2024 Supreme(Pat) 449

IN THE HIGH COURT OF JUDICATURE AT PATNA
ARUN KUMAR JHA, J.
Civil Misc. Jurisdiction No. 1579 of 2018
(7.5.2024)
Nirmala Devi ... Petitioner
vs.
Hira Lal Swarnkar & Ors. ... Respondents

Headnote:

Transfer of Property Act, 1882 – Section 83 – Deposit of money by the mortgagor in Court and return of mortgagee-deeds by the mortgagee and vacation of the mortgaged property by the mortgagee – initially Misc. Case No. 08/1986 was instituted to permit the mortgagor to deposit the amount of mortgage money in the Court as the mortgagee refused to accept the same, and further praying for redemption of mortgage deed and handing over the residential property to the mortgagor – Misc. Case No. 8/86 was referred to be hand – subsequently, an application, being separately numbered of Misc. Case No. 10/1986 was filed in Misc. Case No. 08/1986 by the mortgagor for an order to the mortgagee to vacate the mortgaged house and the learned Munsif passed an order on 30.06.1987 directing the mortgagee to vacate and give possession of the disputed property to the mortgagor – the order dated 30.06.1987 passed in Misc. Cases No. 10/1986 cannot be said to be a ministerial order as it was not part of Misc. Case No. 08/1986, but it was a separate proceeding – the nomenclature or mentioning or wrong mentioning of provision in petition would not come in the way of appreciation of the merits of the case, if the same is based on its contents and on consideration of relief sought before the Court – so, merely on the ground that certain provisions like Section 83 of TP Act was mentioned in the initial petition and the order in which the execution is being sought was passed on some other application without mentioning any provision would not e a hurdle and it is the cause of furtherance of justice which is to be kept in mind – as held by the Hon'ble S.C., mere mentioning of an incorrect provision is not fatal to the application if the power to pass such an order is available with the Court – further, law is well settled that the Court has inherent power to consider an application wherein a wrong provision has been mentioned and it is trite that quoting a wrong statutory provision does not create a bar and stand in the way of considering the application – the endeavour of the Courts should be towards removal of injustice and the procedural laws could not be and never intended to hamper the cause of justice or sanctify miscarriage of justice – since the orders were passed in way back 1987, the decree-holders have been made to run from pillar to post and at this stage when the facts are not disputed regarding mortgage and its redemption, only because the petition of the mortgagor did not contain the correct nomenclature of its subject matter cannot be a ground to deny him the relief which he became entitled since 1987 – in the present case, even after lapse of so much time, the woes of decree-holders have not subsided and execution proceedings are being used by judgment-debtors with impunity who exploit every provision to thin benefit to the fullest extent possible to frustrate the execution proceedings making the whole process look like a farce and the Courts become unwitting torts in the shenanigans of unscrupulous litigants – in the present case, there cannot be any ambiguity as the order dated 30.06.1987 is very clear and specific and there could be no occasion before the learned executing court for any confusion how the order was to be executed – dismissal of Misc. No. 10/1986 on the ground of default has no bearing upon the execution case in question as the Execution Case No. 02/2009 has been filed for execution of order dated 30.06.1987 passed in Misc. Case No. 10/1986 which continued for other reasons and was dismissed for default much later on 08.01.1996 – the Hon'ble Single Judge is C.R. No. 206/2004 further held that since main final order has already been passed and was affirmed by the H.C., the continuation of miscellaneous case for some other reasons or its dismissal was not at all material for the purpose of the execution cases – no infirmity is in the impugned order dated 05.07.2018 passed in Ex. Case No. 02/2003 and hence, the same is affirmed. (Paras 6, 9, 12 to 18)

Bishwanath Prasad Singh Vs. Rajendra Prasad Singh, (2006) 4 SCC 432; Pruthvirajsinh Nodhubha Jadeja Vs. Jayeshkumar Chhakaddas Shah, (2019) 9 SCC 533; Sir Sobha Singh & Sons (P) Ltd. Vs. Shashi Mohan Kapur (Deceased) through legal rep., (2020) 20SCC 798; Kuer Jang Bahadur Vs. Bank of Upper India Ltd., AIR 1925 Oudh 448; Collector, Land Acquisition Vs. Mst. Katiji, (1987) 2 SCC 107; Sardar Amarjit Singh Kalra Vs. Pramod Gupta, (2003) 3 SCC 272; Jini Dhanrajgir Vs. Shibu Mathew, 2023 (4) BLJ 167 (SC) : 2023 SCC OnLine SC 643; Predeep Mehra Vs. Harijivan J. Jethwa (Since Deceased Thr. LRS.), 2023 SCC OnLine SC 1395; General Manager of Raj Durbhunga, Under the Court of Wards Vs. Maharajah Coomar Ramaput Sing, (1871-72)14 MIA 605, (1872) SCC OnLine PC 16; Topanmal Chhotamal Vs. Kundomal Gangaram, AIR 1960 SC 388; Rajinder Kumar Vs. Kuldeep Singh, Mohinder Kumar Gupta Vs. Kuldeep Singh and S.K. Gupta (Dead) Through Legal Representatives Vs. Kuldeedp Singh, (2014) 15 SCC 529; Meenakshi Sexena Vs. ECGC Ltd., (2018) 7 SCC 479; Sanwarlal Agrawal Vs. Ashok Kumar Kothari, 2023 (2) BLJ 189 (SC) : (2023) 7 SCC 307 – Relied.