Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 5901 of 2016 Petitioner :- Gopal Das Respondent :- State Of U.P. Thru Secy. And 13 Others Counsel for Petitioner :- Sanjay Kumar,Anil Kumar Singh Counsel for Respondent :- C.S.C.
Alongwith Case :- WRIT - C No. - 35751 of 2013 Petitioner :- Gopal Das Respondent :- State Of U.P. Thru Secy. And 30 Others Counsel for Petitioner :- Sanjay Kumar,Anil Kumar Singh Counsel for Respondent :- C.S.C.,Nagendra Kumar Srivastava
Hon'ble Mrs. Sunita Agarwal,J.
The two connected petitions have been filed against the orders passed by the executing court dated 28.9.2013 and the revisional court dated 28.5.2013, whereby the objection filed by the petitioner/judgment debtor in Execution Case no.11 of 2003 (Ram Das & Ors. v. Bhola Nath (now deceased)), had been rejected.
The petition Matter under Article 227 No.5901 of 2016 has arisen out of the order dated 28.9.2013, which has been passed by the executing court in Execution Case No.11 of 2003, arising out of Original Suit No.3 of 1961, which had been filed for the relief of declaration of the sale deed dated 8.5.1957 as null and void document and further for declaration of share of the plaintiff to the extent of half in the suit property.
The relevant facts to decide the controversy in hand are that the said suit was decreed vide judgment and order dated 29.3.1968 and both the reliefs 'A' and 'B' i.e. for declaration of the sale deed being null and void and partition of share of the plaintiffs namely Ram Das and 2 Ors., had been decreed.
It was, however, observed by the trial court that the plaintiff shall not get relief of possession over the grove land from the Court (one of the scheduled suit property), which was also subject matter of the suit.
The admitted fact of the matter are that the judgment and decree dated 29.3.1968 had been affirmed upto the second appellate court with the dismissal of Second Appeal No.1731 of 1973. Vide judgment and order dated 18.3.1983 final decree of partition had been passed in Misc. Case No.55 of 1974 arising out of Original Suit No.3 of 1961 from the Court of Munsif, Garvi, Allahabad.
Before the said final decree of partition was put to execution, the judgment debtor namely Gopal Das instituted another suit namely Original Suit No.891 of 1981 in the court of Munsif, Garvi, Allahabad. The order impugned records that an interim injunction dated 23.2.1982 had been granted in favour of the plaintiff of Original Suit No.891 of 1981 namely Gopal Das. The said order, admittedly, is not on record of the present petition.
The Original Suit No.891 of 1981, which has been filed seeking declaration of right of plaintiff on the basis of gift deed dated 26.8.1972, however, has been dismissed and the decree has been affirmed upto the Second Appellate court with the dismissal of the Second appeal vide judgment and order dated 16.4.2007.
It has further been recorded by the executing court that the decree dated 29.3.1968 in Original Suit No.3 of 1961 was put to execution by the respondent/plaintiff, by filing the Execution Case No.11 of 2003, when the Second Appeal No.1567 of 1985 was dismissed for want of prosecution in the year 2003.
It has also come up on record that in First Appeal No.410 of 1985, arising out of Original Suit No.891 of 1981, an interim order dated 31.8.1985 was passed, whereby dispossession of the plaintiff- appellant from the suit property had been stayed till execution of the decree dated 29.3.1968.
It has come up on record that the Second Appellate Court had also passed an interim order dated 27.9.1985 whereby it had stayed dispossession of the second appellant/plaintiff from the suit property till pendency of the second appeal, arising out of Original Suit No.891 of 1981.
It is also admitted fact that the suit property, subject matter of Original Suit No.891 of 1981, was also included in the subject matter of earlier suit namely Original Suit No.3 of 1961 with respect to which the preliminary decree of partition dated 29.3.1968 was passed. It is also admitted fact that the final decree of partition dated 18.3.1983 prepared in pursuance of the preliminary decree dated 29.3.1968 had attained finality as it has not been challenged further by any party to the said suit, including the petitioner herein.
The partition decree dated 29.3.1968 and 18.3.1983, thus, include the suit property, with respect to which injunction was granted by the trial court, the first appellate court and the second appellate court in the proceedings pertaining to and arising out the Suit No.891 of 1981. The petitioner herein has also contested the appeals filed against the preliminary decree dated 29.3.1968. No appeal was admittedly filed against the final decree dated 18.3.1983.
In the Execution Case No.11 of 2003 arising out of Original Suit No.3 of 1961, wherein the decree dated 29.3.1968 and 18.3.1983 were put to execution, an objection had been taken by the petitioner of the same being barred by limitation. The executing court had rejected the objection Paper No.95-C filed by the petitioner taken on the ground that after expiry of limitation to execute the decree dated 18.3.1983, the Execution Case No.11 of 2003 cannot be entertained for the facts as noted hereinabove.
At the cost of repetition, it is noteworthy that there is no dispute about the fact that the decree of partition was not put to execution on account of the Original Suit No.891 of 1981 being filed by the petitioner. Only submission of learned counsel for the petitioner herein is that there was no prohibition or bar from seeking execution of the final decree of partition dated 18.3.1983 as by the interim injunction orders dated 23.2.1982, 31.8.1985 and 27.9.1985, the Courts concerned did not stay the execution of the decree dated 18.3.1983. Mere fact of stay of dispossession of the petitioner from the suit property, it cannot be said that the decree of partition could not have been executed.
The submissions of learned counsel for the petitioners to assail the order of the executing court on the ground that there was no hurdle in putting the decree dated 18.3.1983 to execution, are not acceptable for the simple fact that the suit property which was subject matter of the Original Suit No.891 of 1981 was also subject matter of the partition decree dated 18.3.1983. The execution of the decree of partition could not have been made without dispossession of the petitioner/judgment debtor from the suit property and further by putting him in possession of the Kurras prepared under the partition decree dated 18.3.1983. The petitioner, therefore, cannot be allowed to say that the plaintiff/decreeholder of Original Suit No.3 of 1961 is prohibited from seeking execution of decree of partition dated 18.3.1983, because of limitation.
The decreeholders cannot be said to have slept over their right to seek execution of the final decree of partition dated 18.3.1983. It is evident from the record that the Execution Case No.11 of 2003 was filed immediately after the interim order dated 27.9.1985 passed in Second Appeal No.1587 of 1985 (arising out of the Original Suit No.891 of 1981), was vacated by this Court.
The decree was put to execution by the trial court only after dismissal of the second appeal on merits vide judgment and order dated 16.4.2007, after restoration thereof.
For the above discussion, no infirmity is found in the order dated 28.9.2013 passed by the Civil Judge, Junior Division, West, Allahabad in rejection of the objection Paper No.95-C for rejection of the Execution Case No.11 of 2003. The Petition Matters under Article 227 No.5901 of 2016 is found devoid of merits and hence dismissed.
The Writ Petition No.35751 of 2013 has been filed against the order of the revisional court dated 28.5.2013 affirming the order of executing court dated 14.3.2013 rejecting objection under Section 47 of the Code of Civil Procedure, 1908 filed by the petitioner herein in Execution Case No.11 of 2003.
It is evident from the record that the order of the executing court dated 14.3.2013 passed in Misc. Case No.44 of 2005 which has been affirmed by the revisional court vide order dated 28.5.2013, is not subject matter of challenge in the present petition. No amendment application, whatsoever, has been filed by the petitioner herein to challenge the said order. The supplementary affidavit filed in support of the averments made in the writ petition cannot be taken to amend the prayer clause of the petition.
On merits of the said petition, it is found that the objection under Section 47 C.P.C. was filed by the judgment debtor in Execution Case No.11 of 2003 asserting therein that the final decree dated 18.3.1983 was an outcome of fraud. It is evident that the petitioner/objector i.e. the judgment debtor in Original Suit No.3 of 1961 did not challenge the final decree dated 18.3.1983 before the higher court of law, though he had contested the said suit and had also challenged the preliminary decree dated 29.3.1968 before the higher court of law which has been affirmed upto the stage of second appeal.
Another objection under Section 47 taken by the petitioner was that the Amin report dated 1.5.1976 filed in Misc. Case No.54 of 1974 arising out of the Original Suit No.3 of 1961 was a result of fraud. His objection to the Amin report had not been taken into consideration before preparation of the final decree dated 18.3.1983. On the above submission, it is submitted that the executing court had erred in rejection of his objection vide order dated 14.3.2013.
Learned counsel for the petitioner herein has asserted that the objection taken by the petitioner to the Amin report dated 1.5.1976, had not been considered before preparation of the final decree and the said objection taken before the executing court had not been appreciated in a legal manner. The decree of partition which is an outcome of fraud, cannot executed in the execution case which has been filed in the year 2003.
As to the contention of the learned counsel for the petitioner on the objection to the Amin report, suffice it to say that the Amin report (Paper No.16-Ka) dated 1.5.1976 filed in Misc. Case No.54 of 1974 was affirmed after inviting objection from the petitioner/judgement debtor. This fact is recorded in the order of revisional court dated 28.5.2013, on the basis of record of the trial court. The final decree dated 18.3.1983 was passed after expiry of the period of filing objection granted to the petitioner/judgment debtor. Moreover, the final decree dated 18.3.1983 had not been challenged by the petitioner/judgment debtor on any objection for preparation of Kurra by the Amin vide report dated 1.5.1976. Rather the petitioner had adopted novel method to obstruct the decree by bringing a fresh suit seeking his independent right in the suit property on the basis of the gift deed 26.8.1972 after having lost in the suit for declaration and partition of share. No infirmity, therefore, can be found in the order of revisional court in affirming the order of executing court dated 14.3.2013, for rejecting the objections under Section 47 C.P.C.
Insofar as the plea of fraud taken by the petitioner to confront the final decree dated 18.3.1983, no material was brought on the record of the executing court. It is evident that the petitioner has succeeded to put the decree dated 18.3.1983 to hault for such a long period by filing frivolous litigation before the civil court.
The Writ Petition No.35751 of 2013 is, thus, found devoid of merits and hence dismissed.
Noticing the fact that the execution case is pending since the year 2003 and the final decree of partition which is sought to be executed is of the year 1983, the executing court is hereby directed to decide the Execution Case no.11 of 2003 (Ram Das & Ors. v. Bhola Nath (now deceased)), preferably, within a period of two months from the date of submission of certified copy of this order, by proceeding on day to day basis.
It is made clear that in case of any adjournment sought by the petitioner/judgment debtor in Execution Case no.11 of 2003 (Ram Das & Ors. v. Bhola Nath (now deceased)), the Court shall impose exemplary cost for each such adjournment and, in no case, unnecessary adjournment would be granted to the petitioner which may protract the proceedings of the execution case.
(Sunita Agarwal, J.) Order Date :- 28.2.2019 Jyotsana