An SCC suit being J.S.C.C. Suit No. 22 of 1999 was filed for the eviction of one Akhtari Begum. The suit was decreed on 7.9.2004. For the execution of decree an execution case being Execution Case No. 15 of 2011 was filed by the respondent. In that Execution Case, the petitioner filed an application under Order XXI Rules 97, 99 and 100 of the C.P.C. read with Section 151 of the CPC. This application of the petitioner was dismissed on 26.10.2017 against which order a Revision was filed being Revision No. 58 of 2017. When the Revision was dismissed on 20.11.2017, the instant petition under Article 227 of the Constitution of India was filed.
Learned counsel for the petitioner has made the following submissions:-
I. The Suit which was filed against Akhtari Begum by the respondents for her eviction from shop 23/4 at Mohalla Shekh Bada Prem Nagar Gadiya Phatak, Jhansi, was a fraudulent one inasmuch as the petitioner was also a co-sharer of the property and in fact Akhtari Begum had surrendered her tenancy and had handed over the possession of the premises in question to the petitioner in the year 1998 and in the garb of the suit now the respondents wanted, in fact to evict the petitioner after getting the suit decreed against Akhtari Begum. The petitioner, to highlight the fraud in the J.S.C.C. Suit had tried to get himself impleaded. When this impleadment application was allowed then the same was challenged by the respondents by means of a Revision which was allowed on 27.9.2003, forcing the petitioner to file a writ petition being Civil Misc. Writ No. 10268 of 2004 (Jaheer Uddin Quraishi vs. The Additional District Judge/Special Judge (D.A.C), Jhansi & others. In this writ petition the following order was passed on 18.3.2004 which is being reproduced here as under:
"This writ petition is belated by three months. Absolutely no reason has been given for condonation of delay. Learned counsel for the petitioner argues that petitioner could not arrange for money. However, it has not been stated in the writ petition as to how he arranged money now.
Even on merit it is not a fit case for interference S.C.C. Suit No. 22 of 1999 has been filed by respondent no. 3 against respondent no. 4. Petitioner a rival claimant to ownership filed an impleadment application in the suit, which was allowed. However, the plaintiff respondent no. 3 filed a revision against the said order being revision no. 94 of 2000. Additional District Judge/Special Judge, Anti Dacoity Area, Jhansi by judgement and order dated 27.9.2003 allowed the revision.
This writ petition is directed against the above order of the revisional court. The revision was decided on 27.9.2003. More than five months have already been passed since the date of decision and the suit must now be nearing its end, in such situation it was all the more necessary for the petitioner to be more vigilant and file proper writ petition promptly.
However, it is clarified that any judgement and decree passed in the suit filed by respondent no.3 claiming himself to be landlord against respondent no. 4 will not be binding upon the petitioner. Petitioner is at liberty to file a regular civil suit claiming his ownership over the shop in dispute. If such a civil suit is filed no findings which may be recorded in SCC Suit No. 22 of 1999 between respondent no. 3 as plaintiff and respondent no. 4 as defendant shall be taken into consideration.
With the above observations, the writ petition is dismissed."
Learned counsel submitted that in the order of the High Court it had been clarified that the judgement and decree passed in the Suit filed by the respondent i.e. S.C.C. Suit No. 22 of 1999 would not bind the petitioner and it was further observed that the petitioner could file a regular suit for a declaration of ownership. Learned counsel, therefore, submitted that the decree was not binding upon the petitioner and, therefore, the execution court should have addressed the question as to whether the execution could proceed at all in view of the decision of the High Court dated 18.3.2004.
II. By way of abundant caution during the pendency of the impleadment application, the petitioner had filed a suit being Suit No. 335 of 2003. Learned counsel for the petitioner submitted that the Suit even though was for the grant of injunction against the respondents for not dispossessing the petitioner from the shop no. 23/4 at Mohalla Shekh Bada Prem Nagar Gadiya Phatak, Jhansi, in effect the suit was for an injunction praying that the defendant be injuncted from dispossessing the petitioner/plaintiff till such time as the suit property was partitioned.
Learned counsel submitted that, therefore, the suit involved a declaration. This suit, learned counsel for the petitioner has submitted that, even though was dismissed on 12.7.2012, an appeal against that judgement had been filed which was numbered as First Appeal No. 81 of 2012 and that the same was pending on the date when the execution of the decree of J.S.C.C. Suit No. 22 of 1999 dated 7.9.2004 was being sought to be executed.
Learned counsel for the petitioner submitted that the suit was, therefore, for a declaration that the petitioner alongwith the respondents was a co-sharer and till such time the suit was decided, the execution could not have proceeded with. Learned counsel submitted that an appeal was a continuation of the the Suit and, therefore, the executing Court should have awaited the decision of the Appeal.
Learned counsel for the petitioner further submitted that in paragraph 24 of the writ petition the fact that the appeal was pending had been stated and in paragraph 14 of the counter affidavit, this fact had not been denied and, therefore, the learned counsel submitted that in fact when the Appeal was pending, the executing Court should have refrained from continuing with the execution.
III. Learned counsel for the petitioner further submitted that when an application under Order XXI Rule 97, 99 and 100 of the C.P.C. had been filed then as per the Code of Civil Procedure before proceeding with the execution, the question as to whether the petitioner had any title had to be decided. Learned counsel read out Order XXI Rule 100 and, therefore, the same is being reproduced here as under:
"Rule 100:- Order to be passed upon application complaining of dispossession- Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination -
(a)make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit."
Learned counsel further submitted that as per Order XXI Rule 104 even the order passed under Rule 101 was subject to any suit which might have been pending on the date of commencement of the execution proceeding.
Learned counsel submitted that the scheme of the Code adumbrates that when an application under Rule 97 is filed, the Court was enjoined to adjudicate upon the right, title and interest claimed in the property. Adjudication before the execution, she submitted, was an efficacious remedy to prevent any fraud or any abuse of the process of Court. She further submitted that adjudication under Rule 98, 100 and 101 and all the Rules which followed was important. She submitted that the adjudication of the right or title in the pending Suit, unless was done with regard to the property vis-a-vis which the decree was being executed, no execution should be proceeded with. She submitted that when the First Appeal was pending against a judgement and decree of a suit where it was to be decided as to whether the petitioner had a title or not, it would have been in the fitness of things that the execution proceedings should have been stayed.
Learned counsel for the petitioner relied upon 1995 (1) SCC 242 (Noorduddin v. Dr. K.L. Anand). She further relied upon Sameer Singh vs. Abdul Rab 2015 (1) AWC 321.
Learned counsel further submitted that when the decree was of the year 2004 and when the Execution Case was filed in the year 2011 then there could be no harm brought to the decree holder if the Court waited for the decision of the First Appeal.
Learned counsel for the respondents, however, in reply stated that when the judgement and order of the High Court dated 18.3.2004 passed in Writ C No. 10268 of 2004 had directed the petitioner to file a suit and when the suit itself was dismissed by the Trial Court on 12.7.2012 then the petitioner had absolutely no right to obstruct the execution of the judgement and decree dated 7.9.2004. Learned counsel for the respondents further submitted that when Akhtari Begum had not contested and a decree had been passed against her then there should be absolutely no hindrance in the way of the Executing Court in executing the decree. Learned counsel for the answering respondents also submitted that the decree passed in the suit amounted to res judicata and could not be challenged in subsequent proceedings under Rules 21, 97, 99 and 101. In this regard, learned counsel for the respondents relied upon 2005 ACJ 723 U.P. State Road Transport Corporation vs. State of U.P. And another.
Having heard the learned counsel for the parties, I am of the definite view that the Code of Civil Procedure had been so designed that before any decree is executed if anyone brings to the notice of the Court that he also had a right, title or interest in the property then the same should be adjudicated upon. An adjudication of the application before the execution of the decree is an efficacious method to prevent any sort of fraud or any abuse of the process of the Court. In the instant case when there was a suit pending, though at the appellate stage, it would have been in the interest of justice that the Executing Court should have awaited the adjudication of the First Appeal. It is a settled law that an appeal is a continuation of a suit and, therefore, the executing court should have awaited the decision of the First Appeal No. 81 of 2012. If the impugned orders which were passed, on the Application which was filed by the petitioner, by the Executing Court on 26.10.2017 and by the Revisional Court on 20.11.2017, are perused then it becomes clear that even though the orders took into cognizance the suit which was filed by the petitioner being Suit No. 335 of 2003 and even though they took into account the fact that a First Appeal against the judgement and decree dated 12.7.2012 being First Appeal No. 81 of 2012 had been filed, they did not give any importance to the pendency of the Appeal. Prudence demanded that the result of the First Appeal should have been waited for. If the first appellate Court held that the petitioner had a share in the property then the whole exercise undertaken by the Executing Court would be rendered nugatory.
Under such circumstances, I am of the definite view that the order dated 20.11.2017 passed by Incharge District Judge, Jhansi in SCC Revision No. 58 of 2017 and the order dated 26.10.2017 passed by JSCC/Civil Judge (S.D.), Jhansi, are unsustainable in the eyes of law and deserve to be quashed.
The writ petition is, accordingly, allowed. The Executing Court will not proceed with the Execution Case No. 10 of 2012 till such time as the appeal being First Appeal No. 81 of 2012 is decided.
Order Date:-28.2.2019 praveen.
(Siddhartha Varma, J.)