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GAUHATI HIGH COURT
K.Lahiri, J.
Sabad Chandra Deka -Appellant
Versus
Naomai Deka & Ors. -Respondent
Civil Revision No. 128 of 1979
Decided On : 16-03-1983
EXECUTION OF DECREE - FRESH EXECUTION CASE - MAINTAINABILITY - DISPOSSESSION OF DECREE-HOLDER DURING PENDENCY OF APPEAL - EFFECT - CODE OF CIVIL PROCEDURE, 1908 - ORDER 21 RULE 35 - SECTION 11 EXPLANATION VI AND VII.
Fact of the Case:
The decree-holder, Dehi Ram, obtained a decree for possession of the suit land in 1967. The defendants appealed, and the appellate court remanded the case for disposal. After remand, the suit was again decreed in favor of Dehi Ram, and the defendants appealed again. During the pendency of the second appeal, Dehi Ram executed the decree of the first appellate court and obtained possession of the suit land. However, the defendants filed a second appeal and obtained a stay order from the High Court. The High Court eventually dismissed the second appeal, upholding the judgment and decree of the courts below. After the disposal of the second appeal, the legal heirs and successors in interest of Dehi Ram filed an application for execution of the decree of the first appellate court as well as that of the High Court in the second appeal. The execution of the decree was opposed by the petitioner on the ground that the decree had been fully satisfied during the pendency of the second appeal.
Finding of the Court:
The court held that the decree-holders were entitled to execute the appellate decree of the High Court in the execution proceedings. The court found that the judgment-debtor, during the proceedings of the appeal before the High Court, illegally and wrongfully dispossessed the decree-holders. The court also held that the decree of the trial court merged in the decree of the High Court and that the decree of the High Court was the only executable decree.
Issues: 1. Whether a decree-holder, having executed the decree of the first appellate court and obtaining possession, can institute a fresh execution case on the basis of "the second appellate decree", being ousted from the decretal land during the pendency of the proceeding? 2. Whether a fresh execution case instituted on the basis of the decree passed by the High Court to obtain delivery of possession of the suit land is maintainable in view of the order in the previous execution case where the court had recorded an order stating that possession had been delivered to the decree-holder in pursuance to the writ of delivery issued by the court in the execution of the decree of the first appellate court?
Ratio Decidendi: 1. The court held that the decree-holders were entitled to execute the appellate decree of the High Court in the execution proceedings because: - The decree of the High Court was the final decree and was executable. - There was no law prohibiting the execution of the said decree. - The decree-holders were dispossessed after the execution of the decree in the first execution case. - The judgment-debtor's act of dispossession during the pendency of the second appeal was a reprehensible act and the court could not grant sanction to such an act. - The judgment-debtors flouted the authority of the court, invalidated the lawful right of the decree-holders, and desired to occupy the driver's seat. - If such things were allowed, might would be right and the strong and powerful would nullify the effect of the execution by forcibly driving out a decree-holder and relegating him to another suit. - The court should always avoid depriving the legitimate decree-holder of his legitimate right and should always avoid multiplicity of litigation where the judgment-debtor had dispossessed the decree-holder before the final decision of the case in appeal. 2. The court held that the fresh execution case instituted on the basis of the decree passed by the High Court to obtain delivery of possession of the suit land was maintainable because: - The court retains the power to finally adjudicate in respect of the subject-matter of the suit during the entire proceedings of the suit until it is finally disposed by the final court in appeal. - The decree-holders should not be deprived of their legitimate right and should not be subjected to multiplicity of litigation where the judgment-debtor had dispossessed the decree-holder before the final decision of the case in appeal.
Final Decision: The petition was dismissed, and the court held that the execution court had jurisdiction to proceed with the case.
2. In the instant case a somewhat new problem has arisen. At first blush the question appears to be simple, but I find it trifle interesting. Bearing in mind that the core objects and policy of the Code of Civil Procedure are to uphold the cause of justice, to avoid multiplicity of litigation as far as practicable and to provide relief to needy persons avoiding injustice, let me proceed to set out the questions and resolve them.
3. The core questions are: (a) Whether a decree-holder, having executed the decree of the first appellate court and obtaining possession can institute a fresh execution case on the basis of "the second appellate decree", being ousted from the decretal land during the pendency of the proceeding? (b) Whether a fresh execution case instituted on the basis of the decree passed by the High Court to obtain delivery of possession of the suit land is maintainable in view of the order in the previous execution case where the court had recorded an order stating that possession had been delivered to the decree-holder in pursuance to the writ of delivery issued by the court in the execution of the decree of the first appellate court?
4. The relevant facts are as follows: About 18 years ago Dehi Ram (since dead) instituted T.S.No. 55 of 1965 in the court of the Munsiff at Mangaldoi against the petitioner and others for ejectment and delivery of possession of the suit land and obtained a decree in or about 1967. The defendant preferred an appeal which was allowed and the matter was remanded to the trial court for disposal. After remand, the suit was again decreed in favour of Dehi Ram and the defendants preferred an appeal which was dismissed by the first appellate Court on 1.6.72 and the decree of the first instance was affirmed. On 9.6.72 the defendants prayed for stay of execution of the decree before the Munsiff who passed an order that the application with the prayer should be put up when the execution case would be filed. Dehi Ram, the predecessor-in-interest of the present Opposite Parties 1 to 5 filed Title Execution Case No. 10/72 in the court of the Munsiff for recovery of possession of the suit land. However, learned Munsiff, on consideration of the application the defendants had filed granted them two months time to obtain a stay order from the High Court. The defendants filed a Second appeal No. 37/73 and an application under Order 41 Rule 5 of the C.P.C. supported by an affidavit praying for stay of further proceedings in Title Execution Case No, 10/72 till the disposal of the second appeal. The High Court by its order dated 15.9.72 stayed further proceedings in the Execution case. However, in the meantime, the period of two months grantee by the Munsiff had expired and plaintiff-decree-holder, late Delhi Ram, obtained a writ of delivery of possession of the decretal land and obtained delivery of possession. The judgment -debtor filed an application before the Executing Court for stay. The court rejected the application. The Second appeal was heard and dismissed by the High Court which upheld the judgment and decree passed by the courts below. During the pendency of the appeal Dehi Ram died leaving behind his wife opposite party No. 1 and four sons, Opposite parties 2 to 5. After the disposal of that appeal Opposite Parties 1 to 5, legal heirs and successors in interest of the decree holder filed an application for execution of the decree of the first appellate court as well as that of the High Court in Second appeal. The execution of the decree was opposed by the petitioner
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