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Judgment
“The Code of Civil Procedure was enacted keeping the principles of natural justice as paramount. Enough filters and safeguards have been
provided to ensure that no interested party is left unheard and no issue unattended. Legislating such a comprehensive Code, they hardly realized that in
years to come, the litigants would master the art of using such salutary provisions of the Code to delay and in turn defeat the justice.†The present
one is a glaring example of such an attempt to clog the course of justice. The facts are copious, but they need to be narrated for the sake of clarity.
Narendra Singh Bhati, father of the present petitioner had filed a suit under Section 28 & 30 of the Specific Relief Act against Fateh Singh, seeking
performance of an agreement to sell dated 17.05.1989. Para No.2 of the plaint catalogued details of the property admeasuring approx. 25 bighas,
described as “Uttarayan†which comprised of a bungalow, cottage, well and servant quarters duly covered by the said agreement to sell dated
17.05.1989. An acknowledgment to hand over the possession of the property was purportedly enclosed with the said agreement, wherein it has been
indicated that possession of the property “Uttaryan†along with agriculture land, more particularly described in the Schedule annexed with the
agreement to sell had been handed over. A photo copy of the contentious agreement had been placed on record, however, the schedule allegedly
appended with the agreement has not been produced.
Be that as it may, it is undisputed that the particulars of the property covered by the contentious agreement to sell were mentioned in para No.2 of the
plaint. During the course of proceedings, a report from the Forensic Laboratory was summoned by the Trial Court, which revealed that the signatures
on the purported will dated 20.1.1982 of Smt. Diana were forged. Faced with such situation, the plaintiff sought leave to withdraw the suit with a
liberty to file a fresh suit, by way of making an application dated 19.03.2010. Pursuant to the aforesaid application, the trial Court passed a judgment
and decree dated 31.5.2013 in following terms :-
 “Okknhx.k dk okn fo:) izfroknhx.k okil ysus ds vk/kkj ij [kkfjt fd;k tkrk gSA izfroknhx.k oknhx.k dks djkj esa of.kZr jkf’k 4]75]000@&:- nks
ekg dh vof/k esa vnk djsaA i=koyh esa layXu 25]000@&:- dk Mªk¶V oknhx.k izkIr djus ds vf/kdkjh gSA lkFk gh nks ekg dh vof/k esa oknhx.k
fookfnr tk;nkn dk vkf/kiR; izfroknhx.k dks lqiqnZ djsaA fMØh ipkZ cuk;k tkosaA okn dk [kpkZ i{kdkjku viuk&viuk ogu djsaxsA
Legal representatives of original defendant late Fateh Singh filed an execution application on 3.8.2013, in prescribed form provided under Order XXI
Rule 11 of the Code of Civil Procedure and asked for possession of the properties mentioned in para No.2 of the plaint and agreement dated
17.5.1989. In the execution application filed by the legal representatives of Fateh Singh, Mrigendra Singh obstructed the execution by way of filing
petition dated 07.08.2013 under Order XXI Rule 97 of the Code of Civil Procedure while filing another application dated 26.8.2013, seeking stay of the
execution proceedings. Said application had been rejected by the executing Court vide order dated 04.09.2013.
The executing Court dismissed the application under Order XXI Rule 29 vide its order dated 24.1.2014, whereas the application under Section 151 of
the Code of Civil Procedure was dismissed on 29.1.2014. Meanwhile, the petitioner (son of Narendra Singh Bhati) filed an appeal against the
judgment and decree being Civil First Appeal No.342/2013, which was dismissed by this Court vide its order dated 17.2.2016 and a Special Leave
Petition (No.773/2016) filed there-against also came to be dismissed by the Supreme Court, vide order dated 11.4.2016. Thereafter at the request of
petitioner (LR’s of Narendra Singh) the word ‘compensation’ came to be substituted by the expression ‘appropriate relief’. It may be
noted that legal representatives of Fateh Singh (respondent herein) then filed an application seeking recalling/ modification of the order dated
13.4.2016, which was allowed by the Supreme Court on 19.04.2016 and the order dated 13.04.2016 came to be recalled and order as passed on
11.04.2016 was maintained.
The petitioner thereafter filed application dated 17.01.2015 under Section 47 of the Code of Civil Procedure, with a stand that the decree dated
31.5.2013 was obtained by fraud and that the Trial Court could not have dismissed the suit as withdrawn, without giving liberty to file a fresh suit,
particularly when they had filed the application to withdraw the suit, seeking liberty to file a fresh suit.
The above referred application under Section 47 of the Code (filed on 17.1.2015) came to be rejected by the executing Court, vide order dated
27.8.2018 inter alia observing that the issues raised by the petitioner in the said application were outside the scope of Section 47 and that the judgment
and decree dated 31.5.2013 has been affirmed not only by the High Court, even by the Supreme Court. The executing Court also observed that the
application had been filed just with a view to protract the execution proceedings.
The petitioner then proceeded to file another application dated 1.9.2018, captioned as an application under Section 151 of the Code of Civil Procedure
for almost identical relief, however with a new plea that as the decree in question does not contain particulars of the property, the warrant of
possession (dCtk okjV) dated 5.8.2013, incorporating the particulars of the property was imporper. It was also asserted that the execution application
dated 1.8.2013 filed by the judgment debtor was not maintainable. Said application under Section 151 of the Code of Civil Procedure filed by the
petitioner has also visited dismissal by the executing court on 15.9.2018. While rejecting the said application, the executing court held that the judgment
and decree dated 31.5.2013 contains a specific stipulation “disputed property†(fookfnr tk;nkn) and the description of the disputed property had
since been given in para No.2 of the plaint. While holding that the application for quashing the execution proceedings was frivolous and misconceived,
the executing court also observed that neither in his earlier application under Section 47 of the Code of Civil Procedure nor in the resistance under
Order XXI Rule 97 of the Code, such objections were taken, hence, the same was barred by the principle of res-judicata as provided under Section 11
of the Code of Civil Procedure.
The petitioner has approached this Court by invoking its supervisory jurisdiction by way of filing two separate writ petitions; first being SB Civil Writ
Petition No.15881/2018 challenging the order dated 27.08.2018, whereby his application under Section 47 of the Code of Civil Procedure has been
rejected; whereas in the second writ petition being SB Civil Writ Petition No.15084/2018, the subsequent order dated 15.09.2018 rejecting the
petitioner’s application under Section 151 of the Code of Civil Procedure has been impugned.
Mr. Mathur, learned Senior Counsel assisted by Mr. C.S. Kotwani firstly navigated the Court through the judgment and decree dated 31.5.2013 and
highlighted that the decree in question only contains direction to the plaintiff to hand over the possession of “disputed property†to the defendant.
He pointed out that the trial Court while passing the judgment and decree had not specified as to what was meant by ‘disputed property’.
According to learned Senior Counsel the decree in question was inexecutable or un-enforceable for want of clarity. He further submitted that legal
representatives of late Fateh Singh while filing an application under Order XXI Rule 11 of the Code and have given their own meaning and expressed
the disputed property as the properties mentioned in para No.2 of the plaint and agreement dated 7.5.1989. Notwithstanding the fact that the decree
did not contain description of property, the warrant of possession has been issued mechanically as prayed submitted Mr. R.N. Mathur. Expanding the
proposition of law that the decree cannot travel beyond the judgment; Mr. Mathur expounded that the warrant of possession can not traverse beyond
the terms of the decree.
Learned Senior counsel emphasized that a decree for recovery of immoveable property is supposed to contain a description of the property, so as to
enable the concerned parties to identify the same. For such purpose, he read the provisions contained in Order XX Rule 9 of the Code of Civil
Procedure, which are reproduced hereinfra :
“9. Decree for recovery of immovable property.- Where the subject-matter of the suit is immovable property, the decree shall contain a description
of such property sufficient to identify the same, and where such property can be identified by boundaries or by numbers in a record of settlement or
survey, the decree shall specify such boundaries or numbers.â€
Mr. Mathur thereafter treaded the Court through provisions of Order XXI Rule 101 of the Code of Civil Procedure to contend that it was incumbent
upon the executing court to have determined all questions arising between the parties during the execution proceedings, as separate suit in this regard
is barred. He urged that the objections regarding description and particulars of the property raised by the petitioner, were required to be determined by
the executing court. He submitted that the Court was required to determine the issue regarding the identity and area of the property, to which the
defendant was entitled. Without determining such question, the executing Court has straight away issued the warrant of possession! He exclaimed.
In the backdrop of the above submissions, Mr. Mathur implored that the order dated 27.08.2018 impugned in writ petition No.15581/2018 and
subsequent order dated 15.9.2018 assailed in writ petition No.15084/2018 be quashed and set aside. It is pertinent to note that though in the application
dated 01.09.2018 under Section 151 of the Code, the petitioner had prayed that the execution application dated 1.8.2013 be declared not maintainable
and warrant of possession dated 5.8.2013 be quashed, however, no such prayer has been made for quashment of the warrant of possession dated
5.8.2013 in the concerned writ petition, being SB Civil Writ Petition No.15084/2018.
Be that as it may, when the Court elicited response of learned Senior counsel in this regard, he submitted that the petitioner can very well challenge a
warrant of possession by filing a writ petition while relying upon judgment of Karnataka High Court dated 13.3.2018 rendered in case of Smt.
Hanamavva Vs. Smt. Kasturavva & others, Writ Petition No.100631 of 2018. Mr. M.R. Singhvi, learned Senior counsel, assisted by Mr. Sandeep
Shah opposing the writ petitions was at pains to apprise the Court that the petitioner is a hardened and habitual litigant and he has left no stone
unturned to ensure that the respondents are deprived of the fruits of the decree dated 31.5.2013. He added that the petitioner has lost the legal battle
right upto the top Court; even rejection of his application under Order XXI Rule 97 of the Code of Civil Procedure vide order dated 16.03.2016, has
attained finality.
He contended that the petitioner had an opportunity to take all conceivable objections and raise all permissible grounds in the objection petition, he had
filed under Order XXI Rule 97 of the Code of Civil Procedure; he could still include them in the application filed under Order 47 of the Code of Civil
Procedure; but having failed to do so, he cannot be permitted to open a new front by raising this hyper technical plea that the decree dated 31.5.2013
does not specify the particulars of the property. Such an attempt is barred by the principles of res-judicata, duly enshrined in Section 11 of the Code of
Civil Procedure, fervently argued learned Senior counsel.
I have heard learned counsel for the parties and waded through the record of the captioned writ petitions; the record of writ petition No.8354/2018 and
9218/2017 (decided by this Court on 09.02.2018) and the copies of various documents handed over by the rival counsels during the course of
arguments. After examining the record and going through the history of the litigation, it is clear that the petitioner has engaged himself in filing one
application after another and petitions after petitions, simply with a view to protract, if not protect, delivery of possession to the defendant in pursuance
of the decree dated 31.5.2013. The entire endeavor of the petitioner appears to be to ensure that the decree is not enforced and he is not ejected from
the property. The present writ petitions emanating from two applications dated 17.1.2015 and 1.9.2018, culminating into orders dated 27.8.2018
(subject matter of writ petition No.15581/2018) and another order dated 15.09.2018 (subject matter of writ petition No.15084/2018), is an attempt in
this direction only.
CW No.15581/2018:
This writ petition concerns petitioner’s application dated 17.1.2015, filed under Section 47 of the Code of Civil Procedure whereby the petitioner
had sought annulment of the execution proceedings. According to me, the same was nothing but a disguised effort to resurrect the challenge to the
judgment and decree dated 31.5.2013, which has otherwise attained finality. A bare look at the application reveals that all the averments made and the
grounds raised therein, relate to the merit of the judgment and decree dated 31.5.2018, which in any case is impermissible in law. The questions sought
to be raised by way of the said application fall outside the precincts of provisions contained in Section 47 of the Code of Civil Procedure. The intention
and purport of Section 47 of the Code is to determine the issues, which have cropped up during the execution proceedings. In my opinion, under the
ruse of the subject application, the petitioner cannot defuse the decree.
The executing court has, therefore, committed no error of law in rejecting the petitioner’s application dated 17.1.2015 vide its order dated
27.08.2018. The writ petition being SB Civil Writ Petition No.15581/2018 thus deserves to be dismissed, which I hereby do.
CW No.15084/2018:
Adverting to writ petition No.15084/2018, whereby the petitioner has assailed the order dated 15.9.2018 passed pursuant to his application dated
01.09.2018; this Court is constrained to observe that the said application is another ambitious attempt on the part of the petitioner to block the pious
path of justice. A perusal of the application reveals that having failed in his attempt to stall the proceedings post rejection of his earlier application vide
order dated 27.08.2018, the petitioner has used yet another ploy and filed the contentious application under the label of Section 151 of the Code of Civil
Procedure and subjected the warrant of possession dated 5.8.2013 to judicial scrutiny, alleging that the same is beyond the terms of the decree.
A perusal of the petitioner’s application dated 01.09.2018 reveals that he has stated to have enclosed a photocopy of the warrant of possession
dated 5.8.2013 as Annexure-3, however, the same is not available on the record of the present writ petition. The annexures referred in the application,
including the contentious Annexure-3 viz warrant of possession dated 5.8.2013 have not been filed. That apart, in the application dated 01.09.2018, the
petitioner has prayed that the warrant of possession dated 5.8.2013 be quashed, however, no such prayer has been made in the present writ petition,
which arises out of the said application and consequential order dated 15.09.2018.
Be that as it may, this Court is of the considered opinion that challenge to the warrant of possession, which had been issued way back on 5.8.2013,
cannot be entertained by the executing court, upon an application filed almost after five years of issuance of such warrant. The warrant of possession
had been issued on 5.8.2013 and since then, much water has flown down the river under the bridge. Not only the petitioner’s challenge to the
judgment and decree dated 31.5.2013 remained unsuccessful till the Supreme Court, even his obstruction to the execution (vide an application under
Order XXI Rule 97 of the Code), has borne no fruits. Many applications have been filed by the petitioner to retard the execution proceedings and in
this process his last application filed under Section 47 of the Code, too has visited rejection, in the hands of the executing Court, when it passed the
order dated 27.08.2018. While maintaining that such objection is frivolous, which I propose to discuss later in a little detail, I am of the firm view that
such objection that the warrant of possession incorporating the properties described in para No.2 of the plaint is illegal, cannot be raised by the
petitioner by way of filing the subject application dated 1.9.2018. The principle of res-judicata contained in Section 11 of the Code of Civil Procedure
may not be applicable stricto senso; but the provisions contained under Order II Rule 2 of the Code would certainly be an impediment in the way of
the petitioner, as he has chosen to raise this issue, after it has become stale or barred by acquiescence.
It is now settled that the principles of res-judicata, which are applicable to suits, equally apply to the different stages and applications in the same suit
as held by Hon’ble the Supreme Court in Arjun Singh vs. Mohindra Kumar, reported in AIR 1964 (SC) 993 followed in AIR 2008 (SC) 804.
Drawing the same analogy, according to me, the doctrine of election or the provisions of Order II Rule 2 of the Code are equally applicable to the
applications filed during the execution proceedings.
Principle, which emerges from the provisions of Order II Rule 2 of the Code of Civil Procedure is that a party has to include whole of the claim and
raise all the possible objections at the first instance and if the same have not been taken at the first instance, it shall be deemed that such party has
waived or abandoned such claim or right. Following the aforesaid principle, I am of the view that even if there is some substance in the objection
raised by the petitioner, they ought to have been raised at the first instance, when the objection under Order XXI Rule 97 of the Code of Civil
Procedure were filed or at least when the application dated 7.1.2015, under Section 47 of the Code of Civil Procedure was filed.
Having failed on all fronts, the petitioner has now unearthed a so called lacuna in the decree dated 31.5.2013, which incidentally uses the expression
“disputed property†(oknxzLr lEifr), instead of describing the whole of the property, being subject matter of the dispute. Such an endeavor on the
part of the petitioner is clearly forbidden by law and the petitioner cannot be allowed to hurl one objection after another, having failed in his earlier
attempt(s). The application dated 01.09.2018 was clearly an abuse of process of law and the executing Court has rightly rejected the same, vide its
order dated 15.09.2018. Since both the parties have advanced arguments on the merits of the objections raised by the petitioner, I deem it expedient to
decide the same, instead of leaving this issue undecided.
The crux of petitioner’s contentions has been that the decree of the trial Court simply uses the expression “disputed propertyâ€, whereas in the
execution application dt 1.8.2013 filed by legal representatives of Fateh Singh, they have used the expression “the property known as Uttarayan
Farm, mentioned in para No.2 of the plaint and agreement dated 17.5.1989â€. According to the petitioner, the execution application could not convey
the meaning to or explain the term ‘disputed property’, which was otherwise not explicated in the decree. According to the petitioner, as the
decree in question simply uses the expression “disputed propertyâ€, the respondents could not have expanded its scope and no warrant of
possession based on such application could have been issued.
Having heard learned counsel for the parties on this issue, I find that the question posed by the petitioner is misconceived. The decree in question
cannot be read in isolation and it has to be read contextually and conjointly with the judgment dated 31.5.2013, from which the decree has germinated
or originated. A perusal of the judgment dated 31.5.2013 clearly shows that the trial Court in para No.2 of its judgment has clearly mentioned that the
plaintiff has filed the suit for specific performance of the agreement dated 17.5.1989, seeking direction to the defendants to execute a sale deed in
relation to the properties mentioned in
the agreement. In latter part of the judgment, instead of mentioning the property separately and repetitively, the trial Court has used the expression
“disputed property†(fookfnr lEifr@oknxzLr lEifr) obviously to avoid verbiage. It may be true that the trial Court has not defined the term
“disputed property†in explicit terms, nevertheless a complete and purposive reading of the judgment dated 31.5.2013 leaves no room for
ambiguity that the same refers to the properties mentioned in para No.2 of the plaint, covered by the agreement dated 17.5.1989.
Said judgment and decree has been affirmed till Supreme Court and even the petitioner in his various litigation has understood the expression given in
the judgment and decree as the properties mentioned in para 2 of the plaint. In this regard, I would like to refer to the application under Order XXI
Rule 29 dated 09.05.2016 filed by the petitioner, wherein he himself has acknowledged rather accepted the factum of the agriculture land admeasuring
25 bighas and 3 biswa spread in Khasra No.390, 386, 381, 382, 383, 384, 387, 388 and 391 to be covered by the decree. It will not be out of place to
reproduce the relevant extract of the said application, which was filed by none other than the petitioner himself.
“2- ;g fd mDr fMdzh fnukad 31-05-2013 esa of.kZr d`f""k Hkwfe [kljk uEcj 390] 386]381]382]383]384]387]388]391] dqy fdrk 10 jdck 25 ch?kk 3
fcLok ftldk dh ukekUrj.k U;k;ky; lgk;d dysDVj o mi[k.M vf/kdkjh vkcw ioZr] ftyk fljksgh ds vkns’k fnukad 28-05-2009 }kjk izkFkhZ fuf.kZr _.kh
ds firk Lo- Jh ujsUnz flag HkkVh ds uke [kksyk x;k Fkk vkSj tks fd orZeku esa Hkh mDr Hkwfe ds fjdkMsZM [kkrsnkj ds :i esa jktLo fjdkMZ esa
ntZ gSA Â
5- ;g fd fMdzh esa of.kZr d`f""k Hkwfe ftlds lEcU/k esa fMdzhnkj }kjk fu""iknu izkFkZuk i= ekuuh; U;k;ky; ds izLrqr fd;k gqvk gS ,oa mijksDr of.kZr
jktLo okn tks fd orZeku esa U;k;ky; lgk;d dysDVj ,oa mi[k.M vf/kdkjh vkc` ioZr ds ;gkW fopkjk/khu gS] mDr nksuks izdj.kksa esa fookfnr d`f""k
Hkwfe ,o i{kdkjku~ leku gh gS rFkk mDr jktLo okn mDr fMdzh fnukad 31-05-2-13 ds iwoZ ls gh o""kZ 2009 ls gh yfEcr pyk vk jgk gSA vr% mDr
jktLo okn ds yfEcr jgrs gktk izdj.k esa fMdzh ds fu""iknu dh dk;Zokgh dks LFkfxr fd;k tkuk U;k;ksfpr gSAâ€
A reading of the above excerpt drives everyone beyond any pale of doubt that all the stake holders, including the petitioner were aware and have
acquiesced to such interpretation of the term “disputed property†(fookfnr tk;nkn), used in the judgment and decree dated 31.5.2013. The
petitioners’ attempt is not only barred by the provisions of Order II Rule 2 of the Code, the same is hit by the principle of estoppel or acquiescence
in light of his own application dated 09.05.2016 filed under Order XXI Rule 29 of the Code.
Section 47 or Order XXI Rule 97 of the Code are meant or intended to determine the real issues or the disputes between the parties. In the present
case when there has been no confusion, much less controversy between the parties, regarding the meaning of expression “fookfnr lEifr“, the
petitioner’s application dated 01.09.2018 remains wholly ill-conceived and frivolous.
The executing Court has committed no error of law in rejecting such application, vide its impugned order dated 15.09.2018. I find no error of law or of
jurisdiction in the order dated 27.08.2018 and so also in the order dated 15.09.2018. Both the writ petitions are, therefore, dismissed with costs
throughout. In a bid to avoid confusion about the calculation of the cost, I quantify the same at Rs.50,000/- per writ petition.