Y. R. Lakshminarasimhaiah vs Y. R. Lakshminarayanappa

This case reminds me of what the Judicial Committee of Privy Council speaking through the RIGHT HON. SIR JAMES COLVILE, about a

century & a half ago i.e., in the year 1872 had observed in the case of THE GENERAL MANAGER OF THE RAJ DURBHANGA VS.

MAHARAJAH COOMAR RAMAPUT SINGH IN MOORE’S INDIAN APPEALS (1871-72), VOL.14, PAGE 605 = 17 W.R.459; it reads:

“These proceedings certainly illustrate what was said by Mr. Doyne, and what has been often stated before, that the difficulties of a litigant in India

begin when he has obtained a Decree….â€​

Petitioners being the Judgment-Debtors in a Partition Suit in O.S.No.42/1992 are invoking the writ jurisdiction of this Court for assailing the order

dated 25.06.2018 made by the learned Principal Senior Civil Judge, Chikkaballapur at Annexure-‘B’ in contesting respondents’ FDP

No.8/2016 whereby a Commission Warrant has been issued for effecting the partition of the suit schedule property. The contesting respondents after

service of notice having entered appearance through their counsel resist the writ petition.

BRIEFER FACTS OF THE CASE:

a) Contesting respondents suit in O.S.No.42/1992 for a decree of partition and separate possession of the property having been decreed on

24.06.2004, the said partition decree having been reversed on 02.12.2006 in petitioners R.A.No.25/2004, respondents RSA No.579/2007 against the

reversal came to be allowed by this Court on 24.07.2015 restoring the Judgment and Decree of the Trial Court.

b) Being aggrieved by the Judgment and Order in the above RSA, petitioners had filed SLP No.258/2016 which came to be rejected by the Apex

Court on 19.02.2016 followed by the order dated 11.01.2017 dismissing the review petition. Thereafter, petitioner had filed a Curative Petition on

09.11.2017 in Diary No.35997/2017 which later came to be registered as Curative Petition No.343/2018, which assertedly has been still pending

consideration, there.

c) The contesting respondents have filed FDP No.8/2016 on 21.06.2016. The contesting respondents on 11.06.2018 had sought for appointment of

Court Commissioner for effecting partition of suit property and accordingly Junior Engineer of the Municipal Council, Chikkaballapur came to be

appointed and tentatively a fee of Rs.1,000/- came to be fixed. The said fee having been duly deposited, the Court below vide order dated 25.06.2018

issued Commission Warrant for effecting partition of suit property.

d) The Court Commissioner on the basis of the Warrant having issued a prior notice dated 13.07.2018 to all the Judgment debtors proceeded to

execute the warrant and took steps for effecting partition of the suit property in terms of the decree. Aggrieved thereby the petitioner judgment

debtors have knocked at the doors of writ Court.

Submissions on behalf of the petitioners Judgment Debtors:

(i) Learned senior advocate Sri. Padmanabha Mahale appearing for the counsel on record for the petitioners firstly submits that a Court below ought

to have favoured the request of the judgment debtors to halt the case in FDP No.8/2016 till after their Curative Petition No.343/2018 (Diary

No.35997/2017) pending before the Apex Court is disposed off; the Court below in exercise of its inherent power under Section 151 of CPC read with

Order XXI Rule 26 ought to have stayed the final decree proceedings. The refusal to exercise this discretion by the Court below constitutes an error

of law apparent on the face of the record, warranting indulgence of writ Court; in support of his contention Sri.Mahale banks upon the text of Article

144 of the Constitution of India; and

(ii) Learned senior counsel Sri. Mahale secondly submits that the Commission Warrant has not authorized demolition of the structures standing on the

suit property and therefore the Commissioner needs to be restrained from causing such demolition; this having not been done by the Court below

constitutes another error apparent on the face of the record which independently warrants indulgence of the writ Court.

Submissions on behalf of the respondents - Decree Holders:

(i) Learned counsel for the respondents Sri. Vikram Phadke contends that the writ petition is liable to be dismissed because the petitioners having

unsuccessfully fought the case upto Apex Court of the Country, their SLP No.258/2016 having been rejected, and their review against the said

rejection also having been negatived, they have filed the Curative Petition which is pending indefinitely since they have not pursued the same; the

pendency of Curative Petition per se is no ground for halting the proceedings for fructification of the Court decrees; he further submits that in the

absence of any kind of direction issued by the Apex Court, the Article 147 of the Constitution is uninvokable.

(ii) Sri. Phadke secondly contends that the decree is for the partition and separate possession of the property and it is impossible to effect actual

division of the said property without demolition at all and therefore no fault can be laid at the threshold of the Court Commissioner for taking necessary

steps vide Warrant; therefore the objections to the steps taken by the Commissioner is unsustainable.

(iii) Lastly Sri. Phadke submits that the scope of writ jurisdiction under Article 227 of the Constitution is too restrictive to admit the claim of the

petitioners to the disadvantage of the respondents who have been fighting against the all the odds/hurdles placed by the petitioners in their endeavour

to have the fructification of the decree.

I have heard the learned counsel for the petitioners and the learned counsel for the respondents. I have perused the petition papers. I am of the

considered opinion that the petitioners do not deserve any relief in the exercise of extraordinary jurisdiction constitutionary vested in this Court for the

following:

REASONS

a) Respondents suit in O.S.No.42/1992 has been decreed for partition and separate possession on 04.02.1992; this decree was set at naught in

petitioners R.A.No.25/2004 by the First Appellate Court on 02.12.2006; this Court in petitioners’ RSA No.579/2007 having set aside the order in

R.A.No.25/2004 restored the partition decree of the Court below on 24.07.2015; petitioners SLP.No.2584/2015 having been dismissed on 19.02.2016

and their Review Petition No.3963/2016 against the same also having been dismissed on 11.01.2017, they filed the Curative Petition vide Diary

No.35997/2017 only on 09.11.2017 at 11:54 a.m. as reflected in the Case Status of the Supreme Court of India at Annexure-‘A’; After removal

of office objections the same has been registered as Curative Petition No.343/2018; since the filing of the curative petition, more than one and a half

years have lapsed, the same having not been duly pursued; there is no interim protection granted by the Apex Court either in SLP, or in Review

Petition or in the Curative Petition; mere challenge per se does not result into suspension of operation of the order in challenge and no law to the

contrary is notified to this Court; thus it has been a long legal saga for the decree holders who are yet to get the usufructs of the decree obtained by

them;

b) The contention of the petitioners â€" Judgment Debtors that the Court below ought to have halted the case in FDP till after the disposal of the

Curative Petition by exercising power under Section 151 or under Order XXI Rule 26 of CPC, 1908 since Article 144 of the Constitution mandates

“All Civil and judicial authorities to act in aid of the Supreme Courtâ€​ is misconceived; had the Court below stayed the FDP, it would have arguably

violated the mandate of this provision because the judgment debtors have lost their case in the Trial Court, in this Court and in the Apex Court i.e.,

both SLP and Review admittedly; ordinarily going by the text and context of Article 144 which is required to be read as supplemental to Article 141,

its invocation is permissible only if there is some direction/order by the Apex Court, which expects its compliance by any Civil or judicial authorities in

the territory of India; in the present case there is not only none, but the judgment rendered by this Court in decree- holders’ RSA has not been

interfered by the Apex Court in Judgment-Debtors’ SLP and later the Review; pendency of a Curative Petition before the Apex Court is too

feeble a ground for stay of FDP and is not a ground for invoking either Article 144 of the Constitution, or Section 151 of CPC or its Order XXI Rule

25;

c) In a bit different fact matrix, the difference being not much relevant, the Apex Court in the case of DEEPAK MALIK Vs. RAKESH BATRA,

(2005) 13 SCC 113 at paras 3 & 4 has observed as under:

“3. It appears that money decrees were passed by the trial court in three different suits against which First Appeals Nos.1399, 1400 and 1401 of

2003 were filed. In these appeals, on 25-11-2003, the High Court directed that further proceedings of execution cases shall remain stayed upon the

judgment-debtor’s furnishing security for the decretal amount to the satisfaction of the executing court. Pursuant to the said order, security was

furnished by the judgment-debtor but the same was not accepted by the executing court, as such by order dated 23-3-2004, the High Court vacated

the said stay order. Against the said order, the matter was brought to this Court by the judgment-debtor bearing SLPs (C) Nos.9047-49 of 2004, but

the same were dismissed on merits on 1-10-2004 and the order vacating stay was confirmed. From the aforesaid facts it becomes clear that the

prayer for stay of proceedings in execution cases was rejected finally up to this Court. In spite of this fact, it appears that the judgment-debtor was

trying his level best by filing petitions either before the executing court or before the High Court for stay of execution of decrees by obtaining interim

orders of stay, and lastly by the impugned order, he succeeded in obtaining final order from the High Court staying further proceedings of the

execution cases upon furnishing security for the balance amount as he had already deposited a sum of Rs.25 lakhs pursuant to the earlier direction of

the High Court.

Having heard the parties and perused the impugned order, we are of the view that so far as the question of staying execution of decrees is

concerned, the matter attained finality by virtue of rejection of the special leave petitions by this Court. In view of these facts, neither the executing

court nor the High Court was justified in granting ad interim stay by different orders and ultimately confirming the same by the impugned order

rendered by the High Court which is in the teeth of order of this Court referred to above and, accordingly, liable to be set aside on this ground alone.â€​

d) It is not that the petitioners â€" Judgment Debtors cannot get restitution under Section 144 read with Section 151 of CPC, 1908 if and when their

Curative Petition is favoured by the Apex Court; but till that happens, the victorious party in the legal battle fought upto the highest Court of the

Country cannot be asked to wait in militant silence indefinitely; the provisions relating to restitution/reinstatement are on the statute book justifiably for

such an eventuality; it is always open to the Judgment-Debtors to invoke these provisions in the event they succeed in their curative petition;

e) The contention that the Commission Warrant does not authorize the demolition of the structures standing the subject property again equally

untenable; the decree is for partition of the property and separate possession of the decreed shares; if division of the property is essential for giving

effect to the decree, no fault can be laid at the doors of the Court Commissioner; no material is placed even here, to substantiate the stand to the

contrary; in fact in the pleadings of the petitioners no grievance is made is this regard although an affidavit dated 13.06.2019 is filed inter alia taking up

such a contention; there is nothing on record to prima facie show such a grievance have been made either before the Court below or before the Court

Commissioner; therefore no redressal can be granted in this regard, either;

f) The respondents’ partition suit in O.S.No.42/1992 as already stated above was decreed on 24.06.2004; in petitioners’ R.A.No.25/2004 this

decree was set aside on 02.12.2006; the order in R.A. having been reversed this Court is respondents’ RSA No.579/2007 restored trial Court

decree on 24.07.2015; petitioners’ SLP No.258/2016 against the judgment in RSA was dismissed on 19.02.2016 and Review Petition

No.3963/2016 against the same is also dismissed on 11.01.2017; now the Curative Petition No.343/2018 is stated to be pending; in the meanwhile

original plaintiff and the original defendant having died their LRs are brought on record; the fruits of the decree are yet to reach hands of the decree-

holders despite lapse of more than a quarter century of legal battle; if the FDP is interdicted in this back drop of facts, the sensible public may lose

faith in the judicial process.

In the above circumstances, no other ground having been urged, this writ petition being devoid of merits, stands dismissed.

No costs.