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Judgment
Heard. Admit. Heard finally by consent.
This revision application challenges the order passed on 16th October 2015 by the District Judge, Nagpur in Misc. Civil Appeal No. 120 of 2013. By this order, the learned District Judge upset the order dated 27th April 2011 passed below objection application (exhibit 11) filed in the execution proceedings initiated by the respondent/original disputant.
In the year 1991, a Dispute was raised by the respondent before the Cooperative Court, Nagpur. In this Dispute, the relief that was sought by the respondent was that the applicant Society be directed to allot to him plots no. 3 and 4 of the Society''s Layout, he being member of the Society and in view of the arrangement between the Society and its members. In the year 1996, the respondent sought an amendment in the Dispute Application, which was allowed. By virtue of this amendment, the respondent was permitted to let his claim be for allotment of a different plot, Plot No. 5A instead of plots no. 3 and 4. The Dispute was strongly resisted by the applicant. However, on merits of the case, the Cooperative Court allowed the dispute and passed an Award dated 31.3.2000, thereby directing the applicant to allot Plot No. 5A to the respondent.
The decree of the Cooperative Court was challenged in appeal before the Cooperative Appellate Court. The appeal was also dismissed. Thereafter a writ petition was preferred by the applicant being Writ Petition No. 4441 of 2002. This writ petition was dsposed of by this Court on 7th October 2006 after noticing that an objection has been preferred by the applicant to the execution of decree. Thus, this Court relegated the present dispute between the parties to the executing court. The objection application was filed as per exhibit 11. It was allowed by the executing court on 27th April 2011 against which an appeal was preferred by respondent which was allowed by the 1st appellate court, the Court of District Judge9, Nagpur 16th October 2015. Thus, the judgmentdebtor became obliged under the law to abide by the decree and allot Plot No. 5A to the respondent. But, it was not to be and, therefore, revision application has been preferred by the applicant, which is the present Civil Revision Application.
According to Shri Mardikar, learned counsel for the applicant, the decree is unexecutable since Plot No. 5A is not in existence. He also submits that this property (plot no. 5A) has been sold by registered sale deed executed in the year 1994 and the Society is no longer the owner of this Court. He further submits that evidence was led before the executing court by the parties and all the facts have been admitted by the parties and, therefore, the 1st appellate court ought to have dismissed the appeal. Shri Choudhari, however, does not agree. He submits that even if some construction, according to the case of the applicant, has been made, that construction is illegal and it has been held to be so by the 1st appellate court and, therefore, there would be no difficulty in bringing down that construction and restoring the original status of Plot No. 5A. Thus, according to him, the decree is well executable. As regards the sale deed executed on 9th June 1994, Shri Choudhari submits that no such objection was raised before the executing court and, therefore, now it cannot be allowed to be raised here.
On going through the paper book including the award passed by the cooperative court, objection application, order passed by the executing court on application (exhibit 11) and the impugned order, I find that there is a great substance in the argument of learned counsel for the respondent and no merit in the argument of learned counsel for the applicant.
It is the case of the applicant that a proposal was moved by the applicant Society before the Municipal Authorities well before the year 1985 for amalgamation of plots no. 4,5 and 5A and also for grant of permission for constructing a community hall. It is the further case of the applicant that this proposal was sanctioned by the Municipal Corporation and building permit was also issued by it following which, by the end of the year 1985, plots no. 4, 5 and 5A had been consolidated and construction of community hall over such consolidated piece of land was also completed. So, in the year 1985 itself, plot no. 5A was not available for allotment; it had no separate existence and identity. If this is the case of the applicant, I do not understand as to what prevented the applicant from bringing all these material facts to the knowledge of the respondent as well as the cooperative court which passed the decree on 31.3.2000 and which goes to the root of the whole issue. It appears that the applicant silently watched the proceedings before the cooperative court, allowed the cooperative court to pass a decree, probably knowing well that eventually the respondent would not get in his hand anything and the applicant would not be required to pass on the property to the respondent. As if this was not enough, the applicant also maintained complete silence before the cooperative appellate court. Even during the pendency of appeal and till its final disposal, the applicant did not utter a single word about plot no. 5A losing its separate identity way back in the year 1985. The applicant also did not voluntarily abide by the decree dated 31.3.2000 which was confirmed by the cooperative appellate court. After the appeal was dismissed on 20th April 2002, as a lawabiding citizen and responsible member of the larger society, the applicant was under a duty at least to the larger society, if not to the respondent, to uphold the law of the land. But, the applicant did not do so. The applicant did not allot plot no. 5A to the respondent and if it had been already amalgamated into some other plot, the applicant also did not take any efforts in desegregating plot no. 5A from the other plots. Thus, the applicant created a situation wherein the respondent was compelled to file execution proceedings against the applicant and it was at this stage, which arose some time in the year 2002, the applicant suddenly raked up the issue which it was holding so close to its heart for about eleven years. At this point of time, the applicant for the first time raised an objection about inexecutability of the decree, for, plot no. 5A had lost its separate identity way back in the year 1985.
All the facts discussed, therefore, only show that the applicant has no respect for the law and somehow or the other, it wants to deprive the respondent of the fruits of the decree. If the effort of the applicant is allowed to succeed, it would mean that the applicant has been permitted to take advantage of its own wrong. This Court being a Court of law and equity, would never countenance such a situation and would not give shelter to a person who commits wrong and tries to derive advantage out of his own wrong. In the case of Union of India & ors v. Major General Madan Lal Yadav reported in (1996) 4 SCC 127, the Hon''ble Supreme Court while referring to the principle propounded by the Latin maxim nullas commondum capere potest de injuria sua propria meaning, no man can take advantage of his own wrong, held that the maxim is based on elementary principle and is fully recognized in Courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure. The conduct of the applicant here disentitles him to any relief and as a matter of fact, amounts to abuse of process of law.
This reminds me of the situation which obtained way back in 1872. It was assessed by the Privy Council in terms that the difficulties of a litigant begin when he obtains a decree. The situation which a litigant like the applicant faced in the past continues even today with little change in it. The respondent, I am sure, must even now be thinking that it is easier to obtain a decree, but it is a Herculean task to execute it. When a decree attains finality and rights of the parties are crystalized and settled, there remains nothing for the judgmentdebtor to a decree to avoid the obedience to the decree. He must bow before the law and voluntarily comply with the directions given in the decree and if he does not, the least that could be expected of him is to not raise any such objection to its execution as is founded upon fraud, his own misconduct or frivolity or the likewise. After all, just as every material thing and relations of material thing has shelf life, every dispute between the parties, one must realize, also has its own shelf life and the only difference between the expiry period of material things and relations of material things on one hand and the dispute arising from inter se relations between the human beings on the other, is that the expiry date of the former is known the day they take birth and expiry date of the latter becomes known only when the adjudication of the dispute by a competent court attains finality. So, a judgmentdebtor who owes a duty to the larger society to respect law by his abidance by the terms of a decree must know that after expiry of the shelf life of the dispute, there is no way for him to rekindle the dispute and somehow or the other try to keep the flame alive. In the case of Satyavati v. Rajender Singh & anr reported in (2013) SCC 491, the Hon''ble Supreme Court has observed that the decreeholders must enjoy the fruits of the decree obtained by them in an expeditious manner and duty is cast upon the courts in India to be careful to see that processes of the Courts of law of procedure are not abused by the judgmentdebtors and the Courts of law do not play into hands of the judgmentdebtors in defrauding the creditors who have obtained the dcrees in accordance with their rights.
Now, coming to the question of losing of identity of Plot No. 5A, I must say that this is not something which is irreversible. A change in things is irreversible when the change cannot be undone and things cannot be restored to their original shape or form or structure, as it happens when sugar dissolves in water. Such irreversibility is not there when two pieces of lands are combined together by a paper order. Here the amalgamation of the plot in question has taken place with two other plots under an administrative order. Such amalgamation is always open for reversal and any of the three plots can be detached from the rest of the plots. This can be done even under the decree of the Court of law and in the instant case, this could have been by the Cooperative Court at the time of grant of decree had this fact been brought to its notice in time. Since it was not, now the applicant would have to do it by seeking appropriate order of the competent authority. If the applicant does not show any willingness and is reluctant to take necessary steps, the law will come to the rescue of the respondent and compel the applicant to do everything that is necessary for desegregation of plot no. 5A. Same principle would apply to the construction made on this property. Even otherwise, this construction has been found by the 1st appellate court to be illegal. Therefore, this construction will also have to be pulled down by the applicant and if it does not do so, the spirit of law will always ensure that the law of the land is respected.
About the transfer of Plot No. 5A by sale deed executed in June 1994, I must say that there is nothing in the objection application vide exhibit 11 to give even an inkling of transfer of plot no. 5A and its amalgamation with other plots. There is no averment made in this application about the transfer of said plot. It was not a subjectmatter of debate and adjudication before the executing court. Therefore, this Court exercising revisional powers with a view to examine the legality, material irregularity or correctness of the impugned order cannot permit the applicant to take such a plea at this stage. Then, one does not know whether such a sale deed was really executed or not, the reason being that had it really been executed, the applicant would surely have incorporated pleadings about the same in its objection application vide exhibit 11. This has not been done so and, therefore, the argument made in this regard cannot be accepted.
In the result, I find that there is nothing illegal, improper or irregular about the impugned order. I do not notice any perversity in the impugned order and, therefore, this revision application deserves to be dismissed with costs which, in my opinion, must be heavy given the attitude of the applicant in respect of which I have already made my detailed comments in the foregoing paragraphs.
Revision application is dismissed with costs. In addition, exemplary costs of Rs. 25,000/are imposed on the revision applicant to be paid to the respondent.