but only to the Executing Court's inherent powers under section 151 CPC to regulate it proceedings. So to would relate to section 151 CPC the application for restoration of the execution application for recall of the order dated 18.7.1981 filed by the decree holder on 26.8.2005. 14. Mr. R.K. Agarwal further submitted that in the instant case admittedly in Lal Chand's suit for cancellation of sale deed dated 18.12.1973 filed against the defendant-Bhagywati Devi therein-(the decree holder in the judgment and decree dated 23.12.1977) an interim order was passed by trial court on 24.9.1980 restraining the execution of the eviction decree dated 23.12.1977. The execution application thus could not in law be set for "hearing" thereafter till the vacation of the order dated 24.9.1980 or dismissal of the suit. That interim order in fact continued till the dismissal of Lal Chand's suit on 23.2.2005. Bhagywati Devi the decree holder thereafter moved an application on 26.8.2005 for recall of the order of dismissal for non-prosecution on 18.7.1981 by the executing court. 15. Mr. R.K. Agarwal submitted that the exercise of inherent powers by any Court lies wholly in its discretion with reference to the facts and circumstances obtaining in a given case. He submitted that in the facts obtaining the exercise of discretion by the Executing Court by resort to its power under section 151 CPC, to recall the order dated 18.7.1981 under its order dated 20.10.2005 and to restore the execution application no. 4/1979 cannot be stated to be either perverse or capricious. He submitted that in the facts obtaining the exercise of discretion by the Executing Court by resort to its power under section 151 CPC, to recall the order dated 18.7.1981 under its order dated 20.10.2005 and to restore the execution application no. 4/1979 cannot be stated to be either perverse or capricious. Having rightfully and lawfully exercised its discretion, the executing court has also rightly dismissed the judgment debtor's vacuous application for recall of the order dated 20.10.2005 vide its order dated 29.11.2005. The remainder orders impugned in this petition are mere consequential orders. They would stand in the event the petitioner judgment debtors' challenge in this petition fails, as it should in the facts of the case and obtaining law. Mr. R.K. Agarwal submitted that in the facts of the case the exercise of this Court's supervisory jurisdiction under Article 227 of the Constitution of India is not warranted as the orders impugned suffer neither from any error of jurisdiction, patent illegality or perversity. Contrarily they advance the cause of justice for the fruition of a decree of the Court passed in 1977. 16. Heard. Considered. 17. Admittedly the execution application No. 4/1979 was filed on 18.5.1979 by the decree-holder in respect of eviction decree dated 23.12.1977. That was clearly within two years the eviction decree being passed. Arguments by counsel for the judgment debtor based on Order 22, Rule 21 CPC are misplaced. 18. The execution application in issue came to be dismissed for non-prosecution on 18.7.1981 when it was listed before the Executing Court-as evident from its order dated 2.5.1981- awaiting the interim order of the trial court passed on 24.9.1980 in Lal chand's suit for cancellation of the sale deed dated 18.12.1973, restraining for whatever its legality, the execution of the eviction decree dated 23.12.1977. Dismissal of the execution application on 18.7.1981 could not in the facts of the case thus relate to Order 21, Rule 105 CPC as on the said date the execution application was clearly not listed for "hearing". The judgment of the MP High Court in Khoobchand (supra) is on the point on all fours. The dismissal thus not relating to Order 21, Rule 105 (2) CPC, the limitation for its restoration could similarly not relate to Order 21, Rule 106 (3) CPC. The judgment of the MP High Court in Khoobchand (supra) is on the point on all fours. The dismissal thus not relating to Order 21, Rule 105 (2) CPC, the limitation for its restoration could similarly not relate to Order 21, Rule 106 (3) CPC. As was the dismissal, the application for restoration would only relate to the inherent powers of court under section 151 of CPC. 19. I am of the considered view that for reason of facts recorded hereinabove (i) that on 18.7.1981 there obtained a prior stay dated 24.9.1980 on the execution of the decree dated 23.12.1977 and (ii) the execution application no. 4/1979 was not listed for "hearing" on 18.7.1981, the trial court has rightly exercised its inherent powers under section 151 CPC vide its order dated 20.10.2005 for recalling the order dated 18.7.1981 and restoring the execution application No. 4/1979 to its original number. The judgment-debtor's application for recall of the said order has also been rightly dismissed on 29.11.2005 as no legal ground was made out. 20. I therefore find wholly untenable the submissions of Mr. Rajvir Sharma urging that the order dated 20.10.2005 recalling the dismissal for non-prosecution order passed on 18.7.1981 was unsustainable and contrary to law. It was clearly not. Even Mr. Rajvir Sharma's submissions based on the order dated 20.10.2005 being vitiated by denial of the principles of natural justice or for reasons of it having passed, so to say against a dead person Lal chand who expired on 30.12.2000, is without substance/legal foundation. It is not in dispute that when the execution application no. 4/1979 had come to be dismissed for non-prosecution on 18.7.1981, service on Lal chand had not been affected. In the circumstances, analogous to the reasons underlying Order 22, Rule 4 of CPC, the application for restoration and recalling of the order dated 18.7.1981 could have been entertained without notice to the judgment debtor, and on his death in the meantime to his LRs. Besides, the defence of the LRs of judgment-debtor Lal Chand now on record to the execution in issue has been considered by the Executing Court on their application for recall of the order dated 20.10.2005 and has been rightly negated by the executing court's order dated 28.9.2015. The impugned orders dated 28.9.2015 and 29.11.2005 are merely consequential to the restoration of Execution Application No. 4/1979 vide order dated 20.10.2005. The impugned orders dated 28.9.2015 and 29.11.2005 are merely consequential to the restoration of Execution Application No. 4/1979 vide order dated 20.10.2005. They have been passed in the course of execution proceedings at the instance of the decree holder in respect of eviction decree passed on 23.12.1977 where the possession of the tenanted premises is to be taken from the LRs of the judgment-debtor and handed over to the LRs of the decree holder. That is the story of civil litigation in far too many cases where the fruits of a decree come to be enjoyed not by the decree holder but her/his LRs. 21. In the facts of the case and state of law no interference is warranted in this petition. Dismissed. In the supervisory jurisdiction of this Court I would be also inclined to direct that the execution application No. 4/1979 in respect of the judgment decree dated 23.12.1977 be now expedited and the decree be finally executed within a period of eight weeks from the next date fixed before the Executing Court.