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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Sharad Kumar Sharma, J.
Vinod Kumar - Appellant
Versus
Mandir Laxmi Narayan And Others - Respondent
Second Appeal No. 182 of 2019 With Miscellaneous Application with Supplementary Affidavit No. 14406 of 2019 Interim Relief Application No. 14717 of 2019
Decided On : 12-03-2020
The Court dismissed a Second Appeal challenging the rejection of an application under Order 21 Rule 97 of CPC, holding that the appellant/judgment debtor could not abuse the process of law by raising a new plea of a sale deed at the execution stage, which was not even raised in the original suit. The Court held that the provisions of Order 21 Rule 97 of CPC, as amended in 1976, which provide that an adjudication made to an Application under Order 21 Rule 97 of CPC has to be proceeded in accordance with the provisions contained therein, would not apply to executions which were already pending as on 1st February 1977, when the amendment came into effect.
Fact of the Case:
The appellant/judgment debtor filed an application under Order 21 Rule 97 of CPC, objecting to the execution of a decree for eviction and recovery of arrears of rent passed in a suit filed in 1965. The appellant claimed ownership of the property by virtue of a sale deed dated 29th June 1970, which was not raised in the original suit. The Executing Court and the Appellate Court rejected the appellant's objection, holding that the property covered by the sale deed was distinct from the property covered by the decree, and that the appellant had not established his ownership of the property.
Finding of the Court:
The Court held that the appellant could not abuse the process of law by raising a new plea of a sale deed at the execution stage, which was not even raised in the original suit. The Court further held that the provisions of Order 21 Rule 97 of CPC, as amended in 1976, which provide that an adjudication made to an Application under Order 21 Rule 97 of CPC has to be proceeded in accordance with the provisions contained therein, would not apply to executions which were already pending as on 1st February 1977, when the amendment came into effect.
Issues: 1. Whether the appellant/judgment debtor could raise a new plea of a sale deed at the execution stage, which was not even raised in the original suit? 2. Whether the provisions of Order 21 Rule 97 of CPC, as amended in 1976, would apply to executions which were already pending as on 1st February 1977, when the amendment came into effect?
Ratio Decidendi: 1. The Court held that the appellant/judgment debtor could not abuse the process of law by raising a new plea of a sale deed at the execution stage, which was not even raised in the original suit. The Court reasoned that the appellant had ample opportunity to raise the plea of the sale deed during the pendency of the suit, but he failed to do so. The Court further held that the appellant's objection was mala fide and was intended to delay the execution of the decree. 2. The Court held that the provisions of Order 21 Rule 97 of CPC, as amended in 1976, which provide that an adjudication made to an Application under Order 21 Rule 97 of CPC has to be proceeded in accordance with the provisions contained therein, would not apply to executions which were already pending as on 1st February 1977, when the amendment came into effect. The Court reasoned that the amendment was procedural in nature and would not have retrospective effect.
Final Decision: The Court dismissed the Second Appeal, holding that the appellant/judgment debtor could not abuse the process of law by raising a new plea of a sale deed at the execution stage, which was not even raised in the original suit. The Court further held that the provisions of Order 21 Rule 97 of CPC, as amended in 1976, would not apply to executions which were already pending as on 1st February 1977, when the amendment came into effect.
JUDGMENT
Sharad Kumar Sharma, J. - Before venturing to remark on merits of Second Appeal, it becomes inevitable for this Court to express its deep anguish; as to the manner and for the ulterior motives best known to the defendant/appellant and his counsel of the present Second Appeal, as to why an incomplete documents had been filed by him, particularly when it relates to the very foundation of the entire controversy of Second Appeal which arises out of a Civil Suit No. 66 of 1965, Laxmi Narain and others v. Shri Baru Mal and another, which was adjudicated by the Court of Civil and Sessions Judge, Dehradun by decreeing the Suit on 31 st August 1973, whereby the suit of the plaintiff (respondent No. 1 herein) was decreed for eviction and the recovery of arrears of rent.
2. In the suit in question, which was instituted way back in 1965, after the exchange of pleadings, the learned trial Court had framed various issues at various stages of the proceeding of Suit. Initially, issue Nos. 1 to 6 were framed by the learned trial Court to the following effect:-
'1. Whether there existed the relationship of landlord and tenant between the plaintiff No. 1 and the defendant?
2. Whether the rate of rent i.e. Rs. 5/- P.M.?
3. Whether the defendant committed default in the payment of arrears of rent?
4. Whether the plaintiff No. 2 is the Manager of plaintiff No. 1?
5. To what amount of arrears of rent is the plaintiff entitled?
6. Relief?'
3. For the second time, additional issues were framed by the trial Court under Order 14 Rule 4/5 of CPC were yet again framed on 13 th July 1966, whereby additional issues No. 7 to 11 were framed to the following effect, which are quoted hereunder:-
'7. Whether Court-fees paid is insufficient and suit is undervalued?
8. Whether the suits bad for non-joinder of necessary party?
9. Whether the suit is barred by estoppel?
10. Whether the defendants possession is adverse as alleged in para 17 of written statement?
11. Whether def. has constructed pucca structures as alleged in para 18 of the W.S.? If so, its effect?'
4. For the third time, the trial Court of Civil and Sessions Judge, Dehradun, had modulated further additional issues which were framed being issues No. 12 to 18 on 16 th February 1968, which are quoted hereunder:-
'12. Whether the plaintiff No. 2 is karta or joint Hindu family?
13. Whether the value of the constructions made by the deft is of value of Rs. 5276/- and the suit is not triable by this Court beyond jurisdiction?
14. Whether the court fees paid is sufficient?
15. Whether the deft is absolute owner of the property in suit and not a licensee of the plff or plff no. 2?
16. Whether the possession of the defts is hostile and adverse and they have become complete owners of the suit property.
17. Whether the suit in the present form does not lie?
18. Whether this court has no jurisdiction to try this suit?'
5. The learned trial Court, yet again had framed an additional issue on 19 th April 1973 being issue No. 19, which reads as under:-
'19. Whether the notice is illegal?'
And lastly, for the 5 th time, the trial Court on 9 th July 1973 , had framed issue No. 20 which was framed by the learned trial Court in the following manner, which is quoted hereunder:-
'20. Whether the suit had for want of sanction of Advocate General O.P. as provided in Section 92 CPC.'
6. In the zerox copy of the certified copy of the judgement dated 31 st August 1973, rendered in Suit No. 66 of 1965, Laxmi Narain and others v. Shri Baru Mal and another , which has been annexed as Annexure No. 1 to the affidavit filed in support of the Second Appeal, with which we would be much concerned to refer herein is pertaining to the manner in which the judgement has been produced and relied by the learned counsel for the appellant for the reasons best known to him. Because at page 78 of the present second appeal (the original judgement) issue Nos. 4 and 12 was considered and decided by the learned trial Court on page 80 issue no
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