{"id":58369,"date":"2001-10-11T00:00:00","date_gmt":"2001-10-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/krishna-gopal-chawla-ors-vs-state-of-u-p-anr-on-11-october-2001"},"modified":"2017-09-22T09:05:41","modified_gmt":"2017-09-22T03:35:41","slug":"krishna-gopal-chawla-ors-vs-state-of-u-p-anr-on-11-october-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/krishna-gopal-chawla-ors-vs-state-of-u-p-anr-on-11-october-2001","title":{"rendered":"Krishna Gopal Chawla & Ors vs State Of U.P. & Anr on 11 October, 2001"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Krishna Gopal Chawla & Ors vs State Of U.P. & Anr on 11 October, 2001<\/div>\n
Author: S V Patil<\/div>\n
Bench: D.P. Mohapatra, Shivaraj V. Patil<\/div>\n
           CASE NO.:\nAppeal (civil) 7104  of  2001\n\n\n\nPETITIONER:\nKRISHNA GOPAL CHAWLA & ORS.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF U.P. & ANR.\n\nDATE OF JUDGMENT:\t11\/10\/2001\n\nBENCH:\nD.P. MOHAPATRA & SHIVARAJ V. PATIL\n\n\n\n\nJUDGMENT:\n<\/pre>\n
SHIVARAJ V. PATIL J.\n<\/p>\n
\tLeave granted.\n<\/p>\n
\tThe appellants are before this Court, aggrieved by the
\norder dated 17.11.1998 passed by the Allahabad High Court in
\nCivil Misc. Writ Petition No. 34383\/97.\t In brief, the relevant
\nand necessary facts for disposing of this appeal are the
\nfollowing:\n<\/p>\n
\tThe property in dispute is premises No. 7\/86 along with the
\nland, which forms part of Nazul plot No. 12 situated in Block-7,
\nTilak Nagar, Kanpur.  This property was leased for a maximum
\nperiod of 90 years in December, 1904 by Secretary of State in
\nfavour of one Khan Bahadur Hafij Mohd. Halim; the lease was to be
\nrenewed after 30 years from the date of its commencement with
\nincrease of 50% in rent;  the lease also permitted construction
\nof building over the land; the lessee accordingly constructed a
\ndwelling house on the leased land;  he let out the constructed
\npremises to the State of U.P. on 3.5.1937.  By that time the
\nlessee had already got renewed the lease on 2.3.1935 in favour of
\nHaji Mohd. Sadiq, the son of the original lessee for a further
\nperiod of 30 years upto 4.12.1964.  Thereafter, legal
\nrepresentatives of the original lessee migrated to Pakistan.
\nConsequently, the said property was declared evacuee property by
\nthe Notification dated 3.10.1952.  Later, it was put to auction
\nby the Manager, Custodian of Evacuee Property.\tOne Gian Chand
\nand others purchased the said property i.e. the land and building
\nthrough auction sale. They in turn sold the same to Krishna Gopal
\nChawla and others (appellants herein) through registered sale
\ndeeds in 1959.\n<\/p>\n
\tKrishna Gopal Chawla and others, claiming themselves to be
\nthe landlords of the property, filed original civil suit No.
\n1714\/1963 for arrears of rent, ejectment and for damages for use
\nand occupation against the State of U.P. in the court of Munsif
\nCity, Kanpur.  The said suit was later transferred to Ivth
\nAdditional Civil Judge, Kanpur, who dismissed the said suit on
\n19.4.1965.  The appellants preferred First Civil Appeal No.
\n305\/1965 before the District Judge, Kanpur, which was also
\ndismissed on 21.3.1969.\t Aggrieved by the same, the appellants
\nfiled Second Appeal No. 2565\/1969 before the High Court.  During
\nthe pendency of the second appeal, U.P. Jal Nigam was substituted
\nin place of State of U.P. as the disputed property was in
\npossession of Jal Nigam as tenant on behalf of State.  The High
\nCourt allowed the appeal, decreed the suit of the appellants on
\n20.9.1979 for arrears of rent, ejectment as well as for damages
\nfor use and occupation.\t On the basis of the said decree passed
\nby the High Court, the appellants filed Execution Case No.
\n179\/1980 in the court of Munsif City, Kanpur, for execution of
\nthe decree against U.P. Jal Nigam.\n<\/p>\n
The respondents approached this Court in Civil Appeal No.
\n1365\/1980, aggrieved by the decree passed by the High Court in
\nthe second appeal.  This Court stayed the execution of the decree
\npassed by the High Court till the disposal of the appeal and
\ndismissed the appeal on 1.3.1994, confirming the judgment and
\ndecree passed by the High Court.  However, with the consent of
\nthe parties, U.P. Jal Nigam was allowed to remain in possession
\nof the disputed premises for one year from the date of judgment
\non filing undertaking on usual terms.  U.P. Jal Nigam filed
\nundertaking before this Court on 28.3.1994.\n<\/p>\n
The appellants, after the dismissal of the appeal by this
\nCourt, moved an application in the court of Munsif City, Kanpur
\n(now Civil Judge, Junior Division, Kanpur Nagar) to proceed with
\nthe execution of the decree.  U.P. Jal Nigam and State of U.P.
\nfiled separate but similar objections under Sections 47, 37, 38,
\n39 and 151 CPC resisting execution.  The objections were that the
\ndecree passed by the High Court merged in final judgment passed
\nby this Court; hence the decree of this Court dated 1.3.1994
\nalone could be executed and not that of the High Court; the court
\nof Civil Judge, Junior Division, Kanpur Nagar, has got no
\njurisdiction to execute the decree; the court of Civil Judge,
\nJunior Division, Kanpur Nagar, is not court of first instance.
\nFurther, it was contended that original lessee, Khan Bahadur
\nHafij Mohd. Halim, was a lessee of the disputed property; his
\nlegal representatives had only leasehold rights; hence only
\nleasehold rights were purchased by Gian Chand and others in
\nauction; since the original lessee was not the owner of the
\ndisputed property, it could not become evacuee property; the
\nmaximum lease period of 90 years expired on 4.12.1994 and as such
\nthe decree-holders had no interest in the property and they have
\nceased to be landlord of the disputed property.\t It was contended
\nthat as per the undertaking given to this Court on 28.3.1994,
\nU.P. Jal Nigam handed over possession of the disputed premises to
\nthe State of U.P., the real owner of the property after expiry of
\nthe lease period; thus the decree of this Court stood satisfied
\nin terms of the undertaking.\n<\/p>\n
The executing court (court of Civil Judge, Junior Division,
\nKanpur) after hearing, by a detailed order dated 5.9.95, rejected
\nall the objections raised by the U.P. Jal Nigam and State of U.P.
\nand directed for delivery of possession.  The U.P. Jal Nigam as
\nwell as State of U.P., aggrieved by the said order of the
\nexecuting court, filed civil revision petitions in the court of
\nIVth Additional District Judge, Kanpur. After hearing the parties
\nand having considered all objections including additional
\nobjections raised in the revision petitions, the learned District
\nJudge dismissed them by a well considered order dated 12.8.1997.\n<\/p>\n
It is thereafter that the State of U.P. filed Civil Misc.
\nWrit Petition No. 34383\/97 for quashing the orders of executing
\ncourt dated 5.9.1995 and the order of the Addl. District Court
\ndated 12.8.1997 passed in revision.  The said writ petition was
\nallowed by the High Court and the impugned orders were quashed.
\nThe High Court raised following three questions for consideration
\nin the writ petition (1) whether the decree passed by the High
\nCourt in the second appeal was capable of execution even if it
\nmerged in the decree passed by this Court in an appeal preferred
\nagainst the decree passed by the High Court; (2) whether Civil
\nJudge (Senior Division) Kanpur Nagar, was competent to entertain
\nthe execution application and (3) whether the decree-holder
\nceased to have any interest in the decree owing to termination of
\nlease by efflux of time.  The first question was answered in the
\nnegative.  The second question was answered in affirmative and
\nthe third question was left open to be decided in a fresh
\nexecution petition if filed by the decree-holder seeking
\nexecution of the decree passed by this Court.  Hence, this
\nappeal.\n<\/p>\n
\tMr. Gopal Subramaniam, learned senior counsel for the
\nappellants strongly contended that this is a case, which shows
\nhow the appellants are not able to execute the decree obtained in
\n1979 in spite of an undertaking given in this Court by the
\nrespondents; the respondents never raised question of title in
\nthe original suit or in further appeals and, as stated, it was
\nnot open to raise in the execution proceedings or before the High
\nCourt in the writ petition; admittedly the decree was passed in
\nfavour of the appellants as landlords against the respondents for
\ntheir eviction, payment of arrears of rent and damages for use
\nand occupation of the premises; executing court cannot go beyond
\nthe decree; hence the objections filed by the respondents were
\nrejected and the order passed by the executing court was
\nconfirmed in the revision before the District Court; the High
\nCourt committed a serious error in holding that the execution
\npetition filed earlier by the appellants was not maintainable as
\nthe decree passed by the High Court merged in the decree passed
\nby this Court when the appeal was dismissed and that the
\nappellants had to file a fresh application for execution subject
\nto law of limitation; the High Court was also not right in saying
\nthat the question of title could be decided afresh in the event
\nof fresh execution petition is filed as stated above.\n<\/p>\n
\tOn the other hand, Mr. S. Markendaya, learned senior
\ncounsel for the respondents made submissions supporting the
\nimpugned order of the High Court.\n<\/p>\n
\tWe have carefully considered the submissions made by the
\nlearned counsel for the parties.  This is yet another case, which
\nconfirms a general feeling that the real trouble starts after
\nobtaining a decree and when it is put to execution.  In this case
\nthe suit was filed in 1963 and the decree was passed in favour of
\nthe appellants in 1979.\t The execution petition was filed in
\n1980.  Almost 21 years have passed after filing the execution
\npetition.  Still the appellants are not able to get benefit of
\nthe decree.  Admittedly the suit was filed by the appellants as
\nthe landlords seeking eviction of the respondents from the
\ndisputed property in addition to claiming for arrears of rent and
\ndamages for the use and occupation of the property.  The suit was
\ndecreed by the High Court in second appeal.  Thereafter,
\nexecution petition No. 179\/80 was filed.  In the meanwhile the
\nrespondents approached this Court by filing the appeal and in the
\nappeal order was passed staying the execution proceedings pending
\nin the executing court.\t Ultimately, the appeal was dismissed by
\nthis Court on 1.3.1994 in the following terms: –\n<\/p>\n
The courts below are correct.  No interference
\nis called for.\tThe appeal is dismissed.\n<\/p>\n
However, as agreed by both the learned counsel
\none years time from today is granted to the
\nappellant to hand over vacant possession.  This
\nshall be subject to the filing of the usual
\nundertaking within four weeks from today.\n<\/p>\n
\tFormal order prepared pursuant to the said judgment passed
\nby this Court is reproduced in the impugned judgment passed by
\nthe High Court.\t From its reading it is clear that the appeal was
\ndismissed without altering the decree in any way passed by the
\nHigh Court.  The respondents were allowed time to vacate the
\npremises with the consent of the parties till 1.3.1995 subject to
\nfiling of undertaking to the effect that the respondents shall
\nnot induct any other person in the suit premises and shall hand
\nover vacation and peaceful possession of the said premises to the
\nappellants on or before 1.3.1995, etc.\tFurther in para 2 it is
\nstated that on the respondents failing to comply with the
\nundertaking, decree for eviction shall become executable
\nforthwith.  Although the respondents filed an undertaking on
\n28.3.1994 but not consistent with the terms aforementioned. It
\nappears that the respondents at the time of giving undertaking
\nitself had a definite design to defeat or frustrate the execution
\nof the decree itself.  The relevant portion of the undertaking to
\ndemonstrate the same is extracted below: –\n<\/p>\n
(A)\tThe U.P. Jal Nigam shall hand over on or
\nbefore 28.2.1995, the vacant and peaceful
\npossession of the disputed premises to
\neither the respondents or their vendees
\nor the State Govt. of U.P. in the event
\nit is found that the lease in favour of
\nthe respondents had already stood
\nextinguished with effect from 4.12.1964.\n<\/p>\n
(B)\t……..\n<\/p>\n
(C)\tThe U.P. Jal Nigam shall not induct
\nanyone else into the disputed premises.\n<\/p>\n
\tUnderlined portion in clause (A) extracted above indicates
\nthat from the beginning the intention of the respondents was not
\nbona fide.\n<\/p>\n
\tWhen the order of this Court was clear in directing that
\nthe disputed premises was to be handed over to the appellants and
\nundertaking was to be given accordingly the respondents choose to
\ngive an undertaking incorporating different terms to suit their
\npurpose to defeat or frustrate the execution of the decree.
\nNeither the State of U.P. nor U.P. Jal Nigam ever successfully
\nraised in the suit and appeals what is sought to be made out in
\nthe undertaking.  It appears even review petition filed seeking
\nreview of the judgment of this Court was also rejected.\t In our
\nview, the twist given in the undertaking by the respondents
\nappears to even overreach the order of this Court.
\nThis Court on 26.4.1990 passed the following order: –\n<\/p>\n
This appeal is directed against the decree
\nof ejectment passed against the appellant on
\nthe ground of arrears of rent.\tAfter the
\nappeal was argued for some time, the learned
\ncounsel for the appellant, Mr. Subodh
\nMarkandaya, for the U.P. Jal Nigam made an
\noffer to the effect that the U.P. Jal Nigam is
\nprepared to purchase the property in question
\nat the rate specified by the Kanpur Development
\nAuthority or at the price to be determined by a
\nvaluer appointed by the parties and failing
\nthat by the Court.  The learned counsel for the
\nrespondents seeks time to consider this offer.
\nLet the matter come up on 4th May, 1990.\n<\/p>\n
We see in the records placed before us a letter No. 7565\/M-
\nB1-I\/57 dated 26.12.1957 from the Superintendent Engineer, III
\nCircle, L.S.G.E.D., Lucknow to Gian Chand, i.e., the vendor of
\nthe appellants offering to purchase this very property for the
\nreasonable amount.  If the State of U.P. had become or was the
\nowner of the property, there was no need to write such a letter
\ntreating Gian Chand as the owner of the property and similarly
\nthere was no necessity to make an offer for purchasing the
\nproperty by the U.P. Jal Nigam as recorded in the aforesaid order
\nof this Court.\n<\/p>\n
As is evident from the facts narrated above, the execution
\npetition No. 179\/80 filed in the executing court to execute the
\ndecree passed by the High Court, was pending.  This Court had
\nstayed the said execution proceedings pending disposal of the
\nCivil Appeal No. 1365\/80.  After the disposal of the appeal,
\nthere was no impediment or bar to continue the execution
\nproceedings on the application moved by the appellants to proceed
\nwith the execution.  The High Court committed a manifest error in
\ntaking a view that a fresh execution petition should be filed
\nafter the dismissal of the appeal by this Court as the decree
\npassed by the High Court had merged with the decree of this Court
\nand the execution petition filed earlier which was pending, was
\nnot maintainable.  As already noticed above, this Court in appeal
\nonly confirmed the decree passed by the High Court without any
\nalteration or modification.  Even otherwise, in a pending
\nexecution case, amendment could be sought if it was needed after
\ndismissal of the appeal by this Court.\tUnder Order XXI Rule 11
\n(2)(d) CPC, in the execution application the particular as to
\nwhether any appeal has been preferred from the decree is to be
\nmentioned.  If an appeal has been preferred from a decree and
\nafter disposal of the appeal, necessary information can be given
\nby filing an application, if need be seeking an amendment.  It is
\none thing to say that the earlier decree passed gets merged in
\nthe decree passed by the appellate court, yet it is different
\nthing to say that an execution petition filed earlier is not
\nmaintainable and that there is a need to file a fresh application
\nfor execution after a decree is passed by the appellate Court,
\nparticularly in the present case, when this Court had stayed the
\nexecution proceedings filed earlier, it was obvious that the
\nexecution proceedings could be continued after dismissal of the
\nappeal by this Court affirming the decree passed by this Court
\nwithout any alteration.\n<\/p>\n
The learned Addl. District Judge in his revisional order
\nnoticed that the disputed property was declared as evacuee
\nproperty and it vested in the Central Government, free of all
\nencumbrances; the said property was sold in public auction and a
\nsale certificate was issued by the Custodian, Evacuee Property,
\nas free-hold property as early as 1959.\t The learned Addl.
\nDistrict Judge has further stated in his order as to whether the
\nState Government is the owner of the disputed property or the
\ndecree-holders are the owners of it, was not at all called for
\nconsideration in the execution proceedings; the question was
\nwhether the decree-holders have ceased to be landlord of the
\ndisputed property after the expiration of lease on 4.12.1994.  It
\nwas further noticed that the respondents did not take the plea
\nbefore first appellate court or the High Court in the second
\nappeal or before this Court in appeal that the appellants had
\nceased to be landlords of the disputed property.  Even otherwise,
\nthe interest of the appellants on the disputed property did not
\nbecome unauthorized; admittedly the constructions in the suit
\nproperty belong to the decree-holders. In this view, the learned
\nAddl. District Judge held that the objection with regard to the
\nownership of the disputed property could not be raised under
\nSection 47 CPC.\t However, he observed that the question of
\nownership was not in dispute before him and, therefore, he did
\nnot go into that question as to which party is the owner of the
\ndisputed property. Ultimately holding the appellants as
\nlandlords, eviction decree was passed against the respondents but
\nthe High Court in the impugned judgment found fault with this
\npart of the order stating that the executing court as well as the
\nDistrict Court did not correctly decide the question as to the
\nownership of the property and the same could be decided by the
\ncourts in a case fresh execution petition is filed by the
\nappellants on the basis of the decree passed by this Court in
\nCivil Appeal No. 1365\/80.  We find it difficult to accept the
\nfinding of the High Court in this regard.\n<\/p>\n
\tIt is unfortunate that the High Court failed to see the
\nconduct of the respondents, facts and circumstances of the case
\nand the correct legal position before quashing the concurrent
\nfindings recorded by the executing court as well as the
\nrevisional court.  The High Court while exercising writ
\njurisdiction has acted as a court of appeal in allowing the writ
\npetition filed by the respondent No. 1, that too taking a
\ntechnical view.\t Interest of justice in the fact-situation
\nwarranted dismissal of writ petition.\n<\/p>\n
\tThus, in view of what is stated above, we have no
\nhesitation in holding that the impugned order of the High Court
\nsuffers from irreparable infirmity and it is patently
\nunsustainable.\tConsequently, we set aside the same.  The appeal
\nis allowed accordingly with cost of Rs.10,000\/- to be paid to the
\nappellants by the respondents.\n<\/p>\n
…………………..J.\n<\/p>\n
[D.P. Mohapatra]<\/p>\n
…………………..J.\n<\/p>\n
[Shivaraj V. Patil]<\/p>\n
October 11, 2001<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Krishna Gopal Chawla & Ors vs State Of U.P. & Anr on 11 October, 2001 Author: S V Patil Bench: D.P. Mohapatra, Shivaraj V. Patil CASE NO.: Appeal (civil) 7104 of 2001 PETITIONER: KRISHNA GOPAL CHAWLA & ORS. Vs. RESPONDENT: STATE OF U.P. & ANR. DATE OF JUDGMENT: 11\/10\/2001 BENCH: D.P. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-58369","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKrishna Gopal Chawla & Ors vs State Of U.P. & Anr on 11 October, 2001 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/krishna-gopal-chawla-ors-vs-state-of-u-p-anr-on-11-october-2001\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Krishna Gopal Chawla & Ors vs State Of U.P. & Anr on 11 October, 2001 - 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