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2022 DIGILAW 1066 (KAR)

Sharada v. G. Dinesh

2022-08-12

SACHIN SHANKAR MAGADUM

body2022
JUDGMENT Sachin Shankar Magadum, J. - The captioned writ petition is filed by judgment debtors 3 (A-D) questioning the order of the Executing Court appointing a Court Commissioner to ascertain the availability of the vacant land in Survey No. 2/3. 2. First respondent's father namely Gangappa instituted a suit for partition and separate possession in O.S. No. 1435/1980. The said suit was decreed thereby granting share in the suit schedule property. The father of first respondent initiated final decree proceedings in FDP. No. 50/1989. In the final decree proceedings, the first respondent's father was allotted 141/2 guntas in Survey No. 2/3 which is the subject matter of execution proceedings. The FDP Court while drawing final decree held that plaintiff is entitled for middle portion of the land as shown in the sketch. However, in the operative portion of the final decree, the FDP Court also observed that if the portion allotted to first respondent's father is not vacant and if constructions have come in the said portion, then plaintiff has to be allotted vacant portion in the same land. If vacant portion is not available, then plaintiff is entitled for same portion which is allotted to him by removing constructions, if any. 3. The original plaintiff filed Execution based on the final decree. This is the second round of litigation where unfortunately defendants in the said suit are litigating. The order of the Executing Court appointing Court Commissioner is not challenged by the legal representative of plaintiff. This order is challenged by the defendants. 4. The learned counsel appearing for the present petitioners reiterating the grounds urged in the writ petition would vehemently argue and contend that the rights of the parties have been decided and concluded and a final decree is drawn after accepting feasibility of partition. The sketch furnished along with feasibility report clearly reveals that the middle portion measuring 141/2 guntas which was allotted to the original plaintiff was a vacant land and therefore, the final decree has to be given effect to and therefore, he would contend that the Executing Court erred in entertaining an application seeking appointment of Court Commissioner at the instance of respondent No. 9. He would further point out that such a recourse is not available. He would further point out that such a recourse is not available. Learned counsel would further contend that both the parties have identified the vacant portion and as on the date of passing of final decree, if 141/2 guntas of land in Survey No. 2/3 is shown to be vacant portion, respondent No. 9 cannot contend that the buildings existing in the middle portion allotted to the plaintiff were much prior to the passing of the final decree. It is in this background, he would contend that the impugned order under challenge is erroneous and the Executing Court has exceeded in exercising its jurisdiction in allowing the parties to re-litigate the issue which stood concluded at the time of passing of final decree. 5. Per contra, the learned Senior Counsel appearing for respondent No. 9 repelling the contentions advanced by the petitioners' counsel would contend that the Commissioner's report would clinch the entire controversy between the parties. Taking this Court through the report submitted by the Court Commissioner namely Lakshminarayan, he would point out that the age of the buildings would clearly indicate that they were in existence much prior to passing of final decree and therefore, the Executing Court has to only look into the later part of the final decree and allot the available vacant portion to the first respondent who is the legal representative of plaintiff. He would strongly object the objections tendered by the petitioners to the Commissioner's report. He would contend that in petition filed under Article 227 of the Constitution of India, parties cannot be permitted to object the Commissioner's report and even if objections are tendered, the Commissioner's report cannot be set aside by this Court without relegating the parties to avail remedy in the manner known to law once objections are tendered to the Commissioner's report. Therefore, he would submit to this Court that in the light of the Commissioner's report, the contentions raised in the present writ petition would not survive for consideration and therefore, the writ is liable to be dismissed. 6. The learned counsel appearing for first respondent-legal representative of plaintiff would also contend that respondent No. 9 cannot question the findings recorded by the final decree Court. 6. The learned counsel appearing for first respondent-legal representative of plaintiff would also contend that respondent No. 9 cannot question the findings recorded by the final decree Court. Adopting the arguments canvassed by the learned counsel for the petitioners, he would contend that as on the date of passing of the final decree the middle portion as shown in the sketch was found to be vacant and was rightly allotted to first respondent's father share. Therefore, he would contend that plaintiff is entitled to the portion allotted to him in the final decree and the structures if any, are to be demolished. 7. Heard the learned counsel appearing for the petitioners, learned Senior Counsel appearing for respondent No. 9 and learned counsel appearing for respondent No. 1. 8. Pending consideration of the top noted writ petition, this Court vide order 15.3.2021 appointed two Engineering Members and two advocate members to inspect the suit schedule property and submit a report in that regard. This order was passed in terms of the earlier order dated 6.3.2021 wherein this Court directed to constitute a Commission to visit the subject-matter of the execution petition and submit a report which shall also include the extent of the constructed area, age and size of the building therein, in terms of sketch available at Page 74 at Annexure-R1 to the impleading application. The area which was required to be surveyed by way of local inspection is 141/2 guntas which was allotted to the original plaintiff in final decree proceedings and the sketch available at Page 74 to Annexure-R1 to the impleading application. 9. Pursuant to the order passed by this Court, the Commission has carried out its work and a report is placed on record. I have perused the report. 10. Prima-facie, the report is not in terms of the directions issued by this Court on 6.3.2021. Therefore, the Commission report would be of no assistance to this Court. In view of consent given by petitioners to have a local inspection, the grounds urged in the present writ petition does not survive for consideration. 11. However, the arguments canvassed by the learned Senior Counsel appearing for respondent No. 9 that the Commission's report cannot be set aside by this Court and in terms of the Commission's report, the vacant land available in Survey No. 2/3 has to be allotted to the first respondent-plaintiff cannot be acceded to. 11. However, the arguments canvassed by the learned Senior Counsel appearing for respondent No. 9 that the Commission's report cannot be set aside by this Court and in terms of the Commission's report, the vacant land available in Survey No. 2/3 has to be allotted to the first respondent-plaintiff cannot be acceded to. What is under challenge before this Court is an order appointing a Court Commissioner. While examining the correctness of the said order, the right of a decree holder to enforce a final decree and secure possession of the portion allotted to him in final decree cannot be so easily taken away. Therefore, the arguments canvassed by the learned Senior Counsel is untenable. 12. In the present case on hand, the suit is of the year 1980. Final decree is of the year 1989. Plaintiff's father was allotted middle portion measuring 141/2 guntas in Survey No. 2/3. We are in 2022. The original plaintiff is no more and his son is compelled to litigate and is yet to enjoy the fruits of final decree. More often, the decree holder is left running from pillar to post to enjoy the fruits of "success", defeating the very purpose of the rigorous litigation that the parties engaged in, to bring their disputes to closure. The execution of decrees is the last leg of the arduous journey that a litigant is put through to obtain the desired relief from the Court. Of course most often the judgment debtors venture into allowing decree holders to relitigate on the same cause of action. This is nothing but affording an opportunity to the Judgment Debtors to have a backdoor entry into a fresh trial. The Hon'ble Supreme Court in the case of Rahul S. Shah Vs. Jinendra Kumar Gandhi (2021) 6 SCC 418 opined that such attempts of reviving the trial at the time of execution are the antithesis to the scheme of CPC which stipulates that all issues in a civil suit must be dealt with in the same trial. The Hon'ble Apex Court has also observed that the Court must play an active role in limiting the controversies by deciding upon all related issues to the subject matter during adjudication of the suit itself and ensure that a clear, unambiguous, and executable decree is passed in a suit. 13. The Hon'ble Apex Court has also observed that the Court must play an active role in limiting the controversies by deciding upon all related issues to the subject matter during adjudication of the suit itself and ensure that a clear, unambiguous, and executable decree is passed in a suit. 13. It appears that the problem of delays faced in execution of decrees does not totally lie in the manner in which the provisions of the CPC have been framed. In Ghan Shyam Das Gupta Vs. Anant Kumar Sinha (1991) 4 SCC 379 , the Hon'ble Supreme Court had observed that the provisions of CPC were of superior judicial quality than what is typically available under other statutes to Judges. Thus, with a pragmatic approach and careful judicial interpretation, a Court can prevent the Judgment debtors or any other person from raising a frivolous claim. 14. In appropriate cases, where in a pending execution proceedings, nothing further requires to be adjudicated, the Executing Court has to act swiftly and see that decree is enforced at the earliest. In Rahul S. Shah's case the Hon'ble Apex Court in recognizing the urgent need to reduce delay in execution proceedings, exercising its jurisdiction under Article 142 has issued certain directions. These directions were issued in larger public interest to 'subserve the process of justice so as to bring to an end the unnecessary ordeal of litigation faced by parties awaiting fruits of decree and in larger perspective affecting the faith of the litigants in the process of law'. 15. Since the petitioners have conceded for local inspection, the present writ petition does not survive for consideration. The report of the Commission also cannot be looked into. The parties are to be relegated back to the Executing Court. But however, this Court is of the view that the local inspection is a must in the present case on hand. The operative portion of the order of the Final Decree Court in FDP. No. 50/1989 clearly indicates that plaintiff is entitled to seek possession of the middle portion measuring 141/2 guntas and while securing possession, he is entitled to get the constructions removed. 16. The controversy as to whether the later part of the judgment of the final decree Court in regard to allotment of an alternate land in the same survey number is a question that needs to be determined by the Executing Court. 16. The controversy as to whether the later part of the judgment of the final decree Court in regard to allotment of an alternate land in the same survey number is a question that needs to be determined by the Executing Court. For either purpose, the local inspection of the portion allotted to the father of first respondent in Survey No. 2/3 therefore, becomes very essential. 17. Hence, without expressing any opinion on merits, the writ petition is disposed of. The parties are relegated to the Executing Court to seek local inspection and thereafter, the Executing Court shall forthwith decide by taking note of the observations made by this Court in the preceding paragraphs.