Krishna Gopal Chawla & Ors Vs. State of
U.P. & Anr [2001] Insc 543 (11 October 2001)
D.P.Mohapatro,
Shivaraj V. Patil Shivaraj V. Patil J.
Special Leave Petition (civil) 10659 of 99
Leave
granted.
The
appellants are before this Court, aggrieved by the order dated 17.11.1998
passed by the Allahabad High Court in Civil Misc. Writ Petition No. 34383/97.
In brief, the relevant and necessary facts for disposing of this appeal are the
following:
The
property in dispute is premises No. 7/86 along with the land, which forms part
of Nazul plot No. 12 situated in Block-7, Tilak Nagar, Kanpur. This property was leased for a
maximum period of 90 years in December, 1904 by Secretary of State in favour of
one Khan Bahadur Hafij Mohd. Halim; the lease was to be renewed after 30 years
from the date of its commencement with increase of 50% in rent; the lease also
permitted construction of building over the land; the lessee accordingly
constructed a dwelling house on the leased land; he let out the constructed
premises to the State of U.P. on 3.5.1937. By that time the lessee had already
got renewed the lease on 2.3.1935 in favour of Haji Mohd. Sadiq, the son of the
original lessee for a further period of 30 years upto 4.12.1964. Thereafter,
legal representatives of the original lessee migrated to Pakistan.
Consequently,
the said property was declared evacuee property by the Notification dated
3.10.1952. Later, it was put to auction by the Manager, Custodian of Evacuee
Property. One Gian Chand and others purchased the said property i.e. the land
and building through auction sale. They in turn sold the same to Krishna Gopal Chawla
and others (appellants herein) through registered sale deeds in 1959.
Krishna
Gopal Chawla and others, claiming themselves to be the landlords of the property,
filed original civil suit No.1714/1963 for arrears of rent, ejectment and for
damages for use and occupation against the State of U.P. in the court of Munsif City, Kanpur. The said suit was later transferred to Ivth Additional
Civil Judge, Kanpur, who dismissed the said suit on
19.4.1965. The appellants preferred First Civil Appeal No.305/1965 before the
District Judge, Kanpur, which was also dismissed on
21.3.1969. Aggrieved by the same, the appellants filed Second Appeal No.
2565/1969 before the High Court. During the pendency of the second appeal, U.P.
Jal Nigam was substituted in place of State of U.P. as the disputed property was in possession of Jal Nigam as
tenant on behalf of State. The High Court allowed the appeal, decreed the suit
of the appellants on 20.9.1979 for arrears of rent, ejectment as well as for
damages for use and occupation. On the basis of the said decree passed by the
High Court, the appellants filed Execution Case No.179/1980 in the court of Munsif
City, Kanpur, for execution of the decree
against U.P. Jal Nigam.
The
respondents approached this Court in Civil Appeal No.1365/1980, aggrieved by
the decree passed by the High Court in the second appeal. This Court stayed the
execution of the decree passed by the High Court till the disposal of the
appeal and dismissed the appeal on 1.3.1994, confirming the judgment and decree
passed by the High Court. However, with the consent of the parties, U.P. Jal Nigam
was allowed to remain in possession of the disputed premises for one year from
the date of judgment on filing undertaking on usual terms. U.P. Jal Nigam filed
undertaking before this Court on 28.3.1994.
The
appellants, after the dismissal of the appeal by this Court, moved an
application in the court of Munsif City, Kanpur (now Civil Judge, Junior Division, Kanpur Nagar) to proceed with the
execution of the decree. U.P. Jal Nigam and State of U.P. filed separate but
similar objections under Sections 47, 37, 38, 39 and 151 CPC resisting
execution. The objections were that the decree passed by the High Court merged
in final judgment passed by this Court; hence the decree of this Court dated
1.3.1994 alone could be executed and not that of the High Court; the court of
Civil Judge, Junior Division, Kanpur Nagar, has got no jurisdiction to execute
the decree; the court of Civil Judge, Junior Division, Kanpur Nagar, is not
court of first instance.
Further,
it was contended that original lessee, Khan Bahadur Hafij Mohd. Halim, was a
lessee of the disputed property; his legal representatives had only leasehold
rights; hence only leasehold rights were purchased by Gian Chand and others in
auction; since the original lessee was not the owner of the disputed property,
it could not become evacuee property; the maximum lease period of 90 years
expired on 4.12.1994 and as such the decree-holders had no interest in the
property and they have ceased to be landlord of the disputed property. It was
contended that as per the undertaking given to this Court on 28.3.1994, U.P. Jal
Nigam handed over possession of the disputed premises to the State of U.P., the real owner of the property after expiry of the
lease period; thus the decree of this Court stood satisfied in terms of the
undertaking.
The
executing court (court of Civil Judge, Junior Division, Kanpur) after hearing,
by a detailed order dated 5.9.95, rejected all the objections raised by the
U.P. Jal Nigam and State of U.P. and directed for delivery of possession. The
U.P. Jal Nigam as well as State of U.P.,
aggrieved by the said order of the executing court, filed civil revision
petitions in the court of IVth Additional District Judge, Kanpur. After hearing the parties and
having considered all objections including additional objections raised in the
revision petitions, the learned District Judge dismissed them by a well
considered order dated 12.8.1997.
It is
thereafter that the State of U.P. filed
Civil Misc. Writ Petition No. 34383/97 for quashing the orders of executing
court dated 5.9.1995 and the order of the Addl. District Court dated 12.8.1997
passed in revision. The said writ petition was allowed by the High Court and
the impugned orders were quashed.
The
High Court raised following three questions for consideration in the writ
petition (1) whether the decree passed by the High Court in the second appeal
was capable of execution even if it merged in the decree passed by this Court
in an appeal preferred against the decree passed by the High Court; (2) whether
Civil Judge (Senior Division) Kanpur Nagar, was competent to entertain the
execution application and (3) whether the decree-holder ceased to have any
interest in the decree owing to termination of lease by efflux of time. The
first question was answered in the negative. The second question was answered
in affirmative and the third question was left open to be decided in a fresh
execution petition if filed by the decree-holder seeking execution of the
decree passed by this Court. Hence, this appeal.
Mr. Gopal
Subramaniam, learned senior counsel for the appellants strongly contended that
this is a case, which shows how the appellants are not able to execute the
decree obtained in 1979 in spite of an undertaking given in this Court by the
respondents; the respondents never raised question of title in the original
suit or in further appeals and, as stated, it was not open to raise in the
execution proceedings or before the High Court in the writ petition; admittedly
the decree was passed in favour of the appellants as landlords against the
respondents for their eviction, payment of arrears of rent and damages for use
and occupation of the premises; executing court cannot go beyond the decree;
hence the objections filed by the respondents were rejected and the order
passed by the executing court was confirmed in the revision before the District
Court; the High Court committed a serious error in holding that the execution
petition filed earlier by the appellants was not maintainable as the decree
passed by the High Court merged in the decree passed by this Court when the
appeal was dismissed and that the appellants had to file a fresh application
for execution subject to law of limitation; the High Court was also not right
in saying that the question of title could be decided afresh in the event of
fresh execution petition is filed as stated above.
On the
other hand, Mr. S. Markendaya, learned senior counsel for the respondents made
submissions supporting the impugned order of the High Court.
We
have carefully considered the submissions made by the learned counsel for the
parties. This is yet another case, which confirms a general feeling that the
real trouble starts after obtaining a decree and when it is put to execution.
In this case the suit was filed in 1963 and the decree was passed in favour of
the appellants in 1979. The execution petition was filed in 1980. Almost 21
years have passed after filing the execution petition. Still the appellants are
not able to get benefit of the decree. Admittedly the suit was filed by the
appellants as the landlords seeking eviction of the respondents from the disputed
property in addition to claiming for arrears of rent and damages for the use
and occupation of the property. The suit was decreed by the High Court in
second appeal. Thereafter, execution petition No. 179/80 was filed. In the
meanwhile the respondents approached this Court by filing the appeal and in the
appeal order was passed staying the execution proceedings pending in the
executing court. Ultimately, the appeal was dismissed by this Court on 1.3.1994
in the following terms: - The courts below are correct. No interference is
called for. The appeal is dismissed.
However,
as agreed by both the learned counsel one years time from today is granted to
the appellant to hand over vacant possession. This shall be subject to the
filing of the usual undertaking within four weeks from today.
Formal
order prepared pursuant to the said judgment passed by this Court is reproduced
in the impugned judgment passed by the High Court. From its reading it is clear
that the appeal was dismissed without altering the decree in any way passed by
the High Court. The respondents were allowed time to vacate the premises with
the consent of the parties till 1.3.1995 subject to filing of undertaking to
the effect that the respondents shall not induct any other person in the suit
premises and shall hand over vacation and peaceful possession of the said
premises to the appellants on or before 1.3.1995, etc. Further in para 2 it is
stated that on the respondents failing to comply with the undertaking, decree
for eviction shall become executable forthwith. Although the respondents filed
an undertaking on 28.3.1994 but not consistent with the terms aforementioned.
It appears that the respondents at the time of giving undertaking itself had a
definite design to defeat or frustrate the execution of the decree itself. The
relevant portion of the undertaking to demonstrate the same is extracted below:
-
(A)
The U.P. Jal Nigam shall hand over on or before 28.2.1995, the vacant and
peaceful possession of the disputed premises to either the respondents or their
vendees or the State Govt. of U.P. in the event it is found that the lease in favour
of the respondents had already stood extinguished with effect from 4.12.1964.
(B)
........
(C)
The U.P. Jal Nigam shall not induct anyone else into the disputed premises.
Underlined
portion in clause (A) extracted above indicates that from the beginning the
intention of the respondents was not bona fide.
When
the order of this Court was clear in directing that the disputed premises was
to be handed over to the appellants and undertaking was to be given accordingly
the respondents choose to give an undertaking incorporating different terms to
suit their purpose to defeat or frustrate the execution of the decree.
Neither
the State of U.P. nor U.P. Jal Nigam ever
successfully raised in the suit and appeals what is sought to be made out in
the undertaking. It appears even review petition filed seeking review of the
judgment of this Court was also rejected. In our view, the twist given in the
undertaking by the respondents appears to even overreach the order of this
Court.
This
Court on 26.4.1990 passed the following order: - This appeal is directed
against the decree of ejectment passed against the appellant on the ground of
arrears of rent. After the appeal was argued for some time, the learned counsel
for the appellant, Mr. Subodh Markandaya, for the U.P. Jal Nigam made an offer
to the effect that the U.P. Jal Nigam is prepared to purchase the property in
question at the rate specified by the Kanpur Development Authority or at the
price to be determined by a valuer appointed by the parties and failing that by
the Court. The learned counsel for the respondents seeks time to consider this
offer.
Let
the matter come up on 4th
May, 1990.
We see
in the records placed before us a letter No. 7565/M- B1-I/57 dated 26.12.1957
from the Superintendent Engineer, III Circle, L.S.G.E.D., Lucknow to Gian Chand, i.e., the vendor of
the appellants offering to purchase this very property for the reasonable
amount. If the State of U.P. had become or was the owner of the
property, there was no need to write such a letter treating Gian Chand as the
owner of the property and similarly there was no necessity to make an offer for
purchasing the property by the U.P. Jal Nigam as recorded in the aforesaid
order of this Court.
As is
evident from the facts narrated above, the execution petition No. 179/80 filed
in the executing court to execute the decree passed by the High Court, was
pending. This Court had stayed the said execution proceedings pending disposal
of the Civil Appeal No. 1365/80. After the disposal of the appeal, there was no
impediment or bar to continue the execution proceedings on the application
moved by the appellants to proceed with the execution. The High Court committed
a manifest error in taking a view that a fresh execution petition should be
filed after the dismissal of the appeal by this Court as the decree passed by
the High Court had merged with the decree of this Court and the execution
petition filed earlier which was pending, was not maintainable. As already
noticed above, this Court in appeal only confirmed the decree passed by the
High Court without any alteration or modification. Even otherwise, in a pending
execution case, amendment could be sought if it was needed after dismissal of
the appeal by this Court. Under Order XXI Rule 11 (2)(d) CPC, in the execution
application the particular as to whether any appeal has been preferred from the
decree is to be mentioned. If an appeal has been preferred from a decree and
after disposal of the appeal, necessary information can be given by filing an
application, if need be seeking an amendment. It is one thing to say that the
earlier decree passed gets merged in the decree passed by the appellate court,
yet it is different thing to say that an execution petition filed earlier is
not maintainable and that there is a need to file a fresh application for
execution after a decree is passed by the appellate Court, particularly in the
present case, when this Court had stayed the execution proceedings filed
earlier, it was obvious that the execution proceedings could be continued after
dismissal of the appeal by this Court affirming the decree passed by this Court
without any alteration.
The
learned Addl. District Judge in his revisional order noticed that the disputed
property was declared as evacuee property and it vested in the Central
Government, free of all encumbrances; the said property was sold in public
auction and a sale certificate was issued by the Custodian, Evacuee Property,
as free-hold property as early as 1959. The learned Addl. District Judge has
further stated in his order as to whether the State Government is the owner of
the disputed property or the decree-holders are the owners of it, was not at
all called for consideration in the execution proceedings; the question was
whether the decree-holders have ceased to be landlord of the disputed property
after the expiration of lease on 4.12.1994. It was further noticed that the
respondents did not take the plea before first appellate court or the High
Court in the second appeal or before this Court in appeal that the appellants
had ceased to be landlords of the disputed property. Even otherwise, the
interest of the appellants on the disputed property did not become
unauthorized; admittedly the constructions in the suit property belong to the
decree-holders. In this view, the learned Addl. District Judge held that the
objection with regard to the ownership of the disputed property could not be
raised under Section 47 CPC. However, he observed that the question of
ownership was not in dispute before him and, therefore, he did not go into that
question as to which party is the owner of the disputed property. Ultimately
holding the appellants as landlords, eviction decree was passed against the
respondents but the High Court in the impugned judgment found fault with this
part of the order stating that the executing court as well as the District
Court did not correctly decide the question as to the ownership of the property
and the same could be decided by the courts in a case fresh execution petition
is filed by the appellants on the basis of the decree passed by this Court in
Civil Appeal No. 1365/80. We find it difficult to accept the finding of the
High Court in this regard.
It is
unfortunate that the High Court failed to see the conduct of the respondents,
facts and circumstances of the case and the correct legal position before
quashing the concurrent findings recorded by the executing court as well as the
revisional court. The High Court while exercising writ jurisdiction has acted
as a court of appeal in allowing the writ petition filed by the respondent No.
1, that too taking a technical view. Interest of justice in the fact-situation
warranted dismissal of writ petition.
Thus,
in view of what is stated above, we have no hesitation in holding that the
impugned order of the High Court suffers from irreparable infirmity and it is
patently unsustainable. Consequently, we set aside the same. The appeal is
allowed accordingly with cost of Rs.10,000/- to be paid to the appellants by
the respondents.
Back