High Court of Delhi was dealing with the petition filed under Article 227 of the Constitution of India assails the order dated 03rd March, 2021 passed by the Executing Court in Execution Petition.
Brief Facts:
In 1986, the respondents had filed a suit for possession and recovery of damages against the original defendant. The said suit was dismissed by the Trial Court. The judgment was challenged by the original defendant by way of an appeal before the Court. The appeal was allowed in favour of the respondents vide judgment dated 30th October, 2003. The petitioners challenged the said judgment before the SC and the SC granted stay against dispossession in favour of the petitioners. The Supreme Court passed a direction that the said order would continue to operate throughout the pendency of the appeal filed by the petitioners. Thereafter, the respondents filed an application, seeking clarification/modification of the judgment dated 30th October, 2003. The judgment and decree were modified by the Court and it was directed that the suit would stand decreed with respect to the property at point ‘X’ in the site plan. The execution petition was filed on behalf of the respondents and the petitioners filed objections thereto. The said objections were dismissed by the Executing Court. When the Court appointed bailiff went to execute the warrants of possession the petitioners did not permit the bailiff to execute the warrants of possession, as they contended that the portion in their occupation was not part of point ‘X’ in the site plan. Accordingly, the respondents filed an application under Section 151 of the CPC to get warrants of possession executed regarding the suit property as shown in the site plan at point ‘X’, including all further constructions/additions undertaken by the petitioners. The said application was allowed by the Executing Court vide impugned order dated 03rd March, 2021.
Petitioner’s Contention:
Learned counsel for the petitioner submitted that the petitioners are willing to hand over possession of the suit property at point ‘X’ in the site plan in terms of the judgment and decree passed by the Court. It is the settled position of law that an Executing Court cannot go beyond the decree. In the present case, the final decree, as modified by the order dated 10th July, 2018 passed by the Court, was only in respect of the portion shown as point ‘X’ in the site plan. Hence, the execution proceedings cannot be carried out in respect of portions other than this.
It was submitted that the respondents have not proved their ownership regarding the said extra portions of the property and the petitioners claim rights over the said portions. The execution proceedings filed in 2017 are time barred as the decree was passed by this Court on 30th October, 2003 and even though a stay against dispossession was granted by the Supreme Court, there was no bar on the decree being executed.
Respondent’s Contention:
Learned Counsel for the respondent submitted that the original defendant was in occupation of the property ad measuring 165 square yards. The portion in occupation of the petitioners as on date is 250 square yards. It was submitted that the extra portion occupied by the petitioners came to the knowledge of the respondents only when the bailiff went to execute the warrants of possession and gave his reports and subsequently gave a statement before the Executing Court stating that he could not take possession of the suit property.
It was further submitted that a party cannot be allowed to take advantage of wrongful acts committed during the pendency of the suit proceedings and the plaintiff cannot be expected to institute new suits with regard to wrongful acts done during the pendency of the suit proceedings otherwise it would result in unending litigation. It was submitted that the doctrine of lis pendens in terms of Section 52 of the Transfer of Property Act, 1882 would be applicable. The execution proceedings are not time barred as the same could not be initiated earlier on account of the order dated 15th December, 2003 of the SC directing stay against dispossession of the petitioners.
HC’s Observations:
After hearing both the sides the Court found that Counsel for the respondents has contended that the petitioners in their objections filed before the Executing Court had admitted to being in possession of 250 square yards, however, the said objections have not been placed on record before this Court. Throughout, the case of the original defendant was that he was in occupation of 165 square yards. If that was the case, there was no basis for the petitioners to now claim rights in portions of the suit property in excess of 165 square yards.
HC stated that “The Executing Court has the power to pass any incidental or necessary order to ensure that the decree for possession is fully enforced. The decree passed in favour of the decree holder cannot be frustrated by the judgment debtor by making unauthorized constructions. If any such unlawful construction is made by the judgment debtor pendente lite, the power of the Executing Court would extend to order removal of such unauthorized construction made pendente lite. The decree holder cannot be compelled to file a separate suit in order to get the said unlawful construction removed.”
The question before the Court was not whether the respondents are the owners of the extra portion occupied by the petitioners, but whether the petitioners can continue to be in illegal occupation of the aforesaid portions by raising constructions thereupon so as to frustrate the decree passed against them.
The entire attempt of the petitioners was to somehow frustrate the decree and continue to be in unlawful occupation of the property in question by raising constructions during the pendency of the legal proceedings. The case of the original defendant in the written statement that he was in legal occupation of 165 square yards of the property at point ‘X’, has been rejected by this Court. If that be so, there is no basis for the petitioners to contend that they were in legal occupation or ownership of portions behind point ‘X’ in excess of 165 square yards. Nothing has been placed on record by the petitioners which shows them to be owners or in lawful occupation of the portions behind point ‘X’.
The Court also found that the objection taken by the petitioners of the execution proceedings being time barred, is completely misconceived. Clearly, the execution proceedings could not have been filed by the respondents in view of the stay order passed by the Supreme Court. The respondents cannot be compelled to file multiple litigations when they have already fought a litigation against the original defendants and the petitioners since 1986 and eventually succeeded after 32 years.
HC Held:
After evaluating various case laws and submissions by both the parties the Court held that “There is no equity in favour of the petitioners. The petitioners are seeking to derive undue advantage from their own wrongful and illegal acts of unlawfully occupying portions of the property and raising unlawful construction thereupon so as to frustrate the execution of the decree. Such a litigant is not entitled to invoke the equitable jurisdiction of this Court under Article 227 of the Constitution of India. Therefore, in exercise of jurisdiction under Article 227 of the Constitution of India, this Court is not inclined to interfere with the impugned order passed by the Executing Court.”
Bench: Hon'ble Mr. Justice Amit Bansal
Case Title: Ajit Singh Deceased Through Lrs v. Padma Bhandari Deceased Through Lrs & Ors.
Case Details: CM(M) 1052/2021
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