CASE NO.: Appeal (civil) 7104 of 2001 PETITIONER: KRISHNA GOPAL CHAWLA & ORS. Vs. RESPONDENT: STATE OF U.P. & ANR. DATE OF JUDGMENT: 11/10/2001 BENCH: D.P. MOHAPATRA & SHIVARAJ V. PATIL JUDGMENT:
SHIVARAJ V. PATIL J.
Leave granted.
The appellants are before this Court, aggrieved by the
order dated 17.11.1998 passed by the Allahabad High Court in
Civil Misc. Writ Petition No. 34383/97. In brief, the relevant
and necessary facts for disposing of this appeal are the
following:
The property in dispute is premises No. 7/86 along with the
land, which forms part of Nazul plot No. 12 situated in Block-7,
Tilak Nagar, Kanpur. This property was leased for a maximum
period of 90 years in December, 1904 by Secretary of State in
favour of one Khan Bahadur Hafij Mohd. Halim; the lease was to be
renewed after 30 years from the date of its commencement with
increase of 50% in rent; the lease also permitted construction
of building over the land; the lessee accordingly constructed a
dwelling house on the leased land; he let out the constructed
premises to the State of U.P. on 3.5.1937. By that time the
lessee had already got renewed the lease on 2.3.1935 in favour of
Haji Mohd. Sadiq, the son of the original lessee for a further
period of 30 years upto 4.12.1964. Thereafter, legal
representatives of the original lessee migrated to Pakistan.
Consequently, the said property was declared evacuee property by
the Notification dated 3.10.1952. Later, it was put to auction
by the Manager, Custodian of Evacuee Property. One Gian Chand
and others purchased the said property i.e. the land and building
through auction sale. They in turn sold the same to Krishna Gopal
Chawla and others (appellants herein) through registered sale
deeds in 1959.
Krishna Gopal Chawla and others, claiming themselves to be
the landlords of the property, filed original civil suit No.
1714/1963 for arrears of rent, ejectment and for damages for use
and occupation against the State of U.P. in the court of Munsif
City, Kanpur. The said suit was later transferred to Ivth
Additional Civil Judge, Kanpur, who dismissed the said suit on
19.4.1965. The appellants preferred First Civil Appeal No.
305/1965 before the District Judge, Kanpur, which was also
dismissed on 21.3.1969. Aggrieved by the same, the appellants
filed Second Appeal No. 2565/1969 before the High Court. During
the pendency of the second appeal, U.P. Jal Nigam was substituted
in place of State of U.P. as the disputed property was in
possession of Jal Nigam as tenant on behalf of State. The High
Court allowed the appeal, decreed the suit of the appellants on
20.9.1979 for arrears of rent, ejectment as well as for damages
for use and occupation. On the basis of the said decree passed
by the High Court, the appellants filed Execution Case No.
179/1980 in the court of Munsif City, Kanpur, for execution of
the decree against U.P. Jal Nigam.
The respondents approached this Court in Civil Appeal No.
1365/1980, aggrieved by the decree passed by the High Court in
the second appeal. This Court stayed the execution of the decree
passed by the High Court till the disposal of the appeal and
dismissed the appeal on 1.3.1994, confirming the judgment and
decree passed by the High Court. However, with the consent of
the parties, U.P. Jal Nigam was allowed to remain in possession
of the disputed premises for one year from the date of judgment
on filing undertaking on usual terms. U.P. Jal Nigam filed
undertaking before this Court on 28.3.1994.
The appellants, after the dismissal of the appeal by this
Court, moved an application in the court of Munsif City, Kanpur
(now Civil Judge, Junior Division, Kanpur Nagar) to proceed with
the execution of the decree. U.P. Jal Nigam and State of U.P.
filed separate but similar objections under Sections 47, 37, 38,
39 and 151 CPC resisting execution. The objections were that the
decree passed by the High Court merged in final judgment passed
by this Court; hence the decree of this Court dated 1.3.1994
alone could be executed and not that of the High Court; the court
of Civil Judge, Junior Division, Kanpur Nagar, has got no
jurisdiction to execute the decree; the court of Civil Judge,
Junior Division, Kanpur Nagar, is not court of first instance.
Further, it was contended that original lessee, Khan Bahadur
Hafij Mohd. Halim, was a lessee of the disputed property; his
legal representatives had only leasehold rights; hence only
leasehold rights were purchased by Gian Chand and others in
auction; since the original lessee was not the owner of the
disputed property, it could not become evacuee property; the
maximum lease period of 90 years expired on 4.12.1994 and as such
the decree-holders had no interest in the property and they have
ceased to be landlord of the disputed property. It was contended
that as per the undertaking given to this Court on 28.3.1994,
U.P. Jal Nigam handed over possession of the disputed premises to
the State of U.P., the real owner of the property after expiry of
the lease period; thus the decree of this Court stood satisfied
in terms of the undertaking.
The executing court (court of Civil Judge, Junior Division,
Kanpur) after hearing, by a detailed order dated 5.9.95, rejected
all the objections raised by the U.P. Jal Nigam and State of U.P.
and directed for delivery of possession. The U.P. Jal Nigam as
well as State of U.P., aggrieved by the said order of the
executing court, filed civil revision petitions in the court of
IVth Additional District Judge, Kanpur. After hearing the parties
and having considered all objections including additional
objections raised in the revision petitions, the learned District
Judge dismissed them by a well considered order dated 12.8.1997.
It is thereafter that the State of U.P. filed Civil Misc.
Writ Petition No. 34383/97 for quashing the orders of executing
court dated 5.9.1995 and the order of the Addl. District Court
dated 12.8.1997 passed in revision. The said writ petition was
allowed by the High Court and the impugned orders were quashed.
The High Court raised following three questions for consideration
in the writ petition (1) whether the decree passed by the High
Court in the second appeal was capable of execution even if it
merged in the decree passed by this Court in an appeal preferred
against the decree passed by the High Court; (2) whether Civil
Judge (Senior Division) Kanpur Nagar, was competent to entertain
the execution application and (3) whether the decree-holder
ceased to have any interest in the decree owing to termination of
lease by efflux of time. The first question was answered in the
negative. The second question was answered in affirmative and
the third question was left open to be decided in a fresh
execution petition if filed by the decree-holder seeking
execution of the decree passed by this Court. Hence, this
appeal.
Mr. Gopal Subramaniam, learned senior counsel for the
appellants strongly contended that this is a case, which shows
how the appellants are not able to execute the decree obtained in
1979 in spite of an undertaking given in this Court by the
respondents; the respondents never raised question of title in
the original suit or in further appeals and, as stated, it was
not open to raise in the execution proceedings or before the High
Court in the writ petition; admittedly the decree was passed in
favour of the appellants as landlords against the respondents for
their eviction, payment of arrears of rent and damages for use
and occupation of the premises; executing court cannot go beyond
the decree; hence the objections filed by the respondents were
rejected and the order passed by the executing court was
confirmed in the revision before the District Court; the High
Court committed a serious error in holding that the execution
petition filed earlier by the appellants was not maintainable as
the decree passed by the High Court merged in the decree passed
by this Court when the appeal was dismissed and that the
appellants had to file a fresh application for execution subject
to law of limitation; the High Court was also not right in saying
that the question of title could be decided afresh in the event
of fresh execution petition is filed as stated above.
On the other hand, Mr. S. Markendaya, learned senior
counsel for the respondents made submissions supporting the
impugned order of the High Court.
We have carefully considered the submissions made by the
learned counsel for the parties. This is yet another case, which
confirms a general feeling that the real trouble starts after
obtaining a decree and when it is put to execution. In this case
the suit was filed in 1963 and the decree was passed in favour of
the appellants in 1979. The execution petition was filed in
1980. Almost 21 years have passed after filing the execution
petition. Still the appellants are not able to get benefit of
the decree. Admittedly the suit was filed by the appellants as
the landlords seeking eviction of the respondents from the
disputed property in addition to claiming for arrears of rent and
damages for the use and occupation of the property. The suit was
decreed by the High Court in second appeal. Thereafter,
execution petition No. 179/80 was filed. In the meanwhile the
respondents approached this Court by filing the appeal and in the
appeal order was passed staying the execution proceedings pending
in the executing court. Ultimately, the appeal was dismissed by
this Court on 1.3.1994 in the following terms: –
The courts below are correct. No interference
is called for. The appeal is dismissed.
However, as agreed by both the learned counsel
one years time from today is granted to the
appellant to hand over vacant possession. This
shall be subject to the filing of the usual
undertaking within four weeks from today.
Formal order prepared pursuant to the said judgment passed
by this Court is reproduced in the impugned judgment passed by
the High Court. From its reading it is clear that the appeal was
dismissed without altering the decree in any way passed by the
High Court. The respondents were allowed time to vacate the
premises with the consent of the parties till 1.3.1995 subject to
filing of undertaking to the effect that the respondents shall
not induct any other person in the suit premises and shall hand
over vacation and peaceful possession of the said premises to the
appellants on or before 1.3.1995, etc. Further in para 2 it is
stated that on the respondents failing to comply with the
undertaking, decree for eviction shall become executable
forthwith. Although the respondents filed an undertaking on
28.3.1994 but not consistent with the terms aforementioned. It
appears that the respondents at the time of giving undertaking
itself had a definite design to defeat or frustrate the execution
of the decree itself. The relevant portion of the undertaking to
demonstrate the same is extracted below: –
(A) The U.P. Jal Nigam shall hand over on or
before 28.2.1995, the vacant and peaceful
possession of the disputed premises to
either the respondents or their vendees
or the State Govt. of U.P. in the event
it is found that the lease in favour of
the respondents had already stood
extinguished with effect from 4.12.1964.
(B) ……..
(C) The U.P. Jal Nigam shall not induct
anyone else into the disputed premises.
Underlined portion in clause (A) extracted above indicates
that from the beginning the intention of the respondents was not
bona fide.
When the order of this Court was clear in directing that
the disputed premises was to be handed over to the appellants and
undertaking was to be given accordingly the respondents choose to
give an undertaking incorporating different terms to suit their
purpose to defeat or frustrate the execution of the decree.
Neither the State of U.P. nor U.P. Jal Nigam ever successfully
raised in the suit and appeals what is sought to be made out in
the undertaking. It appears even review petition filed seeking
review of the judgment of this Court was also rejected. In our
view, the twist given in the undertaking by the respondents
appears to even overreach the order of this Court.
This Court on 26.4.1990 passed the following order: –
This appeal is directed against the decree
of ejectment passed against the appellant on
the ground of arrears of rent. After the
appeal was argued for some time, the learned
counsel for the appellant, Mr. Subodh
Markandaya, for the U.P. Jal Nigam made an
offer to the effect that the U.P. Jal Nigam is
prepared to purchase the property in question
at the rate specified by the Kanpur Development
Authority or at the price to be determined by a
valuer appointed by the parties and failing
that by the Court. The learned counsel for the
respondents seeks time to consider this offer.
Let the matter come up on 4th May, 1990.
We see in the records placed before us a letter No. 7565/M-
B1-I/57 dated 26.12.1957 from the Superintendent Engineer, III
Circle, L.S.G.E.D., Lucknow to Gian Chand, i.e., the vendor of
the appellants offering to purchase this very property for the
reasonable amount. If the State of U.P. had become or was the
owner of the property, there was no need to write such a letter
treating Gian Chand as the owner of the property and similarly
there was no necessity to make an offer for purchasing the
property by the U.P. Jal Nigam as recorded in the aforesaid order
of this Court.
As is evident from the facts narrated above, the execution
petition No. 179/80 filed in the executing court to execute the
decree passed by the High Court, was pending. This Court had
stayed the said execution proceedings pending disposal of the
Civil Appeal No. 1365/80. After the disposal of the appeal,
there was no impediment or bar to continue the execution
proceedings on the application moved by the appellants to proceed
with the execution. The High Court committed a manifest error in
taking a view that a fresh execution petition should be filed
after the dismissal of the appeal by this Court as the decree
passed by the High Court had merged with the decree of this Court
and the execution petition filed earlier which was pending, was
not maintainable. As already noticed above, this Court in appeal
only confirmed the decree passed by the High Court without any
alteration or modification. Even otherwise, in a pending
execution case, amendment could be sought if it was needed after
dismissal of the appeal by this Court. Under Order XXI Rule 11
(2)(d) CPC, in the execution application the particular as to
whether any appeal has been preferred from the decree is to be
mentioned. If an appeal has been preferred from a decree and
after disposal of the appeal, necessary information can be given
by filing an application, if need be seeking an amendment. It is
one thing to say that the earlier decree passed gets merged in
the decree passed by the appellate court, yet it is different
thing to say that an execution petition filed earlier is not
maintainable and that there is a need to file a fresh application
for execution after a decree is passed by the appellate Court,
particularly in the present case, when this Court had stayed the
execution proceedings filed earlier, it was obvious that the
execution proceedings could be continued after dismissal of the
appeal by this Court affirming the decree passed by this Court
without any alteration.
The learned Addl. District Judge in his revisional order
noticed that the disputed property was declared as evacuee
property and it vested in the Central Government, free of all
encumbrances; the said property was sold in public auction and a
sale certificate was issued by the Custodian, Evacuee Property,
as free-hold property as early as 1959. The learned Addl.
District Judge has further stated in his order as to whether the
State Government is the owner of the disputed property or the
decree-holders are the owners of it, was not at all called for
consideration in the execution proceedings; the question was
whether the decree-holders have ceased to be landlord of the
disputed property after the expiration of lease on 4.12.1994. It
was further noticed that the respondents did not take the plea
before first appellate court or the High Court in the second
appeal or before this Court in appeal that the appellants had
ceased to be landlords of the disputed property. Even otherwise,
the interest of the appellants on the disputed property did not
become unauthorized; admittedly the constructions in the suit
property belong to the decree-holders. In this view, the learned
Addl. District Judge held that the objection with regard to the
ownership of the disputed property could not be raised under
Section 47 CPC. However, he observed that the question of
ownership was not in dispute before him and, therefore, he did
not go into that question as to which party is the owner of the
disputed property. Ultimately holding the appellants as
landlords, eviction decree was passed against the respondents but
the High Court in the impugned judgment found fault with this
part of the order stating that the executing court as well as the
District Court did not correctly decide the question as to the
ownership of the property and the same could be decided by the
courts in a case fresh execution petition is filed by the
appellants on the basis of the decree passed by this Court in
Civil Appeal No. 1365/80. We find it difficult to accept the
finding of the High Court in this regard.
It is unfortunate that the High Court failed to see the
conduct of the respondents, facts and circumstances of the case
and the correct legal position before quashing the concurrent
findings recorded by the executing court as well as the
revisional court. The High Court while exercising writ
jurisdiction has acted as a court of appeal in allowing the writ
petition filed by the respondent No. 1, that too taking a
technical view. Interest of justice in the fact-situation
warranted dismissal of writ petition.
Thus, in view of what is stated above, we have no
hesitation in holding that the impugned order of the High Court
suffers from irreparable infirmity and it is patently
unsustainable. Consequently, we set aside the same. The appeal
is allowed accordingly with cost of Rs.10,000/- to be paid to the
appellants by the respondents.
…………………..J.
[D.P. Mohapatra]
…………………..J.
[Shivaraj V. Patil]
October 11, 2001