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2024 DIGILAW 1811 (ALL)

Chandra Shekhar v. Kewal Kishore

2024-08-02

SARAL SRIVASTAVA

body2024
JUDGMENT : SARAL SRIVASTAVA, J. 1. Heard learned counsel for the petitioners and Sri Pankaj Agarwal, learned counsel for the respondents. 2. The petitioners through the present petition under Article 227 of the Constitution of India have assailed the order dated 25.04.2018 passed by Judge Small Causes Court, Saharanpur in Execution Case No. 27 of 2002 (Kewal Kishore Vs. Atmaram and others) whereby learned judge has rejected the application No. 59C of the petitioners in Execution Case No. 27 of 2002 by which the petitioner has sought the impleadment in Execution Case No. 27 of 2002 and the order dated 04.05.2018 passed in Misc. Civil Appeal No. -NIL of 2018 passed by District Judge, Saharanpur affirming the order of the trial court rejecting application No. 59C of the petitioners. 3. The facts, in brief, are that respondent No. 1 Kewal Kishore instituted SCC Suit No. 64 of 1978 against respondent Nos.2 to 7 for eviction from one shop on the grounds of default in payment of rent. The SCC Suit No. 64 of 1978 was decreed by the trial court vide judgment and decree dated 13.08.1993. The respondent Nos.2 to 7 thereafter preferred SCC Revision No. 108 of 1993. The Revision was also dismissed by the revisional court vide judgment and decree dated 22.08.1994. The Apex Court by order dated 30.11.2000 in Special Leave Petition No. 16567 of 1992 affirmed the decision of the trial court dated 13.08.1993. 4. Respondent No. 1, thereafter, put the decree for execution which was numbered as Execution Case No. 27 of 2002. 5. In the said case, after about 14 years, the petitioners filed an application 59C on 18.03.2016 praying for impleadment. The application of the petitioners does not refer to any provision of law under which the said application was filed. Application No. 59C of the petitioners is reproduced herein-below: 6. Against the said application No. 59C, respondent No. 1 filed objection 104C contending inter alia that the facts narrated in application No. 59C of the petitioners are incorrect. Respondent No. 1 categorically stated that if there was any arbitration award between Gurudas Mal and his son and daughters and that had been made rule of the Court in Original Case No. 285 of 1990, the concerned person in whose share the shop had fallen would have filed an application for impleadment which had not been done. Respondent No. 1 categorically stated that if there was any arbitration award between Gurudas Mal and his son and daughters and that had been made rule of the Court in Original Case No. 285 of 1990, the concerned person in whose share the shop had fallen would have filed an application for impleadment which had not been done. He also denied the fact that the petitioners became owners of the shop in question under the decree in Original Suit No. 19 of 1996. Besides the aforesaid plea, respondent No. 1 raised several other pleas for rejecting the application 59C of the petitioners. 7. The Executing Court vide order dated 25.05.2018 rejected the application on the ground that in a suit before small causes court only issue that arises for consideration is the relationship of landlord and tenant and the question of title is not to be gone into such suit whereas the issue which has been raised by the petitioners in their application No. 59C requires determination of title, therefore, the application is misconceived. The trial court held that no explanation has been tendered by the petitioners in filing the application after 14 years from the date of filing Execution Case, and therefore, the application is nothing but an abuse of process of the court and it is a fit case in which the application should be dismissed with costs. 8. Thereafter the petitioners preferred an appeal registered as Misc. Appeal No. NIL of 2018 which was also dismissed by the learned District Judge, Kanpur Nagar vide order dated 04.05.2018 affirming the order passed by the Executing Court. 9. Challenging the aforesaid order, learned counsel for the petitioners has contended that the Executing Court, as well as the Appellate Court, has erred in law in rejecting the application No. 59C of the petitioners inasmuch as the petitioners had demonstrated that the shop in question had come in their share under decree passed in Original Suit No. 247 of 1996 and as the petitioners became owner of the shop in question, therefore, the execution of decree passed in SCC Suit No. 64 of 1978 shall seriously prejudice the rights of the petitioners and in such view of the fact, the impleadment of the petitioners is necessary and essential for the proper adjudication of the execution case. Accordingly, it is contended that the subordinate courts have committed manifest illegality in rejecting the application. 10. Per contra, learned counsel for the respondents has contended that application No. 59C is nothing but an abuse of the process of Court inasmuch as it is the case of the petitioners that they acquired the right and title over the shop in question under the decree dated 18.02.1997 passed in Original Suit No. 247 of 1996. It is submitted that after about more than 14 years from the date of filing the Execution Case, he filed an application No. 59C in Execution Case No. 27 of 2002 without there being any explanation for the inordinate delay of 14 years in filing the said application. He contends that it is not the case of the petitioners that they had no knowledge about the pendency of the SCC Suit No. 64 of 1978 and the judgment and decree passed in the said suit affirmed by the Revisional Court and also by the Apex Court. He further submits that the application is completely vague and bereft of the necessary fact as to how and when petitioners acquired the right over the shop in question. 11. He further submits that the application under Order 22 Rule 10 CPC was not maintainable inasmuch as it is evident from the plain reading of Order 22 Rule 10 of CPC that any application under the said provision can be filed during the pendency of the suit whereas the suit has been decided with the passing of the decree by the trial court which has been affirmed by the Apex Court, and execution of proceeding is not the continuation of suit and as such on the date when the application 59C was filed by the petitioners, no suit was pending, therefore, the application was misconceived and was not maintainable. 12. 12. He further submits that the subordinate courts have rightly concluded that in the suit for small causes, the dispute that requires adjudication by the Court is the relationship of landlord and tenant between the parties and the question of title is not to be gone into in such proceeding whereas the perusal of the application No. 59C discloses that the petitioners are raising the question of title which is beyond the domain of the Executing Court inasmuch as the Executing Court is bound by the decree and cannot go behind the decree. Accordingly, it is submitted that the application is nothing but an abuse of the process of the Court. 13. To the aforesaid submission of learned counsel for the respondents, learned counsel for the petitioners would contend that the execution proceeding is also a continuation of the suit, and therefore, the application under Order 22 Rule 10 CPC is maintainable. 14. I have considered the rival contentions of learned counsel for the parties and perused the record. 15. The facts as emanate from the record are that respondent No. 1 instituted SCC Suit No. 64 of 1978 (Kewal Kishore Vs. Aatma Ram) which was decreed by Judge Small Causes Court vide judgment and decree 13.08.1993. The respondent Nos.2 to 7 against the said judgment preferred SCC Revision No. 103 of 1993 before the Additional District Judge which was also dismissed by the Revisional Court vide judgment and decree dated 22.08.1994. Thereafter, respondent Nos.2 to 7 took the matter to the Apex Court and the Apex Court dismissed the Special Leave Petition No. 16567 of 1992 vide order dated 30.11.2000. 16. Respondent No. 1, thereafter, put the decree for execution by filing Execution Case No. 27 of 2002 in October 2002. The petitioners filed an application dated 18.03.2016 after about 14 years from the date of filing of Execution Case No. 27 of 2002 which has been extracted above. 16. Respondent No. 1, thereafter, put the decree for execution by filing Execution Case No. 27 of 2002 in October 2002. The petitioners filed an application dated 18.03.2016 after about 14 years from the date of filing of Execution Case No. 27 of 2002 which has been extracted above. From the perusal of the application, it is evident that the application is vague and bereft of the necessary pleading inasmuch as there is no pleading in the application as to what property was subject matter of the Original Suit No. 247 of 1996 and even the judgment and decree dated 18.02.1997 passed in Original Suit No. 247 of 1996 was not enclosed with the application and it appears that the same was not brought on record by the petitioners with the application. 17. The application has been filed in a very casual manner just to defeat the rights of respondent Nos. 1 and to delay the execution of the decree passed in SCC Suit No. 64 of 1978. The petitioners have not even cared to refer to the provision under which such an application has been filed. It is pertinent to note that the trial court has treated the said application to be an application under Order 22 Rule 10 CPC based on the argument advanced by the learned counsel for the petitioners. To appreciate whether the application under Order 22 Rule 10 CPC in the execution proceeding is maintainable or not, it is apt to reproduce Order 22 Rule 10 CPC: “Procedure in case of assignment before final order in suit: (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. (2) The attachment of a decree pending an appeal therefrom shall be deemed to an interest entitling the person who procured such attachment to the benefit of sub-rule (1).” 18. The title of Order 22 Rule 10 CPC is ‘procedure in case of assignment before final order in suit’. So it is evident from the title and also from the reading of the Rule that the application under Order 22 Rule 10 CPC seeking leave of the Court to continue the proceeding can be filed only during the pendency of the suit. 19. So it is evident from the title and also from the reading of the Rule that the application under Order 22 Rule 10 CPC seeking leave of the Court to continue the proceeding can be filed only during the pendency of the suit. 19. In this respect, it would be appropriate to reproduce paragraph No. 7.7 of the judgment in the case of Karnataka Housing Board Vs. K.A. Nagamani, (2019) 6 SCC 424 wherein the Apex Court held that the execution proceedings even though they are proceedings in a suit, cannot be considered to be a continuation of the original suit. Paragraph No. 7.7 of the judgment is reproduced herein-below: “We affirm the view taken by the Full Bench of the Andhra Pradesh High Court and the Patna High Court. Execution proceedings even though they are proceedings in a suit, cannot be considered to be a continuation of the original suit. Execution proceedings are separate and independent proceedings for the execution of the decree. The merits of the claim or dispute cannot be considered during execution proceedings. They are independent proceedings initiated by the decree-holder to enforce the decree passed in the substantive dispute.” 20. Now in the present case, admittedly, after the confirmation of the judgment and decree of SCC Suit No. 64 of 1978 by the Apex Court vide order dated 30.11.2000, the suit has terminated and execution of the judgment and decree only remains. The execution proceedings in such view of the fact can in no manner be treated to be the continuance of the proceeding of suit and as such, in the opinion of the Court, the aforesaid application of the petitioners is misconceived and was not maintainable under Order 22 Rule 10 CPC. For the said reason, this Court is of the view that the submission advanced by learned counsel for the petitioners that the execution proceeding shall be treated to be the continuance of the suit is misconceived and devoid of merit. 21. Even otherwise the perusal of the application discloses that the petitioners are raising a question of title inasmuch their claim is based upon the decree dated 18.02.1997 passed in Original Suit No. 247 of 1996 which decree has not been brought on record. Learned counsel for the petitioners despite the query raised by the Court could not place the judgment and decree of O.S. No. 24 of 1996 before the Court. Learned counsel for the petitioners despite the query raised by the Court could not place the judgment and decree of O.S. No. 24 of 1996 before the Court. It is settled in law that in a suit before the small causes court, the court is supposed to determine the question of relationship of landlord and tenant between the parties and the question of title is not to be decided since the proceeding before the Small Causes Court is summary in nature and not a trial like regular suit. 22. In such view of the fact, this Court does not find any illegality committed by the trial court as well as by the appellate court in concluding that since in small causes suit the question of title is not to be gone into, therefore, the application is misconceived. 23. The application No. 59C of the petitioners is nothing but an abuse of process of law which is evident from the record inasmuch as respondent No. 1 has been contesting the proceeding since the year 1978 and about more than 45 years have gone and he is not able to enjoy the benefit of the decree which has attained the finality in the year 2000 after the dismissal of special leave petition of the respondent Nos. 2 to 7 against the judgment and decree passed in SCC Suit No. 64 of 1978. 24. The execution application was filed in October 2000. As per the case of the petitioners, they became owners of the shop in question under the decree dated 08.02.1997 in Original Suit No. 247 of 1997, it is not their case that they were not aware of the pendency of the suit inasmuch as there was no such pleading in their application that they did not have any knowledge about the pendency of the SCC Suit or the decree passed in the Suit. Yet the petitioners after about 19 years from the date of acquiring their interest in the property under decree dated 18.02.1997 filed an application on 18.03.2016 without any whisper in the application explaining the inordinate delay in filing application 59C. 25. The perusal of the application extracted above clearly reveals that the application has been submitted casually inasmuch as the petitioners have not even cared to quote the provision under which the said application has been filed, and the application is bereft of necessary pleading. 25. The perusal of the application extracted above clearly reveals that the application has been submitted casually inasmuch as the petitioners have not even cared to quote the provision under which the said application has been filed, and the application is bereft of necessary pleading. The aforesaid conduct of the petitioners reflects that the said application has been filed only to delay the execution of the decree of the case, therefore, this Court is of the view that it is a fit case where heavy cost which is quantified to be Rs.50,000/- be imposed upon the petitioners for misusing the process of the law. 26. For the aforesaid reasons, the writ petition lacks merit and is accordingly dismissed with the cost of Rs.50,000/- which the petitioners are directed to deposit with the legal service authority within twelve weeks from today. 27. The Registrar (Compliance) is directed to ensure the compliance of the said order. 28. A copy of the said order be sent to the Registrar (Compliance) for necessary compliance.