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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Writ Petition No. 3451 of 2007
1. Lalit Malick
2. Shyam Malick
3. Madhu Bhatti
residing at Flat No. A/5,
Ravidarshan C.H.S. Ltd.,
Carter Road, Bandra (West),
Mumbai - 400 050 ... Petitioners
Versus
1. Bajinder Singh through
his Assignee Satnam Singh
residing at 23/25, East Patel Nagar,
New Delhi
2. Joginder Singh Sawhaney
residing at C/12, Malviya Nagar,
New Delhi
3. Bhupinder Singh s/o. Triloksingh
residing at 23/25, East Patel Nagar,
New Delhi ... Respondents
Mr. G. S. Godbole i/b. A. Bharat & Co. for Petitioners.
Mr. Kannan Kapur with Mr. Pankaj Shah i/b. Pankaj Shah for Respondent
No. 2.
Mr. V. K. Kapur, Sr. Advocate with Ms. Usha Rahi i/b. Mayur Narendra &
Co. for Respondent No. 3.
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CORAM:- B. R. GAVAI, J
JUDGMENT RESERVED ON:- 20th April, 2011.
JUDGMENT PRONOUNCED ON:- 6th June, 2011.
JUDGMENT
An interesting question, as to whether a decree holder and a judgment
debtor can insist on auction of a flat under attachment, when the petitioners
who are admittedly in possession of the said flat, are willing to satisfy the
decree by paying the decretal amount, arises for consideration in the present
petition.
2. The facts necessary for adjudication of the present petition are as
under:
3. It is the contention of the petitioners that one Abdul Gafoor Khan was
owner of a flat bearing no. A/5, Ravidarshan C.H.S. Ltd., Carter Road,
Bandra (West), Mumbai 400 050. It is further contention of the petitioners
that the father of the petitioners namely K.L. Malick entered into an
agreement for purchase of the subject flat with the said Abdul Gafoor Khan
Wazir Khan on 4th March, 1971. It is their contention that said agreement
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was witnessed by respondent no. 2 Joginder Singh Sawhney. It is also their
contention that in pursuance to the said agreement, Shri K.M. Malick was
put in possession of the said flat. It is contended by the petitioners that by
mistake the Society issued share certificate in respect of the said flat in the
name of respondent no. 2, who according to them was close acquaintance
and associate of their father. It is contended by the petitioners that in this
premise, their father was required to get an agreement entered into between
the respondent no. 2 herein, by which the respondent no. 2 agreed to sale the
flat in the name of Mrs. Rajinder Malick, the wife of Shri K.L. Malick and
mother of the petitioners. It is contended that accordingly an indemnity
bond was also executed by the respondent no. 2 and that he also addressed a
letter to the Society, to transfer the shares so also the flat in the name of
Mrs. Rajinder. It is contended by them that since then the petitioners’
parents resided in the said flat till death and that the petitioners were also in
possession of the said flat alongwith their parents and after the death of their
parents, they continued to be in possession.
4. A commercial suit no. 332/1972 was filed by the respondent no. 1
against the respondent no. 2 at Delhi, for recovery of an amount of Rs.
10,000/-. The said suit was decreed on 26th February, 1975. The decree was
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put in execution by the original decree holder. However, since the
defendant claimed not to have any property in Delhi to satisfy the decree,
the decree was transferred to the City Civil Court at Bombay for execution.
Subsequently the said exparte decree was assigned in favour of the
respondent no. 3, by the original decree-holder.
5. In the said execution proceedings, an order of attachment came to be
passed in respect of the said flat. On noticing that the warrant of attachment
was issued in respect of the said flat on 24th April, 1989, the mother of the
petitioners vide Chamber Summons No. 857/1989 in Delhi Suit No.
332/1972, had prayed for lifting the attachment in respect of the said flat.
The learned Judge of the City Civil Court, Mumbai vide order dated 20th
February, 1991 dismissed the said chamber summons. Vide order dated 12th
December, 1994 the learned Judge of the City Civil Court fixed the reserved
price of Rs. 49,50,000/- and issued consequential directions regarding
auction of the said flat. In the meanwhile, the mother of the petitioners had
also filed a Short Cause Suit No. 73605/1994 before the City Civil Court,
Mumbai. In the said suit a Notice of Motion No. 6137/1994 was also filed
for the ad-interim orders against the respondents 1 and 2 herein restraining
them from executing the decree passed in Delhi Suit No. 332/1972. After
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considering the statement on behalf of the plaintiffs, that they are willing to
deposit the decretal amount, the learned City Civil Court vide order dated
14th December, 1994 granted an ad-interim relief. However, since the said
suit was not pursued, the notice of motion was rejected on 13th August, 1997
and suit was also dismissed for want of prosecution on 12th September,
1997.
6. Subsequently, an application on 19th November, 2006 purportedly
under the provisions of Rule 1 and 55 of the Order 21 came to be filed
before the learned City Civil Judge, Mumbai by the order impugned dated
20th February, 2007, the application is rejected. In the meanwhile, an
application was also filed by the father of the petitioners before the Delhi
Court under Section 151 of the Civil Procedure Code. After the demise of
petitioner’s father, the petitioners were brought on record as legal heirs. The
learned Commercial Civil Judge, Delhi vide order dated 30th March, 2007
observed that petitioners had no locus and apart from that the application for
similar relief filed before the Executing Court at Mumbai was rejected on
20th February, 2007 and, therefore, it would have been appropriate for the
applicants to approach the Appellate Court at Mumbai for setting aside the
order dated 20th February, 2007 passed by Executing Court at Mumbai.
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Being aggrieved by the order dated 20th February, 2007 passed by the City
Civil Court, Mumbai, the present petition.
7. Initially, the petition had come up for hearing before the learned
Single Judge of this Court (Oka, J) on 4th May, 2007. The learned Judge
passed the order which reads thus:-
“1. Heard Advocate appearing for the petitioners and
the Advocate appearing for the third respondent.According to Advocate for the petitioners, the total amount
due and payable under the decree as of today is Rs.
36,474/-. He states that the Appellants are ready andwilling to deposit the said amount with the trial Court. The
third Respondent is the assignee of the money decree
passed in favour of the first Respondent. The learned
Advocate for the third Respondent is unable to state theexact amount which is due and payable to the third
Respondent under the decree. The flat allegedly inpossession of the petitioners is put to the auction in
execution and the auction was scheduled to be held today.2. Place the petition for admission on 26th June, 2007.
If the petitioners deposit a sum of Rs. 36,474/- with the
Sheriff of Mumbai within a period of one week from today,
there will be an ad-interim relief in terms of prayer clause(b) till the next date. The Advocate for the petitioners
states that the petitioners have no objection if the said
amount is paid over to the third respondent. Therefore, itwill be open for the third respondent to apply to the Sheriff
and on such Application being made, the Sheriff will pay
the amount deposited by the petitioners to the third
respondent.3. If the petitioners fail to deposit the amount within
the stipulated time, ad-interim relief will stand vacated. At::: Downloaded on – 09/06/2013 17:18:12 :::
7 wp3451.07.sxwthis stage, the learned Advocate appearing for the third
Respondent prays for stay of operation of this order. The
third respondent is interested in executing money decree.If the petitioners are ready and willing to pay entire amount
due and payable under the decree, there is no prejudice to
the third respondent. Therefore, the prayer for stay isrejected.
4. Parties and the concerned Court to act upon an
authenticated copy of this order.”8. Subsequently, the matter had come for hearing on 26th July, 2007
before the Learned Single Judge of this Court (A.P.Deshpande, J as he then
was). This Court disposed of the petition, by the order which reads thus:-
“1. Rule. Rule made returnable forthwith. Taken up for
final hearing by consent of parties.2. Heard the advocate appearing for the petitioners and
the advocate appearing for the third respondent. According
to the advocate for the petitioners, the total amount due andpayable under the decree as of today is Rs. 36,474/-.
Inviting my attention to an order passed by this court on 4th
May 2007, it is stated that the petitioners have already
deposited the said amount. The flat has been attachedwhich is allegedly in possession of the petitioners and the
petitioners claim an interest in the said flat. As the
petitioners have claimed interest in the flat which is
attached, and having deposited the decreetal amount with a
view to satisfy the decree, hence the petitioner has prayedfor withdrawal of the attachment. The respondent No. 3 is
the assignee of the money decree passed in favour of the
first respondent. In view of the deposit of the amount with
the Sheriff of Mumbai in compliance of the order dated 4th
May 2007, the petition need to succeed. The respondent
No. 3 was permitted to withdraw the amount. In case the
same is not so withdrawn, it shall be open for the::: Downloaded on – 09/06/2013 17:18:12 :::
8 wp3451.07.sxwrespondent No. 3 to withdraw the amount. In view of the
payment of the decreetal amount, the writ petition is
allowed. The impugned order is quashed and set aside. Inview of the satisfaction of the decree, the attachment of the
flat stands withdrawn. Rule made absolute in above
terms.”9. The Respondent No. 2 herein challenged the order passed by this
Court by way of Civil Appeal No. 881/2010. Noticing that the order
passed by this Court allowing the writ petition was passed without hearing
judgment debtor, who was the appellant before it, the Apex Court passed
the order on 11th January, 2010 which is as under:-
“Leave granted.
Although, the appellant has challenged the
impugned order on several grounds, we do not consider itnecessary to deal with the same because, in our view, the
impugned order is liable to be set aside only on the groundthat the appellant was neither given any notice nor an
opportunity of hearing.Learned counsel for respondent Nos. 1 to 3 very
fairly stated that notice of the writ petition filed by hisclient was not issued to the appellant.
In view of the above, the appeal is allowed. The
impugned order is set aside and the writ petition is remitted
to the High Court for fresh disposal in accordance withlaw. Since some of the parties are senior citizens, we
request the High Court to make an endeavour to dispose of
the writ petition at an early date as per the policy of giving
priority to the cases of senior citizens.”10. After the matter was remanded back by the Hon’ble Supreme Court,
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9 wp3451.07.sxwthe learned Single Judge of this Court vide order dated 16th April, 2010
again issued notices to the respondents. The matter had come for hearing
before me on 25th March, 2011. On the said day a statement on behalf of
respondents 2 and 3 as under was recorded and the following order was
passed:-
” Learned counsel appearing on behalf of
respondent Nos. 2 and 3 submit that original respondent
No. 1 as well as Bajinder Singh so also Satnam Singh
have already expired and their legal heirs are already onrecord and as such it is not necessary for the petitioner
to take steps to bring legal heirs of respondent No. 1 onrecord. Learned counsel submit that they would file
pursis to that effect during the course of the date.Since learned counsel for respondent Nos. 2
and 3 are coming from Delhi, the matter is fixed
peremptorily on 11.04.2011 at 3.00 p.m.”Thereafter, on various dates I have extensively heard the learned Counsel
for the parties. The respondents have also filed their written submissions.
11. Shri Godbole, the learned Counsel appearing on behalf of the
petitioners submits that, the learned trial Judge has grossly erred in holding
that the earlier order dated 20th February, 1991 in the Chamber Summons
filed by the petitioners operates as resjudicata. The learned Counsel submits
that under the provisions of sub-rule 1(a) of rule 1 of order 21, it is not
provided that payment has to be made only by the judgment debtor. He
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10 wp3451.07.sxwsubmits that since the petitioners are in possession of the suit property, they
are very much entitled to make the payment and on the payment being
made the decree stands satisfied and as a consequence thereof, in view of
provisions of Order 21 Rule 55(a) the attachment has to be withdrawn.
The learned Counsel in this respect relies on the judgment of the A.P. High
Court in the case of K.S. Hussain Peeran v/s. Kadapala Venkata Ramana
Rededy (AIR 1989 A.P. 62) and Allahabad High Court in the case of
Thomas Skinner V. Ram Rachpal (AIR 1938 All 141) and on the Privy
Council in the case of Mohd. Rahimutulla Haji Joosab v/s. Esmail
Allarakhia (AIR 1924 Privy Council 133). The learned Counsel also relies
on the Judgment of the Apex Court in the case of Manoharlal Chopra vs.
Raibhahadur Rao Raja Seth Hiralal (AIR 1962 SC 527) in support of the
submission, that alternatively it be held that the application made by the
petitioner deserves to be allowed by taking recourse to Section 151 of the
CPC. The learned Counsel relies on the Judgment of Apex Court in the
case of Jai Jai Ram Manohar Lal v/s. National Building Material Supply,
Gurgaon (1969 (1) Supreme Court Cases 869) in support of the submission
that the procedural laws are hand made of justice and that they cannot be
permitted to come in the way of substantive justice.
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12. Shri Godbole further contends that the suit between the respondent
no. 2 and the original plaintiff was collusive. He submits that suit in fact
was filed, so as to overcome the fact that rights in the flat were transferred
by the respondent no. 2 in favour of the petitioner’s mother and to get the
said flat auctioned and realise huge amount.
13. As against this Shri Kannan Kapur, the learned Counsel appearing on
behalf of the respondent no. 2 submits that petitioners have failed to
approach this Court with clean hands. He submits that there are various
material suppressions in the petition and on this ground alone the petition is
liable to be dismissed. The learned Counsel in this respect relies on the
following judgments:-
K.D. Sharma v/s. Steel Authority of India {(2008) 1 SCC 481}
Dalip Singh v/s. State of U.P. {(2010) 2 SCC 114}
Behari Kunj Sohakari Avas Samiti vs. State of U.P. {(2008) 12 SCC
306}S.P. Chengalvaraya Naidu vs. Jagannath (dead) by LR’s {(1994) I
SCC 1}.14. The learned Counsel further submits that the jurisdiction of this Court
under Article 226 and 227 of judicial review is very limited and this Court
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12 wp3451.07.sxwdoes not act as a Court of appeal and, therefore, the petition is liable to be
rejected. In this respect reliance is placed on following judgments:-
Shawshad Ahmad and others Vs. Tilak Raj Bajaj, (2008) 9 SCC 1
Jai Singh & Ors. Vs. Municipal Corp. of Delhi, (2010) 9 SCC 385
State of West Bengal Vs. Samar Kumar, (2009) 15 SCC 444
Murari Lal Vs. Surinder Singh, 2010 (119) DRJ 1
15. The learned Counsel further submits that in an earlier proceedings
in the Chamber Summons filed by the petitioner’s mother under Order 21
Rule 58 the rights between the parties have been adjudicated. It is,
therefore, submitted that the petitioners who claim through their mother
could not have filed the present application, in view of provisions of Section
11 of CPC. The learned Counsel in this respect, relies on the following
judgments:-
M/s. Deepak Grit Udyog & Ors. Vs. State of Haryana, AIR 1996
P&H 176.
Rasika w/o. Kishandas Tulsidas Vs. Mount Marry Vaikunta C.H.S.
Ltd., Manu/MH/0857/2002.Bhagwan Dass D. Tandel Vs. S. N. Sinha, Dir. Gen. of Police,
Manu/GJ/0320/1995Workmen of Cochin Port Trust Vs. Board of Trustees of Cochin
Port Trust & Anr., AIR 1978 SC 1283.Forward Construction Co. Vs. Prabhat Mandal (Regd.) Andheri &
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13 wp3451.07.sxwOrs., AIR 1986 SC 391.
Ashok Kumar Srivastav Vs. National Insurance Co. Ltd., (1998) 4
SCC 361.
16. The learned Counsel further submits that the provisions of Section
151 cannot be used to circumvent the other provisions of CPC. He relies
on the Judgment of the Apex Court, in the case of Vinod Seth v/s. Devinder
Bajaj & anr.
17.
The learned Counsel further contends that both equity and law are in
favour of the judgment debtor and, therefore, no interference is warranted.
The learned Counsel in this respect, relies on the Judgment of the Apex
Court.
Raghunath Rai Bareja & anr. v/s. Punjab National Bank & ors.
(2007) 2 SCC 230.
Shiv Kumar Sharma vs. Santosh Kumari (2007) 8 SCC 600.
Sushma Suhara Beevi vs. G. Alex & anr. (2004) 8 SCC 569.
18. The learned Counsel for the petitioner further contends that though
the application is purportedly filed under Order 21 Rule 1(a) read with Rule
55, the application is infact under Order 21 Rule 58 and as such an
appealable order and, therefore, the writ petition against the impugned order
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14 wp3451.07.sxwwould not be tenable. Learned Counsel further submits that for considering
as to whether the application is in fact the one under Order 21 Rule 58 or
under Order 21 Rule 1 and 5, it will be necessary to refer to the pleadings
made in the application. Learned Counsel in this respect, relies on the
following judgments:-
Gurram Seetharam Reddy Vs. Gunti Yashoda & Anr.,
Manu/AP/0644/2004Shishant Aggarwal Vs. Krishan Kumar Aggarwal,
Manu/UP/0805/2005
Ghasi Sahu & Anr. Vs. Himachal Sahu & Anr., AIR 1986 Orissa17.
19. Shri Y.K. Kapoor, the learned Counsel appearing on behalf of
respondent no. 3 supports the submissions made on behalf of the respondent
no. 2.
20. I will first deal with the contention raised on behalf of the respondents
regarding tenability of the petition. The present petition is being heard after
it is remanded back by the Apex Court. Initially, this Court had not only
entertained the petition but had also allowed the same. Nodoubt that the
learned Counsel is right in contending that jurisdiction of this Court under
Article 226 and 227 is limited jurisdiction and that the Court cannot sit as a
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15 wp3451.07.sxwCourt of appeal, to correct the errors committed by the Lower Courts.
However, this Court cannot be said to be without any powers, when the
lower Courts exercise the jurisdiction with manifest error which can be
termed as perversity. This Court as a Court of record would be bound to
exercise jurisdiction vested in it under Article 226 or 227 to correct such a
manifest error and do the justice between the parties. The law on this point
is well settled and, therefore, I do not find it necessary to refer to the
judgments referred in this regard by the learned Counsel for the respondent
no. 2.
21. Insofar as the second contention regarding the suppression and
misrepresentation is concerned, the learned Counsel basically relies on the
fact that in the petition, the petitioners have not pleaded regarding the earlier
order passed in the Chamber Summons filed by their mother. It is a settled
law that the person who seeks equity must do equity. It is equally settled
that the person who seeks equitable jurisdiction, must approach the Court
with clean hands. The learned Counsel relies on the aforesaid judgments of
the Apex Court to contend that a person would not be entitled to any
equitable relief if he is guilty of material suppression of facts or withholding
of relevant documents from the Court. In the present case it would have to
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16 wp3451.07.sxwbe seen as to whether the petitioners can be held guilty of suppression of
material facts. In this respect, the basic grievance of the respondent no. 2
is that the petitioner has not pleaded in the memo of petition regarding
rejection of Chamber Summons No. 857/1989 filed by their mother.
However, it is to be noted that in the order impugned before this Court itself,
the learned Judge has referred to the order passed in Chamber Summons No.
857/1989 and it is basically the rejection of this Chamber Summons, which
has weighed with the learned City Civil Judge in rejecting the application of
the petitioners.
The impugned order is very well annexed to the petition.
The petitioners have also in paragraph 7 of the petition, referred to the
dismissal of the suit. It is thus clear that the petitioners were not to gain
anything, by non-mentioning of the fact regarding the dismissal of the
Chamber Summons filed by their mother. It appears to be a negligent act
on the part of the lawyer, who has drafted the petition and has failed to make
a averment which could have been noticed by him upon the bare perusal of
the impugned order. I find that the petitioners cannot be non-suited on
account of negligence by the Counsel, when the non-averment of the said
fact in the petition could not have been of any benefit to the petitioner, as
the said fact is evident from the order impugned in the petition. In that
view of the matter, I am not inclined to non-suit the petitioners on the said
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17 wp3451.07.sxwground.
22. The next question that requires to be considered, is as to whether the
application is question has to be termed as one under Order 21 Rule 58 and
not the one under Order 21 Rule 1(a) read with Rule 55. By now it is a
settled law, that for considering the jurisdiction, the averments in the
plaint/application will have to be considered. The perusal of the application
would clearly reveal that jurisdiction that is invoked by the petitioners is
under Order 21 Rule 1(a), wherein they have specifically contended that
they are willing to make the payment of the decretal amount and satisfy the
decree. In the application they have no way raised any objection to the
decree. In that view of the matter, I am also not inclined to accept the
contention in that regard and as such reference to the various judgments
made by the learned Counsel would not be necessary.
23. That leaves to the next question as to whether the application filed by
the petitioners would be hit by Section 11 of the Code of Civil Procedure. It
is the contention on behalf of respondent that the
application as filed by the petitioners, was hit by principles of resjudicata
and as such not tenable. The learned Counsel in this respect presses into
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18 wp3451.07.sxwservice Section 11 of the CPC and explanation IV thereof. The Apex Court
in the case of Sheodan Singh vs. Daryao Kunwar Singh (AIR 1966 SC
1332) while considering the scope of Section 11 has observed thus:-
“(9) A plain reading of S. 11 shows that to constitute a matter
res judicata, the following conditions must be satisfied,
namely- (I) The matter directly and substantially in issue in the
subsequent suit or issue must be the same matter which wasdirectly and substantially in issue in the former suit; (II) The
former suit must have been a suit between the same parties or
between parties under whom they or any of them claim; (III)
The parties must have litigated under the same title in theformer suit; (IV) The court which decided the former suit must
be a Court competent to try the subsequent suit or the suit inwhich such issue is subsequently raised; and (V) The matter
directly and substantially in issue in the subsequent suit must
have been heard and finally decided by the Court in the firstsuit. Further Explanation-I shows that it is not the date on
which the suit is filed that matters but the date on which the
suit is decided, so that even if a suit was filed later, it will be a
former suit if it has been decided earlier. In order therefore
that the decision in the earlier two appeals dismissed by theHigh Court operates as res judicata it will have to be seen
whether all the five conditions mentioned above have beensatisfied.”
24. It can thus be seen that for considering as to whether the application
filed by the petitioners was hit by principle of resjudicata, it will have to be
seen as to whether all the five conditions as mentioned by the Apex Court
have been satisfied in the present case or not. Nodoubt that the learned
Counsel is right in contending that principle of resjudicata also applies to
two stages of same litigation, to the extent that the Court, whether the trial
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19 wp3451.07.sxwCourt or the Higher Court having at an earlier stage decided the matter in
one way will not allow the parties to re-agitate the same matter again at the
subsequent stage of the same proceedings. The reliance placed by the
learned Counsel on the various judgments in this respect is well placed.
However, for ascertaining as to whether the present application is hit by
principle of resjudicata or not, one of the conditions that will have to be
satisfied is that the matter directly and substantially in issue in the present
application, must also be a matter directly and substantially in issue in the
Chamber Summons filed by their mother. As held by the Apex Court in the
case of Usha Singh v/s. Sarvan singh (AIR 1964 SC 948) the question will
have to be determined with reference to the pleadings, issues before the
Court and the final order. The perusal of Chamber Summons and the
affidavit filed by Smt. Rajinder Malick, the mother of the petitioners would
reveal that it has been pleaded by her in the said application that the
respondent no. 2 herein had sold and transferred the said flat to her on 3rd
August, 1971. She has averred that thereafter she has been residing in the
said premises, with her husband and sons. She has also averred that though
she has made an application to the Society for admitting her as a member,
on account of internal dispute, the Society had failed and neglected to
transfer the said flat or to admit her as a member. She has specifically
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20 wp3451.07.sxwaverred that there is an obvious collusion and connivance between the
defendant and assignee with a view to deprive her rights, title and interest in
the said premises. She has specifically pleaded that defendant had
relinquished all rights, title and interest in the said premises. It is the
specific case, that the attachment levied upon the said premises was bad,
illegal and inoperative and liable to be lifted forthwith. Her specific
contention is that the defendant had no right, title or any interest in the said
premises and that she was the absolute owner of the said premises since 12th
November, 1970. It was her further contention that without prejudice to her
other submissions, she was entitled to ownership of the said flat, on account
of her uninterrupted adverse possession. It can thus be seen that the matter
directly and substantially in issue in the said Chamber Summons was the
claim of the petitioner’s mother, for lifting the attachment on the ground that
the decree in pursuance to which an order of attachment was passed was a
collusive decree. However, the perusal of the present application would
reveal that the petitioners have not raised objection to the decree. In the
present application, the applicants say that the applicants nor their parents,
are judgment debtors in the said matter, however, since they were dragged
into the execution application, they were willing to satisfy the decree by
making the payment. It can thus be seen that in earlier Chamber Summons
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21 wp3451.07.sxwthe mother of the petitioners had challenged the decree and prayed for
lifting the attachment. Whereas in the present application the applicants
have merely prayed for permission to deposit the decretal amount and
satisfy the decree. It can thus clearly be seen that matter directly and
substantially in issue, in the earlier proceedings filed by the mother of the
petitioner, was challenge to the attachment on the ground that decree was a
collusive decree and not binding on her whereas the matter in issue in the
present application was regarding the payment by a person interested in the
flat to satisfy the decree.
ig I am, therefore, of the considered view that the
matter in issue in the present application was not a matter directly or
substantially in issue in the Chamber Summons filed by the mother of the
petitioners. I am also of the considered view that the contention of the
respondent that the present application would not be tenable in view of
explanation IV is also without substance. As I have already discussed
hereinabove that the matter in issue in both the applications is not directly
and substantially same. The Chamber Summons filed by the mother of the
petitioners was for challenging the attachment, whereas the present
application is for satisfying the decree without challenging the attachment or
the decree. In that view of the matter, I am of the considered view that
explanation IV to Section 11 of C.P.C. will not apply to the facts of the
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22 wp3451.07.sxwpresent case.
25. That leaves us to the last question as to whether the petitioners are
entitled to make the payment and satisfy the decree. For considering the
rival submissions it would be necessary to refer to Rule 1 of Order 21 and
Rule 55 thereof.
“Order XXI, Rule 1
1. Modes of paying money under decree- (1) All money,
payable under a decree shall be paid as follows, namely:
(a) by deposit into the Court whose duty it is to execute the
decree, or sent to that Court by postal money order or through abank; or
(b) out of Court, to the decree-holder by postal money order or
through a bank or by any other mode wherein payment is
evidenced in writing; or(c) otherwise, as the Court which made the decree, directs.
(2) Where any payment is made under clause (a) or clause (c) of
sub-rule (1), the judgment-debtor shall give notice thereof to the
decree-holder either through the Court or directly to him by
registered post, acknowledgment due.(3) Where money is paid by postal money order or through a
bank under clause (a) or clause (b) of sub-rule (1), the money
order or payment through bank, as the case may be, shall
accurately state of following particulars, namely:-(a) the number of the original suit;
(b) the names of the parties or where there are more than two
plaintiffs or more than two defendants, as the case may be, the
names of the first two plaintiffs and the first two defendants;(c) how the money remitted is to be adjusted, that is to say,
whether it is towards the principal, interest or costs;(d) the number of the execution case of the Court, where such
case is pending; and::: Downloaded on – 09/06/2013 17:18:12 :::
23 wp3451.07.sxw(e) the name and address of the payer.
(4) On any amount paid under clause (a) or clause (c) of sub-
rule (1), interest, if any, shall cease to run from the date of
service of the notice referred to in sub-rule (2).(5) On any amount paid under clause (b) of sub-rule (1),
interest, if any, shall cease to run from the date of such payment:Provided that, where the decree-holder refuses to accept
the postal money order or payment through a bank, interest shall
cease to run from the date on which the money was tendered to
him, or where he avoids acceptance of the postal money order or
payment through bank, interest shall cease to run from the date
on which the money would have been tendered to him in theordinary course of business of the postal authorities or the bank,
as the case may be.”Perusal of clauses (a) and (b) of sub-rule 1(1) would reveal that it does not
mention as to who would be entitled to make the payment.
26. The Andhra Pradesh High Court had an occasion to consider a similar
case with little difference. In the said case the petitioner claiming that
property belonging to him were being brought in execution of decree and
that his claim petition was dismissed in default, claimed to have made the
payment of Rs. 5000/- in full settlement of decretal amount and obtained a
receipt from the decree holder. The decree holder took a preliminary
objection about the maintainability of the application under Order 21 Rule 2
of the CPC at the instance of third party. The Andhra Pradesh High Court
::: Downloaded on – 09/06/2013 17:18:12 :::
24 wp3451.07.sxwafter considering the rival submissions has observed thus:-
“Rule 1 is concerned with diverse modes of payment of the
decretal amount. Clause (b) of R. 1 visualises the payment out
of Court to the decree-holder and such payment should be
evidenced by postal money order or through Bank or a receiptreduced into writing. There is absolutely no semblance of
indication as to the person who can pay the amount in the
manner postulated in clause (b). Regarding payments under
Cls. (a) and (c), the judgment-debtor is unable to give noticeof such payment to the decree-holder in the manner provided
therein. The requirement of furnishing the name and address
of the payer in cl. 3(e) furnishes a clue to the person who can
be payee and such payer is not confined to the judgment-debtor. ………. This can be viewed from another perspective
also namely the decree-holder is concerned with the payment
of his decretal amount whatever be the source for suchpayment and if any person comes forward to pay the amount
on behalf of the judgment-debtor or such person is obligated
to pay the decretal amount due to several sorts ofcircumstances the decree-holder welcomes the payment. The
best possible situation in which a person is obligated to pay is
when his property is attached and his claim petition is rejected
and to avert the attachment and resultant loss and hardship tohim when he comes forward to wipe out the decree by
payment to the decree-holder and when he seeks to have thesatisfaction recorded he should not be foreclosed on the
ground of maintainability of the application at his instance.
Sub cl. (1) of R. (2) obligates the decree-holder to certify
payment or adjustment of the decretal amount. Sub cl. (2)provides that the judgment-debtor or surety also apart from the
decree-holder indicated in sub-rule (1) may bring to the notice
of the Court the payment or adjustment of the decretal amount.
R. 2 does not prohibit or preclude any person other than the
decree-holder, judgment-debtor or surety to apprise the Court
regarding payment and record satisfaction of the decree.Further there is no rationale or purpose behind the rigid
interpretation of enabling the judgment-debtor or surety alone
to set in motion the proceeding for recording satisfaction of
the decree. There is no prejudice if any person, whatever may
be his concern seeks satisfaction of the decree on proof of
payment of the decretal amount as provided in R. 1.”
(emphasis supplied).::: Downloaded on – 09/06/2013 17:18:12 :::
25 wp3451.07.sxw
I am in respectful agreement with the view taken by the Andhra Pradesh
High Court.
27. In the case of Mohd. Rahimtulla Haji Joosab (supra) before the
Privy Council in a suit to set aside the sale conditional decree was passed,
that the plaintiff decree holder shall pay certain sum within certain time. In
pursuance to the decree the payment was made by the plaintiff’s mortgagee
instead of plaintiff by depositing money in the Court. The privy Councils
observed thus:
“Various contentions were put forward by the appellant in
support of his appeal from this order: (1) He contended that ona sound construction of the decree the sum that was provided
to be paid by the plaintiffs in that suit fell to be paid to theappellant and that a deposit in Court did not satisfy the
condition in the decree. Their Lordships are clearly of opinion
that while the condition would have been satisfied by a
payment to the appellant in person, which he accepted it wasequally satisfied by a payment into Court, and that the later
was, in the circumstances, the appropriate mode of satisfying
the condition. (2) It was contended that a deposit made by
another than a party to the suit did not satisfy the condition,
and that the mortgagee, who was not a party, had no right, in aquestion with the appellant, to make the deposit. Their
Lordships agree with the learned Judges of the High Court in
rejecting this argument for the reasons they state. They are
further of opinion that the mortgagee had for an absolute
protection of his own property to make the deposit and so
prevent his security from becoming valueless. To the extent
of the value of his mortgage granted by the plaintiffs in his::: Downloaded on – 09/06/2013 17:18:12 :::
26 wp3451.07.sxwfavour he had acquired their rights, and the mortgage-deed
expressly authorises him to charge on the mortgaged property
any expenses which the mortgagee might be required to makefor his protection.
Lastly, it was contended that the mortgagee had an
absolute right to withdraw the deposit. If no other interests
were in question but those of the mortgagee and the appellant
this would no doubt have been the case. But it cannot be
overlooked that the real object of the application for thewithdrawal was to defeat the claims of the respondent who was
the only other person that had an interest in the condition
expressed in the decree being satisfied. Their Lordships think
that the benefit of the deposit, having been made before the
expiry of the time limit, necessarily enured to all parties havingan interest in the condition being purified. The legitimate
interest of the appellant was to obtain payment of the sums towhich he was preferably entitled and this was secured to him
by the deposit. Just as the plaintiff’s suit would have stood
dismissed if the deposit had not been made, so equally thedecree provided that if the sums in question were paid the
plaintiffs were to recover possession of the land in suit. The
respondent in virtue of the agreement of the 10th June, 1918, of
which he subsequently obtained a decree of specificimplement, is now in right of this decree and entitled to
enforce it against the appellant. As, however, the moneydeposited by Dattatraya had been actually uplifted by him
before the order of the High Court was made, the condition
which the Court imposed on the respondent appeared to be the
only method by which the position which had been inverted by
the appellant’s action could be restored so as to do justicebetween the parties. Their Lordships are accordingly of
opinion that the decision of the High Court was right and they
will humbly advise His Majesty that the appeal should be
dismissed with costs.” (emphasis supplied)28. It can thus clearly be seen that the Privy Council in the aforesaid case
has held that since the mortgagee for an absolute protection of his own
property made the payment, the condition as stipulated in the conditional
::: Downloaded on – 09/06/2013 17:18:12 :::
27 wp3451.07.sxwdecree stood satisfied. If a mortgagee for protection of the interest is
entitled to make a payment towards the satisfaction of a decree, by same
analogy a person who is interested in property and in possession thereof, in
my view would be entitled to make the payment for satisfaction of the
decree for protection of his right in the property concerned.
29. Admittedly, in the present case the parents of the petitioners and the
petitioners alongwith mother were in possession of the said flat.
Admittedly, after the demise of their parents, petitioners are in possession of
the said flat. Admittedly, there are certain documents placed on record by
the petitioners, purported to be an agreement of sale, in respect of the said
flat between the petitioner’s mother and the respondent no. 2. There are
certain documents allegedly addressed by respondent no. 2, in the nature of
indemnity bond and request to the Society for transferring the shares in the
name of the petitioner’s mother. I do not wish to comment anything about
the genuineness or otherwise of the said documents, inasmuch as any
observation in that regard may prejudice the rights of the petitioners or the
respondent no. 2, but certainly it cannot be said that the petitioners are not at
all interested in the said flat. I do not find it appropriate to go into the
question as to what would be extent of their interest in the flat concerned.
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28 wp3451.07.sxw
30. The matter can be viewed from another angle. It is the allegation of
petitioners that the suit in question was filed against the respondent no. 2, by
his own brother-in-law. It is contended that suit is a collusive suit and was
filed with an intention to circumvent the agreement entered into between
petitioner’s mother and respondent no. 2. I do not wish to go into the said
controversy, again for the same reason, that any observation in that regard
may prejudice rights of either of the parties. However, let us consider and
examine a hypothical situation. An unscrupulous litigant after entering into
an agreement of sale of a property, after receiving consideration thereof and
after delivering possession does not want to honour the agreement. He may
very well instigate someone close to him, to file a suit for money decree for
a paltry sum. The suit may be decreed. He may very well put up a claim
that he does not have any other property and the only property that he has is
the one in respect of which the agreement of sale is entered and possession
delivered. In the proceedings for execution of said money decree, the said
property would be attached and put to an auction. Can a person who has
paid a consideration for the said property in pursuance to an agreement and
is in possession of the said property, be said to be a person not entitled to
make payment and satisfy the decree, so as to avoid auction of the said
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29 wp3451.07.sxwproperty? If the answer to this question is ‘No’, then it would result in
giving a tool in hands of unscrupulous cantankerous litigants to circumvent
the rights they have transferred in favour of third parties after receiving a
consideration, to realise huge amount by auction of said property.
31. In the present case, the matter is remanded by their Lordships of the
Apex Court, basically on the ground that notice of present writ petition filed
by the present petitioners was not issued to the appellant, before the Apex
Court (i.e. the respondent no. 2 herein). However, it is pertinent to note that
the respondent no. 2 had addressed a communication to this Court on 10th
May, 2007, i.e. much earlier to the order passed by the Apex Court. The
relevant portion of the said letter reads thus:-
“This is to bring under your kind information that I have come
to know that your Hon’ble Court have passed the order on
May 04, 2007 on the above mentioned Ritz Petition. I have noAdvocate and nor I have been informed for the same,
therefore, I was not present in your Hon’ble Court.That the Petitioners should deposit the decree amount of Rs.
36,474.00 in the Sheriff of Bombay Office within one weektime etc.
I, Joginder Singh Sawhney R/o. C-12, Malviya Nagar, New
Delhi-110017, is Defendant / Judgement Debtor in this case.Whereas I have not been informed by the concerned
Department regarding the said case hearing in High Court::: Downloaded on – 09/06/2013 17:18:12 :::
30 wp3451.07.sxwBombay.
I have written so many letters by Speed Post, A/D to Sheriff
Office that I have “No Objection” for the sale of my Flat No.
A-5, Ravi Darshan Co-operative Housing Society Ltd., Carter
Road, Bandra (West), Bombay-400 050, which is alreadyattached by City Civil Court, Bombay by Warrant of
Attachment dated 24th April, 1989.I request your honour that I do not want any obligation of any
Party/Parties to deposit my Decree amount in the Sheriff Office
as per your Order dated 04.07.2007.I humbly request you that you please pass necessary orders that
my above mentioned flat of which I am the owner should beput on Auction (Sale) and out of which Decree amount
should be paid to Decree holder and the balance amountshould be paid to me for which I have no objection.
Once again I request your honour that please pass necessary
orders for Auction that flat in question and after detecting the
Decree amount, the Balance amount should be paid to me. I
do not want any obligation of any Party or Parties to deposit
Decree amount on my behalf.”32. It can thus be seen that the respondent no. 2, is insisting that the said
flat should be put on auction and out of which the decree amount should be
paid to the decree holder and the balance amount should be paid to him. He
states that he does not want any obligation of any party to deposit the decree
amount on his behalf. From the perusal of the order passed by this Court
dated 4th May, 2007 and 26th July, 2007, it would reveal that the amount
payable under the decree is Rs. 36,474/- which is already deposited by the
petitioners in this Court, which is in addition to the amount which was
::: Downloaded on – 09/06/2013 17:18:12 :::
31 wp3451.07.sxwalready deposited by the petitioner’s mother in the suit filed by her. From
the order passed by the learned City Civil Judge dated 9th December, 1994,
it would reveal that the reserve price for auction, has been set as Rs.
49,50,000/-. A period of about 16 years has lapsed therefrom.
Undisputedly, with passage of time, the price of the said flat would be
atleast more than a crore. The question, therefore, would be whether the
decree passed against the respondent no. 2, against which the amount
payable is about 36,474/- could be permitted to be used by him to receive an
amount in crores by auctioning the said flat. It is a known fact that the
price received after auctioning the property under the orders of the Court
would be less than the prevailing market rate. It is difficult to understand as
to why the respondent no. 2, who claims to be the owner of the property,
does not want to pay the paltry sum of Rs. 36,474/- and save his valuable
property from being auctioned. Certainly, there appears to be much more in
the present matter than what meets the eye. The present matter has been
argued on various dates. The Respondents have engaged the learned
Counsels from Delhi. The matter was also adjourned on various dates to
suit the convenience of the learned Counsels, at their request, as they were
required to appear either before the Apex Court or the other Court. Giving a
benefit to the respondent no.2, that he was not required to pay any fees to
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32 wp3451.07.sxwthe learned Counsel, it can certainly be assumed that respondent no.2 was
required to spend on traveling of these learned Counsels. The learned
Counsels have appeared before me for atleast 5-6 dates. The order sheets
reveal that on earlier occasions the matter was listed before the other learned
Judges. The order sheets further reveal that on earlier occasions, the
learned Counsels from Delhi had appeared in the matter. Even if the
traveling expenses which were made on these trips are taken into
consideration, it will be much more than the amount of Rs. 36,474/- which
is required to be paid for satisfaction of the decree. Taking into
consideration this aspect, the contention of the petitioner that the decree is a
collusive decree with intent to get the flat auctioned cannot be outrightly
disbelieved. However, I make it clear, that I do not intend to make any
observation regarding the rights of the petitioners or the respondent no. 2 in
the said flat. Inasmuch as, limited question that arises for consideration is,
as to whether the petitioners can be permitted to make the payment and
satisfy the decree. In case the respondent has any rights in the said flat, he
is always at liberty to take such steps, as are permissible in law to establish
his right. If the respondent no. 2 is the owner of the flat, he can also take
such steps for evicting the petitioners, from suit premises as permissible in
law. The only question is whether he can be permitted to use the
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33 wp3451.07.sxwmachinery of law to get the flat in question auctioned, which is admittedly
in possession of the petitioners and atleast prima-facie they have semblance
of right in the said flat. I am of the considered view that if this is permitted,
it will amount to nothing else than abuse of process of the Court.
33. Insofar as the contention of the respondent no. 2 that when there is a
conflict between the law and equity, the law shall prevail is concerned, there
can be no second opinion about the same. The law is well settled. The
reliance placed by the learned Counsel on the Judgments of the Apex Court
is also well placed. However, it could be seen that none of the judgments
relied on by the respondent no. 2, in this respect, would be applicable to the
facts of the present case. In the case of Raghunath Rai Bareja & anr. v/s.
Punjab National Bank & ors. {(2007) 2 SCC 230}, the question was as to
whether in case of conflict between the equity in favour of debtor to recover
its debt and a law providing that no proceedings for execution beyond a
period of twelve years as provided under Article 137 of the Limitation Act,
whether equity would prevail over the law. In this background the Apex
Court observed thus:-
” While we fully agree with the learned Counsel that equity is
wholly in favour of the respondent-Bank, since obviously a
Bank should be allowed to recover its debts, we must,
however, state that it is well settled that when there is a::: Downloaded on – 09/06/2013 17:18:12 :::
34 wp3451.07.sxwconflict between law and equity, it is the law which has to
prevail, in accordance with the Latin maxim ‘dura lex sed
lex’, which means ‘the law is hard, but it is the law’. Equitycan only supplement the law, but is cannot supplant or
override it.”Such is not the case here. The perusal of provisions of Order 21 Rule 1 do
not provide that payment has to be made by the judgment debtor alone and
therefore I do not find that there is any conflict between law and equity.
In case of Shiv Kumar Sharma (supra) the High Court, in an appeal against
the decree passed by the trial Court, had framed an additional issue on its
own which did not arise for consideration in the suit or in the appeal. In
this background the Apex Court observed thus:-
” A court of law cannot exercise its discretionary
jurisdiction de’hors the statutory law. Its discretion must beexercised in terms of the existing statute.
MANU/SC/0656/2004 : (2004) 8 SCC 569, this Court, while
dealing with the matter relating to grant of compensation by
the High Court under section 21 of the Specific Relief Act in
addition to the relief of specific performance in the absence of
prayer made to that effect either in the plaint or amending the
same at any later stage of the proceedings to include the reliefof compensation in addition to the relief of specific
performance, observed:Grant of such a relief in the teeth of express
provisions of the statute to the contrary is not
permissible. On equitable consideration Court cannot
ignore or overlook the provisions of the statute.
Equity must yield to law.::: Downloaded on – 09/06/2013 17:18:12 :::
35 wp3451.07.sxw
We, therefore, are of the opinion that the High Court
was not correct in framing the additional issues of its ownwhich did not arise for consideration in the suit or in the
appeal. Even otherwise, the High Court should have
formulated the points for its consideration in terms of OrderXLI, Rule 31 of the Code. On the pleadings of the parties
and in view of the submissions made, no such question arose
for its consideration. In any event, if a second suit was
maintainable in terms of Order II, Rule 4 of the Code, as wassubmitted Ms. Luthra, no leave was required to be granted
therefore. A civil court does not grant leave to file another
suit. If the law permits, the plaintiff may file another suit but
not on the basis of observations made by a superior court.”34. In the case of Sushma Suhara Beevi vs. G. Alex & anr. the High
Court had granted compensation under Section 21 of the Specific Relief Act
in addition to the relief of specific performance in the absence of prayer
made to that effect either in the plaint or by amending the same. It is to be
noted that under sub-section 5 of Section 21 there is a specific bar that
unless such a prayer is made in the pleadings, compensation cannot be
granted. In this background, the Apex Court observed thus:-
” The relief was claimed under Section 28 and not under
Section 21 of the Act. The High Court came to the conclusionthat Section 28 would not be applicable to the facts of the case
but granted the relief under Section 21 of the Act. In our view,
the High Court has clearly erred in granting the compensation
under Section 21 in addition to the relief of specific
performance in the absence of prayer made to that effect
either in the plaint or amending the same at any later stage of
the proceedings to include the relief of compensation in
addition to the relief of specific performance. Grant of such a::: Downloaded on – 09/06/2013 17:18:12 :::
36 wp3451.07.sxwrelief in the teeth of express provisions of the statute to the
contrary is not permissible. On equitable considerations court
cannot ignore or overlook the provisions of the statute.Equity must yield to law.”
35. It can thus be seen that in all these cases there is a conflict between
the statutory law and the equity. In this background the Apex Court has
held that equity must yield to law. However, in the present case as already
discussed hereinabove there is no conflict between equity and law. There is
nothing in the statutory provision which would prevent a person interested
in the property to make the payment towards satisfaction of the decree to
protect his property. The view is also supported by the Judgment of the
Privy Council and the Andhra Pradesh High Court. In that view of the
matter, I am of the considered view that contention in that regard is liable to
be rejected.
36. The last question that requires to be considered is whether
alternatively, the facts in the present case would permit exercise of
jurisdiction under Section 151 of the Code of Civil Procedure. It is the
contention of the petitioner, that if it is found that under Order 21 Rule 1
they are not entitled to make the payment, in the interest of justice, the
provisions of section 151 could be taken recourse to, so as to prevent abuse
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37 wp3451.07.sxw
of process of law. The said contention is countered by the respondents,
contending that the provisions of Section 151 cannot be taken recourse to
when there are other statutory provisions available and in any case not so as
to circumvent the statutory provisions. The petitioner in this respect relied
on the Judgment of Manoharlal Chopra vs. Raibhahadur Rao (supra)
whereas respondents relied on the judgment of Vinod Seth (supra).
37. In the case of Vinod Seth the Apex Court was considering the legality
of order passed by the learned Single Judge of the Delhi High Court wherein
the learned Judge had directed the appellant-plaintiff to furnish an
undertaking to pay Rs. 25 lacs to defendants in the event of losing the case.
The Apex Court, therefore, was considering as to whether such an order
would be permissible under Section 151 of the CPC. The Apex Court in
the said judgment has considered its earlier judgments on the issue.
Paragraphs 13, 14 and 15 of the said judgment are reproduced as under:-
“13. We will next examine whether the power to make such
an Order can be traced to Section 151 of the Code, which
reads-“Nothing in this Code shall be deemed to limit or
otherwise affect the inherent power of the Court to make such
Orders as may be necessary for the ends of justice or to
prevent abuse of t he process of the Court.” As the provisions
of the Code are not exhaustive, Section 151 is intended to
apply where the Code does not cover any particular procedural
aspect, and interests of justice require the exercise of power to::: Downloaded on – 09/06/2013 17:18:12 :::
38 wp3451.07.sxwcover a particular situation. Section 151 is not a provision of
law conferring power to grant any kind of substantive relief.
It is a procedural provision saving the inherent power of the
Court to make such Orders as may be necessary for the ends
of justice and to prevent abuse of the process of the Court. It
cannot be invoked with reference to a matter which is covered
by a specific provision in the Code. It cannot be exercised in
conflict with the general scheme and intent of the Code. It
cannot be used either to create or recognise rights, or to create
liabilities and obligations not contemplated by any law.
13.1 Considering the scope of Section 151, in Padam Sen v.
State of Uttar Pradesh, AIR 1961 SC 218, this Court
observed:
The inherent powers of the Court are in addition to the powers
specifically conferred on the Court by the Code. They are
complementary to those powers and, therefore, it must be held
that the Court is free to exercise them for the purposes
mentioned in Section 151 of the Code when the exercise of
those powers is not in any way in conflict with what has been
expressly provided in the Code or against the intentions of the
Legislature.
The inherent powers saved by Section 151 of the Code are
with respect to the procedure to be followed by the Court in
deciding the cause before it. These powers are not powers
over the substantive rights which any litigant possesses.
Specific powers have to be conferred on the Courts for
passing such Orders which would affect such rights of a party.
(Emphasis supplied)
13.2 In Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth
Hiralal, AIR 1962 SC 527, this Court held:
…that the inherent powers are not in any way controlled by the
provisions of the Code as has been specifically stated in
Section 151 itself. But those powers are not to be exercised
when their exercise may be in conflict with what had been
expressly provided in the Code or against the intentions of the
Legislature.
13.3 In Ram Chand and Sons Sugar Mills Pvt. Ltd. v.
Kanhayalal Bhargav, AIR 1966 SC 1899, this Court reiterated
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39 wp3451.07.sxw
that the inherent power of the Court is in addition to and
complementary to the powers expressly conferred under the
Code but that power will not be exercised if its exercise is
inconsistent with, or comes into conflict with any of the
powers expressly or by necessary implication conferred by the
other provisions of the Code. Section 151 however, is not
intended to create a new procedure or any new right or
obligation. In Nainsingh v. Koonwarjee, AIR 1970 SC 997,
this Court observed:
Under the inherent power of Courts recognised by Section 151
CPC, a Court has no power to do that which is prohibited by
the Code. Inherent jurisdiction of the Court must be exercised
subject to the rule that if the Code does contain specific
provisions which would meet the necessities of the case, such
provisions should be followed and inherent jurisdiction should
not be invoked. In other words, the Court cannot make use of
the special provisions of Section 151 of the Code where a
party had his remedy provided elsewhere in the Code….
13.4 A suit or proceeding initiated in accordance with law
cannot be considered as an abuse of the process of Court, only
on the ground that such suit or proceeding is likely to cause
hardship or is likely to be rejected ultimately. As there are
specific provisions in the Code, relating to costs, security for
costs and damages, the Court cannot invoke Section 151 on
the ground that the same is necessary for ends of justice.
Therefore, we are of the view that a Court trying a civil suit,
cannot, in exercise of inherent power under Section 151 of the
Code, make an interim Order directing the Plaintiff to file an
undertaking that he will pay a sum directed by the Court to the
Defendant as damages in case he fails in the suit.
14. The direction to the Plaintiff to furnish an undertaking
to pay Rs. 25 lacs to Defendants in the event of losing the case
is an Order, in terrorem. It is made not because the Plaintiff
committed any default, nor because he tried to delay the
proceedings, nor because he filed any frivolous applications,
but because the Court is unable to find the time to decide the
case in view of the huge pendency. (The Division Bench has
supported the Order of the learned Single Judge on the ground
that “the heavy docket does not permit early disposal of suits
and thus parties may take advantage of keeping frivolous
claims alive”). Such an Order, punishing a litigant for
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40 wp3451.07.sxw
approaching the Court, on the ground that the Court is not able
to decide the case expeditiously, is unwarranted, unauthorised
and beyond the power and jurisdiction of the Court in a civil
suit governed by the Code. Such Orders are likely to be
branded as judicial highhandedness, or worse, judicial
vigilantism.
15. We appreciate the anxiety shown by the High Court to
discourage land-grabbers, speculators, false claimants and
adventures in real estate from pressurising hapless and
innocent property owners to part with their property against
their will, by filing suits which are vexatious, false or
frivolous. But we cannot approved the method adopted by the
High Court which is wholly outside law. In a suit governed by
the Code, no Court can, merely because it considers it just and
equitable, issue directions which are contrary to or not
authorised by law. Courts will do well to keep in mind the
warning given by Benjamin N. Cardozo in The Nature of the
Judicial Process: (Yale University Press – 1921 Edition Page
114):
The Judge even when he is free, is still not wholly free. He is
not to innovate at pleasure. He is not a knight-errant roaming
at will in pursuit of his own ideal of beauty or of goodness.
He is to draw his inspiration from consecrated principles. He
is not to yield to spasmodic sentiment, to vague and
unregulated benevolence. He is to exercise a discretion
informed by tradition, methodised by analogy, disciplined by
system, and subordinated to “the primordial necessity of
Order in social life.
The High Court can certainly innovate, to discipline those
whom it considers to be adventurers in litigation, but it has to
do so within the four corners of law.
38. It can thus clearly be seen that what has been upheld by the Apex
Court, is that the powers under Section 151 cannot be exercised in conflict
with the general scheme and intent of the Court. It has been further held
that similarly it cannot be used either to create or recognise rights or to
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create liabilities and obligations in conflict of any law. As already discussed
hereinabove, I do not find that the relief claimed by the petitioners is in any
way in conflict with the general scheme and intent of the Court. I do not
find anything in the code, which prevents a person interested in property
from satisfying the decree, for protecting his rights in the property. On the
contrary I find that reading of Order 21 Rule 1(a) would show that, there is
nothing which restricts the payment to be made by the Judgment debtor
alone. On the contrary, as held by the Andhra Pradesh High Court a person
interested in the property would be entitled to make the payment. The view
is also supported by the Judgment of the Privy Council cited supra. I am,
therefore, of the considered view, as already discussed hereinabove, that if
the application as made by the petitioners is not allowed, it would amount to
permitting a party to take assistance of machinery of law, for getting the
huge amount by auctioning the property, without his rights being
determined. I am of the considered view that this is a fit case wherein
exercise of Section 151 of the Civil Procedure Code is necessary to allow
the application as made by the petitioners for the ends of justice or to
prevent abuse of process of the Court.
39. In the result, I am of the view that order passed by my learned pre-
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decessor dated 26th July, 2007 needs to be maintained. As such I am
inclined to allow the petition in terms of the operative order, passed by my
learned predecessor, which reads thus:-
” In view of the deposit of the amount with the Sheriff of
Mumbai in compliance of the order dated 4th May 2007,
the petition need to succeed. The respondent No. 3 was
permitted to withdraw the amount. In case the same isnot so withdrawn, it shall be open for the respondent No.
3 to withdraw the amount. In view of the payment of the
decreetal amount, the writ petition is allowed. Theimpugned order is quashed and set aside. In view of the
satisfaction of the decree, the attachment of the flat
stands withdrawn. Rule made absolute in above terms.”
40. However, while allowing the petition it is made clear that this Court
has not considered the rival claims of the petitioners or the respondent no.2
with respect to the title of the said flat. It is made clear that nothing
observed herein would come in the way of the parties, if the said parties
take appropriate proceedings in accordance with law, for adjudication of
their claim to the title of the said flat. If any such proceedings are initiated
by either of the parties, before a competent forum, the same would be
decided in accordance with law without being in any way influenced by any
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of the observations made hereinabove.
41. In the facts and circumstances, no order as to costs.
(B.R. GAVAI, J)
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