Maya Devi (D) by LRS.
Vs. Raj Kumari Batra (D) by LRS. & Ors. [2010] INSC 800 (8 September 2010)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICITION CIVIL APPEAL NO.10249 OF 2003 Maya Devi
(dead) through Lrs. ...Appellants Versus Smt. Raj Kumari Batra (dead) through
Lrs. & Ors. ...Respondents
T.S. THAKUR, J.
1.
This
appeal by special leave arises out of an order passed by a Division Bench of
the High Court of Punjab and Haryana whereby Letters Patent Appeal No.167 of
1989 filed 2 by the appellants has been dismissed with costs. The facts giving
rise to the present appeal have been set out at length in the order impugned in
this appeal hence call for no repetition except to the extent the same is
absolutely necessary. What is striking about the case is that a decree passed
in favour of the respondent as far back as on 25th October, 1976 remains to be
executed even after the lapse of 34 years during which period the decree holder
as also the judgment debtor have both passed away leaving behind the legacy of
litigation to the next generation. The chequered history of a bitter fight
which has brought the parties to this Court for the second time amply
demonstrates that the real troubles of a plaintiff start only after he obtains
a decree, thanks to the long winding legal procedure and the ingenuity of the
lawyers who often exploit the same to the benefit of one party at the cost of
the other.
2.
A
suit filed by Late Maya Devi the plaintiff for recovery of a sum of Rs.60,000/-
was decreed in her favour with costs by the Trial Court on 25th October, 1976
against Hans 3 Raj, defendant now deceased. In execution of the said decree
SCF No.9, Sector 27-D, Chandigarh was attached and finally sold in a public
auction on 17th April, 1978, for a sum of Rs.82,000/- in favour of the decree
holder who was permitted by the Executing Court to participate in the auction.
The judgment debtor filed his objections challenging the legality of the
auction, but while the same were pending consideration, the parties put in a
written compromise on 16th June, 1979 which, inter alia, provided that the
decree holder would deposit a sum of Rs.35,000/- for payment to the judgment
debtor, whereupon the latter shall handover to the decree holder the vacant
possession of the property aforementioned that stood attached. The Executing
Court recorded the statement of the parties in support of the compromise and
adjourned the matter for passing final orders. But before any such order could
be made the judgment debtor filed an application with a prayer for setting
aside the compromise on the ground that the same was void ab-initio and had
been brought about by fraud. Another 4 application filed by him prayed for
setting aside of the sale for non-compliance with the provisions of Order XXI
Rules 72 and 84 of the C.P.C. The decree holder also moved an application for
passing final orders in terms of the compromise stating that he had deposited
the bank drafts for a total sum of Rs.35,000/- as the judgment debtor had
refused to accept the said amount.
3.
The
Executing Court finally made an order on 30th August 1979 whereby it confirmed
the sale in favour of the decree holder in accordance with the compromise
between the parties. Aggrieved, the judgment debtor filed FAO No.502 of 1979
before the High Court of Punjab and Haryana. The appeal failed and the
contention urged before the High Court that the compromise entered into between
the parties was vitiated by fraud was repelled. The High Court further held
that the sale in favour of the decree holder was not in violation of the
provisions of Order XXI, Rules 84 and 85 of CPC. A Letters Patent Appeal filed
against the order passed by the learned Single Judge also 5 failed and was
dismissed on 18th November, 1981. A Special Leave Petition against the said two
orders was dismissed by this Court in limine on 5th January, 1982 thereby
bringing finality to the question of legality of the sale of the property in
favour of the decree holder on the basis of the compromise/adjustment arrived
at between the parties.
4.
The
judgment debtor then filed fresh objections before the Executing Court, inter
alia, contending that the property bearing SCF No.9, Sector 27-D, Chandigarh,
was exempt from attachment and sale, the same being a residential premises and
the decree in question being a simple money decree. The decree holder also
moved an application for restoration of the execution proceedings which had
been adjourned sine die and the execution file consigned to record, on account
of stay issued by the High Court in the earlier proceedings. The Executing
Court formulated the points that arose for determination and answered the same
against the judgment debtor in terms of its order dated 25 th September, 1984.
It held that the confirmation of sale and 6 issue of the sale certificate in
favour of the decree holder was legal and valid and that the decree holder was
entitled to possession of the property sold in her favour. Resultantly, the
Executing Court issued warrants for delivery of possession of the property in
question in favour of the decree holder.
5.
The
delivery of possession was for the third time resisted by the judgment debtor
on the ground that there was no decree for possession. The Executing Court
dealt with these objections in its order dated 5th October, 1987 and noted that
the issues raised by the judgment debtor had already been decided against him
by the earlier orders of the Executing Court dated 30th August, 1979 and 25th
September, 1984 which orders had attained finality. It also held that
application dated 22nd January, 1985 under Order XXI Rule 97 CPC having been
filed by the decree holder within the stipulated period of 30 days from the
date of resistance to the delivery of possession was maintainable.
The above order was
assailed by the judgment debtor in Execution First Appeal which was dismissed
by a learned Single Judge of the High Court on 26th September, 1988. A Letters
Patent Appeal preferred against the said order also failed and was dismissed on
5th October, 2001. The present appeal assails the correctness of the said order
as noticed earlier.
6.
Appearing
for the appellant Mr. R.K. Kapoor strenuously argued that the Executing Court
had committed a serious irregularity in the matter of directing attachment of
property of the judgment debtor and issuing a sale proclamation. He contended
that since the proclamation of sale was itself fraudulent and in complete
violation of the provisions of Rule 66(2) Order XXI all the subsequent
proceedings of auction sale, its confirmation and issuance of certificate etc.
were a nullity in the light of the judgment of this Court in Desh Bandhu Gupta
v. N.L. Anand 1994 (1) SCC 131. He further contended that the Executing Court
had permitted the decree holder to participate in the auction of the property
in question in violation of Order XXI Rule 72-A.
He urged that if the
decree in favour of the decree holder was a mortgage decree, it was essential
for the Court to fix a reserve price which it had not fixed. The order
permitting the decree holder to participate in the auction proceedings was,
therefore, illegal and without jurisdiction argued Mr.
Kapoor. It was
further submitted that the decree holder was bound to deposit 25% of the amount
offered by him in terms of Order XXI Rule 84(1) CPC which was not deposited and
that the transfer of the execution petition pending in the Court of Sub Judge
to the Court of Sub Judge, First Class where the execution proceedings arising
out of the earlier decree were pending without notice to the judgment debtor
was illegal. He also referred to the various interim orders passed by the
Executing Court to show that the Court had acted arbitrarily and thereby
illegally deprived the judgment debtor of his property.
7.
Relying
upon the decision of this Court in Mahakal Automobiles and Anr. v. Kishan
Swaroop Sharma 2008 (13) SCC 113 it was urged by Mr. Kapoor that notice upon 9
the judgment debtor whose property was being sold was necessary and any sale in
the absence of such notice was a nullity. Reliance was also placed on the
decisions of this Court in Ambati Narasaya v. M. Subba Rao 1989 (Suppl.) 2 SCC
693, S.P. Chengalvaraya Naidu v. Jagannath 1994 (1) SCC 1, A.R. Antulay v. R.S.
Naik and Anr. 1988 (2) SCC 602, in support of the submission that the procedure
adopted by the Executing Court was neither just nor fair and not even in
accordance with the provisions of the CPC. Mr. Kapoor also made a grievance
against the dismissal of the first appeal preferred by the judgment debtor in
limine, by a non-speaking order. He submitted that although the Division Bench
had while disposing of the Letters Patent Appeal by the impugned judgment gone
into the merits of the contentions urged by the appellant yet the same did not
cure the defect in the order passed by the Single Judge whereby the first
appeal filed by the appellant had been dismissed without recording any reasons.
8.
The
litigation between the parties has a chequered history and has passed through
different stages. The first stage led to an order of attachment of the property
in question, issue of a sale proclamation, confirmation of the sale in favour
of the decree holder by the Executing Court and the grant of sale certificate
to her. Except two, each one of the contentions urged by Mr. Kapoor before us
relate to the procedure adopted and the order passed by the Executing Court up
to the stage of confirmation of the sale in favour of the decree holder. All
these contentions were urged by the appellants before the Executing Court who
rejected the same and before the High Court who dismissed the appeals filed
before it. The view taken by the Executing Court and by the High Court in
regard to the issues raised by the appellants has attained finality with the
dismissal of the Special Leave Petition filed against the said orders whereby
the confirmation of sale in favour of the decree holder as also the grant of
sale certificate to her was declared to be valid. Any attempt to re-agitate the
very 11 same questions that stand concluded by the said judgment and orders is
therefore futile if not a clear abuse of the process of law. In particular the
question whether the decree under execution was a mortgage decree or a simple
money decree, was answered in favour of the decree holder and the decree held
to be a mortgage decree. Similarly the question whether non deposit of 25% of
the bid amount by the decree holder, who was permitted to participate in the
auction by the Executing Court rendered the sale in her favour was answered
against the appellants herein. Relying upon the decision of this Court in
Manilal Mohanlal Shah & Ors. v. Sardar Syed Ahmed Sayed Mahmad and Anr.
AIR 1954 SC 349, the
Executing Court held that where the decree holder was himself the purchaser the
requirement of making a deposit of 25% of the bid money was not attracted. So
also the challenge to the compromise entered into between the parties on the
ground that the same was fraudulent was repelled by the Executing Court and the
compromise held to be valid in law. In appeal against the 12 order dated
30.8.1979 passed by the Executing Court, the learned Single Judge of the High
Court affirmed the view taken by the Executing Court and declared that a
compromise could be recorded even in execution proceedings and that the bald
allegations suggesting a fraud were wholly untenable. The dismissal of the
Letters Patent Appeal and the special leave petition against the said orders by
this Court has placed all these aspects beyond the pale of any further
challenge or controversy. It follows that all contentions relating to the
validity of the confirmation of sale in favour of the decree holder and the issue
of a sale certificate in her favour which stand finally determined against the
appellants in terms of the judgments and orders of the Executing Court and the
High Court in the first round, stand concluded & cannot be re-agitated.
Reliance upon the decisions of this Court cited by Mr. Kapoor, is therefore of
no assistance to him.
9.
In
the second round which started with a fresh set of objections raised by the
judgment debtor, the Executing 13 Court once again examined the matter and
rejected the objections by an order dated 25th September, 1984. The Executing
Court held that the questions raised by the judgment debtor stood answered by
the earlier orders passed by the Executing Court and upheld by the High Court
in appeal. The contention that the compromise between the parties extinguished
the decree and was a complete adjustment within the meaning of Order XXI Rule 2
was also repelled. The Court held that the decree continued to subsist till the
judgment debtor delivered possession of the premises in terms of the
compromise. The court accordingly issued warrants for delivery of possession to
the decree holder. It is common ground that the view taken by the Executing
Court in the said order has also attained finality as no appeal or other
proceedings were filed against the same.
In the above
background, any effort to rekindle the controversy surrounding aspects which
stand finally decided must necessarily fail.
10.
The
third round of proceedings it is noteworthy started with the objections raised
by the judgment debtor leading to the passing of an order dated 5th October,
1987 by the Executing Court. The Court formulated as many as 14 issues which
the judgment debtor sought to agitate in opposition to the execution of the
decree and held that all of them except Issue Nos.7 and 9, stood decided by the
Executing Court against the judgment debtor in terms of its orders dated 30th
August, 1979 and 25th September, 1984. The Executing Court said:- "In the
light of the circumstances stated above, I am of the opinion that the
contentions forming the subject matter of issue Nos. 1, 2, 3, 4, 5, 6, 8, 10,
11, 12 & 13 have already been gone into and decided against the JD on
merits. Orders dated 30.8.1979 and 25.9.84 of Sarvshri B.C. Rajput and Jagroop
Singh learned Sub-Judge, 1st Class, respectively in this behalf have become
final and binding on the JD. It is thus no more open to me to go into these
questions and decide them afresh. I therefore, do not feel it necessary to
dilate upon the case law cited quo these issues."
11.
As
far as issues no.7 and 9 are concerned, the Executing Court decided the same
also in favour of the decree holder and held that the application filed by the
decree holder was within time and maintainable in law. The said order when assailed
before the High Court in FAO No.502 of 1979 was upheld and the appeal dismissed
in limine by the learned Single Judge of the High Court.
Letters Patent Appeal
No.167 of 1989 assailing the said dismissal also met the same fate. The
Division Bench noted that the questions sought to be raised in the third round
of the proceedings had been dealt with and answered against the judgment debtor
in terms of the earlier orders passed by the Executing Court and the Appellate
Court in appeal.
There is, in our
opinion, nothing wrong with that view to warrant interference. The High Court
has taken pains to recall the history of the litigation, the issues that were
raised from time to time and the judgments that determined those issues. It was
justified in taking the view that the judgment debtor had successfully
prevented delivery of possession of 16 the property to the decree holder for
such a long time even after the sale of the property in her favour which was
found by all the courts including this Court to be perfectly valid in law. The
argument that even after the sale was declared to be legally valid, the decree
holder could not demand delivery of possession, as the decree stood fully
adjusted and satisfied was also rightly rejected by the Executing Court, in its
order dated 25.9.1984 against which the judgment debtor had sought no redress.
12.
That
brings us to the question whether the Division Bench of the High Court
committed a mistake in ignoring the fact that the Single Judge who dismissed
the first appeal filed by the judgment debtor had recorded no reasons in
support of the order passed by him. It was, according to Mr. Kapoor, necessary
for the Single Judge to give reasons in support of the order made by him
howsoever brief the same may have been. The absence of any reason in the order
passed by the Single Judge was, argued the learned counsel, sufficient for the
Division Bench to set aside the same and 17 remit the matter back for a fresh
disposal in accordance with law. In as much as the Division Bench ignored that
legal deficiency in the order and proceeded to decide the appeal on merits, it
committed a mistake that ought to be corrected by this Court, was the only
submission made by Mr. Kapoor that merits consideration.
13.
The
juristic basis underlying the requirement that Courts and indeed all such
authorities, as exercise the power to determine the rights and obligations of
individuals must give reasons in support of their orders has been examined in a
long line of decisions rendered by this Court. In Hindustan Times Limited v.
Union of India & Ors. 1998 (2) SCC 242 the need to give reasons has been
held to arise out of the need to minimize chances of arbitrariness and induce
clarity. In Arun s/o Mahadeorao Damka v. Addl. Inspector General of Police
& Anr. 1986 (3) SCC 696 the recording of reasons in support of the order
passed by the High Court has been held to inspire public confidence in
administration of justice, and help the Apex Court to dispose 18 of appeals
filed against such orders. In Union of India & Ors. v. Jai Prakash Singh
& Anr. 2007 (10) SCC 712, reasons were held to be live links between the
mind of the decision maker and the controversy in question as also the decision
or conclusion arrived at. In Secretary and Curator, Victoria Memorial Hall v.
Howrah Ganatantrik Nagrik Samity & Ors. 2010 (3) SCC 732, reasons were held
to be the heartbeat of every conclusion, apart from being an essential feature
of the principles of natural justice, that ensure transparency and fairness, in
the decision making process. In Ram Phal v. State of Haryana & Ors. 2009
(3) SCC 258, giving of satisfactory reasons was held to be a requirement
arising out of an ordinary man's sense of justice and a healthy discipline for
all those who exercise power over others. In Director, Horticulture Punjab
& Ors. v. Jagjivan Parshad 2008 (5) SCC 539, the recording of reasons was
held to be indicative of application of mind specially when the order is
amenable to further avenues of challenge.
14.
It
is in the light of the above pronouncements unnecessary to say anything beyond
what has been so eloquently said in support of the need to give reasons for
orders made by Courts and statutory or other authorities exercising quasi
judicial functions. All that we may mention is that in a system governed by the
rule of law, there is nothing like absolute or unbridled power exercisable at
the whims and fancies of the repository of such power. There is nothing like a
power without any limits or constraints. That is so even when a Court or other
authority may be vested with wide discretionary power, for even discretion has
to be exercised only along well recognized and sound juristic principles with a
view to promoting fairness, inducing transparency and aiding equity.
15.
What
then are the safeguards against an arbitrary exercise of power? The first and
the most effective check against any such exercise is the well recognized legal
principle that orders can be made only after due and proper application of mind.
Application of mind brings reasonableness not only to the exercise of power but
to the ultimate conclusion also. Application of mind in turn is best
demonstrated by disclosure of the mind. And disclosure is best demonstrated by
recording reasons in support of the order or conclusion.
16.
Recording
of reasons in cases where the order is subject to further appeal is very
important from yet another angle. An appellate Court or the authority ought to
have the advantage of examining the reasons that prevailed with the Court or
the authority making the order. Conversely, absence of reasons in an appealable
order deprives the appellate Court or the authority of that advantage and casts
an onerous responsibility upon it to examine and determine the question on its
own. An appellate Court or authority may in a given case decline to undertake
any such exercise and remit the matter back to the lower Court or authority for
a fresh and reasoned order. That, however, is not an inflexible rule, for an
appellate Court may notwithstanding the absence of reasons in support of the
order under appeal 21 before it examine the matter on merits and finally
decide the same at the appellate stage. Whether or not the appellate Court
should remit the matter is discretionary with the appellate Court and would
largely depend upon the nature of the dispute, the nature and the extent of
evidence that may have to be appreciated, the complexity of the issues that
arise for determination and whether remand is going to result in avoidable
prolongation of the litigation between the parties. Remands are usually avoided
if the appellate Court is of the view that it will prolong the litigation.
17.
In
the present case the appellate Court appears to have decided against remanding
the matter to the Single Judge on the ground of absence of reasons in the order
passed by the latter because any such remand would have only prolonged the
agony of the parties. From a reading of the impugned order of the appellate
Court it is clear that the appellate Court was conscious of the fact that the
litigation had been prolonged for many years. It, therefore, decided to resolve
the matter on merits rather than remitting the same back for a fresh disposal
by the learned Single Judge.
In as much as the appellate
Court adopted that approach it did not, in our opinion, commit any mistake to
warrant our interference under Article 136 of the Constitution. The litigation
between the parties having continued for three decades, the discretion vested
in the appellate Court and was rightly exercised by it. The submissions made by
Mr. Kapoor that the appellate Court ought to have remitted the matter back to
the Single Judge must, therefore, fail and is hereby rejected.
18.
In
the result this appeal fails and dismissed but in the circumstances without any
order as to costs.
.................................J.
(MARKANDEY KATJU)
.................................J.
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