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2021 DIGILAW 590 (GAU)

Master Dennis J. Zodinmawia v. J. Lalhlupuii

2021-09-30

NELSON SAILO

body2021
JUDGMENT : NELSON SAILO, J. 1. Heard Mr. A.R. Malhotra, learned counsel for the petitioner and Mr. L.H. Lianhrima, learned senior counsel for the sole respondent. 2. By filing this application under section 115 of the Code of Civil Procedure read with article 227 of the Constitution of India, the petitioner prays for quashing and setting aside of the order dated 18.11.2015 passed by the Senior Civil Judge, Aizawl in Execution Case No. 40/2014 arising out of Declaratory Suit No. 23/2012 insofar as it bars the petitioner from selling or transferring the land covered by LSC No. 1180 of 1983 to any person as long as the respondent is alive. It may be noted herein that during the pendency of the instant revision petition, the original petitioner who is also the brother of the respondent expired on 28.4.2021 and he was substituted by his son Master Dennis J. Zodinmawii, represented by Smt. Lalchhanchhuahi vide order dated 3.9.2021 passed in LA(C) No. 67/2021. Although this revision petition was initially filed under article 227 of the Constitution of India but later on, section 115, CPC was added as well as permitted by this court and that is how this petition has been registered under the nomenclature civil revision petition. 3. Brief facts of the case as projected by the petitioner is that after the expiry of his father Sh. J. Zomawia, he filed Declaratory Suit No. 23/2012 seeking declaration that he be declared as legal heir of Sh. J. Zomawia late in respect of LSC No. 1180 of 1983 located at Zemabawk, Aizawl. The suit was disposed of on contest vide judgment and order dated 28.4.2014 appointing the petitioner as the legal heir of his late father in respect of LSC No. 1180 of 1983. It was further directed that since the respondent-defendant-J. Lalhlupuii had looked after her parents in the main house (In Pui) till their death and she was living in the said main house as on date, the petitioner should not interfere with the peaceful possession of the main house by the respondent-defendant as long as she lives. Following the Judgment, the trial court passed a decree dated 6.5.2014. Thereafter, the petitioner filed Execution Case No. 40/2014 seeking execution of the said decree. Following the Judgment, the trial court passed a decree dated 6.5.2014. Thereafter, the petitioner filed Execution Case No. 40/2014 seeking execution of the said decree. In the Execution Case, the executing court vide order dated 18.11.2015 passed an order amongst others that the decree holder J. Lalhmingliana, i.e., the petitioner should not sell or transfer the land covered by LSC No. 1180/1983 to any person as long as the judgment debtor J. Lalhlupuii, i.e., the respondent lives. The petitioner being aggrieved with this order in particular has preferred the instant revision petition. 4. Mr. A.R. Malhotra, learned counsel for the petitioner submits that from a bare perusal of the order passed by the court below in Declaratory Suit No. 23/2012, it can be seen that the trial court appointed the petitioner as the legal heir of his late father in respect of LSC No. 1180 of 1983 and as for the respondent, it was observed that since she had looked after their parents till their death, she can continue to live in the main house (In Pui) and her peaceful possession of the house should not be disturbed by the petitioner as long as she lives. However, the executing court vide the impugned order dated 18.11.2015 has ordered thatt the petitioner cannot sell or transfer the land covered by the said LSC to any person as long as the respondent is alive. He submits that the same is not the condition imposed by the trial court in the Declaratory Suit and, therefore, the executing court has clearly gone beyond the decree. Under the circumstance, the said direction should be interfered with by this court. In support of his submission, the learned counsel relies upon the following authorities: (1) Deepa Bhargava vs. Mahesh Bhargava, (2009) 2 SCC 294 (2) Coal Linker vs. Coal India Ltd. (2009) 9 SCC 491 5. Mr. L.H. Lianhrima, learned senior counsel for the respondent on the other hand submits that the instant petition filed under article 227 of the Constitution of India is not maintainable unless there is a bar in the operation of section 115 of the CPC. He submits that since there is no specific bar in the application of section 115, CPC in the State of Mizoram; the petitioner cannot come before this court under article 227 of the Constitution of India with the case projected by him. 6. He submits that since there is no specific bar in the application of section 115, CPC in the State of Mizoram; the petitioner cannot come before this court under article 227 of the Constitution of India with the case projected by him. 6. The learned senior counsel further submits that the power of the court under article 227 has to be sparingly used. Unlike the power under article 226 of the Constitution of India, article 227 gives the High Court the power to have superintendence over the courts under its jurisdiction. Although the power is similar to that of an ordinary court of appeal but the power is to be used sparingly and only in appropriate cases for keeping subordinate courts and Tribunals within the bound of their authority and not for correcting mere errors. As for the present case the same does not fall under the parameters or the scope of invoking article 227 of the Constitution of India and, therefore, the instant petition of the petitioner filed under article 227 of the Constitution of India is not maintainable. He further submits that although the petitioner has invoked section 115 of the CPC as well but a petition under the said provision can be entertained only if it is filed within the limitation period or the delay explained and condoned. The learned senior counsel submits that a; petition under section 115 of the CPC is regulated by the Limitation Act, 1963 (Limitation Act) more particularly, article 131, which provides that a revision petition under section 115 is to be filed within a period of 90 days. As for the present petition, the learned senior counsel submits that it was only filed after a delay of more than 2 years and that too without any explanation. Therefore, even on this ground the present petition is not maintainable. 7. The learned senior counsel by referring to the judgment and order dated 28.4.2014 passed by the trial court in Declaratory Suit No. 23/2012 submits that the trial court has directed in clear terms that as long as the respondent is alive, she would continue to remain in the main house (In Pui) and that she should not be disturbed by the petitioner from enjoying peaceful possession of the main house. The same would also mean that the petitioner should not alienate the property in question during her lifetime. The same would also mean that the petitioner should not alienate the property in question during her lifetime. In the event the property is sold or transferred by the petitioner, the same would result in the breach of the order and decree passed by the trial court in the Declaratory Suit. Under the circumstances, the learned senior counsel submits that even on merit, the present revision petition is not maintainable and the same should be dismissed. In support of his submission, he relies upon the following authorities: (1) Surya Dev Rai vs. Ram Chander Rai, (2003) 6 SCC 675 (2) Sudhana Lodh vs. National Insurance Co. Ltd. (2003) 3 SCC 524 8. In a quick response to the submission made by the learned senior counsel, Mr. A.R. Malhotra, learned counsel submits that in fact, the case of the petitioner is only covered by the case of Surya Dev Rai (supra) referred to by the learned senior counsel. He submits that since the executing court has gone behind the decree, the present case is clearly one such case where this court may exercise its supervisory power under article 227 of the Constitution of India if not the power of revision under section 115 of the CPC. 9. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on records. 10. From the case projected by the parties, the point to be decided is as to whether the executing court vide its impugned order dated 18.11.2015 could have directed the petitioner not to sell or transfer the land covered by LSC No. 1180 of 1983 to any person as long as the respondent is alive and in doing so, the executing court has gone beyond the decree. 11. Before going to the objection made on merit, let us examine the objection made on maintainability of the revision petition. Under section 115, CPC, the High Court has to the power to call for the records of any case decided by any court subordinate to the High Court in which no appeal lies, if such subordinate court appears to have exercise a jurisdiction not vested in it by law or have failed to exercise a jurisdiction) so vested or to have acted in the exercise of its jurisdiction illegally or with material irregularity. It may be seen that a revision petition under section 115, GPG has to be preferred within a period of 90 days from the date of decree or order or sentence by revise. The same is provided in article 131 of the Limitation Act. The impugned order 18.11.2015 passed by the executing court is challenged by the petitioner by filing the revision petition only on 25.4.2018, after a period of almost 2 years. A perusal of the revision petition goes to show that there is no explanation for the delay in filing the revision petition. If the petition is treated as a revision petition under section 115, CPC, it will have to be filed within 90 days as provided under article 131 of the Limitation Act. If it is not filed within time, then the petitioner has to explain the delay and court may or may not condone the delay. However, as already noticed, the petitioner has not given any explanation. As such, the instant petition cannot be entertained under section 115, CPC on account of delay. 12. Coming to article 227 of the Constitution of India, the same is the power of superintendence given to the High Court to supervise over’ all courts and Tribunals to which it exercises jurisdiction’. The power of High Court under this article is both administrative and judicial but the power has to be exercised sparingly and only in appropriate cases to keep the subordinate courts within the bounds of their authority. Therefore”, in order to see the applicability of article 227 of the Constitution in the present case, the facts and merit of the case will have to be considered. 13. In order to understand the direction given by the trial court in the declaratory suit, the operative portion of the order dated 28.4.2014 may be abstracted herein below:- “ORDER: On appreciation of the issue No. 3 decided in favour of the plaintiff and the defendant to some extent, the plaintiff-J. Lalhmingliana is appointed to be the legal heir of his late father in respect of LSC No. 1180 of 1983 and the defendant-J. Lalhlupuii is also appointed to be the legal heirness of her late parents in respect of LSC No. 89 of 1995 and LSC No. 717 of 1995. However, since the defendant-J. Lalhlupuii had looked after her late parents in the main house (Inpui) till their death and she has been living in the said main house till date it is not just and proper to evict from her residence despite the plaintiff is appointed as the legal heir of his late father in respect of LSC No. 1180 of 1983 and, therefore further ordered that the plaintiff-J. Lalhmingliana shall not interfere with the peaceful possession of the plaintiff in the main house (Inpui) as long as she live.” 14. In terms of the above abstracted order, a decree was drawn on 6.5.2014 by the trial court. What can be understood from the above order is that although the petitioner was appointed as the legal heir of his late father in respect of LSC No. 1180 of 1983, the respondent having looked after both their parents in the main house (In Pui) till their death, she was allowed to continue living in the main house and as long as she lived and that the petitioner should not interfere with her peaceful possession of the main house. The petitioner is aggrieved with the order dated 18.11.2015 passed by the executing court insofar as he is prevented from selling or transferring the land covered by LSC No. 1180 of 1983 to any person during the lifetime of the respondent. Admittedly, the respondent is still alive while the petitioner himself has expired on 28.4.2021 and is now substituted by his minor son who is his legal heir and represented by his mother. The petitioner has not preferred any appeal against the said judgment and order or the decree of the trial court and in fact, he has applied for execution of the same. The executing court amongst others had directed that the petitioner shall not sell or transfer the land covered by LSC No. 1180 of 1983 as long as the respondent is alive. If the main house and the LSC is sold or transferred to some other person, it would naturally be not possible for the respondent to continue living in the said house and peacefully possess the same without interference. If the main house and the LSC is sold or transferred to some other person, it would naturally be not possible for the respondent to continue living in the said house and peacefully possess the same without interference. The direction not to sell or transfer the property in question in my considered view is not only relatable to the decree passed by the trial court but a condition necessary to enjoy peaceful possession of the main house during the respondent's lifetime. Therefore, in my considered view, the executing court under the facts and circumstances of the case cannot be said to have gone beyond the decree in passing the impugned order dated 18.11.2015. 15. The case of Deepa Bhargava (supra) relied upon by the counsel for the petitioner is found to be distinguishable on facts. In that case, the executing court modified the rate of interest to an amount which was not decreed by the trial court. In the present case, the executing court has only prevented the petitioner from selling or transferring the property in question during the lifetime of the respondent which is essential for peaceful possession of the property without interference as directed by the trial court in the declaratory suit. Therefore, the decision relied upon is found to be not applicable to the present case. Similarly, in Coal Linker (supra), the Apex Court in the given facts of that case held that there was no scope for the executing court to grant interest for the post-award period which in fact was not granted in the original award. However, the facts in the present case as already stated herein above are different and, therefore, the case cited is found to be inapplicable. 16. The Apex Court in Surya Dev Rai (supra) held that the power conferred upon the High Court under article 227 of the Constitution of India may be exercised in cases occasioning grave injustice or failure of justice such as, when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction. In Sudhana Lodh (supra), the Apex Court held that even where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved party is to file a revision petition under section 115, CPC. Only when section 115, CPC is expressly barred by a State enactment, the petition under article 225 of the Constitution would lie. 17. The above two authorities would go to show that article 227 of the Constitution can be invoked by an aggrieved party if the grievance falls under the prescribed parameters. In the present case’ as stated herein above, this court has already come to a finding that the executing court did not exceed its jurisdiction and, therefore, there is no occasion for this court to exercise the powers under article 227 of the Constitution. In the result, I do not find any merit in the revision petition and the same is dismissed. Office to send back the LCR.