Krishnan Namboodiri vs A. P. Unnikrishnan Namboodiri

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2005 Supreme(Ker) 142

Judges : K.T.SANKARAN
Krishnan Namboodiri - Appellant
Versus
A.P.Unnikrishnan Namboodiri - Respondent
Case No : C.R.P.Nos. 1975 of 2000 & 1336 of 2001
Decided On : 02/24/2005
Advocates Appeared :
For the Petitioners : K. Jagadeeschandran Nair and J. Krishnakumar, Advocate. For the Respondent: V.V. Ashokan and Sunil Shanker, Advocate.

Headnote:
Civil Procedure Code 1908 - Section - 151 & Order XXI - Rule - 32(5) questions of law arising for consideration in these revisions are: (1) Whether the Court can invoke S. 151 of the Code of Civil Procedure to enforce the decree for injunction and to pass an order directing delivery of the property to the decree holder from the judgment debtor who forcibly evicted the decree holder violating the decree; and (2) When a suit is withdrawn with liberty to file a fresh suit on the same cause of action, whether an order passed under R. 29 of O.XXI staying the execution of the decree - Held The reason may be that the machinery of the Subordinate Courts in implementing their decrees and orders is ineffective or inadequate in the point of view of the litigants. It is also to be noted that the number of Writ Petitions being filed before this Court complaining of police interference in civil disputes is also on the increase in recent years. One of the main reasons for such complaints is the illegal interference by the police in civil disputes. One of the parties may resort to such practices since he hopes to get a speedy, though illegal and unjust, remedy. This points out to the need for having a pragmatic approach to the question in the matter of effective implementation and execution of the decrees and orders passed by the civil courts. The executing courts are not expected to deny relief to the decree holders on hypertechnical grounds, which would tend to help the persons who suffered the decree or order in disobeying or violating such decrees or orders. If permission is granted to withdraw that suit with liberty to file a fresh suit on the same cause of action, the plaintiff therein could very well institute a fresh suit within the period of limitation prescribed for the same. In some cases, the period of limitation may be three years or in some other cases twelve years. If it is to be held that the direction issued in the revision to keep in abeyance the execution proceedings is to be stretched even till the expiry of the period of limitation for filing a fresh suit on the same cause of action, it would have the result of making the direction issued by this Court to dispose of the suit within four months otiose. That is not what is intended while disposing of C.R.P.No.2265 of 1998. The judgment debtors having withdrawn the suit and instituted a fresh suit much after the expiry of four months from the date of disposal of C.R.P.No.2265 of 1998, they are not entitled to get the execution proceedings to be kept pending till the disposal of the fresh suit. Therefore, it is to be held that C.R.P.No. 1975 of 2000 is without any merit and it is dismissed, but without any order as to costs. C.R.P.No.1336 of 2001 is allowed and the order impugned is set aside. The executing court shall deliver possession of the decree schedule property and the shed/ building/house therein to the decree holder after removing any obstruction caused by the judgment debtors, their agents or servants. The judgment debtors are granted three months time to surrender possession of the shed/building/house and the property to the decree holders. There will be no order as to costs in C.R.P.No.1336 of 2001.It is made clear that the observations and findings contained in this order are made only for the purpose of the proceedings in execution of the decree in O.S No.853 of 1968 as well as for dealing with the application filed by the judgment debtors under O.XXI R.29 and they shall have no bearing or relevance while disposing of O.S.No.958 of 1999, except in respect of the matters mentioned above.

Judgment :-

The questions of law arising for consideration in these revisions are: (1) Whether the Court can invoke Section 151 of the Code of Civil Procedure to enforce the decree for injunction and to pass an order directing delivery of the property to the decre-holder from the judgment-debtor who forcibly evicted the decree-holder violating the decree; and (2) When a suit is withdrawn with liberty to file a fresh suit on the same cause of action, whether an order passed under Rule 29 of Order XXI staying the execution of the decree, would revive on filing the fresh suit?

2. The facts necessary for disposal of these revisions are the following: O.S.No.853 of 1968, on the file of the Court of the Munsiff of Kozhikode was filed by A.P. Damodaran Namboodiri against his brother Krishnan Namboodiri and the wife and children of Krishnan Namboodiri, for a declaration that the properties purchased as per Ext.A-2 document dated 31-3-1933 in the name of Krishnan Namboodiri were acquired benami for the plaintiff Darnodaran Namboodiri. There was also a prayer for consequential injunction restraining the defendants from entering into the plaint schedule properties. The suit was decreed on 23-12-1971. The defendants challenged that Judgment and Decree in A.S.No.44 of 1972 before the District Court, Kozhikode. But the appeal was dismissed on 4-12-1976.

3. E.P.No. 250 of 1981 was filed by the decree-holder in O.S.No.853 of 1968 under Order XXI, Rule ' 32 for taking act on against the judgment-debtors for violation of injunction. That Execution Petition was dismissed on the ground that the first judgment-debtor had obtained purchase certificate in his favour, issued by the Land Tribunal in O.A.No.84 of 1980. The order in E.P.No.250 of 1981 was set aside by this Court in C.R.P. No.2391 of 1983 and the matter was remanded to the executing court. Pending C.R.P.No.2391 of 1983 the decree-holder died and his son was impleaded as the legal representative. The executing court after remand dismissed the Execution Petition on the ground that the Benami Transactions (Prohibition) Act came into force after the decree and the decree-holder is not entitled to the reliefs in the Execution Petition in view of the subsequent legislation. Again, the decree-holder had to approach this Court in C.R.P. No. 1594 of 1989 challenging the order dismissing the Execution Petition.

4. Meanwhile, proceedings before the Land Tribunal were going on, after the decree in O.S.No.853 of 1968. O.A.No.83 of 1980 was filed by the plaintiff and O.A.No.84 of 1980 was filed by the first defendant judgment-debtor, for purchase of the property in question under Section 72 B of the Kerala Land Reforms Act. The Land Tribunal allowed the application filed by the judgment debtor (O.A.No.84 of 1980) and dismissed the application filed by the decree-holder(O.A.No.83 of 1980). Challenging those orders of the Land Tribunal, A.A.Nos.182 of 1983 and 183 of 1983 were filed before the Land Reforms Appellate Authority. The Appellate Authority dismissed both the appeals. Two Civil Revision Petitions were filed before this Court under Section 103 of the Kerala Land Reforms Act as C.R.P.Nos.1043 of 1988 and 1044 of 1988.

5. The Civil Revision Petition filed by the decree-holder challenging the order in the Execution Petition, viz. C.R.P.No. 1594 of 1989 and the two revisions arising out of the proceedings under the Land Reforms Act, viz. C.R.P.Nos. 1043 of 1988 and 1044 of 1988, were disposed of by this Court by a common order dated 18-10-1994. All the three revisions were allowed. The judgments of the Appellate Authority and orders of the Land Tribunal were set aside and the cases were remanded to the Land Tribunal. The order of the executing court which was impugned in C.R.P.No. 1594 of 1989 was also set aside and the case was remanded to the executing court for fresh disposal. This Court held in C.R.P.No. 1594 of 1989 that the Benami Transactions Prohibition Act does not apply to the case at all and

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