Bhanwar Bishnoi vs Ram Kumar

Vineet Kothari, J—The appellant/objector-Bhanwar Bishnoi son of Shri Dhukal Ram has filed the present second appeal, aggrieved by the rejection of his objections by the two courts below for execution of a decree in favour the defendant/respondent-Ram Kumar son of Shri Janki Ram, in respect of the suit property, a residential house, situated in Old Shivbari Road, Patel Nagar, behind Punjab Poultry Farm, Bikaner against the judgment-debtor-Banney Singh, which was given on rent to Banney Singh under oral agreement on 01.05.1985. The eviction decree was passed by the competent court on 02.06.1997, which became final with the rejection of the first appeal filed by the tenant-Banney Singh.

Initially, the daughter of the judgment-debtor Banney Singh, Ucchab Kanwar also filed objections under Order 21 Rule 97 CPC, which came to be rejected by the learned executing court, and that order was also upheld by the learned appellate court. Later on, the present appellant-objector Bhanwar Bishnoi filed objections under Rule 21 Rule 97 read with Section 151 CPC, which came to be rejected by the two courts below with the following observations:--

Order dated 22.02.2012 of the learned Executing Court

Order dated 09.04.2012 of the learned appellate court:

Learned counsel for the appellant, Mr. Abhinav Jain vehemently submitted that the rent agreement and the decree was only for the residential house measuring 25 x 30 feet, whereas the objector is in possession of the open land and he has produced various documents before the learned executing court below, like BPL Card, Ration Card, Health Card etc., which have indicated his residence on the said land since long for a period of about 30 years, and in execution of the said decree, he cannot be dispossessed. He also submitted that he was not party to the suit and thus, the decree is not binding upon him. In support of his submissions, he relied upon the decisions in the cases of Union of India (UOI) Vs. Ibrahim Uddin and Another, (2012) 6 JT 466 : (2012) 4 RCR(Civil) 727 : (2012) 6 SCALE 476 : (2012) 8 SCC 148 : (2013) AIRSCW 2752 : (2012) 4 Supreme 585 , Rajasthan State TPT Corpn. and Another Vs. Bajrang Lal, (2014) AIRSCW 2058 : (2014) 3 JT 604 : (2014) 2 LLJ 257 : (2014) 3 SCALE 615 : (2014) 4 SCC 693 and Babulal Vs. Raj Kumar and Others, (1996) 2 AD 330 : AIR 1996 SC 2050 : (1996) 2 JT 716 : (1996) 2 SCALE 438 : (1996) 3 SCC 154 : (1996) 2 SCR 763 : (1996) 1 UJ 700 .

On the other hand, Mr. Anil Vyas learned counsel for the plaintiff-respondent submitted that the decree is not collusive and the objections of daughter of the judgment-debtor-Banney Singh, Ucchav Kanwar having failed, the present objections filed by the appellant-Bhanwar Bishnoi are absolutely misconceived. Mr. Anil Vyas also submitted that the objector does not live at the place in question and the documents produced by him are of different addresses. He also submitted that the plot of land in question measuring 70 x 70 feet was purchased by the respondent/plaintiff-Ram Kumar and he constructed a residential house on the said land of the aforesaid measurement of 25 x 27 feet and in the execution of the said decree, the objections of his daughter also having been dismissed, the appellant cannot be allowed to question the execution of the said decree. He has also submitted that the findings of facts recorded by both the courts below based on relevant evidence, do not give rise to any substantial question of law in the present second appeal and the same deserves to be dismissed. In support of his submissions, he relied upon the decision in the case of Transmarine Corporation and Others Vs. Zensar Technologies Ltd. and Others, (2009) 12 SCALE 125 : (2009) 10 SCC 750 .

I have heard the learned counsels for the parties at length and perused the record as well as the judgments cited at the Bar.

In the considered opinion of this Court, there is no substance in the present second appeal and the same is liable to be dismissed. The findings of fact arrived at by both the learned courts below are based on the relevant evidence and the decree in favour of the respondent deserves to be executed. The objections raised by the present appellant at the belated stage on the basis of the documents which have been produced before the learned court below do not prima facie confer any right, title or interest over the land in question, including the residential house, which have been rejected by the learned trial court and which finding has become final even at the appellate court stage. The question of address and the nature of documents like, BPL Card, Ration Card, Health Card etc., do not indicate in any manner that the objections of the appellant have not been dealt with correctly by the two courts below. No document of title is available with the appellant Bhanwar Bishnoi in respect of the said land, and the documents of proof of residence at the address, which are neither specific nor detailed, do not confer any right, title or interest on the appellant to object to its execution. Moreover, inasmuch as no substantial question of law arises in the present second appeal, the same cannot be entertained. The present second appeal being devoid of any merit, is liable to be dismissed.

Before parting, the learned counsels at the Bar submitted that on 08.07.2015, a coordinate Bench of this Court had extended the interim order while adjourning the case for 13.07.2015 at the request of learned counsel for the appellant. A close perusal of the record, both in the second appeal as well as in the file of stay petition, with the assistance of both the learned counsels, clearly shows that there was no interim order at all and ever granted in the present second appeal in favour of the appellant. On the previous date 01.02.2013 only the record of the court below was summoned. There being no ex-parte order or bi-parte stay order operating in the present case. The specific orders passed on 08.07.2015, 03.08.2015, 05.08.2015 and 04.09.2015 extending the so called, rather non-existing stay order appear to have been passed in misconception that there was some stay order operating, which is to be extended. Mr. Abhinav Jain, learned counsel for the appellant was candid enough to submit that this was his mistake and the coordinate Benches were led to believe, on the submission made by the learned counsel for the appellant, that there was some stay order already operating in this case, which was to be extended on that date on account of adjournment.

Learned counsel for the respondent-decree-holder, Mr. Anil Vyas submitted that the decree has not so far been executed under the bona fide impression that there is some interim order against such execution, granted by this Court.

This Court views such matters seriously and does expect from the concerned Advocates, without there being any stay order not to pray for extension of the interim order, followed by the words ''if any''. Such vague and wrong extension of interim orders, can also lead to a confusion on the part of the courts below and they may be genuinely misled to believe that there is some stay order, which stays the execution of the decree passed by the courts below. The courts below should also remain cautious and clear about such matters and unless the original stay order with day to day extensions of the same is produced before them, there is no reason that they should stop their hands and not to execute the decree upheld by the courts below. In the present case, three years have passed since filing of the present second appeal on 19.04.2012 and the decree could not be executed, although there was no stay order granted by this Court. It also appears that the order passed by the coordinate Bench of this Court on 01.02.2013 calling for the record of the courts below, was construed to be an interim stay order, which could not be the case. This Court is not required to say anything more than this, but would leave at this only, with a word of caution to the learned counsels, that they should be careful in future about such extension of interim orders prayed for in the courts, unless they are sure and clear about grant of an existing stay order with date and details available with them.

The judgments relied upon by the learned counsel for the appellant, Mr. Abhinav Jain are not applicable to the facts of the present case and thus, are of no help to him. The present second appeal of the objector is devoid of any merit and the same is liable to be dismissed.

Accordingly, the present second execution appeal of the objector is dismissed. No costs. Copy of this order may be sent to the concerned parties as well as the learned courts below forthwith.