Govindlal vs General Radio and Electric Company and Others

V.S. Kokje, J.

1-2. This is a petition under Article 227 of the Constitution of India, challenging the order of the District Court passed in a revision application in an execution matter. The case arises out of an eviction matter. The Petitioner filed a suit for ejectment against the Respondent A decree for ejectment was passed in that suit. Second Appeal of the Respondent was dismissed by this Court and a SLP filed against that judgment by the Respondent was also dismissed by the Supreme Court. Thereafter an objection was raised as to the executibility of the decree. This was rejected by the executing Court and a revision filed against that order was also dismissed by the revisional Court. A petition under Article 227 of the Constitution of India was preferred against the revisional order over-ruling the objection to the executibility of the decree. This petition was also dismissed by the High Court on 25-3-1991. On 1-4-1991 an application was filed by the Respondent No. 1 under Order 21, R. 2 read with S. 151 of the Code of Civil Procedure, setting up a compromise said to have taken place on 27-3-1991. This claim of adjustment of the decree is still under investigation. During the pendency of the enquiry as to the adjustment of the decree, the Respondent No. 1 moved an application for stay of execution proceedings. The Executing Court refused to stay the execution holding that no irrepairable loss likely to be caused to the judgment-debtor and if it is ultimately proved that the decree was adjusted, restitution could be ordered. The Executing Court also considered the back ground of the case and observed hat the decree-holder was engaged in a long drawn battle by the Judgment-debtor and it would not be just and proper to deprive(sic) him of the fruits of the decree where he has denied having entered into a compromise or having directed(sic) any written deed evidencing the compromise or adjustment of the decree. From this order dated 2-4-1991, the Respondent No. 1 filed a revision application before the District Court and the learned(sic) 8th Additional Judge to the Court of the District Judge. Indore, allowed(sic) it by his impugned order dated 11-4-1991 (Annexure-M to the petition).

3 On 1-5-1991 the petition was admitted for final hearing and a notice was issued to the Respondents. The case was finally heard on 24-6-1991 in the present of the counsel for both the parties. The sole question for consideration before us is as to whether the 8th Addl. Judge to the Court of the District Judge, Indore exceeded his jurisdiction in passing the order dated 11-4-1991 (Annexure-M), setting aside the order of the Executing Court refusing to stay the execution substituting it by an order staying execution of the decree till the disposal of the application under O 21, R. 2 of the C. P. C.

It appeares that the Revisional Court has interferred on the ground of material irregularity being committed by the Executing Court in exercise of jurisdiction. It cannot be said that the Executing Court had no jurisdiction to consider and dispose of an application for stay one way or the other. There is no question of the Executing Court having exercised jurisdiction not vested in it by law. It cannot also be said that the Executing Court has failed to exercise jurisdiction to decide the application one way or the other because it has actually decided the stay application. A perusal of the revisional order would show that it has interferred with the order of the Executing Court refusing to stay execution only on the ground that dispossession from an immovable property by itself would be irrepairable loss and if the execution of the decree is not stayed, the proceedings for certification of the adjustment would become meaningless.

It is settled law that while considering a stay application the Court has to see whether a prima fecie case in favour of the applicant exists which way the balance of convenience lay and whether irrepairable loss would be caused to the applicant if stay order was not granted. In. the present case, in view of the provisions of Order 21, R. 2 of the C. P. C., it could not be said that a prima facie care existed in favour of the applicant. Clause (D) of Sub-rule 2-A of R. 2 of Order 21 prohibits recording of an adjustment on behalf of the judgment-debtor unless it is proved by a documentary evidence or unless it was admitted by or on behalf of the decree-holder. Sub-rule 3 or R. 2 of Order 21 makes it very clear that a claim of adjustment, which has not been certified or recorded as per sub-rules 1, 2 and 2-A of Order 21, R. 2 of the C. P. C., shall not be recognized by any Court executing the decree. The plain meaning of the provisions, therefore, is that merely because the judgment-debtor makes allegations about the adjustment having taken place in writing, it cannot be presumed that he has a prima facie case.

6 The next question is as to balance of convenience. The judgment-debtor had taken a plea that he was carrying on business in the premises for years and a large amount of money is yet to be recovered from his customers, to whom he had given goods on credit. Merely because the applicant would be put to inconvenience, execution of the decree cannot be stayed. The judgment-debtor was aware of the fact that if he looses in the eviction suit, he shall have to vacate the premises. After years of the litigation, he cannot take the plea of inconvenience caused to him by execution of the decree.

The Respondent No. 1 had also taken the plea before the lower Courts that irrepairable loss would be cause to him by ejectment and the proceedings for certification of adjustment would become meaningless. It appears that this argument has weighed with the revisional Court, which had observed that dispossession from immovable property itself is irrepairable loss. We do not agree that the presumption as to irrepairable loss because of dispossession from immovable property applies in this case. In this case dispossession shall be under a decree of the Court and that too of a decree which has stood the test of scrutiny of all Courts upto the Supreme Court. Dispossession under the sanction of law and through process known to law cannot be said to cause irrepairable loss to any one so as to allow him to claim an equitable relief of stay of execution. If the test applied by the revisional Court is upheld, unscrupulous judgment-debtors can stall process of execution simply by filing an application for certification of an adjustment above with stay application and the execution would be stayed irrespective of the circumstances of the case and probabilities of the decree-holder having entered into such adjustment.

For the foregoing reasons we are of the view that the revisional Court had clearly exceeded its jurisdiction in setting aside the order of the executing Court refusing to stay the execution and in granting stay of execution. There was no jurisdictional error committed by the executing Court in refusing to grant stay and there was no scope for interference in revisional jurisdiction in the order passed by the executing Court. By an amendment of S. 115 in the State of M. P. the jurisdiction of the Court is further hedged in by a rider that the revisional Court shall not varry or reverse any order except where the order if allowed to stand would occasion a failure of justice or cause irrepairable injury to the party against whom it was made In this case it cannot certainly be said looking to the background of the case that the order of the executing Court could occasion a failure of justice or cause irrepairable injury to the judgment-debtor (Respondent No. 1 before us). On the contrary, the stay of execution, in our opinion would cause a failure of justice and deprive a decree-holder of the fruits of the decree obtained by litigating upto the Supreme Court merely because an allegation that the decree has been adjusted has been made against him by the judgment-debtor, which allegation the Decree Holder has denied in no uncertain terms. In case, the judgment-debtor is able to prove the adjustment in Court and get it certified under Order 21, R. 2 of the C. P. C. restitution can be ordered in his favour. But the Judgment-Debtor cannot be allowed to keep the possession in anticipation of certification of adjustment.