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Himachal Pradesh High Court · body

2019 DIGILAW 1438 (HP)

Des Raj v. Brahm Dass

2019-09-24

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this petition, petitioners have challenged order dated 26.12.2017, passed by the Court of learned Civil Judge (Junior Division), Nurpur, District Kangra, H.P., in miscellaneous application filed by respondent No.1/Decree Holder, purportedly for implementation of the decree passed by the Lok Adalat dated 28.01.1995, in Civil Suit No.239/1994, titled Udho Ram Versus Braham Dass. 2. Learned counsel for the petitioners has argued that impugned order is being assailed in this Court on two counts:- (a) Maintainability; (b) Justiciability. Learned counsel further submits that before addressing her submissions on the issue of justiciability, she is pressing the issue of maintainability as the impugned order per-se is not sustainable in the eyes of law as Decree Holder could not have had filed an application under Section 151 of the Code of Civil Procedure for the purported execution of a decree passed by a Lok Adalat as far back as on 28.01.1995. She has argued that limitation for the execution of a decree is 12 years. In the present case, the decree/compromise decree was passed by the Lok Adalat admittedly on 28.01.1995. The application under Section 151 of the Code of Civil Procedure for enforcement of the said decree was filed by applicant Brahm Dass in the year 2017. Not only this, in view of the specific provisions of Order 21, as are contained in the Code of Civil Procedure, the execution of Decrees and Orders has to be inconsonance with the provisions of Order 21 of the Code of Civil Procedure and an application under Section 151 of the Code of Civil Procedure in this regard was not maintainable at all. On this short point, learned counsel for the petitioners submits that the impugned order deserves to be set aside. 3. Learned counsel for the contesting respondents, while supporting the impugned order has argued that though Order 21 of the Code of Civil Procedure envisages provisions for execution of Decrees and Orders, however, there is no bar that a decree passed cannot be imposed under Section 151 of the Code of Civil Procedure. 4. 3. Learned counsel for the contesting respondents, while supporting the impugned order has argued that though Order 21 of the Code of Civil Procedure envisages provisions for execution of Decrees and Orders, however, there is no bar that a decree passed cannot be imposed under Section 151 of the Code of Civil Procedure. 4. As this Court is going to adjudicate upon the present petition on the issue of maintainability of the application so filed before the learned Court below under Section 151 of the Code of Civil Procedure for the enforcement of decree, purposely it is not making any observation on the issue of justiciability/merits of impugned order as was argued by learned counsel for the parties. 5. It is not in dispute that a Compromise Decree was passed by the Lok Adalat dated 28.01.1995, in Civil Suit No.239 of 1994, titled Udho Ram Versus Braham Dass. A perusal of the application filed under Section 151 of the Code of Civil Procedure by Shri Braham Dass for enforcement of the said award, which is appended with the present petition as Annexure P-7, demonstrates that it stands averred in the same that after the death of Shri Udho Ram, his legal representatives i.e. present petitioners are knowingly disobeying the decree passed by the Lok Adalat. This fact has been refuted by way of reply so filed before the learned Court below by the present petitioners. 6. Be that as it may, the moot issue is as to whether a decree can be enforced by filing an application under Section 151 of the Code of Civil Procedure or not? Section 151 of the Code of Civil Procedure confers inherent powers upon the Court and the said Section inter alia contemplates that nothing in the Code of Civil Procedure Code shall be deemed to limit or otherwise effect the inherent powers of the Court to make such orders, which are necessary for the ends of justice or to prevent abuse of the process of law. It is equally settled position of law that provisions of Section 151 of the Code of Civil Procedure cannot be invoked by a party for such purposes, qua which there are express provisions provided in the Act. The execution of a decree is expressly provided under Order 21 of the Code of Civil Procedure. It is equally settled position of law that provisions of Section 151 of the Code of Civil Procedure cannot be invoked by a party for such purposes, qua which there are express provisions provided in the Act. The execution of a decree is expressly provided under Order 21 of the Code of Civil Procedure. In other words, because there is a specific provision provided in the Code of Civil Procedure, which deals with the execution of decrees and orders, a party/Decree Holder cannot approach an Executing Court under Section 151 of the Code of Civil Procedure for enforcement of the decree. Order 21 of the Code of Civil Procedure besides conferring rights upon the Decree Holder, also provides safeguards in favour of the Judgment Debtor. When a process is invoked under Order 21 of the Code of Civil Procedure for the execution of the decree, then the Executing Court is bound to follow the procedure which is envisaged therein before passing any order. However, when a simplicitor application under Section 151 of the Code of Civil Procedure is filed in this regard, then all those rigors of law, but natural get a go by. This is exactly what the Courts have deplored by holding that when express provisions are contained in the Code of Civil Procedure for doing a particular act, then for the purposes of doing that act, application under Section 151 of the Code of Civil Procedure is not maintainable. While passing the impugned order, learned Court below had erred in not appreciating this extremely important aspect of the matter. Learned Court below erred in adjudicating on the issue raised by respondent No.1 herein, before it, in an application under Section 151 of the Code of Civil Procedure, for enforcement of a decree without realizing that enforcement of a decree can only be done as per the provisions of order 21 of the Code of Civil Procedure and by following the procedure provided therein. Therefore, as the order passed by the learned Court below, Annexure P-9, dated 26.12.2017, is a result of exercise of jurisdiction not vested in it, the same being bad in law is quashed and set aside. 7. It is clarified that this Court has not made any observation as far as the merit of this case is concerned. Therefore, as the order passed by the learned Court below, Annexure P-9, dated 26.12.2017, is a result of exercise of jurisdiction not vested in it, the same being bad in law is quashed and set aside. 7. It is clarified that this Court has not made any observation as far as the merit of this case is concerned. Learned counsel for the respondents submits that he may be granted liberty to proceed against the present petitioners in accordance with law. In my considered view, in case the respondents have any remedy in law, then for invoking the same, no liberty of the Court is required and the respondent can have recourse to such remedies as may be available in law, of course subject to the rights of the petitioners. Petition stands disposed of, so also pending miscellaneous applications, if any.