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Judgment
Petitioners are decree holders and they filed Execution
Case No. 08 of 2009 for execution of decree passed in Title Suit No.
78 of 1993/ 16 of 1994 but the aforesaid execution case was
dismissed by the learned Sub Judge-1, Aurangabad passing impugned
order dated 29.05.2013 on the ground that decree holders/petitioners
failed to mention the date of their dispossession and in absence of
above stated pleading, the decree for recovery of possession could
not be executed.
Shorn to unnecessary details suffice it to say that
decree holders/petitioners filed Title Suit No. 78 of 1993/ 16 of 1994
against the judgment debtors/opposite parties for declaration of their
right, title and confirmation of possession and also delivery of
possession, if they are found dispossessed during pendency of the
aforesaid suit. The above stated title suit was decreed on 21.12.1995
and the judgment debtors/opposite parties filed Title Appeal No. 02
of 1996/ 13 of 1998 which was dismissed on 05.04.2003 by the 1st
appellate court. The judgment debtors/opposite parties preferred 2 nd
appeal bearing 2nd Appeal No. 130 of 2003 which was, too, dismissed
on 01.05.2008.
It is pertinent to note here that judgment
debtors/opposite parties preferred S.L.P. (civil) No. 16789 of 2009
before the Apex Court of this country and the said special leave
petition was dismissed on 31.07.2009. It is also pertinent to note here
that when the above stated Title Suit No. 78 of 1993/ 16 of 1994 was
decreed and Title Appeal No. 02 of 1996/ 13 of 1998 was pending,
the decree holders/petitioners filed Execution Case No. 01 of 1996
before the court of Sub Judge-1, Aurangabad but the learned Sub
Judge-1, Aurangabad dismissed the aforesaid Execution Case No. 01
of 1996 passing order dated 31.01.1997 on the ground that decree
passed in Title Suit No. 78 of 1993/ 16 of 1994 was vague and was
not executable. The above stated order dated 31.01.1997 passed in
Execution Case No. 01 of 1996 was challenged by the decree
holders/petitioners before this court by filing Civil Revision No. 537
of 1997 which was dismissed by this court vide order dated
27.08.1997 and while dismissing the aforesaid Civil Revision No.
537 of 1997, this court observed in order dated 27.08.1997 that the
decree passed in Title Suit No. 78 of 1993/ 16 of 1994 has to be read
as one for confirmation of possession alone and the court further
observed in the aforesaid order as follows:-
"In a declaratory suit for title it is
almost customary for the plaintiff to seek
confirmation of possession and in the alternative,
seek recovery of possession if he is found to have
been dispossessed. In case of dispossession he has to
establish the fact and the court is supposed to record
a finding and pass a decree. If the plaintiffs in the
present case claimed reliefs in that form but did not
lead evidence nor the court recorded any such
finding, it would be wrong to expect that the
executing court would deliver possession of the
property in purported execution of the decree. In
these premises, the court below did not commit any
error in rejecting the prayer for delivery of
possession."
After disposal of S.L.P. (civil) No. 16789 of 2009, the
decree holders/petitioners again filed Execution Case No. 08 of 2009
and in the aforesaid execution case, the judgment debtors/opposite
parties filed objection raising this point that the decree passed in Title
Suit No. 78 of 1993/ 16 of 1994 was barred by law of limitation and
was not liable to be executed and also raised this point that order
passed in Civil Revision No. 537 of 1997 has been concealed by the
decree holders/petitioners and furthermore, they raised objection that
the decree passed in Title Suit No. 78 of 1993/ 16 of 1994 does not
contain relief of recovery of possession as observed by this court in
Civil Revision No. 537 of 1997 and, therefore, the Execution Case
No. 08 of 2009 was not maintainable. The court below having heard
the parties on execution petition as well as its objection passed
detailed order on 05.07.2010 rejecting the objection of the judgment
debtors/opposite parties. the judgment debtors/opposite parties
challenged the order dated 05.07.2010 before this court by filing
Civil Revision No. 753 of 2010 which was dismissed by a co-
ordinate Bench of this court vide order dated 24.07.2012 giving
liberty to the executing court to deal with the issue of dispossession
of decree holders/petitioners and accordingly, confirmed the order
dated 05.07.2010. However, after receipt of above stated order dated
24.07.2012 passed in Civil Revision No. 753 of 2010 in the court
below, the judgment debtors/opposite parties again filed objection
before the court below mentioning therein that the decree
holders/petitioners failed to mention the factum of dispossession
from the suit land during pendency of the suit and, therefore, the
decree passed in Title Suit No. 78 of 1993/ 16 of 1994 cannot be
executed because a co-ordinate Bench of this court has already
observed in Civil Revision No. 537 of 1997 that the decree passed in
Title Suit No. 78 of 1993/ 16 of 1994 shall be treated as a decree only
for confirmation of possession. the learned court below having
considered the submissions of the parties again dismissed the
Execution Case No. 08 of 2009 passing impugned order dated
29.05.2013 holding that the decree holders/plaintiffs failed to plead
the date of dispossession from the suit land either during pendency of
Title Suit No. 78 of 1993/ 16 of 1994 or in the execution petition.
Being dissatisfied with the aforesaid order dated 29.05.2013, the
decree holders/petitioners have preferred this revision petition before
this court.
Learned counsel appearing for the decree
holders/petitioners assailed the impugned order arguing that
admittedly, the learned court below passing impugned order dated
05.07.2010 had rejected the objections raised by the judgment
debtors/opposite parties and the order dated 05.07.2010 of the court
below was confirmed up to this court in Civil Revision No. 753 of
2010 but the learned court below without recalling its previous order
dated 05.07.2010 passed the impugned order which is not in
accordance with law rather it is amount to contempt of this court. He
further submitted that there was no necessity to give specific date of
dispossession and it was sufficient to plead before the execution court
that the decree holders/petitioners had been dispossessed from the
suit land and it has specifically been mentioned in execution petition
that decree holders/petitioners had been dispossessed from the suit
land and, therefore, it was the duty of the executing court to follow
the direction given in the decree passed in Title Suit No. 78 of 1993/
16 of 1994. He submitted that there is no distinction between
confirmation of possession as well as recovery of possession. In
support of his above stated contention he referred the decision of
Dwarka Prosad vs. Krishna Chandra and others reported in
A.I.R. 1939 Patna 254 but in my view, the aforesaid decision is not
applicable in the facts of the present case because the aforesaid
decision relates to the matter of valuation of a suit and in that
background the court observed that for valuation of the suit, there is
no distinction between recovery of possession and confirmation of
possession. In my view, the above stated both terms have separate
meaning because the confirmation of possession is said when a
person is in possession of any property and seeks helps of the court
for confirmation of his possession regarding that property whereas
recovery of possession means when a person is dispossessed from a
property and he seeks help of the court for restoration of his
possession over the suit property.
Learned counsel appearing for the decree
holders/petitioners further submitted that execution court has no
jurisdiction to go beyond the decree and, therefore, in the present
case, the learned court below had no right to go beyond the decree
which is sought to be executed in Execution Case No. 08 of 2009. He
submitted that admittedly, the trial court in Title Suit No. 78 of 1993/
16 of 1994 passed decree of title, confirmation of possession as well
as recovery of possession if the decree holders/petitioners are found
dispossessed from the suit land and the aforesaid decree was
confirmed up to the Hon''ble Apex Court and therefore, the executing
court was bound to accept this fact that the decree holders/petitioners
were dispossessed from the suit property during pendency of the lis.
In support of his contention, he referred decision reported in A.I.R.
1972 SC 1371 in which at para-19 it has been held by the Apex Court
as follows:-
"19. It is true that an executing court
cannot go behind the decree under execution. But that
does not mean that it has no duty to find out the true
effect of that decree. For construing a decree it can
and in appropriate cases, it ought to take into
consideration the pleadings as well as the proceedings
leading upto the decree. In order to find out the
meaning of the words employed in a decree the Court,
often has to ascertain the circumstances under which
those words came to be used. That is the plain duty of
the execution Court and if that Court fails to discharge
that duty it has plainly failed to exercise the
jurisdiction vested in it."
Learned counsel appearing for the decree
holders/petitioners further submitted that moreover, in the case of
Biswanath vs. Smt. Uttara Bewa and others reported in A.I.R.
1988 Orissa 9, it has been held by the Hon''ble Orissa High Court that
even if suit for declaration of title, confirmation of possession and in
alternative for recovery of possession is decreed and the decree is
declaring plaintiff''s title and possession only, then in that
circumstance also, the decree can be executed for delivery of
possession.
Learned counsel for decree holders/petitioners further
submitted that in the present case, admittedly, the judgment
debtors/opposite parties filed first objection on 16.03.2010 and their
objection was turned down by the executing court passing order
dated 05.07.2010 which was confirmed up to this court and,
therefore, they had no right to file second objection in the execution
proceeding as only one objection can be filed in execution
proceeding under Order 21 Rule 23 of the C.P.C. but in the present
case, the learned executing court entertained the second objection of
the judgment debtors/opposite parties though vide order dated
21.08.2010 the executing court had already allowed the petition filed
on behalf of decree holders/petitioners under Order 21 Rule 35 of the
C.P.C. and had directed the decree holders/petitioners to deposit Rs.
300/- as nazir fee and had also ordered for issuance of writ but even
after passing that order the learned executing court entertained the
objection filed by the judgment debtors/opposite parties on
17.09.2012 and on the basis of aforesaid objection passed the
impugned order which is not in accordance with law and, therefore,
the impugned order passed by the court below is liable to be set
aside.
On the other hand, learned counsel appearing for the
judgment debtors/opposite parties refuted the above stated
submissions arguing that no doubt, the trial court decreed the Title
Suit No. 78 of 1993/ 16 of 1994 which had been filed by the decree
holders/petitioners for declaration of right, title and confirmation of
possession and in alternate recovery of possession of the suit property
but admittedly, after passing of decree in Title Suit No. 78 of 1993/
16 of 1994 and during pendency of F.A. No. 02 of 1996/13 of 1998,
the decree holders/petitioners filed Execution Case No. 01 of 1996
for recovery of possession of the suit property but the aforesaid
Execution Case No. 01 of 1996 was dismissed by the executing court
on the ground of pendency of Title Appeal No. 02 of 1996/ 13 of
1998 as well as on this ground that date of dispossession from the suit
land had not been disclosed in the execution case. He further
submitted that aforesaid order passed in Execution Case No. 01 of
1996 was challenged before this court by the decree
holders/petitioners in the Civil Revision No. 537 of 1997 and a co-
ordinate Bench of this court vide order dated 27.08.1997 clarified the
controversy holding that decree passed in Title Suit No. 78 of 1993/
16 of 1994 shall be treated as one for confirmation of possession
alone and, therefore, in the aforesaid Civil Revision No. 537 of 1997
a co-ordinate bench of this court clearly held that there was no decree
for recovery of possession. The decree holders/petitioners failed to
plead before the court regarding the factum of their dispossession
from the suit land. He further submitted that however, in the
aforesaid Civil Revision No. 537 of 1997 this court observed that the
decree holders/petitioners may file a fresh suit for recovery of
possession but the decree holders/petitioners did not file any fresh
suit rather filed fresh Execution Case No. 08 of 2009 concealing the
above stated facts. He further submitted that order dated 27.08.1997
passed in Civil Revision No. 537 of 1997 has not been challenged
and the aforesaid order has already attained its finality. Therefore, the
decree holders/petitioners have no right to say that in Title Suit No.
78 of 1993/ 16 of 1994 a decree for recovery of possession had also
been passed.
Learned counsel for the judgment debtors/opposite
parties further submitted that no doubt, the learned executing court
rejected the objection regarding limitation of Execution Case No. 08
of 2009 passing order dated 05.07.2010 which was challenged before
this court in Civil Revision No. 753 of 2010 and a co-ordinate Bench
of this court vide order dated 24.07.2012 passed in Civil Revision
No. 753 of 2010 granted liberty to executing court to see the factum
of possession and dispossession of the decree holders/petitioners in
Execution Case No. 08 of 2009 and in the light of aforesaid direction,
the executing court passed the impugned order when the executing
court found that decree holders/petitioners failed to prove this fact
that they were dispossessed from the suit property during pendency
of the lis and, therefore, in the aforesaid circumstance, there is no
illegality, irregularity or impropriety into the impugned order. He
further submitted that it has specifically been pleaded by the decree
holders/petitioners before this court that this court may presume that
the decree holders/petitioners have been dispossessed from the suit
property after disposal of 2nd Appeal No. 130 of 2003 but even if it
assumed that decree holders/petitioners were dispossessed after
disposal of 2nd Appeal No. 130 of 2003, then also, the Execution
Case No. 08 of 2009 is not maintainable because the aforesaid fact
clearly demonstrates that the decree holders/petitioners were
dispossessed after termination of lis because pendency of special
leave petition is not continuation of the suit. In support of his
contention, he cited the decision of Kunhayammed and others vs.
State of Kerala and another reported in A.I.R. 2000 SC 2587
wherein it has been held by the Apex Court that if the Supreme Court
exercises its discretionary jurisdiction vested under Article 136 of the
Constitution of India, the doctrine of merger does not apply. He
further submitted that there is nothing on the entire record to show
that decree holders/petitioners were dispossessed during pendency of
the lis and, therefore, even if it is found that they were dispossessed
after termination of the lis, they cannot get any relief in the present
execution case because it is well settled principle of law that
declaratory decree is not an executable decree.
Having heard the contentions of both the parties, I
went through the record as well as decisions cited on behalf of the
parties. It is emerged out from the facts as well as submissions of the
parties that main objection of the judgment debtors/opposite parties is
that a Co-ordinate Bench of this court in Civil Revision No. 537 of
1997 has already held that the decree passed in Title Suit No. 78 of
1993/ 16 of 1994 shall be treated as a decree only for confirmation of
possession. Further objection of judgment debtors/opposite parties is
that the decree holders/petitioners have not disclosed the date of their
dispossession from the disputed land either before the regular court
or before the execution court. Therefore, in view of the aforesaid
backdrop, now it has to be seen as to whether the decree passed in
Title Suit No. 78 of 1993/ 16 of 1994 is an executable decree or not.
It is an admitted position that during pendency of F.A.
No. 02 of 1996/ 13 of 1998, the petitioners/decree holders filed
Execution Case No. 01 of 1996 seeking execution of recovery of
possession in the light of decree passed in Title Suit No. 78 of 1993/
16 of 1994 but the aforesaid Execution Case No. 01 of 1996 was
dismissed by the execution court on the ground of pendency of F.A.
No. 02 of 1996/ 13 of 1998 and also on the ground of non pleading of
factum of dispossession from the disputed land. It is also an admitted
position that the execution court while dismissing Execution Case
No. 01 of 1996 gave liberty to petitioners/decree holders to file fresh
execution case after disposal of first appeal. It is also an admitted
position that in Civil Revision No. 537 of 1997, the above stated
order of the execution court was impugned and in that scenario, this
court while exercising revisional jurisdiction gave observation that
the decree passed in Title Suit No. 78 of 1993/ 16 of 1994 shall be
treated as a decree of confirmation of possession only because in
absence of specific finding of dispossession, the decree of recovery
of possession could not be executed.
It is not in dispute that the finding and judgment of the
trial court given in Title Suit No. 78 of 1993/ 16 of 1994 was
confirmed up to the Apex Court meaning thereby the decree of
recovery of possession was also confirmed up to the Apex Court of
this country. It is also not in dispute that F.A. No. 02 of 1996/ 13 of
1998, 2nd Appeal No. 130 of 2003 as well as S.L.P. (civil) No. 16789
of 2009 were disposed of after passing the order dated 27.08.1997 in
Civil Revision No. 537 of 1997.
It is pertinent to note here that when the objection
raised by judgment debtors/opposite parties regarding the
maintainability of Execution Case No. 08 of 2009 on the ground of
limitation was rejected by the execution court vide order dated
05.07.2010, the aforesaid order was challenged before this court in
Civil Revision No. 753 of 2010 and before this court the plea
regarding the non execution of decree of recovery of possession in
the light of order passed in Civil Revision No. 537 of 1997 was
raised but this court vide order dated 24.07.2012 turned down the
aforesaid objection though liberty was granted to execution court to
examine the factum of possession and dispossession and thereafter,
an objection was filed by the judgment debtors/opposite parties
raising maintainability of the Execution Case No. 08 of 2009 on the
ground of observations given in Civil Revision No. 537 of 1997 but
in my view, when the execution court had already turned down the
objection raised by the judgment debtors/opposite parties vide order
dated 05.07.2010 and had directed for issuance of writ to execute the
decree, there was no occasion before the execution court to entertain
objection on behalf of the judgment debtors/opposite parties again.
Moreover, when this court vide order dated 24.07.2012 passed in
Civil Revision No. 753 of 2010 had already held that the order passed
in Civil Revision No. 537 of 1997 shall not operate as res judicata,
the execution court committed error in overlooking the aforesaid
observation of this court given in Civil Revision No. 753 of 2010. It
is well settled principle of law that execution court cannot go beyond
the decree and the execution court has to follow the directions/orders
given in the decree. No doubt, the execution court can interpret the
decree but admittedly, the execution court has no right to modify or
correct the decree. In Civil Revision No. 537 of 1997, this court
appears to have modified the decree because the decree passed in the
suit specifically contained the relief of recovery of possession and the
aforesaid decree was confirmed up to the Apex Court of this country.
It has been argued that the petitioners/decree holders
had never pleaded either before regular court or before execution
court regarding their dispossession from the suit property rather in
their supplementary affidavit, they have accepted that they were
dispossessed from the suit property after dismissal of second appeal
but in my view, the aforesaid contention is liable to be rejected
because it is an admitted position that during pendency of first
appeal, the petitioners/decree holders filed Execution Case No. 01 of
1996 which goes to show that at the time of filing of Execution Case
No. 01 of 1996, the petitioners/decree holders claimed that they had
been dispossessed from the suit property.
It is well known fact that it is common practice in
civil suits to seek relief for declaration of right, tile and confirmation
of possession and in alternate, recovery of possession, if the plaintiff
is found dispossessed during pendency of the suit. Therefore, it is not
necessary to give specific date of dispossession and it is the duty of
the court to find out as to whether the plaintiff who is seeking above
stated reliefs is in possession of the suit property or not and the court
is duty bound to give specific finding regarding the aforesaid fact but
in the present case, while disposing of Title Suit No. 78 of 1993/ 16
of 1994, the concerned court did not give any specific finding
regarding the dispossession of the petitioners/decree holders though
the decree for recovery of possession was granted. However, it is
obvious from the above stated fact that the petitioners/decree holders
filed Execution Case No. 01 of 1996 seeking recovery of possession
and, therefore, above stated fact establishes that the plaintiffs/decree
holders were dispossessed during pendency of the lis and, therefore,
in my view, there was no necessity to plead specific date of
dispossession.
In view of the aforesaid facts and circumstances as
well as discussions, I am of the opinion that the impugned order
cannot sustain in the eye of law. Accordingly, this revision petition is
allowed and impugned order dated 29.05.2013 passed by learned Sub
Judge-1, Aurangabad in Execution Case No. 08 of 2009 is, hereby,
set aside and the learned execution court is directed to proceed in
Execution Case No. 08 of 2009 in accordance with law without any
delay.