Full Text
HIGH COURT OF DELHI
Date of Decision: 16th May, 2023
ASHOK & ORS. ..... Petitioners
Through: Mr. Abhimanyu and Mr. Abhishek Singh, Advocates.
Through: Mr. Sharvan Dev, Advocate with Respondent No.4 Ajit Singh Rana-in- person.
JUDGMENT
Rule 10(2) CPC, seeking deletion of Respondents No.1 and 3 who are stated to have expired and stating that being issueless, their alleged share goes to the legal heirs of Liaq Ram/Respondent No.2.
Issue notice.
Learned counsel appearing on behalf of Respondents accepts notice.
For the reasons stated in the application, the same is allowed.
Names of Respondents No.1 and 3 are hereby deleted from the array of parties.
Amended memo of parties filed along with the application is taken on record.
Application stands disposed of.
1. By this revision petition, Petitioners seek quashing of order dated 10.01.2020, passed by the Executing Court in Execution Case No. 95292/2016 titled ‘Khyali Ram and Others v. Ashok and Others’, whereby objections filed by the Petitioners have been dismissed and warrants of possession have been issued against suit property bearing House No. 548, with adjacent courtyard, situated in Village Abadi of Village Khera Kalan, Delhi-110062. Petitioners herein are sons of late Sh. Laxman Singh who was one of the Defendants before the Trial Court while Respondents are legal representatives of the three Plaintiffs before the Trial Court.
2. Facts to the extent necessary can be encapsulated as Plaintiffs filed a suit for permanent injunction on 24.04.1986 against two Defendants namely Sh. Bholey Ram and Sh. Laxman Singh, seeking a restraint from interfering with peaceful possession over the suit property. A joint written statement was filed by the Defendants denying possession of Plaintiffs over the suit property as well as correctness of the site plan filed with the plaint. Defendant No. 1/ Sh. Bholey Ram gave a statement on 25.04.1988 that he had no concern with the suit property and had been unnecessarily impleaded as a Defendant. In view of this statement, Plaintiffs withdrew their suit against Defendant No. 1 and the suit proceeded against Defendant No. 2.
3. Trial Court, as an interim measure, ordered status quo with regard to possession and existing construction on the suit property and a Local Commissioner was also appointed. According to Defendant No. 2, Local Commissioner reported that possession of the open courtyard was with Defendant No. 2 while the adjacent area was in possession of Defendant No. 1 and some neighbours and this established that Plaintiffs were never in possession of the suit property. No objections were filed by the Plaintiffs against the Local Commissioner’s report.
4. Subsequently, Defendant No. 2 stopped appearing in the matter and the Court proceeded ex parte against him vide order dated 11.12.2003 and a decree was passed on 27.08.2004 decreeing the suit for permanent injunction in favour of the Plaintiffs and restraining Defendant No. 2 from interfering in the peaceful possession of the suit property, in any manner. In 2006, the Plaintiffs/Decree Holders filed Execution Petition bearing No.259/2006 which was dismissed on 02.02.2007 with the observation that the Decree Holders failed to give particulars of the date of alleged violation of injunction decree. Thereafter, in 2007, another execution petition bearing NO. 595292/2016 was filed by the Plaintiffs/Decree Holders before the Executing Court. Objections were filed by the Petitioners herein who are sons of late Sh. Laxman Singh/Defendant No. 2 in the suit and referred hereinafter as Judgment Debtors. By the impugned order, the Executing Court dismissed the objections, wherein the Judgment Debtors had pleaded that the decree was obtained by playing fraud on the Court and was a nullity. It was also pleaded that Plaintiffs had filed the suit in respect of property, which belonged to the two Defendants and included a portion owned by one Sh. Ram Jeevan. Local Commissioner’s report pointed to the fact that the two Defendants were in possession of the property and not the Plaintiffs. Several contempt petitions filed by the Plaintiffs alleging their dispossession by the Defendants were dismissed from time to time for non-prosecution and therefore, in the garb of execution, Plaintiffs cannot seek possession of the property, which they never had. If at all, the Plaintiffs were aggrieved, it was open to them to file a suit under Section 6 of the Specific Relief Act, 1963 but the remedy was not to seek execution, in the absence of possession. It was also urged that decree for permanent injunction cannot be executed by issuance of warrants of possession. On both scores, Trial Court dismissed the objections vide order dated 10.01.2020 and issued warrants of possession against the suit property, fixing a date for appointment of Bailiff.
5. Revision petition was listed for admission on 31.01.2020 and this Court while issuing notice to the Decree Holders, stayed the execution of the decree dated 27.08.2004, through warrants of possession. The interim order continues till date.
6. Broadly understood, prime contention of the Judgment Debtors is that when suit was filed for permanent injunction, Decree Holders were not in possession of the suit property and the possession was with the Judgment Debtors along with some portion being in possession of an outsider. Local Commissioner’s report supported the case of Judgment Debtors with respect to the factum of possession and yet an ex parte decree was obtained by the Decree Holders by playing fraud on the Court and the Judgment Debtors. Since the decree was obtained by fraud, it is a nullity in the eyes of law and cannot be enforced by the Executing Court.
7. The second and the only other contention raised before the Trial Court as well as this Court is that the mode of executing a decree for permanent injunction is laid down under Order XXI Rule 32(5) CPC and such a decree cannot be executed in any other manner, much less by issuing warrants of possession, as that would amount to giving possession of the suit property to the Decree Holders, which they never had.
8. Executing Court dismissed the objections and issued warrants of possession finding no merit in the same. Insofar as the mode of execution of the decree was concerned, Executing Court relied on the provisions of Order XXI Rule 32(5) CPC and its Explanation and concluded that the said provision applies both to mandatory as well as prohibitory injunctions. In reaching this conclusion, Court placed reliance on judgments of the High Court of Orissa in Chakradhar Paital Deceased by LRs & Ors. v. Gelhi Bawa & Ors., AIR 2012 Ori 44 and the High Court of Punjab and Haryana in Kapoor Singh v. Om Parkash, AIR 2009 P&H 188. Court took note of the pleaded case of the Decree Holders before the Executing Court that when the suit for injunction was filed the possession was with the Decree Holders, however, after passing of the decree, possession was forcibly taken over by the Judgment Debtors. The position that obtained was that possession of the property continued to be with the Judgment Debtors and Decree Holders were never put back in possession of the suit property. In this backdrop, Court was of the view that it cannot be a party to the illegal designs of the Judgment Debtors and since there was disobedience of the decree of a Court, the Decree Holders deserved to be put back in possession as relegating the Decree Holders to filing another suit for recovering possession would lead to multiplicity of litigations and would prejudice the Decree Holders who had already spent much time and expense in getting the fruits of their litigation.
9. I have heard learned counsel for the Petitioners/Judgment Debtors and counsel for Respondent No. 4/one of the Decree Holders.
10. Though subtly, Respondent No. 4 had raised an objection on the maintainability of a revision petition against the impugned order. This Court finds no merit in the preliminary objection. In Guntupalli Rama Subbayya v. Guntupalli Rajamma, AIR 1988 AP 226, the Full Bench of the Andhra Pradesh High Court considered the question whether revision or appeal would lie against an order passed under Section 47 of the CPC. It was held that execution proceedings cannot be regarded as continuation of the suit and therefore, any order determining such proceedings would not be appealable. This Court in K.A. Nagamani v. National Consumer Disputes Redressal Commission & Anr., 2018 SCC OnLine Del 12345, where a similar question arose for consideration, relied on the aforesaid judgment and held as follows:- “36. In Guntupalli Rama Subbayya v. Guntupalli Rajamma (supra), the Full Bench of the Andhra Pradesh High Court had considered the question whether any revision or appeal would lie against any order passed under Section 47 of the Code of Civil Procedure. It was contended that execution is a continuation of the suit and, therefore, any order passed in such proceedings, which would satisfy the essential characteristic of a decree would be appealable. The Court repelled the said contention and held that a decree must relate to a determination of the matters in controversy in a suit or in any proceedings, which can be properly regarded as continuation of a suit. In this context, execution proceedings could not be regarded as continuation of a suit and any order of determination in such proceedings would not be appealable. The relevant extract of the said decision is set out below:— “That the law laid down in Parshava Properties' case (AIR 1970 Pat 308) (supra) is no more good law should have been a good answer to the learned counsel's contention, but the learned counsel submits that dehors the decision in Parshava Properties' case (supra), his contention that the order in question finally determines the rights of the parties in controversy in the EP which is continuation of suit, and therefore amounts to ‘decree’ within Sec. 2(2) may be considered. We fail to see any force in this submission. From the definition of decree in Sec. 2(2), it is manifest that the determination must relate to the matters controversy in the suit or in the proceedings which can properly be regarded as continuation of the suit. Execution Proceedings, in our view, cannot be regarded as continuation of the suit in the sense in which the proceedings in appeal are treated. As long back as in 1898 it was observed in Venkata v. Venkataramana, ILR (1898)
22 Mad 256 that the execution proceeding though proceeding in a suit, is not a suit. As noticed above, though the proposition that the execution proceedings are continuation of the suit, found favour with the Division Bench of the Patna High Court in Parshava Properties' case (supra), the Division Bench of this court in Challa Ramamurthy's case (supra) dissented from it and took the view that the execution proceedings started when the suit ended and in the context the suit could not be given meaning so as to include the proceedings in execution. In our view Execution proceedings are independent proceedings. They may be initiated in a suit but they are not in continuation of suit. They are taken to execute, the decree passed in the suit either at the original stage or at the appellate stage but they do not culminate in a decree. They cannot therefore, be treated as in continuation of the suit, much less as a suit. We are, therefore, in entire agreement with the view expressed by the Division Bench of this Court in Challa Ramamurthy's case (AIR 1985 Andh Pra 42) (supra) on this aspect and the Division Bench of Gujarat High Court in Hansumatiben v. Ambalal Krishnalal Parikh, AIR 1982 Guj 324. With respect we agree with the view taken by the Full Bench of the Kerala High Court in Mohamad Khan v. State Bank of Travancore, AIR 1978 Ker 201; the Allahabad High Court in Prarap Narain Agarwal v. Ram Narain Agarwal, AIR 1980 All 42 (FB); and the Patna High Court in Narmada Devi's case (AIR 1987 Pat 33 (FB)) (supra) on this point.”
37. In Narmada Devi v. Ram Nandan Singh (supra), the Full Bench of the Patna High Court held that orders passed under Section 47 of the CPC did not fall within the definition of a ‘decree’ as defined under Section 2(2) of the CPC. It is relevant to note that in terms of Section 2(2) of the CPC, a decree means a formal expression of an adjudication, which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. The Court held that “.. both on principle and precedent, it must be held that orders under S. 47 cannot be equated with matters, in controversy in the original suit itself.”
11. Insofar as the contention of the Judgment Debtors that the decree was obtained by fraud and is a nullity, this Court finds no merit in the same. After the suit was filed by the Decree Holders, summons were received by both the Defendants, who filed a joint written statement. Defendant No. 1 made a statement on oath before the Court that he had nothing to do with the property and was deleted from the array of parties. The suit was withdrawn qua the said Defendant and proceeded against Defendant No. 2 therein. Defendant No.2 was proceeded ex parte on 11.12.2003. No steps were apparently taken seeking setting aside of the ex parte decree or filing the appeal against the said order. The suit proceeded and Decree Holders filed evidence by way of affidavit in support of the claim. The documents were proved and the Decree Holders’ evidence remained unrebutted. Thus, the Judgment Debtor accepted the ex parte judgment and decree which has attained finality. While it was open to the Judgment Debtors to have contested the issue of possession before the Trial Court and lead evidence, however, they chose to stay away from the proceedings. One of the grounds on which objections were filed in the Executing Court was a reiteration of their stand that Decree Holders were not in possession at the time of filing suit and/or any time thereafter. This, in my view, is an objection which touches upon the factual aspect of the matter and merits and requires evidence and having raised the said plea in the written statement, Defendant No.2 chose to abstain from appearing before the Trial Court and missed the opportunity to establish their case in trial. Thus, Judgment Debtors cannot be permitted to assert that Decree Holders played fraud in obtaining the decree. Reading of the objections filed by the Judgment Debtors reflects that this is the only ground taken in addition to giving a narrative of several contempt petitions filed unsuccessfully by the Decree Holders before filing the execution petition. There is not a whisper as to how the alleged fraud was played by the Decree Holders on the Court to obtain the decree. Order VI Rule 4 CPC provides that in all cases where a party relies on any misrepresentation and/or fraud, particulars with dates shall be stated in the pleadings. As held in various judgments, the object of the Rule is two-fold. First, it affords the other side intimation regarding the particular facts of the case he has to meet and second, it enables the Court to determine the real issue between the parties. In Nandam Mohanamma and Others v. Markonda Narasimha Rao and Another, AIR 2006 AP 8, it was held that any allegation as to fraud etc. needs to be specifically pleaded as unless there exists corresponding plea and an issue framed thereon, no evidence can be led. To the same effect is the judgment of this Court in Mukesh Hans & Anr. v. Smt. Uma Bhasin & Ors., 2010 SCC OnLine Del 2776. The objections filed by the Judgment Debtors completely lack in material particulars on the alleged fraud, save and except, the singular averment that the Decree Holders were not in possession, which was a matter of trial and the evidence of Decree Holders that they were in possession at the time of filing the suit remained unrebutted. Court is also correct in holding that as an Executing Court, it cannot go behind the merits of the judgment and hold a re-trial and is bound to execute the decree in letter and spirit. Therefore, no illegality can be found in the order of the Executing Court to this extent.
12. The only other plank of argument of the Judgment Debtors is that the Executing Court was not empowered to issue warrants of possession of the suit property while executing a decree of permanent injunction. In order to deal with this contention, provisions of Order XXI Rule 32(5) CPC would require examination and are extracted hereunder, for ready reference:-
13. A plain reading of the aforesaid provision shows that where a decree for injunction is disobeyed, the Court may, in lieu of or in addition to all or any other process stated in the earlier sub-Rules of Rule 32, direct that the act required to be done may be done so far as practicable by the Decree Holder or any other person appointed by the Court at the cost of the Judgment Debtor. The Explanation inserted by Act 22 of 2002 provides that the said provision shall cover both prohibitory as well as mandatory injunctions. The question that arises for consideration before this Court is whether the Executing Court was empowered to issue warrants of possession with respect to the suit property, while executing a decree of permanent injunction.
14. This question is no longer res integra and has been decided by various Courts and I may allude to a few in order to avoid prolixity. In Kapoor Singh (supra), the Punjab and Haryana High Court was dealing with execution of a decree for specific performance of an agreement to sell as also for permanent injunction restraining the Defendant from alienating the suit land to anyone except the Plaintiff and dispossessing the Plaintiff from the suit land. Decree Holder filed a petition for execution of the decree. Although the sale deed was executed and registered in favour of the Decree Holder, however, the Judgment Debtor forcibly took possession of the suit land leading to filing of an application by the Decree Holder invoking the power of the Executing Court under Order XXI Rule 32 CPC praying that possession be delivered to the Decree Holder. Objections were filed by the Judgment Debtor on the ground that Decree Holder did not disclose that property in dispute was in possession of the objector as owner. The objections were dismissed by the Executing Court holding that the objections were filed to defeat the decree. Appeal against the said order was also dismissed by the First Appellate Court. In the meantime, since the application was pending, the Executing Court ordered delivery of possession by issuing warrants of possession. Challenging this order, the matter finally travelled to the High Court and the contention of the Judgment Debtor was that the Executing Court committed an error of law by issuing warrants of possession when there was no decree for possession in favour of the Decree Holder. The High Court dismissed the appeal as wholly misconceived and as abuse of process of law with costs and held as follows:- “As discussed earlier, the decree dated 22.10.1994 was in two parts. One concerning the specific performance of the contract and the other concerning restraint order with regard to the forcible dispossession. In respect of the latter part, Order 21 Rule 32(5) CPC, provides that the Court may, in lieu of or in addition to all or any of the processes which are provided under Order 21 Rule 32 (1) to (4), direct that act which is required to be done which covers prohibitory as well as mandatory injunctions. To my mind, the Act required to be done which is also mentioned in the explanation are prohibitory and mandatory injunction empowers the Executing Court in case of violation of the decree of permanent injunction where the respondents have forcibly taken possession in spite of the decree of injunction. Thus, an order of mandatory injunction can be issued for restoration of possession as has been done in the present case. The Courts cannot be a party to the illegal designs of a judgment debtor who wishes to carry on with his illegal possession. The law lies in favour of the interpretation which would prevent multiplicity of the proceedings rather than the one which will generate it. The decree holder is not required to file another suit as he had already obtained a decree in his favour by spending much time and expense. Thus, the Executing Court has the jurisdiction to pass an order on the application under Order 21 Rule 32 (5) CPC to restore the possession of land in dispute to decree holder in case the decree of permanent injunction is violated by the judgment debtor. Similar view has been taken by this Court in the aforesaid judgments relied upon by the learned counsel for the respondent/decree holder, Thus, taking into account the entirety of circumstances of this case where judgment debtor has applied all illegal designs to carry on his possession in violation of the decree of the Court which had already attained finality, I find that this is a case where exemplary cost should be imposed upon the appellant. Therefore, the present appeal, which is wholly misconceived and is an abuse of the process of law, is dismissed with costs Rs. 10,000/-.”
15. In Chakradhar Paital (supra) also, a similar issue arose before the Orissa High Court and the neat legal nodus before the Court was whether a decree of injunction, be it mandatory or prohibitory, can be enforced only by the modes mentioned in Rule 32 of Order XXI i.e. detention of the Judgment Debtor in civil prison or by attachment of his property or by both or any other mode. Contention of the Judgment Debtor was that a decree for perpetual/prohibitory injunction can only be enforced in accordance with provisions of Order XXI Rule 32(1) CPC and not by way of recovery of possession, and ‘other modes of execution’ provided in sub-Rule (5) are confined only to mandatory injunction. The Decree Holder per contra contended that decree for perpetual/prohibitory injunction can be enforced by way of recovery of possession, if it is found that after the passing of the decree, Decree Holder was dispossessed by the Judgment Debtors and in such an event, Decree Holders cannot be forced to file a separate suit. The High Court deciding the issue held as follows:-
7. The aforesaid interpretation of Sub-rule (5) of Rule 32 would not, however, hold good after the incorporation of the Explanation thereto by the Amendment Act of 2002. The Explanation has explicitly made it clear that the expression, ‘the act required to be done’ in Sub-rule (5) covers both prohibitory as well as mandatory injunction. In case, it is held that Sub-rule (5) with the Explanation will have application to the present case then the decision in Fakira Pradhan (supra), will have no application. Learned Counsel for the petitioners has submitted that the C.P.C. Amendment Act of 2002 will not apply to the present execution case in which the decree passed in the year 1995 is being sought to be executed. In this context, he has relied upon the decisions of the Apex Court, reported in 2007 (I) OLR (SC) 406, State Bank of Hyderabad v. Town Municipal Council and I (2007) CLT 541 (SC): IX (2006) SLT 373: (2006) 13 SCC 295: AIR 2007 SC 663, Kamla Devi v. Kushal Kanwar. The first decision cited by the learned Counsel for the petitioners relates to amendment of pleadings in a suit filed in the year 1998 where the applicability of the proviso appended to Order
6 Rule 17, C.P.C. by the C.P.C. Amendment Act, 2002 which debars amendment of pleadings after commencement of trial of the suit unless the party is able to satisfy the Court that in spite of due diligence he could not have pleaded the new facts prior to the commencement of trial. It was held therein that the proviso will have no application to pleadings filed prior to the proviso came into force as Section 16(2)(b) of the 2002 Amendment Act so provides by way of repeal and saving. In the case of Kamla Devi (supra), it was held that a letters patent appeal which was filed prior to coming into force of the C.P.C. Amendment Act of 2002 that inserted Section 100-A prohibiting such appeal would be maintainable as Section 100-A has no retrospective application.
8. This execution case had been filed in 2009 when the judgment-debtors disobeyed the decree of permanent injunction by encroaching upon the suit land and dispossessing the decree holders. Explanation to Sub-rule (5) of Rule 32 of Order 21, C.P.C. came into force with effect from 1.7.2002 and this execution case having been filed after the Explanation came into force, Sub-rule (5) will have application and the decree of prohibitory injunction in question can be enforced by way of recovery of possession where the judgment-debtors have disobeyed the said decree. This Court also in the decision reported in (2006) (II) CLR 368, Sabitri Khuntia v. Ram Avatar Modi, has held that a decree for prohibitory injunction can be executed taking recourse to Sub-rule (5) of Rule 32 by removing a cowshed raised by the judgment-debtors in violation of the decree. It is also held in the decision reported in AIR 2009 Punj & Har 188, Kapoor Singh v. Om Prakash, that in the event of violation of a decree for prohibitory injunction by way of dispossession of the decree holder by the judgment-debtors, the executing Court has jurisdiction to restore possession in favour of the decree holder, who cannot be compelled to file another suit. The contention of the learned Counsel for the petitioners that Sub-rule (5) with its Explanation has no application to a decree for prohibitory injunction therefore fails.”
16. In the present case, it is the categorical stand of the Decree Holders that they were in possession when the suit was filed and they were dispossessed forcibly by the Judgment Debtors on 12.07.2005 by entering and encroaching upon the suit property in violation of the decree. It needs a mention that Judgment Debtors filed a suit for declaration of the ex parte decree dated 27.08.2004 to be null and void and the same was dismissed vide order dated 07.11.2016. The said order has not been challenged in appeal by the Judgment Debtors. Therefore, in my view, the Executing Court rightly issued the warrants of possession for restitution of the suit property to the Decree Holders.
17. In this context, it would be relevant to note a few observations of the Orissa High Court in Kuni Mohanty v. Upendra Barik & Others, 2016 SCC OnLine Ori 377, where in the context of Order XXI Rule 32 CPC, the Court concluded that the said provision would apply to execution of decree for prohibitory injunction. It was observed that when the Judgment Debtor commits gross violation of the decree so as to nullify the very decree, execution cannot be so limited so as to drive the Decree Holder to file a fresh suit. Such an interpretation, if entertained would be taking too technical and narrow view of the matter when law has always expressed its dislike for multiplicity of proceedings and leaned in favour of an interpretation which would prevent multiplicity rather than generate it. Court interpreted the words ‘the court may’ in lieu of ‘or in addition to all or any of the processes afore-stated i.e. attachment of property or detention in civil prison’ and held that the expression enlarges the scope of authority of the Court to execute the decree in the manner provided in sub-Rules (1), (2) and (5). It was noted that a person disobeys an injunction not only if he fails to perform an act directed to do but also when he does an act prohibited from doing. Executing Court has the power to execute the decree by getting the obstructions removed and sub-Rule (5) clearly reveals the anxiety of the Legislature to ensure that decrees are enforced and disobedience is not encouraged.
18. The aforesaid judgment of the High Court was challenged before the Supreme Court in SLP(C) No.9667/2017, which was dismissed vide order dated 26.02.2019. It would be profitable to refer to two passages from the judgment wherein the Court also relied on the judgment of the Supreme Court in N.S.S. Narayana Sarma v. Goldstone Exports (P) Ltd., (2002) 1 SCC 662, as follows:-
19. Therefore, this Court cannot subscribe to the contentions raised by the Judgment Debtors/Petitioners herein that the Executing Court was disabled in law from issuing the warrants of possession in execution of the decree. Be it noted that the suit was filed by the Decree Holders on 24.04.1986 and the decree was passed on 27.08.2004. The original Plaintiffs have expired and the legal heirs are struggling for nearly twenty years to have the fruits of the decree passed in their favour while undaunted, the Judgment Debtors are thwarting every attempt of the Decree Holders to execute the decree, as rightly observed by the Executing Court.
20. For all the aforesaid reasons, the revision petition is dismissed and the interim order dated 31.01.2020 staying the warrants of possession with respect to the suit property is hereby vacated. Pending application also stands dismissed.