Bhuwaneshwar Pandey v. Piyush & Anr.

1. This execution first appeal was ordered as being dismissed as not pressed in terms of the order dated 01.12.2014, and which order reads as under:- “ Vide order dated 12.11.2014 these execution first appeals have been listed in Court by the Registrar on recording the statement of the appellant that the appellant does not want to pursue the appeals. Appeals are accordingly dismissed as not pressed.”

2. This order was passed on 01.12.2014 inasmuch as before the Registrar on 12.11.2014, counsel for the appellant made the statement that the matter 2014:DHC:7276 be listed in Court because the appellant does not want to pursue the appeal. This order dated 12.11.2014 of the Registrar reads as under:- “ CM APPLs. 11161/2014 (u/O 22 R 3 CPC r/w Sec. 151 CPC filed by LRs of deceased appellant), 1162/2014 (u/Sec. 5 of Limitation Act filed by LRs of deceased appellant) and 11163/2014 (delay in refiling) Counsel for the appellant seeks permission to withdraw these applications. All the three applications are dismissed as withdrawn. EX.F.A.18/2013 Counsel for the appellant does not wish to pursue this appeal and seeks permission to withdraw the same. List the matter before Hon’ble Court for orders on 01.12.2014.”

3. For three dates prior to the order of the Registrar dated 12.11.2014 viz for 23.9.2014, 07.8.2014 and 15.7.2014, notices could not be issued to the respondents on the applications being C.M.No.11161/2014 filed under Order XXII Rule 3 of the Code of Civil Procedure, 1908 (CPC) and the connected application being C.M.No.11162/2014 under Section 5 of the Limitation Act, 1963 on account of non-filing of the process fee. After three defaults in filing of the process fee, on 12.11.2014 counsel for the appellant made the statement that the appellant does not wish to pursue this appeal.

4. Before turning to the prayer made in this application to recall the order dated 01.12.2014 on the ground that the counsel for the appellant was not instructed by the appellant to withdraw the appeal, certain facts as regards the merits of the matter are required to be noted.

5. This execution first appeal impugns the order of the executing court dated 12.7.2013 by which the executing court dismissed the application filed by the appellant under Order XXI Rule 90 CPC and by which application the appellant/objector prayed that auction conducted of the property No.TA 209, Gali No.1, Tuglakabad Extension, New Delhi on 10.5.2013 be set aside.

6. By the impugned order dated 12.7.2013, the application under Order XXI Rule 90 CPC was dismissed by the executing court making scathing remarks against the appellant/objector who was held guilty of gross abuse of the process of the law. The impugned order notes that the appellant/objector had earlier moved an application for stay of the auction, and which application was dismissed by the detailed order dated 01.5.2013 by imposing costs of Rs.20,000/- upon the appellant/objector. The impugned order also notes that every sort of tactic was used before the executing court to delay and defeat the execution with respect to the money decree passed in favour of the decree holder who is the respondent no.1 herein and against the judgment debtor. It is also noted in the impugned order dated 12.7.2013 of the executing court that the right which the appellant/objector claimed in the suit property had been rejected even by this Court, inasmuch as the civil suit being CS(OS) No.23/2010 filed before this Court by the appellant/objector claiming that he is the owner of the suit property stood dismissed. The impugned order also notes that the appellant/objector was taking conflicting stands including contending that the suit property in fact belonged to the Government and not to him. The impugned order discusses in detail all the three objections which were urged on behalf of the appellant/objector, and by the detailed impugned order the executing court rejected the objections noting that both the appellant/objector and his brother/ the judgment debtor and the respondent no.2 herein, used to regularly appear in the court, and in fact there was a clear-cut collusion between the judgment debtor and the appellant/objector, as noted in the earlier detailed order dated 01.5.2013 passed by the executing court.

7. The fact that the appellant/objector was using all tactics to delay the execution proceedings becomes clear from the fact that the appellant/objector also tried to get the case transferred from the court which passed the impugned order to another court, but that endeavour was also not successful. Accordingly, there was in fact no case on merits even in the execution first appeal itself which was filed by the appellant (who has since expired and who is now represented by his legal heirs who have filed the present application). Obviously, there being no substance in the appeal, counsel for the appellant/objector would have been advised not to pursue the present appeal.

8. In the present case, it is noted that though the legal heirs of the deceased appellant/objector who have filed the application for recall of the order dated 01.12.2014 state that they had not given any instructions to their counsel to withdraw the appeal, however along with this application, leave aside mentioning of filing of any complaint with the bar council against the earlier Advocate, there is not attached even a copy of a legal notice which was required to be sent to the earlier counsel that he had committed an illegality in withdrawing the appeal because no such instructions were given to him. Also, and as already stated above, the appeal was prayed to be withdrawn at that stage when for three hearings no process fee was filed for service of the respondents, and that too in an appeal which was ex facie without any merit and substance whatsoever.

9. Learned counsel for the appellant/applicants has placed reliance upon the order passed by the Supreme Court reported as Baligar Sahamulia Vs. Baligara Fakruddin Sab (dead) by LRs (2005) 10 SCC 214 to argue that unless advocates receive instructions, they cannot withdraw the matter, however, in my opinion the short order of about 12 lines in the case of Baligar Sahamulia (supra) has no application to the facts of the present case because as stated above there is not only not attached with this application copy of any complaint filed against the earlier counsel with the bar council, but also there is no copy of any legal notice sent to the earlier counsel mentioning that he had acted without any instructions.

10. In view of the above, it is clear that this application is only an endeavour to somehow or the other continue the malafide action in objecting to the execution proceedings for thwarting and frustrating the execution of the money decree and the auction proceedings which have taken place to sell the property of the judgment debtor. Obviously, the applicants, and earlier the appellant/objector Sh.Bhuwaneshwar Pandey are/were in league with the respondent no.2/judgment debtor/Sh.Ram Awadh Pandey (brother of the appellant) to frustrate the money decree.

11. In view of the above, there is no merit in the application, and the same is therefore dismissed with costs of Rs.15,000/-, which shall be paid to the Prime Minister’s National Relief Fund. Costs shall be deposited within a period of six weeks from today.

DECEMBER 19, 2014/KA VALMIKI J. MEHTA, J.