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Judgment
The petitioner before this Court has filed present petition being aggrieved by order dated 01/03/2018 and 08/02/2010 passed in Civil Miscellaneous
Case No.04/2014 and Execution Case No.6-A/1991 by II Additional District Judge, Ujjain and IV Additional District Judge, Ujjain respectively.
02- The facts of the case reveal that the deceased petitioner executed a registered sale deed of the plot in question in the year 1986 and thereafter,
filed a civil suit for recovery of Rs.5,00,000/along with interest, wherein a preliminary decree was drawn on 24/09/1991, whereby the direction was
issued to make the payment of Rs.5,65,000/- and interest on Rs.5,00,000/- with interest @ 12%.
03- The writ petition and reply filed by the respondent No.2 reveals that on 28/04/1992 the execution was filed before the learned Additional District
Judge, Ujjain by the petitioner and sale proclamation was issued and auction was done without valuation of the property by the court.
04- The respondent on getting the knowledge of the auction submitted an objection, which was dismissed by the learned executing court by an order
dated 04/10/1999 in Execution Case No.06-A/1991, which was subjected to challenge by the respondent before the High Court by filing a writ petition
i.e. Writ Petition No.1757/2002, and the High Court has allowed the writ petition and matter was remanded back to the Executing Court to again
decide the objection in the light of Deshbandhu Gupta's case.
05- The facts further reveal that on 31/07/2000, a final decree was passed by the Additional District Judge, Ujjain, whereby the respondent was
directed to pay Rs.66,050/- and further interest on Rs.5,00,000/- with interest @ 6% p.a. (i.e. 50 paisa percent per month) from the date of filling of
the suit till payment. On 21/08/2000 the petitioner moved an application for execution of the final decree for recovery of Rs.4,46,926/-, which were
deposited by the respondent.
06- After the remand the objections were allowed by the Executing Court by an order dated 11/11/2003 and the auction sale was set aside, the same
was challenged by the petitioner by filing an appeal before this Court and the same was registered as Misc. Appeal No. 52/2004 and by an order
dated 28/04/2004 the appeal was allowed. The order dated 28/04/2004 was challenged by the respondent before the Hon'ble Supreme Court and in
C.A.No.2598/2005, the Hon'ble Supreme Court was pleased to dispose of the appeal with a direction to the respondent to deposit a sum of
Rs.15,00,000/- within 4 months from the date of order with a further direction that the respondent shall be responsible for payment of Property Tax
from the date of execution of sale deed till the date and the same shall be deposited with the concerned authority within 4 months and on payment of
the amounts, the title to the property described in the registered sale deed will be free from all encumbrances.
07- The order passed by the Hon'ble Supreme Court in paragraphs No.11 to 13 reads as under:-
“11. The records do not reveal that the appellant-judgment debtor was served with a notice as required under Order 21 Rule 54(1)(A) of the Code
in the appendix B Forms 23, 24 and 29. It is to be noted that the records reveal that the address of the appellant as contained in the sale deed was
different from the address at which the process server purportedly affixed the notice on the door and in open court and at the chorah only. It has also
to be noted that under Order 21 Rule 66(2) the service of the notice has to be personally affected on the judgment debtor. That also does not appear
to have been done. Interestingly, the valuation of the property as required to be done under the proviso to sub-rule (2) of Rule 66 of Order 21 of the
Code has not been done. The same appears to have been valued on the spot at Rs.9,00,000/- and it was not done by the Court. There are admittedly
other noncompliance with certain requirements. We do not think it necessary to deal with those aspects in detail in view of the order proposed to be
passed. From the records it is revealed that Rs.14,38,893/- and Rs.4,46,926/- have been deposited by the appellant purportedly for satisfaction of the
Execution Court Ujjain and Indore respectively. The appellant shall further deposit a sum of Rs.15,00,000/- within 4 months from today. The
respondent No.1 shall be entitled to withdraw the amount deposited in the bank with accrued interest. The appellant shall be responsible for payment
of the property tax of the property from the date of execution of sale deed i.e. 5.12.1986 till date and the same shall be paid deposited with the
concerned authority within the aforesaid period of four months. On payment of the amounts, the title to the property described in the registered sale
deed will vest free of all encumbrances on the appellant.
If any property of the respondent No.1 is there in the property in question, the same shall vest to respondent No.1 with liberty to remove them as
soon as the payment is made.
The appeal is disposed of accordingly. No costs.â€
08- In compliance of the order passed by the Hon'ble Supreme Court, the petitioner deposited the requisite amount of Rs.15,00,000/- along with the
receipts of the payment made towards the property tax since from the year 1986 along with application under Order XXI Rule 2 in Execution Case
No.6A/1991 pending for execution of preliminary decree dated 24/09/1991 before the learned VIII Addition District Judge, Ujjain (Executing Court)
and also filed an application under Order XXI Rule 2 in Execution Case No.39/2000 pending for execution of final decree dated 31/07/2000 before the
VI Additional District Judge, Indore, wherein the petitioner in Execution Case No.39/2000 also raised and submitted the same objections before the
learned executing court inspite of the fact that the petitioner already withdrew the amount of Rs.6,80,175/- on 23/12/2008 .
09- On the other hand, learned Executing Court passed an order dated 25/11/2009 recording the satisfaction regarding the execution of the final
decree. Challenging the order dated 25/11/2009 the petitioner filed a Civil Revision before this Court, which was registered as Civil Revision
No.58/2010 wherein this Court has passed the final order dated 11/02/2011 and the revision filed by the petitioner was dismissed, which has not been
disclosed by the petitioner before this Court in the present writ petition.
10- After the deposit of the amount of Rs.15,00,000/- before the Executing Court, the petitioner submitted his objections regarding the jurisdiction of
the executing court to deal with the matter before the Executing Court, and the same was decided by the Executing Court by an order dated
26/11/2008 and the objection filed by the petitioner was dismissed and being aggrieved by the order dated 26/11/2008, the petitioner preferred a writ
petition under Article 227 of the Constitution of India and the same was registered as Writ Petition No.7478/2008. The Division Bench of this Court
has passed a final order, dismissing the petitioner on 13/05/2008.
11- The order passed by this Court on the point of jurisdiction in paragraphs No.12 to 26 reads as under:-
“12. In the case in hand, the matter had travelled to the Supreme Court from the order of High Court passed in Miscellaneous Appeal arising from
the order of the Executing Court. Thus, it needs to be examined, whether the respondent could have directly approached the Court of Additional
District Judge, Ujjain i.e. Executing Court for compliance of the order of the Supreme Court or he was first required move to the High Court under
Order 45 Rule 15 CPC for executing the order of Supreme Court.
A perusal of the order of Supreme Court indicates that the Supreme Court after taking note of the fact that the execution was pending before the
Executing Court at Ujjain and certain amounts were already deposited by the respondent purportedly for satisfaction of the Execution Court directed
the respondent to deposit further sum of Rs.15,00,000/- within four months from the order of Supreme Court meaning thereby the amount of
Rs.15,00,000/- was to be deposited by teh respondent within the time prescribed by the Supreme Court before the Court where the amount in part was
already deposited i.e. the Executing Court at Ujjain. The second direction was in respect of the deposit of property tax with the concerned authority
from the date of execution of the sale deed on 15.12.1986 till the date of order of Supreme Court within four months.
The respondent was only required to comply with the aforesaid directions of the Supreme Court and deposit further sum of Rs.15,00,000/- before
the Executing Court at Ujjain and the amount of property tax before the concerned authority and file proof of deposit before the Executing Court.
The respondent has only taken steps in pursuance to the order of Supreme Court to deposit the amount as directed by the Supreme Court within
the stipulated period. The sale deed dated 15.12.1986 was already executed in favour of the respondent. Therefore, in terms of the order of Supreme
Court and on complying the directions of the Supreme Court in respect of the deposit of further sum of Rs.15,00,000/- before the Executing Court and
the property tax from the date of the sale deed, the title to the property prescribed in the registered sale deed is to vest free from all encumbrances to
the respondent.
It is worth noting that the provisions of Order 45 Rule 15 are attracted when a party desires to obtain execution of decree or order of the Supreme
Court. In the present case, the respondent is not seeking execution of the decree or order of the Supreme Court, but is complying with the direction
issued by the Supreme Court.
It is not a case, where the respondent has approached the Court for obtaining execution of the order of Supreme Court on the premises that the
appellant has not complied with the directions contained in the order of the Supreme Court, but, it is a case where the respondent has voluntarily
complied with the directions of the Supreme Court by depositing the amount mentioned therein.
It is also worth noting that the petitioner raised present objection when respondent alongwith a draft of Rs.15,00,000/- and proof of payment of
property tax had filed an application before the Court of Addl. District Judge, Ujjain under Order 21 Rule-2 of the Code.
Order 21 Rule-1 of CPC provides for modes of paying money under decree and that all money payable under a decree shall be paid by depositing
into the Court whose duty was to execute the decree. Since the Execution Case was already pending before the Court of Addl. District Judge, Ujjain
and in the pending execution proceedings, the Supreme Court had issued the directions to deposit the amount, therefore, the respondent had rightly
approached the Court of Addl. District Judge, Ujjain for depositing the amount in compliance of the order of the Supreme Court.
Even otherwise the execution proceedings are already pending before the Court of Addl. District Judge (Fast Track), Ujjain. The matter had
travelled to the Supreme Court on the issue of certain applications filed by both the parties in the pending Execution Case and the Supreme Court had
disposed of the Civil Appeal by issuing directions to take steps to deposit the amount before the Court where the Execution Case is pending.
The original ex-parte preliminary decree out of which the Execution Case No. 6-A of 1991 had arisen, was passed by the Court of Addl. District
Judge, Ujjain. The order impugned in Misc. Appeal No.52 of 04 decided by the High Court on 28.4.04 from which the matter had travelled to the
Supreme Court, was also passed by the Court of Addl. District Judge, Ujjain. Therefore, respondent has rightly approached the Executing Court i.e.
the Court of Additional District Ujjain to comply the direction issued by the Supreme Court.
Section 38 of the Code of Civil Procedure deals with the mode by which decree may be executed and provides that a decree may be executed
either by the Court which passed it or by the Court to which it is sent for execution. In section 37, the expression, “Court which passed the
decree,†has been defined to mean the Court of the first instance in a case where the decree to be executed is passed in exercise of the appeal
jurisdiction. Therefore, undisputedly the Court of Addl. District Judge, Ujjain was the competent Court to execute the decree which was originally
passed in the matter and in terms of Order 45 Rule 15 (2) the High Court could transmit the order of the Supreme Court to the Court of Additional
District Judge, Ujjain for execution.
The Madras High Court in the matter of Lingam Krishna Bhoopathi (Supra) has held that when the Privy Council transmits its decision to High
Court, the High Court in receiving and filing it does pure ministerial act. The District Court whose decision was appealed against does not cease to be
a Court “which passed the decree†for the purpose of recognizing the transferee decree-holder and ordering execution at his instance. This Court
also in the matter of State of M. P. vs. Faizulla Allabux (Supra) has held that all that is required for conferring jurisdiction on Court executing a decree
is an order of the High Court transmitting the decision order worth noting that the order of Supreme Court was transmitted by the Registrar of High
Court vide communication dated 2.8.08 (Annexure R-1) to the Court of Addl. District Judge, Ujjain in connection with Execution Case No.6-A of
1991 for information and necessary action. Thus, for this reason also the Court of Additional District Judge, Ujjain has the jurisdiction.
Thus, the objection which the petition is taking is only a technical objection. It cannot be disputed that the Court of Additional District Judge which
is the Executing Court ultimately has the jurisdiction to entertain respondents application in compliance of the direction of the Supreme Court.
In view of the aforesaid analysis, we find that the learned Additional District Judge has committed no error in rejecting the petitioners objection
about the jurisdiction of the said Court. We do not find any good ground to interfere in the order of the subordinate Court in exercise of limited
jurisdiction under Article 227 of the Constitution of India.
Thus we find no merit in the writ petition and the same is accordingly dismissed. No order as to costs.â€
12- Thereafter, the petitioner filed a review petition before this Court for review of order dated 13/05/2009, which was registered as Review Petition
No.209/2009 and the same was also dismissed by this Court by an order dated 12/03/2010, meaning thereby, the order dated 13/05/2009 attained
finality, however, this fact of dismissal of review has also not been brought to the notice of this Court in the present petition.
13- The reply filed by the respondent reveals that the review was filed by the petitioner on 15/06/2009 and thereafter, the petitioner did not appear in
the review petition and sought time before the learned Executing Court by filing an application under Section 151 on 04/09/2009 seeking adjournment
for two months and thereafter, on some pretext or the other, time was sought by the petitioner and ultimately on 18/12/2009 upon order of the court to
hear the arguments on the application under order XXI Rule 2 and the application under Section 151, the petitioner refused to argue and submitted
before the learned court that he has moved an application u/s 24 for transfer of the case and sought time and on the other hand on same day moved
an application for withdrawal of the amount deposited by the respondent in the Court and the Court upon the statement of applicant for transfer of
case, fixed the date for 18/01/2010.
14- On 18/01/2010 the application of the petitioner was decided by the District Judge and the application filed by the petitioner was partly allowed and
the other matters were also transferred before the same court i.e. before the IV Additional District Judge, Ujjain, while the petitioner wanted transfer
of the matter to the III Additional District Judge, Ujjain which also worked as link court to Mahidpur and therefore, the learned District Judge
transferred the matter to IV Additional District Judge.
15- The facts as stated in writ petition and the reply further reveals that after transfer of the matter, the Court fixed the date for arguments on the
pending applications for 08/02/2010 and the petitioner again submitted an application under Section 151 for adjourning the matter for four months and
the same was rejected. 16- The application of the petitioner was rejected as execution was pending since 1992. The petitioner in spite of earlier order
of the High Court again submitted an application under Section 21, 37, 38 and Order XXI read with Order XLV Rule 15 CPC, which was already
considered by the High Court in Writ Petition No.7478/2008. 17- Not only this after dismissal of the application, the petitioner again sought time to
challenge the order before the High Court for bringing a stay. The conduct of the petitioner reflects that he has made all possible attempts to delay the
finalization of the execution proceedings.
18- It is further pertinent to mention here that all such applications under Section 151 and under Section 21, 37, 38 and Order XXI read with Order
XLV Rule 15 CPC were filed by the petitioner during the pendency of the review petition before this Court and made all possible attempts to
circumvent the order passed by the Hon'ble Supreme Court and this Court.
19- The facts further reveal that after passing of the order dated 08/02/2010 the petitioner submitted an application under Section 24 of CPC and again
an application under Section 24(2) before the District Judge, which were decided by the Court of District Judge by an order dated 10/01/2011.
20- The order passed by the Additional District Judge makes it very clear that the Court at Indore was having jurisdiction in the mater and the Division
Bench of this Court in Writ Petition No.7478/2008 has held that the District Judge / Additional District Judge is having jurisdiction in the matter to
execute the judgment and decree.
21- The another important aspect of the case is that final decree has also been passed in the matter and in respect of civil suit which was filed in the
year 1987, the proceedings have not be finalized. 22- This Court is of the considered opinion that the trial Court was justified in rejecting the
application preferred by the present petition in respect of jurisdiction and in respect of other issues. It was nothing but a deliberate calculated attempt
to derail the proceedings. This Court does not find any reason to interfere with the impugned orders, The order passed by the trial Court does not
suffer from perversity or jurisdictional error.
23- The apex court in the case of Shalini Shyam Shetty Vs. Rajendra Shankar Patilreported in 2010 (8) SCC 329in paragraph 49 held as under:-
On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of
the Constitution may be formulated:
(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under
these two Articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is
substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed
above.
(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the
orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal
subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of
this power by the High Court.
(d) The parameters of interference by High Courts in exercise ofits power of superintendence have been repeatedly laid down by this Court. In this
regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles
in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh (supra), followed insubsequent cases, the High Court in exercise of its jurisdiction of superintendence can
interfere in order only to keep the tribunals and Courts subordinate to it, 'within the bounds of their authority'. (f) In order to ensure that law is followed
by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent
perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles
of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than
the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) High Court's power of superintendence under Article 227 cannotbe curtailed by any statute. It has been declared a part of the basic structure of
the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261
and therefore abridgement by a Constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code
(Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered
that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised onequitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power ofthe High Court under Article 227, it transpires that the main object of this Article is to
keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence,
both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not
bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come
to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts
subordinate to High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed
for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual
grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality.
24- In light of the aforesaid judgment as no patent illegality has been committed by the trial court and the order passed by the trial court does not
suffer from any jurisdictional error, this court does not find any reason to interfere with the orders dated 01/03/2018 and 08/02/2010. The trial Court is
also directed to conclude the proceedings within three months from the date of receipt of certified copy of this order.
No order as to costs. Certified copy as per rules.