2001 Supreme(SC) 1414

SUPREME COURT OF INDIA
D.P.Mohapatra : Shivaraj V.Patil
Krishna Gopal Chawla
Versus
State Of U.P.
Case No. : 7104 of 2001
Date of Decision : 10/11/01
Advocates Appeared: Bano Feroza : Jain A.K. : Jain Bijoy Kumar : Jain Deepak : Jain Rakesh : Markandayaa S. : Markandeya Chitra : Mukand C. : Subramanium Gopal

Headnote:(i) Civil Procedure Code, 1908-Order XXI Rule 11(2)(d)-Suit for eviction and arrears of rent and damages for use and occupation filed in 1963-Decree passed in second appeal by High Court in favour of appellants in 1979-Execution petition filed in 1980-In the meanwhile, the respondents approached Supreme Court by filing appeal-Pending disposal of appeal, execution was stayed-Later Supreme Court dismissed appeal, giving one year time to vacate on ususal undertaking-Respondent gave undertaking but not consistent with the terms-In undertaking, respondent undertook to handover possession to the real owner and not to the appellant-Landlord-Appellant applied for revival of stayed execution-High Court in writ petition of respondent held that decree passed by High Court merged in the decree passed by Supreme Court hence fresh execution of the decree passed by Supreme Court be made-Whether sustainable in law? (No).

       Held : 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 appeals to even overreach the order of this Court. (Para 13)

       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 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. (Para 16)

       (ii) Civil Procedure Code, 1908-Order XXI Rule 11 and Section 47-Execution of decree of eviction, arrears of rent and damages-Objection as to title of the decree holder-Looked in by executing Court though not called for and decided in favour of appellant-High Court found fault with it and ordered for fresh execution-Whether legal? (No)-Appeal allowed with costs-High Courts view was held to be suffering from "irreparable infirmity.

       Held : 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 decre-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 iwth 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 wiwth 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 respondens, 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. (Paras 17, 18 and 19)