R IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 29TH DAY OF MAY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 39008 OF 2014 (GM-CPC) BETWEEN:
1. SMT. C.K.KHADEEJA AGED ABOUT 59 YEARS, W/O SRI.C.K.ABOOBAKER HAKI 2. SRI.C.K.ABOOBAKER HAKI AGED ABOUT 66 YEARS, S/O SRI.C.K.HAMEED HAJI BOTH ARE RESIDING AT DOOR NO.109, BLOCK NO.10, BRINDAVAN EXTENSION, MYSORE.
... PETITIONERS (BY SRI. T N RAGHUPATHY, ADVOCATE) AND:
SRI M.P SIDDAIAH SINCE DEAD BY HIS LRS 1. SRI.S.NANDAGOPALA AGED ABOUT 46 YEARS, 2. SRI.S.BALARAM AGED ABOUT 44 YEARS, 3. SRI.S.YOGISHA AGED ABOUT 31 YEARS, ALL ARE SONS OF LATE M P SIDDAIAH ALL ARE R/AT DOOR NO.66 AND 66/1, GOLLAGERI, CHAMARAJA MOHALLA, MYSORE.
... RESPONDENTS (BY SRI. O SHIVARMA BHAT, ADVOCATE FOR R3;
SRI. G KRISHNAMURTHY, ADVOCATE FOR R1 TO R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THAT THE ORDER DATED 11.7.2014 PASSED BY THE LEARNED PRINCIPAL SENIOR CIVIL JUDGE, MYSORE IN EX. NO. 601/2010 VIDE ANN-H IS ILLEGAL AND QUASH THE SAME.
THIS PETITION COMING ON FOR PRELIMINMARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner decree holders are knocking at the doors of Writ Court assailing the order dated 11.07.2014 made by the learned Principal Sr. Civil Judge, Mysore dismissing their Execution Petition No.601/2010, inter alia contending that the dismissal of their earlier execution proceedings in E.P.No.109/2007 vide order dated 07.11.2009 was because of the mistake of the executing court and not their’s. The respondent-judgment debtors after service of notice having entered appearance through their counsel and having filed the Statement of Objections resist the writ petition.
2. Petitioners being the plaintiffs in a Civil Suit in O.S.No.521/1986 for a decree of specific performance of four Agreements to Sell of the year 1983 & 1984 obtained a judgment and decree on 12.04.1994 against the respondents herein, which required execution of Sale Deed by the respondents after receiving balance of consideration.
3. Petitioners had put this decree in enforcement by filing Execution Petition No.109/1997 which came to be dismissed for default on 07.11.2009 allegedly for their fault in not taking the steps. Subsequently the petitioners levied a fresh execution in Execution Petition No.601/2010 on 30.07.2010 which too came to be dismissed on the ground that there was no mistake on the part of the Court in dismissing the earlier Execution Petition and therefore the present one is barred by limitation. This order is put in challenge in the present writ petition.
4. Learned counsel for the petitioner-Decree Holders Sri T.N.Raghupathy submits that the impugned order dismissing the second Execution Petition No.601/2010 is unsustainable inasmuch as the Execution Court had mistakenly dismissed the earlier Execution Petition No.109/1997 on an erroneous assumption that some steps needed to be taken by the petitioners when there was none without specifying as to what that mistake was. Banking upon a decision of a Co-ordinate Bench of this Court in the case of H.B.RAJENDRA vs. VIJAYA BANK, ILR 1999 KAR.
2154, he argues that where the first Execution Petition is dismissed for no fault of the Decree Holders, the second should be treated as the continuance of the former and therefore the question of delay / limitation did not arise.
5. Learned counsel for the respondent-Judgment Debtors Mr.Krishnamurthy Hasyagar and Sri O.Shivaram Bhat make submission in justification of the impugned order on the following grounds:
(a) the first E.P.No.109/1997 was dismissed for non- prosecution on 07.11.2009 only because the petitioner did not take steps despite availing sufficient time and to this effect a finding is recorded by the Executing Court in its impugned order which should be believed to be true and therefore the writ petition should be dismissed; second Execution Petition being hopelessly time barred;
(b) the petitioner has failed to demonstrate to the Court below as to why there was a mistake attributable to it and not to them by placing on record cogent material; this exercise having not being done, the present writ petition is devoid of merits especially when the presumption is that strong legal Court orders are valid and effective an the contents thereof are true and correct;
(c) the dismissal of the first Execution Petition has rightly or wrongly; this has attained finality and therefore unless the same is set at naught by taking appropriate proceedings, the same should be taken as final and concomitantly a second Execution petition is rightly treated as time barred; the learned counsel banks upon the following decisions in support of this submissions:
(i) the Apex Court decision in the case of ANTONY SAMI vs. ARULANANDAM PILLAI, Appeal (Civil) No.14459/1996 decided on 30.10.2001;
(ii) STATE BANK OF TRAVANCORE vs. M.RAMU, 1971 (1) Mys.L.J 4 (iii) KATRAGADDA RAMAYYA AND ANOTHER VS. KOLLI NAGESWARARAO AND OTHERS, AIR 1969 AP 215 (FB) 6. I have heard the learned counsel for the petitioners and the learned counsel for the respondents. I have perused the Writ Petition and the Statement of Objections. I have adverted to the ratio of the decisions cited at the Bar. I am of the considered opinion that the petitioners are entitled to the grant of relief at the hands of this Court for the following reasons:
i) Petitioners suit in O.S.No.521/1986 for a decree of specific performance admittedly was decreed on 12.04.1994 after a long drawn legal battle wherein the respondent judgment debtors were directed to execute and register a sale deed within a period of 60 days after accepting the balance of consideration amount in a sum of Rs.27,500/- which is deposited by the petitioners in the court below. The judgment and decree, a copy whereof is at Annexure-A at para 24 specifically states that the petitioners are in the possession of the property. Therefore what was required was only the execution of a sale deed and nothing else.
(ii). Petitioners’ earlier Execution Petition No.109/1997 came to be dismissed for non-prosecution on 07.11.2009 when no steps needed to be taken by them. The dismissal is apparently without due application of mind; had the Executing Court turned the pages of its own order sheet, it could have easily discovered that what was required was the objection from the side of the respondents to the draft sale deed filed by the petitioners on 29.10.1999; it is more so because the application in I.A. 4 filed by respondents under Order XXI, Rule 29 of CPC filed by the respondent judgment debtors on 08.07.2002, for stay of Execution Petition was dismissed on 21.4.2009. Even this order erroneously solicited some steps from the petitioner decree holders. The maxim “actus curae neminem gravabit” i.e., act of the court hurts none, in all fours applies to the case of the petitioners.
“This maxim ‘is founded upon justice and good sense; and affords a safe and certain guide for the administration of the law. In virtue of it, where a case stands over for argument on account of the multiplicity of business in the Court, or for judgment from the intricacy of the question, the party ought not to be prejudiced by that delay, but should be allowed to enter up his judgment retrospectively to meet the justice of the case; and, therefore, if one party to an action die during a curia advisari vult, judgment may be entered nunc pro tunc, for the delay is the act of the Court, for which neither party should suffer”. LEGAL MAXIMS by Herbert Broom, LL.D. Tenth Edition page 73.
(iii) In the case of H.B. Rajendra and Others Vs. Vijaya Bank, Madikeri and Another, a Co-ordinate Bench of this Court at paragraph Nos. 8 and 9 has observed as under:
“8. … Placing reliance on the above decision, it is contended by the learned counsel for the revision petitioners that in the present case, also since the previous execution was dismissed for default of the decree-holder, the said order terminated the execution proceedings and the present execution petition filed for the same purpose will constitute a fresh application and there is no question of continuing or reviving the previous execution proceedings which have been finally and properly dismissed. But, I find no merit in this contention since it is found that the presence of the decree-holder was not necessary on the date on which the previous execution petition was dismissed by the Court, as it is found that the decree-holder has paid the process fee for issue of sale notice which has been notice by the Executing Court. So, the above decision is also not applicable to the facts of the present case.
9. For all the above reasons, I find that the impugned order passed by the Executing Court that the Execution Petition No. 96 of 1996 filed by the 1st respondent-decree-holder amounts to revivor of the previous Execution Petition No. 68 of 1991 and that the execution petition is not barred by limitation, is correct.”
This decision supports the case of the petitioners.
The reliance on the Division Bench judgment in the case of State Bank of Travancore Vs. M Ramu supra by the respondent – Judgment Debtors is misplaced because in the said case there was a specific requirement of payment of process fee from the side of the decree holders which they had not paid and their first execution petition was therefore dismissed on 22.06.1963 and consequently the second one was not treated as the continuation of the first, but was treated as the fresh petition and was dismissed being found time barred for the purpose of computing limitation period.
(iv) The contention of respondent – Judgment Debtors that no mistake can be attributed to the executing court in dismissing the Execution for petitioners not taking steps, inasmuch as even if there was no need of taking steps, the petitioners/their counsel should have been present before the court when the case was called and pointed out that there was no such requirement of taking any steps, appears to be too farfetched an argument. There is a duty cast on the Court to turn the pages of the order sheet before taking an extreme step of dismissing an Execution Petition in which a hotly contested suit - decree is put in. Therefore the lapse if any, on the part of the Judgment Debtors thus cannot be overblown. Therefore, this contention is also not acceptable.
(v) The decree for specific performance has attained finality; petitioner decree holders have deposited all the amount due under the decree before the executing court; the judgment and decree specifically record a finding as to petitioners being in the possession of the subject property. No fault can be attributed to the petitioners for the dismissal of their earlier execution petition. Ideally speaking, true it is that the counsel for the petitioners in the executing court could have pointed out that no steps need to be taken, but on that feeble ground justice cannot be denied to them. When the Court is at fault, as between finality and justice, the later prevails, an argument to the contrary amounting to placing premium on illegality.
(vi) The reliance of respondent – Judgment Debtors on the Full Bench Decision of Hon’ble Andhra Pradesh High Court in the case of Katragadda Ramayya too does not come to their aid inasmuch as Paragraph 8 therein specifically mentions of the requirement of specific steps being taken by the decree holders in that execution case, unlike herein. A small fact can make a big difference to the case, for the invokability of a ratio of a decision. Similarly the reliance on the decision of the Apex Court in the case of Antoni Sami supra, also does not come to their rescue inasmuch as facts of the said case are miles away from this case. There, the Apex Court was considering inter alia the starting point of the limitation period for the enforceability of the conditional decrees. The issue canvassed in the present case is much different.
7. This is a case being entertained in writ jurisdiction; the writ court has to ensure equity and justice to the parties to whom they are due, of course, in accordance with law. Going by any standards justice of the case requires allowing of the Writ Petition.
In the above circumstances, this writ petition succeeds; the impugned order dated 11.07.2014 rendered by learned Principal Senior Civil Judge, Mysuru in petitioners Execution No. 601/2010 at Annexure-H is set at naught and the said execution petition is revived and restored to the court for being processed further in accordance with law.
Since the agreements to sell are of the year 1983 and 1984, and the judgment and decree have been obtained on 12.04.1984 this Court only reminds to the executing Court what the Privy Council long ago said that the true difficulty of an Indian litigant begins only after he obtains a judgment and decree in his favour. Therefore the executing Court shall make all endeavors to try and dispose off the Execution Petition within an outer limit of six months and report the compliance of this direction to the Registrar General of this Court.
No Costs Sd/- JUDGE Snb/Bsv