Chandrika Prasad vs Indramani (Dead) and Others

U.C. Maheshwari, J.—Shri K.K. Sharma, counsel for the original Caveator, namely, Indramani submits that the caveator has passed way. Such submission is taken on record. It is noted that after death of original caveator, such counsel has no right to argue on merits of the matter.

Heard on question of admission.

The petitioner/judgment debtor/the defendant of COS No. 132- A/93 decided on 25.10.96 by III Civil Judge II Rewa, has filed this writ petition under Article 227 of the Constitution of India for quashment of the order dated 3.9.12 passed by III Civil Judge-II, Rewa in Execution Case No. 132-A/93-11 whereby his application filed under Order 21 rule 29 of the CPC for grant of stay till disposal of COS No. 1-A/12 filed for declaring the aforesaid decreed to be ab-initio void pending in the court of V Civil Judge Class II, Rewa has been dismissed.

After taking me through the papers placed on the record along with the impugned order, petitioner''s counsel argued that initially the aforesaid COS No. 132-A/93 was proceeded ex-parte against him and was also decreed ex-parte. Thereafter, instead to file any appeal against such ex-parte judgment and decree, he filed an application under Order 9 rule 13 of the CPC which was registered as MJC No. 88/02. On consideration, the same was dismissed by the trial court vide order dated 6.12.04. Against that, he preferred M.A. No. 13/05. On consideration, by affirming the order of the trial court, the same was dismissed by the II ADJ, Rewa vide order dated 9.12.05.

Subsequent to aforesaid, in pendency of the execution proceedings of the aforesaid ex-parte decree, the petitioner/judgment debtor filed COS No. 1-A/12 for declaring the aforesaid ex-parte judgment and decree to be ab-initio void and not executable against him. Pursuant to it, some perpetual injunction has also been prayed in it. Such suit is still pending for adjudication in which his application for issuing ad interim injunction against the decree under execution is also pending. In such factual background, he argued that when the decree under execution has been passed ex-parte and to set aside the same his suit is pending then till disposal of the suit, by virtue of Order 21 rule 29 of the CPC, under the discretionary power of the court, the further proceedings of the execution case, ought to have been stayed by the executing court. But contrary to the record and such provision, by dismissing his impugned application filed under Order 21 rule 29 of the CPC, the executing court has proceeded to execute the ex-parte decree. He fairly submitted that till today his interlocutory application filed in COS No. 1-A/12, has neither been considered nor any order has been passed on merits on the same. Even no interim order has been passed on such application. In continuation, he said that if the execution proceeding is not stayed then in such circumstance under execution of the decree, the petitioner will be dispossessed from the disputed property and will suffer in a lot. Besides that many other complications may happen between the parties. In support of his contention, by placing his reliance on a decision of the Karanataka High Court in the matter of Smt. Sundra Bai and Others Vs. Smt. Sonubai, , he prayed for admission of this petition.

Having heard the counsel, keeping in view his arguments, I have carefully gone through all the papers annexed with the petition along with the impugned order.

It is undisputed fact, as stated above, that initially the civil suit was filed by the predecessor-in-title of the respondents, namely, Indramani against the present petitioner with respect of possession and redemption of the immovable mortgaged property. The same was decreed ex-parte against the petitioner. Subsequent to it, an application under Order 9 rule 13 of the CPC was filed for setting aside such ex-parte decree. On consideration, such proceedings was also dismissed by the trial court. On challenging such order in the Misc. appeal, the same was also dismissed by affirming the order of the trial court. On challenging the appellate court order in C.R. No. 136/06 before this court, on consideration, vide order dated 30.11.2011, such revision has also been dismissed. So, in such premises, the aforesaid ex-parte decree had attained finality between the parties and thereafter if the respondents who are the successors of the principal decree holder, are going to execute the aforesaid decree then the executing court did not have any other option except to proceed to execute the decree according to its terms and directions and such way was adopted by the executing court.

True it is that subsequent to exhausting the remedy to set aside the ex-parte decree, the petitioner has filed the COS No. 1 -A/11 in the court of Civil Judge Class II, Rewa and in such suit he has also filed an application for issuing ad interim injunction against the operation and execution of the impugned decree under execution but till today neither ex-parte nor bi-parte order has been passed by such court in such matter and in this matter nothing of that suit could be taken into consideration otherwise the right of the petitioner to prosecute said suit on merits may be prejudiced. However, taking note of it that in such civil suit also no injunction as prayed by the petitioner, has been granted, I am of the considered view that unless such decree is stayed by any competent court with appropriate order or any interlocutory injunction is granted against the execution of such decree, the executing court cannot stop its hands to execute the same and pursuant to it, considering the objections of the petitioner filed under Order 21 rule 29 of the CPC, the executing court cannot go beyond the decree and this court while sitting in the superintending jurisdiction, against the order of the executing court, cannot interfere in such order which has been passed by such court under its vested jurisdiction and in accordance with the procedure and the settled proposition of the law.

It is noted that Article 227 of the Constitution of India does not give any independent right to pass any order to this court but that gives the authority to this court to examine the legality, perversity, error or anything with respect of propriety of the law in the order impugned and, in such premises, I have not found any case in favor of the petitioner for interference in the order impugned even for admission of this petition.

So far the case law cited on behalf of the petitioner in the matter of Smt. Sundra Bai (supra) is concerned, it is suffice to say that in that case it was held that in pendency of the civil suit against the decree at the instance of the judgment debtor, the power to stay the execution proceedings should be invoked by the executing court in judicial manner and not in the arbitrary manner and only in exceptional circumstances and, ultimately, such petition filed by the judgment debtor was dismissed by the Karnataka High Court. Hence the case law cited on behalf of the petitioner is not helping to the petitioner.

In view of the aforesaid discussion, I have not found any exceptional ground in the present matter to stay the impugned execution proceedings. I am of the considered view that if any stay is granted against the execution then the decree holder or his legal representatives may be deprived to get and enjoy the fruits of validly passed decree in their favor which is not the Intention of the legal procedure or the system.

So far the apprehension of the petitioner that in pendency of the civil suit if under execution of the decree he is dispossessed from the disputed property then he has to suffer in a lot. Such apprehension does not have any water because subject to securing any interim or final order by the petitioner in the aforesaid COS No. 1-A/12, he shall be at liberty to restore the earlier position by adopting the procedure provided u/s 144 of the CPC because such provision is enacted only for that purpose.

However, it is made clear that any observations or findings given by the trial court in the order impugned or by this court in the present order, shall not come in the way of the petitioner to prosecute the aforesaid pending COS No. 1-A/12 and the application filed in such case. The trial court shall decide such suit and application on its own merits in accordance with the procedure provided under the law. In view of the aforesaid I have not found any illegality, irregularity, perversity, infirmity or anything against the propriety of the law in the order impugned which requires any interference before this court under Article 227 of the Constitution of India, hence this petition is hereby dismissed at the initial stage of motion hearing.

C.C. as per rules