IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 1975 of 2000
1. THAZHAPATTATHILLATH KRISHNAN NAMBOODIRI
... Petitioner
Vs
1. T.DAMODARAN NAMBOODIRI
... Respondent
For Petitioner :SRI.K.JAGADEESCHANDRAN NAIR
For Respondent :SRI.V.V.ASOKAN
The Hon'ble MR. Justice K.T.SANKARAN
Dated : 24/02/2005
O R D E R
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.HE 1
The questions of law arising for consideration
in these revisions are: (1) Whether the Court can
invoke Section 151 of the Code of Civil Procedure to
enforce the decree for injunction and to pass an order
directing delivery of the property to the decree holder
from the judgment debtor who forcibly evicted the decree
holder violating the decree; and (2) When a suit is
withdrawn with liberty to file a fresh suit on the same
cause of action, whether an order passed under Rule 29
of Order XXI staying the execution of the decree, would
revive on filing the fresh suit?
2. The facts necessary for disposal of these
revisions are the following: O.S.No.853 of 1968, on the
file of the Court of the Munsiff of Kozhikode was filed
by A.P.Damodaran Namboodiri against his brother Krishnan
Namboodiri and the wife and children of Krishnan
Namboodiri, for a declaration that the properties
purchased as per Ext.A2 document dated 31.3.1933 in the
name of Krishnan Namboodiri were acquired benami for the
plaintiff Damodaran Namboodiri. There was also a prayer
for consequential injunction restraining the defendants
from entering into the plaint schedule properties. The
suit was decreed on 23.12.1971. The defendants
challenged that judgment and decree in A.S.No.44 of
1972, before the District Court, Kozhikode, but the
appeal was dismissed on 4.12.1976.
3. E.P.No.250 of 1981 was filed by the decree
holder in O.S.No.853 of 1968 under Order XXI Rule 32 for
taking action against the judgment debtors for violation
of injunction. That Execution Petition was dismissed on
the ground that the first judgment debtor had obtained
purchase certificate in his favour, issued by the Land
Tribunal in O.A.No.84 of 1980. The order in E.P.No.250
of 1981 was set aside by this Court in C.R.P.No.2391 of
1983 and the matter was remanded to the executing court.
Pending C.R.P.No.2391 of 1983, the decree holder died
and his son was impleaded as the legal representative.
The executing court, after remand, dismissed the
Execution Petition on the ground that the Benami
Transactions (Prohibition) Act came into force after the
decree and the decree holder is not entitled to the
reliefs in the Execution Petition in view of the
subsequent legislation. Again, the decree holder had to
approach this Court in C.R.P.No.1594 of 1989 challenging
the order dismissing the Execution Petition.
4. Meanwhile, proceedings before the Land
Tribunal were going on, after the decree in O.S.No.853
of 1968. O.A.No.83 of 1980 was filed by the plaintiff
and O.A.No.84 of 1980 was filed by the first defendant
judgment debtor, for purchase of the property in
question under Section 72 B of the Kerala Land Reforms
Act. The Land Tribunal allowed the application filed by
the judgment debtor (O.A.No.84 of 1980) and dismissed
the application filed by the decree holder (O.A.No.83 of
1980). Challenging those orders of the Land Tribunal,
A.A.Nos.182 of 1983 and 183 of 1983 were filed before
the Land Reforms Appellate Authority. The Appellate
Authority dismissed both the appeals. Two Civil
Revision Petitions were filed before this Court under
Section 103 of the Kerala Land Reforms Act as
C.R.P.Nos.1043 of 1988 and 1044 of 1988.
5. The Civil Revision Petition filed by the
decree holder challenging the order in the Execution
Petition, viz., C.R.P.No.1594 of 1989 and the two
revisions arising out of the proceedings under the Land
Reforms Act, viz., C.R.P.Nos.1043 of 1988 and 1044 of
1988, were disposed of by this Court by a common order
dated 18.10.1994. All the three revisions were allowed.
The judgments of the Appellate Authority and orders of
the Land Tribunal were set aside and the cases were
remanded to the Land Tribunal. The order of the
executing court which was impugned in C.R.P.No.1594 of
1989 was also set aside and the case was remanded to the
executing court for fresh disposal. This Court held in
C.R.P.No.1594 of 1989 that the Benami Transactions
Prohibition Act does not apply to the case at all and
therefore, the prayer of the decree holder could not be
rejected on that ground. This Court held thus: “In the
nature of the execution petition in this case where
there is no prayer for recovery of possession as the
decree holder is held already in possession of the
property, it cannot be contended that the execution
petition is a `claim or action’ to recover property held
benami against the person in whose name the property is
held. …. As the civil court had already found
possession in favour of the decree holder, it is open to
the decree holder to seek action against judgment
debtors for violation of the decree without being
affected by the provisions of the Benami Transactions
(Prohibition) Act, 1988.” Though the judgment debtor
challenged the order passed by this Court before the
Supreme Court in S.L.P.No.612 of 1995, the Supreme Court
dismissed the Special Leave Petition by the order dated
25.3.1996.
6. After remand as per the aforesaid three
Civil Revision Petitions, the executing court passed an
order dated 7.12.1996 and found that the judgment
debtors have violated the decree in O.S.No.853 of 1968.
Accordingly, the executing court passed an order for the
arrest of the judgment debtors, Krishnan Namboodiri and
his two sons Unnikrishnan Nair and Vasudevan Nair
(defendants 1, 3 and 4), and for their detention in
civil prison for a period of fifteen days. The
executing court also ordered attachment of the property
belonging to the judgment debtors.
7. Challenging the order dated 7.12.1996, the
judgment debtors filed C.R.P.No.2692 of 1996 before this
Court, which was dismissed by the order dated 30.1.1997.
This Court held in C.R.P.No.2692 of 1996 that the stand
taken by the judgment debtors would amount to wilful
disobedience of the decree. It was also noticed that
though sufficient opportunity was given to the judgment
debtors to obey the decree, they did not do so. This
Court held thus:
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.SP 1
“… They also cannot be heard to
say that despite the decree, they are in
possession. The stand taken by them will
amount to wilful disobedience of the decree
of the court below. Sufficient opportunity
was given to them to obey the decree but
they did not do. Even their present stand
is disobeying the decree. With utter
disregard to the decree, they cannot be
heard to say that they have a right to
continue in possession. …”
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.SP 2
8. Thereafter, Krishnan Namboodiri, his wife and
children filed O.S.No.803 of 1997, on the file of the
Court of the Munsiff of Kozhikode against the son of the
decree holder in O.S.No.853 of 1968 for a declaration
that the judgment and decree in O.S.No.853 of 1968 is a
collusive decree between the plaintiff/ decree holder
therein and the counsel for the defendants therein and to
set aside the decree on the ground that it is not valid
and binding on the plaintiffs. There is also a prayer
for consequential injunction restraining the defendants
from enforcing the decree in O.S.No.853 of 1968 against
the plaintiffs and the plaint schedule property. The
first plaintiff in O.S.No.803 of 1997 is Krishnan
Namboodiri, plaintiffs 2 and 3, Unnikrishnan Nair and
Vasudevan Nair, are his children and the fourth plaintiff
is the wife of the first plaintiff.
9. After O.S.No.803 of 1997 was filed, the
judgment debtors filed E.A.No.332 of 1997 in O.S.No.853
of 1968 for stay of the proceedings in execution till the
disposal of O.S.No.803 of 1997. The executing court
dismissed E.A.No.332 of 1997 by order dated 17.3.1998.
The judgment debtors challenged that order in
C.R.P.No.930 of 1998 before this Court, which was
disposed of by order dated 21.7.1998 (the decision
reported in 1998 (2) KLT 380). This Court considered the
scope and ambit of Rule 29 of Order XXI and held that the
rule is not an imperative one and that the Court has a
discretion either to grant or refuse the same. An order
under Rule 29 is to be granted on the basis of the facts
and circumstances of each case. This Court further held
thus:
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“… On a perusal of the order of
the Court below, I do not find, the Court
has considered all these facts. Probably,
the petitioners have not placed before
Court the entire materials on the basis of
which they want a stay. I think, in the
circumstances of the case when the
petitioners are directed to be sent to
jail, a serious attention to the petition
filed by the petitioners is necessary.
Hence, I set aside the impugned order and
direct the court below to consider the
matter again. The parties can produce
materials before the Court below. The
Court can also call for the records in
O.S.No.853 of 1968 to satisfy itself as to
whether a stay has to be granted. Till the
matter is decided afresh, there will be a
stay of executing the decree in O.S.No.853
of 1968.”
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.SP 2
10. Thereafter, by the order dated 15.10.1998,
the executing court dismissed E.A.No.332 of 1997. Again,
the judgment debtors filed C.R.P.No.2265 of 1998 before
this Court which was disposed of as per the order dated
12.2.1999. It was held that there was no scope for
interference by the Revisional Court. However, this
Court issued a direction to dispose of O.S.No.803 of 1997
within a period of four months and the proceedings under
Order XXI Rule 32 were directed to be continued, but this
Court directed that the order passed thereon shall not be
implemented till the disposal of the suit, viz.,
O.S.No.803 of 1997.
11. At the time when C.R.P.No.2265 of 1998 was
disposed of, O.S.No.803 of 1997 was not really pending
since it was dismissed for default. Later, that suit was
restored to file. However, I.A.No.4682 of 1999 was filed
by the plaintiffs in O.S. No.803 of 1997 for permission
to withdraw the suit with liberty to file a fresh suit on
the same cause of action. The trial court allowed that
prayer by the order dated 24.9.1999. Later, the
plaintiffs in O.S.No.803 of 1997 instituted a fresh suit
which was numbered as O.S.No.958 of 1999, which is
pending now. The reliefs prayed for in O.S.No.958 of
1999 are the same as those prayed for in O.S.No.803 of
1997.
12. Meanwhile, the decree holder had filed
E.A.No.140 of 1997 in E.P.No.250 of 1981 in O.S.No.853 of
1968 praying for an order to deliver the shed in the
decree schedule property which was unauthorisedly and
illegally occupied by the judgment debtors in violation
of the decree. The court below dismissed E.A.No.140 of
1997 by the order dated 4.9.2000 holding that a decree
for prohibitory injunction cannot be executed by ordering
delivery of the decree schedule property or any part
thereof and that Order XXI Rule 32 of the Code of Civil
Procedure does not apply at all to the case on hand. It
was also held by the executing court that the decree
holder is not entitled to take shelter under the order
passed by this Court in O.P.No.3347 of 1997 for getting
the relief in E.A.No.140 of 1997. It is apposite to note
here that the decree holder had filed O.P.No.3347 of 1997
for police protection to enable the decree holder to take
usufructs from the decree schedule property. This Court
in the judgment dated 21.3.1997 held thus:
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.SP 1
“… In such circumstances the
petitioner is entitled to protection for
enjoyment of the property in question. He
can take usufructs from the property.
Respondents 5 to 8 or their associates or
any of the police men shall not obstruct
the petitioner from taking usufructs from
the property in question or the respondents
5 to 8 shall not commit waste to the
property. Respondents 3 and 4 shall render
adequate police protection to the
petitioner to take usufructs from the
property and also to abate any waste
committed in the property by respondents 5
to 8 or at their instance. But the
petitioner shall not forcefully evict
respondents 5 to 8 if they are residing in
the house in the property on the basis of
this direction for police protection. For
that he has to get Ext.P5 implemented
through the execution court, to get the
residential building in possession.”
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.SP 2
The executing court referred to the judgment of this
Court and said that in spite of the observation in the
judgment of this Court the decree holders are not
entitled to pursue their remedy as prayed for in
E.A.No.140 of 1997. Before considering the questions
involved in these cases, I must say that this approach
made by the court below is not at all justified. The
executing court cannot sit in judgment over any direction
or even observation of this Court in a judgment rendered
by it. C.R.P.No.1336 of 2001 is filed by the decree
holder challenging the order of the executing court in
E.A.No.140 of 1997.
13. Subsequent to the order in C.R.P.No.2265 of
1998, the executing court passed another order dated
8.2.2000 holding that the earlier order dated 7.12.1996
passed by the executing court to detain the judgment
debtors in civil prison has to be implemented. Against
that order dated 8.2.2000, the judgment debtors have
filed C.R.P.No.1975 of 2000.
14. Point No.1: Sri.K.Jagadisachandran Nair,@@
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learned counsel for the petitioners in C.R.P.No.1975 of
2000 (judgment debtors) contended that the executing
court has no jurisdiction to pass an order for recovery
of possession of the property when the decree does not
provide for such a relief. He contends that when the
judgment debtors disobey a decree for permanent
prohibitory injunction passed by the Court, the only
remedy available to the decree holder is to file a suit
for recovery of possession and to regain possession.
According to him, the other remedy available to the
decree holder is only under Order XXI Rule 32 to take
action against the judgment debtors as provided therein.
According to the counsel, any relief under Order XXI Rule
32 does not include an order for delivery of possession
of the property. In support of his arguments
Sri.Jagadisachandran Nair cited the decisions in Nanu v.@@
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Ammalukutty Amma (1962 KLT 223); Kuldip Singh v. Charan@@
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Singh and others (AIR 1986 Delhi 297); Sundar Das v.@@
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Mulakh Raj and others (AIR 1981 Delhi 85) and in Arjun@@
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Singh v. Mohindra Kumar and others (AIR 1964 SC 993).@@
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15. Sri.K.I.Mayankutty Mather, learned counsel
for the decree holders, on the other hand, contended that
the executing court has ample power and jurisdiction to
pass any order to see that the decree is enforced and
implemented and also obeyed by the judgment debtors. He
contended that even if the decree is only for a permanent
prohibitory injunction, if the judgment debtors therein
gain possession of the decree schedule property by
violating the decree, they are liable to be expelled by
the order of the executing court under Order XXI Rule 32
or by invoking the inherent power of the Court under
Section 151 of the Code of Civil Procedure. He contended
that a decree passed by the Court is liable to be obeyed
and not violated and that the Court cannot countenance
any technical arguments, which would have the result of
defeating the decree passed by it. He cited the
decisions in Ram Charan Sikdar v. Sm. Jogamaya Basu and@@
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another (AIR 1978 Calcutta 193); Hari Nandan Agrawal and@@
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another v. S.N.Pandita and others (AIR 1975 Allahabad@@
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48); Magna and another v. Rustam and another (AIR 1963@@
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Rajasthan 3); Sujit Pal v. Prabir Kumar Sun and others@@
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(AIR 1986 Calcutta 220); Delhi Development Authority v.@@
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Skipper Construction Co. (P) Ltd. and another ((1996) 4@@
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SCC 622); Ajayakumar v. Damayanthi (2004 (2) KLT 48);@@
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Century Flour Mills Ltd. v. S.Suppiah and others (AIR@@
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1975 Madras 270); Parukutty Amma v. Thankamma Amma (1988@@
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(1) KLT 883); State of Orissa v. Sudhansu Sekhar Misra@@
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and others (AIR 1968 SC 647); Thukalan Poulo Avira v.@@
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Mar Basselios Gheevarghese and another (AIR 1954 TRA.CO.@@
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117); Krishnan v. Joseph Desouza (1985 KLT 1010);@@
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Mohammad v. Mohammed Haji (1986 KLT 134); Manohar Lal@@
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Chopra v. Raj Bahadur Rao Raja Seth Hiralal (AIR 1962 SC@@
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527 and Hamsa v. George (1995 (2) KLT 326). The Supreme@@
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Court in the decision in (1996) 4 SCC 622 (supra) relied
on the decisions in Mohd. Idris v. Rustam Jehangir@@
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Bahuji ((1984) 4 SCC 216; Century Flour Mills Ltd. v.@@
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S.Suppiah (AIR 1975 Madras 270) and in Surjit Pal v.@@
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Prabir Kumar Sun (AIR 1986 Cal. 220) wherein it was held@@
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that where the defendant forcibly dispossessed the
plaintiff in violation of the order of injunction and
took possession of the property, the Court has ample
jurisdiction to prevent the decree being flouted and to
do justice to the parties by putting back the plaintiff
in possession of the property. It was held that:
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“.. There is no doubt that this
salutary rule has to be applied and given
effect to by this Court, if necessary, by
overruling any procedural or other
technical objections.”
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.SP 2
In (1984) 4 SCC 216 (supra) an undertaking made by a@@
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party before the High Court was violated and the Supreme
Court held that the High Court was justified in issuing
appropriate directions to remedy the breach of
undertaking in addition to the action taken for contempt
of the order passed by the Court. In AIR 1975 Madras 270@@
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(FB), the Full Bench of the Madras High Court held that@@
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Order 39 of the Code of Civil Procedure should not be
considered as placing any limit on the scope of the
inherent power under Section 151 which are wide and not
subject to any limitation. Where in violation of an
order of stay or injunction against a party, something
has been done in disobedience, it will be the duty of the
Court, as a policy, to set the wrong right and not allow
the perpetuation of the wrong doing. The inherent power
of the court will not only be available in such a case,
but it is bound to be exercised in the interest of
justice. The same view was taken in the decision in AIR@@
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1986 Cal. 220. In AIR 1975 Allahabad 48, the Allahabad@@
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High Court was dealing with a case where an order of
temporary injunction was violated. It was held that if a
prohibitory injunction order is violated and party is
dispossessed by wilful disobedience of the injunction
order, the Court has inherent power to pass such orders
as are necessary to do justice to the parties and to undo
the wrong. In AIR 1986 Calcutta 220, the case dealt with@@
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therein was one where an interim prohibitory injunction
was granted and it was held that the inherent power of
the Court under Section 151 can be invoked to remedy
injustice caused by disobedience of the order passed by
the Court. The Rajasthan High Court also took the same
view in AIR 1963 Raj. 3. This Court in the decision@@
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reported in 2004 (2) KLT 48 held that under Order XXI@@
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Rule 32 a decree for prohibitory injunction can be
enforced as in the case of a mandatory injunction. This
Court took note of the new explanation added to Order XXI
Rule 32 CPC and held that the expression “act required to
be done” appearing in sub-rule (5) of Rule 32 shall cover
prohibitory injunction as well. It was held that the
introduction of the explanation to sub-rule (5) of Rule
32 reveals the anxiety of the Parliament to ensure that
the executing court is able to enforce obedience not only
for decrees for mandatory injunction, but also decrees
for prohibitory injunctions. In that decision, reference
is made to the decisions in Joseph alias Kochu v.@@
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Makkaru Pillai (AIR 1960 Ker. 127) ; Evuru Venkata@@
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Subbayya v. Srishti Veerayya (AIR 1969 A.P. 92) and@@
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Y.Lakshmaiah v. Esso Eastern Inc. (AIR 1974 A.P. 32)@@
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where a different view was taken and held that those
decisions no longer hold good in view of the introduction
of the explanation to Order XXI Rule 32.
16. The decision in 1962 KLT 223 (supra) was not@@
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brought to the notice of this Court while rendering the
decision reported in 2004 (2) KLT 48. In 1962 KLT 223,
this Court took the view that sub-rule (5) of Rule 32 of
Order XXI does not apply to prohibitory injunction and it
applies only to cases where an act is required to be done
by the decree. For the very same reasoning stated by
this Court in the decision reported in 2004 (2) KLT 48 in
respect of the decision in AIR 1960 Kerala 127, it is to
be held that 1962 KLT 223 is also no longer good law.
17. There were conflicting views expressed in
various decisions of different High Courts as to the
applicability of Order XXI Rule 32 in respect of decrees
for prohibitory injunction. Some of the High Courts took
the view that sub-rule (5) of Rule 32 of Order XXI cannot
be invoked to enforce a decree for prohibitory
injunction, while some other High Courts took the view
that as in the case of decree for mandatory injunction,
sub-rule (5) of Rule 32 of Order XXI can be invoked for
enforcing prohibitory decrees as well. The statement of
objects and reasons to the Code of Civil Procedure
(Amendment) Act, 2002 makes the position clear that the
Explanation to Rule 32 was added on the basis of the
report of Law Commission and that this amendment is only
clarificatory in nature. Therefore, there can be no
doubt that sub-rule (5) of Rule 32 of Order XXI can be
applied and used to enforce and implement even a decree
for prohibitory injunction. With respect, I do not agree
with the view taken by the Delhi High Court in AIR 1986
Delhi 297 and in AIR 1981 Delhi 85.
18. The Travancore Cochin High Court had taken
the view that Section 151 can be invoked for enforcing a
decree for perpetual injunction, in the decision reported
in AIR 1954 TRA.CO.117 (supra).
19. The decision relied on by the counsel for
the judgment debtors in AIR 1964 SC 993 does not apply to
the facts and circumstances of this case. In that
decision, the Supreme Court had taken the view that when
there is a specific provision in the Code of Civil
Procedure, the jurisdiction under Section 151 cannot be
invoked by the Court. There is no dispute that when
there is a specific provision, recourse to Section 151
cannot be had. When a specific provision is lacking to
meet a particular contingency to enforce a decree or
order of the Court, it is only just and proper to invoke
the inherent power of the Court under Section 151 CPC.
In 1988 (1) KLT 883 (supra), this Court took the view
that Section 151 can be invoked to strike off the defence
of a party who did not obey the orders passed by the
Court in making herself available for giving thumb
impressions for comparison by an expert. In 1985 KLT
1010, it was held that if a Court comes to a conclusion
that a party by disobeying an order of a Court has done
something for his own advantage to the prejudice of the
other party, it is open to the Court under its inherent
jurisdiction to bring back the parties to a position
where they originally stood as if the order passed by the
Court has not been contravened. It was also held in 1985
KLT 1010, thus:
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.SP 1
“Any action by which the process of
the court is attempted to be thwarted has
to be viewed seriously. If an order of
injunction is violated, that violation has
to be dealt with sternly and seriously,
for, otherwise, it will undermine the very
basis of the Rules of Law. There is no
difference whether the violation pertains
to an order, or to an undertaking made
before a court of law, which too will have
as much effect as an interim injunction in
such circumstances.”
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.SP 2
In 1986 KLT 134 (supra), this Court took the view that an
order for police protection can be granted by the
Subordinate Courts to enforce an order of injunction, by
invoking the inherent power of the Court under Section
151 CPC.
20. From the principles of law mentioned above
and the facts and circumstances of this case, there can
be no doubt that the executing court was not justified at
all in denying the relief for delivery of possession on a
technical ground that a decree for prohibitory injunction
cannot be enforced in the manner prayed for by the decree
holder. The decision of the executing court is patently
illegal and without jurisdiction which requires to be
corrected by this Court in the exercise of jurisdiction
under Section 115 of the Code of Civil Procedure.
21. A decree, an order or direction passed or
issued by a Court is intended to be obeyed. There is no
justification for raising any technical argument against
the implementation of the same. If decrees and orders
passed by the Courts are violated or disobeyed without
impunity by the parties to the suit or proceedings, the
result would be lawlessness. To protect the rule of law
and to see that the decrees and orders passed by the
Courts are obeyed and implemented, ample provisions have
been made in the Code of Civil Procedure. All the
contingencies cannot be foreseen by the law makers. In
appropriate cases, when there is nothing which prohibits
a particular course of action being taken, it cannot be
said that the Court lacks its inherent power to implement
its own decision or to prevent disobedience of its decree
or order or to restore the parties to the original
position which they occupied before the disobedience or
violation of the decree or order. If the Courts do not
have the said inherent power, the litigants would have no
faith in Courts and they may resort to other shortcuts
than approaching the civil courts. Judicial notice can
be taken that the number of writ petitions being filed
before this Court for police assistance for implementing
the orders passed by the Civil Courts are on its
increase. The reason may be that the machinery of the
Subordinate Courts in implementing their decrees and
orders is ineffective or inadequate in the point of view
of the litigants. It is also to be noted that the number
of writ petitions being filed before this Court
complaining of police interference in civil disputes is
also on the increase in recent years. One of the main
reasons for such complaints is the illegal interference
by the police in civil disputes. One of the parties may
resort to such practices since he hopes to get a speedy,
though illegal and unjust, remedy. This points out to
the need for having a pragmatic approach to the question
in the matter of effective implementation and execution
of the decrees and orders passed by the civil courts.
The executing courts are not expected to deny relief to
the decree holders on hypertechnical grounds, which would
tend to help the persons who suffered the decree or order
in disobeying or violating such decrees or orders.
21. Point No.2: The counsel for the judgment@@
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debtors contended that the decision in C.R.P.No.2265 of
1998 keeping in abeyance the proceedings under Order XXI
Rule 32 till the disposal of O.S.No.803 of 1997 is still
available to the judgment debtors, since they have filed
another suit, viz., O.S.No.958 of 1999 on the same cause
of action as in O.S.No.803 of 1997 and that too after
getting permission of the Court for withdrawing the suit
with liberty to file a fresh suit. In short, the
contention is that the direction issued by this Court in
C.R.P.No.2265 of 1998 to dispose of the suit, O.S.No.803
of 1997, within a period of four months from the date of
the order, viz., 12.2.1999, may not have much
significance and that thrust is to be given to the
direction to keep in abeyance the proceedings under Order
XXI Rule 32 till the disposal of the suit to set aside
the decree in O.S.No.853 of 1968. I do not agree with
this contention at all. This Court has shown an
indulgence in the peculiar facts and circumstances of the
case. The first judgment debtor was aged 95 at the time
of disposal of C.R.P.No.2265 of 1998. The direction to
keep in abeyance the proceedings in execution is to be
taken along with the direction to dispose of O.S.No.803
of 1997 within a period of four months. The judgment
debtors should have co-operated with the Court in the
disposal of the suit within the stipulated period of four
months. Instead, they sought permission to withdraw the
case with liberty to file a fresh suit, thereby
effectively defeated the direction issued by this court
in C.R.P.No.2265 of 1998. If the arguments advanced by
the judgment debtors are to be accepted, it will lead to
an unpleasant result. A direction was issued by this
Court to dispose of the suit within four months. If
permission is granted to withdraw that suit with liberty
to file a fresh suit on the same cause of action, the
plaintiff therein could very well institute a fresh suit
within the period of limitation prescribed for the same.
In some cases, the period of limitation may be three
years or in some other cases twelve years. If it is to
be held that the direction issued in the revision to keep
in abeyance the execution proceedings is to be stretched
even till the expiry of the period of limitation for
filing a fresh suit on the same cause of action, it would
have the result of making the direction issued by this
Court to dispose of the suit within four months otiose.
That is not what is intended while disposing of
C.R.P.No.2265 of 1998. The judgment debtors having
withdrawn the suit and instituted a fresh suit much after
the expiry of four months from the date of disposal of
C.R.P.No.2265 of 1998, they are not entitled to get the
execution proceedings to be kept pending till the
disposal of the fresh suit.
22. When the plaintiff is granted permission to
withdraw from the suit with liberty to institute a fresh
suit in respect of the subject matter of such suit, the
court granting such permission under sub-rule (3) of Rule
1 of Order XXIII of the Code of Civil Procedure has no
jurisdiction to keep alive any interim order passed in
the suit. Seeking permission under sub-rule (3) of Rule
1 of Order XXIII C.P.C. is to institute a fresh suit.
The suit from which the plaintiff is permitted to
withdraw comes to an end on the passing of an order under
sub-rule (3) of Rule 1 of Order XXIII C.P.C.. A fresh
suit instituted after getting permission under sub-rule
(3) of Rule 1 of Order XXIII C.P.C. is not a
continuation of the suit originally filed; it is a fresh
suit. Rule 2 of Order XXIII C.P.C. provides that in any
fresh suit instituted on permission granted under Rule 3,
the plaintiff shall be bound by the law of limitation in
the same manner as if the first suit had not been
instituted. This, of course, is subject to subsection
(3) of Section 14 of the Limitation Act. Exclusion of
the period of limitation as provided in Section 14(3) of
the Limitation Act has no relevance on the consequences
of an order passed under sub-rule (3) of Rule 1 of Order
XXIII of the Code of Civil Procedure. It has relevance
only on the computation of the period of limitation for
filing the fresh suit. The only order that could be
passed under sub-rule (3) of Rule 1 of Order XXIII C.P.C.
is to grant permission to the plaintiff to withdraw from
the suit with liberty to institute a fresh suit, if the
court is satisfied about the existence of the grounds
mentioned in that sub-rule. Of course, the court has
jurisdiction to impose “such terms as it thinks fit”
while granting such permission. The expression “on such
terms as it thinks fit” in sub-rule (3) of Rule 1 of
Order XXIII C.P.C. does not enable the court to pass an
order keeping alive any interim order passed in the suit.
The “terms” referred to therein are those to be imposed
on the plaintiff as a condition for granting permission
to withdraw from the suit with liberty to institute fresh
suit. Such “terms” do not include an order in favour of
the plaintiff and against the defendant. On the other
hand, the terms to be imposed are in favour of the
defendant. If no interim order would survive in the suit
which is permitted to be withdrawn, it can safely be
concluded that an order of stay granted by the executing
court under Rule 29 of Order XXI of the Code of Civil
Procedure staying the execution of the decree sought to
be set aside in such suit would also not survive on the
withdrawal of such suit. I, therefore, hold that on
withdrawal of O.S.No.803 of 1997, the direction issued by
this Court in C.R.P.No.2265 of 1998 not to implement any
order in execution till the disposal of O.S.No.803 of
1997 would cease to exist and it would not revive on the
institution of a fresh suit.
23. Therefore, it is to be held that
C.R.P.No.1975 of 2000 is without any merit and it is
dismissed, but without any order as to costs.
C.R.P.No.1336 of 2001 is allowed and the order impugned
is set aside. The executing court shall deliver
possession of the decree schedule property and the shed/
building/house therein to the decree holder after
removing any obstruction caused by the judgment debtors,
their agents or servants. The judgment debtors are
granted three months’ time to surrender possession of the
shed/building/house and the property to the decree
holders. There will be no order as to costs in
C.R.P.No.1336 of 2001.
It is made clear that the observations and
findings contained in this order are made only for the
purpose of the proceedings in execution of the decree in
O.S.No.853 of 1968 as well as for dealing with the
application filed by the judgment debtors under Order XXI
Rule 29 and they shall have no bearing or relevance while
disposing of O.S.No.958 of 1999, except in respect of the
matters mentioned above.
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C.R.P. NO. 1975 OF 2000
and
C.R.P. NO. 1336 OF 2001.
O R D E R
24th February, 2005
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