Boga Gond and Others vs Ramasai Gond

Dr. Akshaya Kumar Rath, J.—1. Challenging, inter alia, the order dated 31.7.2009 passed by the learned Civil Judge (Senior Division), Nabarangpur in E.P. No. 5 of 2005, the instant petition under Article 227 of the Constitution has been filed. By the said order, learned executing court closed the execution petition on the ground that the decree holder was put in possession of the suit land.

Opposite party as plaintiff filed C.S. No. 36 of 2004 in the court of learned Civil Judge (Senior Division), Nabarangpur for declaration of right, title and interest and recovery of possession impleading the petitioners as defendants. The suit was decreed. Assailing the judgment and decree passed by the learned trial court, defendants filed RFA No. 22 of 2005 in the court of the learned Addl. District Judge, Nabarangpur, which was eventually dismissed. While the matter stood thus, the decree-holder filed E.P. No. 5 of 2005 for execution of the decree. On 22.8.2008, learned executing court issued warrant of delivery of possession of the suit property to the decree-holder. The process server submitted the report on 28.12.2008 stating that delivery of possession of the suit land was given to the decree-holder. Thereafter, the judgment-debtor filed an application on 5.5.2009 to reject the delivery of warrant submitted by the process server and issued a fresh delivery warrant. It is stated that the judgment-debtors are all along in possession of the suit land. The process server never visited the land at any point of time. He submitted the report without following the due of process of law. Further, the suit land is surrounded by Anabadi land and the judgment-debtors are in possession of the said Anabadi land including the suit land. By order dated 31.7.2009, learned executing court closed the execution case holding, inter alia, that the delivery of suit land was already effected by the process server on 30.12.2008 and the decree-holder was put in possession of the suit land.

Heard Mr. Mishra, learned counsel for the petitioners and Mr. Sahu, learned counsel for the opposite party.

Mr. Mishra, learned counsel for the petitioners, submits that the judgment-debtors are all along in possession of the suit land. The process server had not visited the suit land. He had only submitted the report. No delivery of possession was made. the suit land is surrounded by Anabadi land and the judgment-debtors are in possession of the said Anabadi land including the suit land. He relies on the decision of this Court in the case of Kairu @ Kai Kisan & another v. Smt. Munki Kisani & others, , 70 (1990) CLT 396 to buttress his submission that when there is no delivery of possession and decree is not satisfied, the judgment-debtors can bring the same to the notice of the court.

The decree passed by the learned trial court has attained finality. Thereafter, decree-holder laid execution case. On 22.8.2008, learned executing court issued warrant of delivery of possession of the suit land. The process server submitted the report on 28.12.2008 stating that delivery of possession of the suit land was given to the decree-holder. After lapse of five months, the judgment-debtors filed an application contending, inter alia, that the delivery of possession was not made. The same is only a mere paper transaction. Further, the suit land is surrounded by Anabadi land and the judgment-debtors are in possession of the said Anabadi land including the suit land.

The decision relies on by the learned counsel for the petitioner is distinguishable on facts. The question arose in Kairu @ Kai Kisan (supra) that was it open to the judgment-debtors to raise objection that delivery of possession had not been effected when the decree-holder asserted delivery of possession and delivery of possession was reported by process server and wanted disposal of the execution case on full satisfaction ? In the said case, opposite party No. 1 instituted a suit for declaration of title and recovery of possession. The suit was decreed. She levied execution of the decree. Objections were taken by the judgment-debtors that the parties were jointly recorded in the finally published major settlement record-of-rights with plot numbers different from the numbers which the property bore during Hamid settlement. The suit having been filed with reference to Hamid settlement plot numbers which were nonexistent, execution and delivery of possession was not possible and having regard to the joint recording, unless there was a partition, possession of specific property could not be delivered to the decree-holder. The objection was rejected by a laconic order. The decree holder was called upon to take steps. On 21.3.1984, a memo was filed by the advocate for the decree-holder stating that the decree-holder had already taken delivery of possession through court and the execution case should be dismissed on full satisfaction. The judgment-debtors filed an application under Section 47 CPC objecting to the disposal of the execution case on full satisfaction on the ground that no delivery of possession was effected. The decree-holder challenged the maintainability of the objection when she admitted delivery of possession and wanted dismissal of the execution case on full satisfaction. The executing court took up the question of jurisdiction preliminarily. It held that under the provisions of CPC, the judgment-debtors were not competent to raise objection that delivery of possession accepted by the decree-holder as complete and effectual was a paper delivery and at the stage of delivery of possession, the Code did not contemplate any objection by the judgment-debtors to the delivery of possession. If there was excess delivery of possession of property not covered by the decree was delivered, he was entitled to raise objection. The matter came to this Court. Learned Single Judge came to hold that if there was, in fact, no delivery of possession, complete or legal, the decree is not satisfied, whatever the decree-holder may say to the contrary. In para-8 of the report, this Court further held as follows:

"8. I would, however, prefer the decision of the learned Single Judge of Mysore in Raghavendra''s case. That appeals to logic and common sense. If there was, in fact, no delivery of possession-effective, complete or legal - the decree is not satisfied, whatever the decree-holder may say to the contrary. This follows from Rama Subudhi''s case, referred to above. I do not understand why on principle it shall be open to the decree-holder to move the second application even for delivery of possession despite report that possession had been delivered but the judgment-debtor would be deprived of his right to objection that possession has not, in fact, been delivered. I do not agree with the observations in Tavanappa''s case, that the judgment-debtor has no interest in the property to protect. Fraudulent delivery of possession might land him in troubles and his interest in the property might be in jeopardy. For example, when he is, in fact, in possession and possession has not been taken from him, it would be open to the decree-holder to institute criminal proceedings for his occupation alleging that he had entered upon the land or done some act after delivery of possession. Therefore, he is vitally interested in objecting to the decree-holder''s plea or the report of the process-server that possession has been delivered when it is not so. Many other illustrations can be given, but it is unnecessary for me. The language of section 47 does not admit of any such exclusionary rule. As the language reads, objection can be raised to the satisfaction of the decree. If the decree-holder can, much more so the judgment-debtor. Hence, I am of the view that it was open to the judgment-debtors, notwithstanding the report of the process server and statement of the decree-holder that possession was delivered, to raise objection that possession of the immovable property was not delivered."

In the instant case, the grievance of the judgment-debtors is that they are in possession of the Anabadi land and the possession has been delivered. The plea taken by the judgment-debtors appears to be misconceived. The judgment-debtors have no abiding interest in the Government land. Both the courts below that the decree-holder has right, title and interest over the suit property. The possession of the suit property was delivered to the decree holder. Learned executing court has not held that the execution case is maintainable. It was held that the delivery of suit land was already effected by the process server of the court on 30.12.2008 and the decree-holder was put in possession of the suit land. Held so, it closed the execution case on full satisfaction. Since the learned executing court decides the petition on merit, thus the ratio decided in Kairu @ Kai Kisan (supra) has no application in the facts and circumstances of the case.

The petition, sans any merit, is dismissed

By this petition under Article 227 of the Constitution of India, challenge is made to the order dated 15.1.2003 passed by the learned Civil Judge (Senior Division), Khurda in Misc. Case No. 84 of 1996 arising out of Money Suit No. 87 of 1996 whereby and whereunder the compromise decree passed in the Lok Adalat was set aside under Order 47 Rule 1 CPC.

The petitioner had availed a term loan amounting to Rs. 80,000/- from opposite party No. 2-Bank to purchase a tractor. He became defaulter. Thereafter, opposite party No. 2-Bank laid Money Suit No. 87 of 1996 in the court of learned Civil Judge (Senior Division), Khurda for realization of Rs. 2,44,539/- along with interest. While the matter stood thus, the matter was placed before the Lok Adalat held on 7.5.2000. A joint compromise petition was filed by the parties on certain terms and conditions, vide Annexure-7. The contents of the petition had been read over and explained to the parties. They admitted to be correct. Learned trial court accepted the compromise petition and decreed the suit in terms of the compromise. Learned trial court observed that the compromise petition will form part of the decree. Thereafter, the petitioner deposited the entire amount in terms of the compromise and the same was accepted by the Bank. While the matter stood thus, the plaintiff filed an application under Order 47 Rule 1 CPC to review the order dated 7.5.2000 passed by the learned court below in the Lok Adalat. It is stated that the suit was originally filed for recovery of Rs. 2,44,539/- and subsequently the same was increased to Rs. 3,09,722/- by way of amendment. The suit was placed before the Lok Adalat on 7.5.2000 and decreed for Rs. 1,15,000/- on the compromise petition signed by defendant No. 1 and Assistant Manager of the Bank. While signing the compromise petition, the Assistant Manager put the seal of the Bank and signed the same as if he was an agent of the Bank without any authority to act as a Bank Manager in the Lok Adalat. Further, advocate for the plaintiff had not signed the compromise petition and unaware of the same. The Branch Manager has alone the authority to file a suit, sign the plaint, petition, appoint lawyers and has no authority to transfer power to any other officer/employee. It is further stated that the compromise made in the Lok Adalat was not lawful and the court acted beyond his jurisdiction and accepted the petition for compromise between the Bank and the defendants. To substantiate the case, the Assistant Manager of the Bank, who signed the compromise petition, was examined as P.W.1. By order dated 15.1.2003, learned trial court allowed the application and set aside the order dated 7.5.2000 passed in the Lok Adalat.

Heard Mr. Chandan Panigrahi, learned counsel for the petitioner. None appears for the opposite parties.

With a solemn aim for providing free legal aid, the Legal Services Authorities Act, 1987 (hereinafter referred to as "the Act") was enacted by the Parliament. The statement of objects and reasons of the Act states as follows:

"Article 39A of the Constitution provides that the State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

With the object of providing free legal aid, Government had, by a Resolution dated the 26th September, 1980 appointed the "Committee for Implementing Legal Aid Schemes" (CILAS) under the Chairmanship of Mr. Justice P.N. Bhagwati (as he then was) to monitor and implement legal aid programmes on uniform basis in all the States and Union territories. CILAS evolved a model scheme for legal aid programme applicable throughout the country by which several legal aid and advice boards have been set up in the States and Union territories. CILAS is funded wholly by grants from the Central Government. The Government is accordingly concerned with the programme of legal aid as it is the implementation of a constitutional mandate. But on a review of the working of the CILAS, certain deficiencies have come to the fore. It is, therefore, felt that it will be desirable to constitute statutory legal service authorities at the National, State and District levels so as to provide for the effective monitoring of legal aid programmes. The Bill provides for the composition of such authorities and for the funding of these authorities by means of grants from the Central Government and the State Governments. Power has also been given to the National Committee and the State Committees to supervise the effective implementation of legal aid schemes.

For some time now, Lok Adalats are being constituted at various places in the country for the disposal, in a summary way and through the process of arbitration and settlement between the parties, of a large number of cases expeditiously and with lesser costs. The institution of Lok Adalats is at present functioning as a voluntary and conciliatory agency without any statutory backing for its decisions. It has proved to be very popular in providing for a speedier system of administration of justice. In view of its growing popularity, there has been a demand for providing a statutory backing to this institution and the awards given by Lok Adalats. It is felt that such a statutory support would not only reduce the burden of arrears of work in regular courts, but would also take justice to the door-steps of the poor and the needy and make justice quicker and less expensive."

The Act was enacted with a view to give effect to the mandate of Article 39A of the Constitution of India. The Lok Adalat is an ancient system of adjudication of disputes. It is a People''s Court. Lok Adalat provides for cheap and inexpensive justice to the common man. The benefits of Lok Adalat have been succinctly stated by the apex Court in the case of P.T. Thomas v. Thomas Job, , (2005) 6 SCC 478, which is quoted below:

"The ''Lok Adalat'' is an old form of adjudicating system prevailed in ancient India and its validity has not been taken away even in the modern days too. The words ''Lok Adalat'' mean ''People''s Court''. This system is based on Gandhian principles. It is one of the components of ADR system. As the Indian courts are overburdened with the backlog of cases and the regular courts are to decide the cases involve a lengthy, expensive and tedious procedure. The court takes years together to settle even petty cases. Lok Adalat, therefore provides alternative resolution or devise for expeditious and inexpensive justice.

In Lok Adalat proceedings there are no victors and vanquished and, thus, no rancour.

Experiment of ''Lok Adalat'' as an alternate mode of dispute settlement has come to be accepted in India, as a viable, economic, efficient and informal one.

LOK ADALAT is another alternative to JUDICIAL JUSTICE. This is a recent strategy for delivering informal, cheap and expeditious justice to the common man by way of settling disputes, which are pending in courts and also those, which have not yet reached courts by negotiation, conciliation and by adopting persuasive, common sense and human approach to the problems of the disputants, with the assistance of specially trained and experienced members of a team of conciliators."

Benefits under Lok Adalat

There is no court fee and if court fee is already paid the amount will be refunded if the dispute is settled at Lok Adalat according to the rules.

The basic features of Lok Adalat are the procedural flexibility and speedy trial of the disputes. There is no strict application of procedural laws like the Civil Procedure Code and the Evidence Act while assessing the claim by Lok Adalat.

The parties to the dispute can directly interact with the judge through their counsel which is not possible in regular courts of law.

The award by the Lok Adalat is binding on the parties and it has the status of a decree of a civil court and it is non-appealable, which does not cause the delay in the settlement of disputes finally.

In view of above facilities provided by "the Act" Lok Adalats are boon to the litigating public that they can get their disputes settled fast and free of cost amicably."

Section 21 of the Act deals with award of Lok Adalat. The same is quoted hereunder;

"21. Award of Lok Adalat- (1) Every award of the Lok Adalat shall be deemed to be a decree of a Civil Court or, as the case may be, an order of any other Court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred to it under Sub-section (1) of Section 20, the Court-fee paid in such case shall be refunded in the manner provided under the Court Fees Act, 1870 (7 of 1870)

(2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any Court against the award."

The specific language used in sub-section (1) of Section 21 of the Act makes it clear that every award of the Lok Adalat shall be deemed to be a decree of the Civil Court and, as such, executable by that court. Sub-section (2) of Section 21 of the Act provides that every award made by a Lok Adalat shall be final and binding on all the parties to the disputes, and no appeal shall lie to any Court against the award. The decree can be reviewed under Order 47 Rule 1 CPC provided the same satisfies the pre-conditions enumerated under Order 47 Rule 1 CPC.

Order 47 Rule 1 CPC, which is the hub of the issue, is quoted hereunder;

"Order - XLVII REVIEW

Application for review of judgment - (1) Any person considering himself aggrieved -

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred;

(b) by a decree or order from which no appeal is allowed; or

(c) by a decision on a reference from a Court of Small Causes;

and who, from the discovery of new and important matter or evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review."

Interpreting the aforesaid provision, the apex Court in the case of Kamlesh Verma v. Mayawati & others , AIR 2013 SC 3301 held as follows:

"15. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1 of CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction.

Summary of the Principles:

Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:

(A) When the review will be maintainable:--

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

The words "any other sufficient reason" has been interpreted in Chhajju Ram v. Neki, , AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius & Ors., (, (1955) 1 SCR 520 : AIR 1954 SC 526), to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. & Ors., , JT 2013 (8) SC 275 : (2013 AIR SCW 2905).

(B) When the review will not be maintainable:--

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot be equated with the original hearing of the case.

(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.

(vi) The mere possibility of two views on the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."

On the anvil of the decisions cited supra, the instant case may be examined. The matter was placed before the Lok Adalat on 7.5.2000. The Assistant Manager of the Bank as well as defendant No. 1-loanee signed the compromise petition. The Assistant Manager of the Bank had put the seal of the Bank. The contents of the compromise petition had been read over and explained to the parties in presence of their advocates. They admitted the same to be correct. Thereafter, the learned trial court decreed the suit in terms of the compromise and observed that the compromise petition shall do form part of the decree. When a responsible officer of the Bank signed the compromise petition and admitted the same to be correct, this Court fails to understand as to how learned trial court acted beyond its jurisdiction in accepting the compromise petition. Neither there is any material on record to show that the Assistant Manager of the Bank signed the compromise petition at the behest of the Court, nor the decree was obtained by playing fraud on Court. Frivolous allegation has been made against the court without any foundational facts. A litigant cannot be permitted to make frivolous allegation against the Court to get his affairs settled in the manner he wishes. If such a petition is entertained, then it will frustrate the mandate of the Act.

Pursuant to the compromise petition the suit was disposed of. Defendant No. 1-loanee has paid the entire amount and the same has been accepted by the Bank. There is no error apparent on the face of the record warranting review of the decree passed in the Lok Adalat.

In the wake of the aforesaid, the impugned order dated 15.1.2003 passed by the learned Civil Judge (Senior Division), Khurda in Misc. Case No. 84 of 1996 is hereby quashed.

Accordingly, the petition is allowed.