IN THE HIGH COURT OF BOMBAY
Writ Petition No. 2542 of 2015
Decided On: 26.03.2015
Warna Valley Sahkari Kharedi Vikri Society Limited
Ashok J. Gaikwad and Ors.
Hon’ble Judges/Coram: M.S. Sonak, J.
Citation: 2015(3) MHLJ 559
1. This petition questions the order dated 6 February 2015 made by the 5th Joint Civil Judge, Junior Division Islampur, dismissing the objections raised by the petitioner judgment debtor vide Exhibit 79 as being unsustainable and directing the issuance of Possession Warrant under Order 21 Rule 35 of the Code of Civil Procedure, 1908 (CPC).
2. The respondents or their predecessor in title had let out the property in question to the petitioner. In the year 1987 or thereabout, the respondents instituted Regular Civil Suit No. 566 of 1987 seeking recovery of possession of the suit property in the Court of Civil Judge, Junior Division at Islampur. The suit was partly decreed vide judgment and decree dated 29 March 1997 and the petitioner herein was directed to hand over two rooms from out of the six rooms comprising the suit property to the respondents. The appeal against the decree was dismissed by the Appeal Court on 25 August 2006. The second appeal was withdrawn on 26 August 2008 with liberty to prefer a Revision Application. The Revision Application was also ultimately withdrawn on 14 September 2010.
3. In the year 2010, the respondents, applied for execution of the decree. The same was resisted by raising various contentions. By the order dated 26 April 20012, the petitioner’s objections were rejected and Possession Warrant under Order 21 Rule 35 of the CPC was issued.
4. The petitioner thereupon, took out yet another Motion for obstructing the execution proceedings by pointing out that the judgment of the Trial Court made reference to the two rooms situated on the ground floor adjacent to southern side of the public road, but the decree made reference to the two rooms referred to the western side of the public road. This application was also rejected on 9 November 2012, when it was found clearly that the petitioner was trying to take undue advantage of a ministerial error.
5. Undaunted, the petitioner preferred yet another application to obstruct the execution of decree, by contending that the decree was a nullity and therefore executable. This application, was dismissed on 9 November 2012. Aggrieved by the same, as also certain previous orders made execution proceedings, the petitioner instituted Writ Petition No. 11406 of 2012 in this Court.
6. This Court, by its judgment and order dated 16 January 2013, dismissed the petition. In so dismissing the petition, this Court was constrained to observe that it is obvious that the petitioner was raising objections solely with a view to delay in execution proceedings.
7. After the judgment and order dated 16 January 2013, in the aforesaid Writ Petition No. 11406 of 2012 was pronounced, learned counsel for the petitioner applied for a stay in order to enable the petitioner to challenge the order of this Court before the Hon’ble Apex Court. The petitioner, through his learned counsel made a statement that undertaking would be furnished to this Court to the following effect :
i) That the petitioner is in possession of two rooms situate on the ground floor of the suit premises which are adjacent to the southern side of the suit premises and nobody else is in possession;
ii) That the petitioner has neither created third party interests nor parted with the possession of the said premises;
iii) That the petitioner will hereafter neither create third party interests nor part with the possession of the said premises;
8. This Court, granted a stay for a period of four weeks as prayed for, on the basis of the statement made on behalf of the petitioner that undertaking as aforesaid would be furnished. Learned counsel for the petitioner, upon taking instructions from Mr. Dhanaji R. Patil, Assistant Manager and Authorized Representative of the petitioner, who represents the petitioner, stated that there is no certainty as to whether the undertaking as aforesaid was at all furnished by the petitioner. Suffice, however, to state that the petitioner had offered to give undertaking to this Court, that the petitioner is in possession of the two rooms situated on the ground floor of the suit premises which are adjacent to the southern side of the suit premises and that nobody else is in possession thereof. If it is true that the petitioner, despite the order of this Court dated 16 January 2013 has not furnished the necessary undertaking, then at least prima facie such non-furnishing will sound in the arena of the contempt jurisdiction. This is because on the basis of solemn statement made to this Court that such an undertaking would be furnished within two weeks, this Court was persuaded to grant a stay upon the implementation of its own order for a period of four weeks. The petitioner availed the benefit of the stay order but failed to comply with the statement which persuaded this Court to grant the stay order. The petitioner, is therefore, directed to file an affidavit in this Court within a period of four weeks from today as to whether or not undertaking in terms of paragraph 8 of the judgment and order dated 16 January 2013, was at all furnished by the petitioner before this Court or not.
9. Be that as it may, consequent upon the execution proceedings, being directed to proceed further, the petitioner, once again relying upon certain observations in the Bailiff Report that there is some ambiguity in the matter of ascertainment of the suit property, made yet another application at Exhibit79 urging that the execution proceedings be dismissed since the premises in respect of which execution has been ordered, are not either in existence at the site.
10. The respondents, i.e., the decree holders also took out further applications by way of Exhibits80 and 84 seeking inter alia fresh Possession Warrant and police protection for the purposes of execution of the decree. By the impugned order dated 6 February 2015, the learned Civil Judge has allowed the respondents’ applications at Exhibit80 and 84, but rejected the petitioner’s application at Exhibit79. Hence, the present petition.
11. The Mr. S.D. Patil, learned counsel for the petitioner has criticized the impugned order by contending that the learned Civil Judge has gone by equitable principles, but ignored the legal principles that were involved in the matter. Mr. Patil contended that in light of the observations in the Bailiff’s Report, the petitioner was entitled to file the application urging that the execution proceedings be “dropped for impossibility of performance”. Mr. Patil went to the extent of submitting that it is the right of a judgment debtor to make repeated applications to obstruct the decree and such applications cannot be rejected on the ground that the decree in question dates back to the year 1997. Mr. Patil also submitted that the learned Civil Judge has erred in directing execution by reference to plaint in Suit No. 18 of 2012, when in fact, the said suit concerned a dispute involving some other parties. For all these reasons, Mr. Patil submitted that the impugned order warrants interference by this Court in the exercise of its extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India.
12. Having considered the aforesaid submissions, this Court is constrained to observe that the approach of the petitioner in the present case is nothing but the abuse of legal process. The petitioner appears to be a Cooperative Society and therefore, it is not unreasonable to presume that such society is litigating with the finances of its members as also finances which it may have obtained from the members of the public. The petitioner, is clearly under the misconception that it is the right of the petitioner Society to go on making repeated applications for obstruction of a decree, which in the present case has been made way back in the year 1997, on the grounds of its own notions of the law and legal position.
13. In this case, learned Civil Judge has observed that the judgment debtor, who instituted the proceedings in the year 1987 has since expired, without being able to enjoy the fruits of his decree. The execution proceedings are being pursued by the legal representatives of the original decree holder. The decree in question , which was made in the year 1997 has attained the finality in the year 2010. In the last five years, the petitioner has by means of repeated applications, been obstructing the execution of the decree. Despite of such repeated applications having been turned down, the petitioner persist with filing further applications, only with intention of frustrating the execution of the decree. The making of such repeated application, particularly frivolous applications, is certainly not the right of any judgment debtor, as urged by Mr. Patil, learned counsel for the petitioner.
14. The application at Exhibit79 is indeed yet another attempt to frustrate the execution of the decree. The learned counsel for the petitioner made a solemn submission that the learned Civil Judge has erred in making reference to the plaint in Suit No. 18 of 2012, which according to him, was not a dispute between the petitioner and the respondents, but it was a dispute involving some other parties. Ultimately, it turns out that Civil Suit No. 18 of 2012 is also a dispute between the same parties and in the said dispute, the petitioner has raised no dispute with regard to either identity or the existence of the suit premises, to which the decree pertains.
15. Besides, neither in the original suit nor in the appeal, nor in the second appeal, nor in the revision proceedings did the petitioner ever raise the plea that the premises in question , in respect of which the decree has been made are not at all in existence. In the numerous applications, which the petitioner claims it is its right to file, the petitioner chose not to raise such a plea. In this Court, in Writ Petition No. 11406 of 2012, the petitioner did not raise such a plea and on the contrary the petitioner offered to furnish an undertaking to this Court to the effect that the petitioner is in possession of the two rooms situated on the ground floor of the suit premises which are adjacent to the southern side of the suit premises and that nobody else is in possession thereof. The petitioner also gave an undertaking that they shall not part with the possession or create any third party rights in respect of such suit premises. All this while, it was never the case of the petitioner that such premises are not at all in existence or that the same cannot be identified. In this context, it is therefore, clear that very filing of the application at Exhibit79, obstructing the execution of decree for the alleged “impossibility of performance’ constitutes a clear abuse of judicial process. The learned Civil Judge, was entirely right in dismissing the petitioner’s application at Exhibit79, but perhaps erred slightly, in not imposing exemplary costs upon the petitioner. That error can of course be corrected at this stage.
16. The learned Civil Judge has rightly referred to the observations of the Hon’ble Apex Court in case of Satyawati Vs. Rajender Singh and anr. MANU/SC/0569/2013 : (2013) 9 SCC 491 In the said decision, the Hon’ble Apex Court made reference to the observations made by the Privy Council in the year 1872 that the difficulties of a litigant in India begin when he has obtained a decree and the position has not improved till today. The Hon’ble Apex Court, in strong terms, deprecated the unreasonable delay in execution of a decree because if the decree holder is unable to enjoy the fruits of his success by getting the decree executed, the entire effort of successful litigant would be in vain. In the said decision, the Hon’ble Apex Court has made reference to several undermentioned decisions, which make observations to the similar effect.
17. In case of Kuer Jang Bahadur vs. Bank of Upper India Limited MANU/OU/0064/1925 : AIR 1925 Oudh 448 (PC), the Privy Council made the following observations.
“Courts in India have to be careful to see that process of the Court and law of procedure are not abused by judgment debtors in such a way as to make Courts of law instrumental in defrauding creditors, who have obtained decrees in accordance with their rights.”
18. In case of Babu Lal vs. Hazari Lal Kishori Lal MANU/SC/0049/1982 : (1982) 1 SCC 525, the Hon’ble Apex Court observed thus:
“29. Procedure is meant to advance the cause of justice and not to retard it. The difficulty of the decree holder starts in getting possession in pursuance of the decree obtained by him. The judgment debtor tries to thwart the execution by all possible objections.”
19. In case of Marshall Sons & Co. (I) Ltd. vs. Sahi Oretrans (P) Ltd. MANU/SC/0079/1999 : (1999) 2 SCC 325, the Hon’ble Apex Court observed thus:
“4……it appears to us, prima facie, that a decree in favour of the appellant is not being executed for some reason or the other, we do not think it proper at this stage to direct the respondent to deliver the possession to the appellant since the suit filed by the respondent is still pending. It is true that proceedings are dragged for a long time on one count or the other and, on occasion, become highly technical accompanied by unending prolixity at every stage providing a legal trap to the unwary. Because of the delay, unscrupulous parties to the proceedings take undue advantage and a person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also a known fact that after obtaining a decree for possession of immovable property, its execution takes long time.”
20. Once again, in case of Shub Karan Bubna vs. Sita Saran Bubna MANU/SC/1607/2009 : (2009) 9 SCC 689, the Hon’ble Apex Court observed thus:
“27. In the present system, when preliminary decree for partition is passed, there is no guarantee that the plaintiff will see the fruits of the decree. The proverbial observation by the Privy Council is that the difficulties of a litigant begin when he obtains a decree. It is necessary to remember that success in a suit means nothing to a party unless he gets the relief. Therefore, to be really meaningful and efficient, the scheme of the Code should enable a party not only to get a decree quickly, but also to get the relief quickly. This requires a conceptual change regarding civil litigation, so that the emphasis is not only on disposal of suits, but also on securing relief to the litigant.”
21. The learned Civil Judge is entirely right in his observations that the scenario in the present case is not different from what has been described by the Hon’ble Apex Court in the aforesaid case of Satyawati (supra).
22. Accordingly, there is absolutely, no jurisdictional error in the impugned order. The impugned order, is in fact right in so far as it dismisses the petitioner’s application at Exhibit 79 and grants respondents’ applications at Exhibit 80 and 84.
23. As directed earlier, though the present petition is being dismissed, the directions are issued to the petitioner to file, within a period of four weeks from today, an affidavit indicating whether or not the necessary undertaking offered to be furnished by it (which has been recorded in order dated 16 January 2013 in Writ Petition No. 11406 of 2012) was filed in this Court or not. Such affidavit to be field by Mr. Rangarao Bhimrao Sathe, who was the authorised Signatory to the memo of Writ Petition No. 11406 of 2012, when it was filed. It is reported that said Mr. Sathe is now the Chairperson of the petitioner society.
24. As noted earlier, this is the case of gross abuse of the judicial process. The original decree holders, through their legal representatives, have been attempting to execute the decree made in their favour in the year 1997. The petitioner has been making repeated applications to frustrate the execution proceedings. Notwithstanding, the dismissal of such applications by the executing Court as well as this Court, the petitioner, who carries the impression that it is its right to do so, persists in filing further applications, only with a view to protract and thereby frustrate the execution proceedings. The decree holders are the owners in respect of premises comprising about six rooms. The suit as initially instituted in the year 1987 had applied for decree of recovery of possession of the entire suit premises. The suit was, however, partly decreed and the decree holders were held entitled to recovery of possession of only two rooms from out of the six rooms. The petitioner has been creating unwarranted hurdles in the execution of such decree. Clearly, therefore, this is a case which warrants the imposition of exemplary costs of Rs.50,000/payable by the petitioner to the respondents within a period of two weeks from today. It is directed accordingly.
25. The learned Civil Judge, executing the decree, to ensure that such costs are deposited by the petitioner in the Executing Court, within a period of two weeks from today. Upon deposit of such costs, the said respondents shall be at liberty to withdraw such costs unconditionally.
26. All parties to act upon an authenticated copy of this order.