Motilal Kaushal vs Shardabai Gangrade & Ors

This Miscellaenous Petition by the judgment-debtor is preferred against orders dt. 20.3.2017 and 15.5.2017 passed by the Executing Court in

Execution Case No.18/15-16 filed at the instance of the respondent/plaintiffs seeking execution of the decree passed in Civil Appeal No. 18/2015

decided on 12.7.2016.

Before adverting to rival contentions, it is considered apposite to narrate relevant facts necessary for disposal of this petition and the pending execution

case.

Respondents'/plaintiffs had filed a suit for mandatory injunction vide civil suit No.63-A/2003. The suit was decided on 30.7.2004 with the following

decree:-

v- izfroknh Vhu dh pnj 2 ekg ds vanj Lo;a ds O;; ls gVok ysxkA

c- oknhx.k Hkh mDr nkfo;k xyh dk mi;ksx ,oa miHkksx djsxsA

l- mHk;i{k viuk okn O;; Lo;a ogu djsxsA

n- vfHkHkkod 'kqYd lwph vuqlkj ;k izek.kkuqlkj tks Hkh de gks ns; gksxkA

Being aggrieved thereby, both plaintiffs(respondents) and defendant (petitioner) preferred first appeals No.48/2004 and 46/2004. The appeals were

decided on 23.2.2005 with the following decree:-

1- izfroknh eksrhyky Vhu dh pnj dks nks ekg ds vanj Lo;a ds O;; ls gVk;sA

2- fookfnr xyh esa izfroknh ds }kjk yksgs ds njokts ds LFkku ij iwoZor ydMh dk njoktk yxk;k tkdj can xyh ds mi;ksx gsrq [kksyh tkdj mldk oknhx.k

m;ksx miHkksx dj ldsxsA

3- mHk;i{k viuk&viuk okn O;; Lo;a ogu djsxsA

4- vfHkHkkod 'kqYd izekf.kr gksus ij fu;ekuqlkj vdkjk tkosA

Thereafter Second Appeal No.918/2005 filed by the present petitioner/defendant was dismissed in limine by this Court.

As a consequence thereof, the respondent/plaintiffs filed execution vide Execution Case No.18-A/2005-2006. It appears that the respondents/plaintiffs

Mohanlal, and petitioner/defendant Motilal, appeared before the Executing Court on 31.1.2007 wherein petitioner made a statement that he has

removed tin sheets at his expenses. There is no obstruction in the passage of lane and can be used by any person including the plaintiffs. The

decreetal amount has already been paid to the plaintiffs. The respondents/plaintiffs Mohanlal, also got his statement recorded that the decree has been

fully satisfied and did not wish to further prosecute the execution case. In view of such statement made by the parties and upon satisfaction of the

decree, the execution case was closed.

It is pertinent to mention that the aforesaid order dt. 31.1.2007 has never been challenged before any forum either in the form of revision or appeal by

either party.

At a distance of time of more than eight years, it appears that the plaintiffs rising like sphinx again brought a suit Civil Suit No.10-A/2014. The Trial

Court has dismissed the same on 26.8.2015 and the appeal arising therefrom vide Civil Appeal No.18/2015 was also dismissed on 12.7.2016 with the

following decree:-

v- vihykFkhZx.k oknhx.k dk okn ,oa izR;FkhZ&izfroknh dk dkmaVj Dyse fujLr fd;k tkrk gSA

c- mHk;i{k ekuuh; e/;izns'k mPp U;k;ky; [k.MihB bUnkSj }kjk ikfjr f}rh; vihy dza- 918@05 esa vkns'k fnukad 09-10-06 ,oa f}rh; vij ftyk U;k;k/kh'k

egw ftyk bankSj }kjk nhokuh fu;fer vihy dza- 46@04 o 48@04 eas ikfjr fu.kZ; o vkKfIr fnukad 23-02-05 dh ea'kk ds vuqlkj fookfnr xyh dk mi;ksx o

miHkksx djsaA

As such, earlier judgment and decree of the Appellate Court dt. 23.2.2005 (supra) had attained finality and the execution case arising therefrom also

stood closed on 31.1.2007.

The present respondents/plaintiffs again filed execution case No.18/2015-2016 before the Civil Judge Class-II Mhow. Petitioner/defendants raised a

preliminary objection as against maintainability of the execution case on the premise that the decree dt. 23.2.2005 was subject matter of Execution

Case No.18/2015-2016 and the same having attained finality on 31.1.2007, with no variation in the decree passed in the judgment dt. 12.7.2016 in Civil

Appeal No.18/2015, the instant execution case is not maintainable. However, the executing court oblivious of the nature of the decree passed in the

aforesaid appeal and in ignorance of law i.e., in absence of challenge to the said decree by the decree-holder, the objection raised by the

petitioner/defendant judgment-debtor was rejected and further warrant for possession was issued against the petitioner/defendant.

Petitioner filed an application for recalling of the said order, vide application dt. 23.3.2017 (Annexure P/12 ) and the said application was dismissed by

the executing court on 15.5.2017 (Annexure P/13) with the reasoning that if the petitioner/defendant removes the encroachment then the warrant for

possession shall be withdrawn by recording satisfaction and no prejudice shall be caused to the decree-holder.

Shri Amit Agrawal, learned Senior Counsel with Shri Arjun Agrawal, learned Counsel appearing for the petitioner/defendant inter-alia submits that the

passage of impugned orders reflect blissful ignorance of law and judicial indiscipline on the part of the Executing Court. He submits that despite having

taken note of the fact of closure of the Execution Case No.63-A/2005 on 31.1.2007 and an objection having been raised as against the maintainability

of the execution case, in all fairness, the Executing Court ought to have addressed the issue and decided the question of maintainability. That has not

been done and without any justification issued the warrant of possession for which there was no decree at all.

Learned Senior Counsel while criticizing the second impugned order dt.15.5.2017 contends that in absence of any decree for possession neither there

was a requirement for issuance of warrant of possession nor for recording satisfaction of the delivery of possession. Hence, the said execution case

continued by Executing Court purportedly for execution of decree dt. 23.2.2005 tantamounts to abuse of authority and jurisdiction and it is a classic

example of colourable exercise of power by the court below.

Learned Senior Counsel submits that the impugned order is wholly without jurisdiction and not supported by any provision of law. Hence, this instant

Miscellaneous Petition has been filed invoking power of superintendence by this Court under Article 227 of the Constitution of India. With the

aforesaid submissions, learned Senior Counsel prays for quashing of the Execution Case No.18/2015-2016.

Per contra, Shri Jitendra Verma, learned Counsel appearing for respondents/plaintiffs has raised a preliminary objection as against the maintainability

of the Miscellaneous Petition under Article 227 of the Constitution of India contending that the order impugned since is revisable under Section 115

CPC. Relayed upon the judgment of the Coordinate Bench reported in 2013(3) MPLJ 203 Hariram (dead) through LRs. Sher Singh Dudani and others

vs. Prakash Chand Dheeran and others, to bolster his submission.

Learned Counsel further submits as the decree dt. 23.2.2005 (supra) was not fully satisfied, therefore, the instant executing case was filed. However,

learned Counsel has no answer pertaining to the question related to the maintainability of the second execution case seeking execution of same decree

which was recorded to have been satisfied by the Executing Court in presence of both the parties while disposing of the Execution Case No.63/2005

on 31.1.2007.

Heard.

Upon perusal of the impugned orders and in the obtaining facts and circumstances, this Court is of the view that once the execution case stood closed

on 31.1.2007 recording satisfaction of the decree on the basis of statement of plaintiffs and defendants, the decree dt. 23.2.2005 passed in Civil

Appeal No.63/2003 also stood satisfied. No provisions of law much less, under Civil Procedure Code has been brought to the notice of this Court

providing for repeat application for execution, despite closure of the execution case upon satisfaction of the decree. Hence, in the opinion, of this Court

the aforesaid execution case in question is without authority and jurisdiction.

As a consequence, the second impugned order dt. 15.5.2017 is held to be without jurisdiction.

Consequently, the impugned orders cannot with stand the test of reasonableness and sustainability in law.

This Court is constrained to observe that the Executing Court despite being under legal obligation to address on the objection of maintainability of the

execution case blinked away and in fact avoided to address the objection so raised and in its enthusiasm has proceeded to issue warrant of possession

without even looking to the decree dt. 23.2.2005. Such course adopted while passing the first impugned order dt.20.3.2017, does reflect carelessness

and negligence on the part of the Executing Court while issuing the warrant of possession and also ignorance of law and legal provisions. The

concerned Judge requires to undergo refresher course at the Judicial Academy for updating his knowledge and understanding of law.

It is considered apposite at this stage to address on the objection of maintainability of the Miscellaneous Petition as raised by Counsel for the

respondent/plaintiff relying upon the aforesaid judgment (supra), suffice it to say, that provisions as contained under Article 227 of the Constitution of

India are supervisory in nature. This Court can exercise such control over its subordinate Courts where the orders impugned are found to have been

passed not only in excess of the authority or jurisdiction conferred upon the Court but, also against the judicial discipline or doing violence with the

provisions of law. The jurisdiction under Article 227 of the Constitution of India is wider in nature and dimensions in exercise of powers of

superintendence and control over the subordinate Courts.

Under such circumstances, the objections so raised is overruled and Miscellaneous Petition is found to be maintainable.

Consequently, up shoot the discussion as above leads to success of the Miscellaneous Petition. As a consequence thereof the impugned orders are

set-aside and the Execution Case No.18/2015 is hereby, quashed.

Miscellaneous Petition stands allowed and disposed of.