Telangana High Court
M/S. Badam Balakrishna Hotel Pvt. Ltd., vs Mumtaz Yar Ud Dowla Wakf on 22 March, 2024
Author: P.Sam Koshy
Bench: P.Sam Koshy
THE HONOURABLE SRI JUSTICE P.SAM KOSHY CIVIL REVISION PETITION Nos.906, 907 and 908 of 2024 COMMON ORDER:
These are three Civil Revision Petitions filed by the petitioner under Article 227 of the Constitution of India challenging the order dated 23.01.2024 passed by the Court of the III Additional Court Chief Judge, City Civil Court at Hyderabad (for short, 'the trial Court) in I) E.A.S.R.No.8813 of 2023 in E.P.No.29 of 2014 II) Execution Application No.74 of 2023 in Execution Petition No.29 of 2014 and III) Execution Application No.73 of 2023 in Execution Petition No.29 of 2014.
2. Heard Mr. Katta Laxmi Prasad, learned counsel for the petitioner on admission.
3. The facts in Civil Revision Petition No.906 of 2024 are taken up as the lead case for the purpose of deciding the three Civil Revision Petitions. For the sake of convenience, the parties hereinafter shall be referred to as they are arrayed before the Court below.
4. The present again is a classic example of a decree holder not being able to get the decree executed for more than two (02) decades for some reason or the other. The original dispute in the instant cases is that which arises out of O.S.No.132 of 1999 on the PSK, J ::2:: C.R.P.No.906 of 2024&Batch file of the then A.P. Waqf Tribunal which stood decreed in favour of the decree holder on 13.11.2002 and an EP was also filed in respect of the said decree in the year 2014. Pending the said EP, the decree holder came to know that the judgment debtor Mr. B.Ramaswamy had meanwhile expired. The decree holder moved an E.A.No.19 of 2015 for bringing the legal heirs on record. The same stood allowed vide order dated 25.08.2015. The said amendment bringing legal heirs on record has gone unchallenged since then. Meanwhile, the judgment debtor No.2 as well as the other persons filed number of EA's on one pretext or the other. One by one all the EA's stood dismissed. Finally, the judgment debtor No.2 had taken another technical objection in respect of the decree which was transferred to the Civil Court by the Waqf Tribunal was without jurisdiction. The trial Court rejected the said objection also on 10.08.2021.
5. The judgment debtor No.2 preferred a Civil Revision Petition before the High Court challenging the order dated 10.08.2021 and the same stood allowed vide order dated 23.11.2021 wherein the High Court held that the Waqf Tribunal did not have jurisdiction to pass the decree. The decree holder immediately challenged the said order of the High Court dated 23.11.2021 by way of Civil Appeal No.6933 of 2023 before the Hon'ble Supreme Court. The Hon'ble Supreme Court allowed the Civil Appeal vide judgment dated 20.10.2023 and held that the view of the High Court in Civil PSK, J ::3:: C.R.P.No.906 of 2024&Batch Revision Petition No.1264 of 2021 was not proper and had therefore set aside the same and further restored the order passed by the trial Court dated 10.08.2021 in E.P.No.29 of 2014.
6. Subsequent to the allowing of Civil Appeal preferred by the decree holder and on the restoration of the order of the trial Court dated 10.08.2021 in E.P.No.29 of 2014, the judgment debtor No.2 upon entering appearance before the trial Court in the EP, filed another EA under Section 47 read with Section 151 of CPC raising various objections in respect of the EP. Firstly, the EP has been filed at a belated stage. Secondly, the EP now has been reopened after it was closed on 14.12.2021 which was not otherwise permissible. It was contended that the EP is not reopened in terms of Order under XXI Rule 22 of the CPC and that since the EP remained closed since 14.12.2021 it could have been reopened only by way of memo that too after a period of two (02) years. The other objections that were raised also is in respect of the maintainability of the EP since the schedule A property as mentioned in the EP is not identifiable and that no 'sketch plan' is attached to the EP schedule.
7. It was also contended by the learned counsel for the petitioner that the EP schedule property does not tally with the original decree and the boundaries are not tallying, hence, the EP PSK, J ::4:: C.R.P.No.906 of 2024&Batch is not maintainable. Further, the schedule A property and also B and C properties are inconformity with the decree.
8. It is this EA which stands rejected by the trial Court vide its order dated 23.01.2024 which has led to the filing of the instant three Civil Revision Petitions.
9. At this juncture, if we look into the factual matrix of the case that has been narrated in the preceding paragraphs, all these objections that the petitioner/judgment debtor No.2 has raised before the trial Court vide the present EA and which has been rejected were already raised in some form or the other at different stages in the EP which is being prosecuted for the last more than a decade i.e. from the year 2014 onwards and all these objections have been in one way or the other already decided. Inasmuch as either the orders of the trial Court have not been challenged and have attained finality or has been subjected to challenge but where the higher Courts have not interfered with the orders. One of the last orders which were passed by the trial Court in the EP was the objections in respect of the jurisdiction of the Waqf Tribunal, which the trial Court had rejected initially on 10.08.2021.
10. What now further requires to be appreciated is the fact that all these contentions which the petitioner had raised can be reflected from the orders under challenge in these Civil Revision Petitions itself. The impugned orders itself reflects the three PSK, J ::5:: C.R.P.No.906 of 2024&Batch previous orders on different dates passed by the trial Court or by the High Court in a Civil Revision Petition. The first being, Civil Revision Petition No.5863 of 2002 which has been passed in the course of challenging the decree itself, for ready reference is reproduced herein under:
"It is seriously disputed by the petitioners with regard to the extent of area and their possession. The learned counsels for both parties agreed that the extent of site in possession of petitioner No.1 is to be taken as 20,000 sq.feet. The learned counsel for respondent No.1 consented to grant some time to the petitioners to vacate the premises. Keeping the above aspects in view, one year time is granted to petitioners to vacate the suit premises subject to their paying arrears of rent of Rs.20,000 sq.feet area.
10. In the result, this Civil Revision Petition is disposed off at the admission stage directing the petitioners to vacate the suit premises in within a period of one year from today and to pay the arrears of rent for Rs.20,000 sq.feet area within the period of 8 months time in two equal instalments i.e., the first installment shall be paid on or before 30-04-2003 and the 2nd installment on or before 30-08-2003."
11. Thereafter, it is the order dated 10.08.2021 passed in E.A.No.96 of 2017 filed by the judgment debtor No.2 under Section 47 of CPC. The said order again for ready reference is reproduced herein under:
"In the result, the objections in the counter are not tenable in the circumstances of the case. This the petition is maintainable for execution of the decree in O.S.No.132 of 1999 passed by the Waqf Tribunal having jurisdiction. For further steps for hearing of Decree holder, call on 13-08-2021."
PSK, J ::6:: C.R.P.No.906 of 2024&Batch
12. Immediately, thereafter there was yet another order on 13.08.2021 passed by the trial Court which reads as under:
"The counsel for the decree holder No.2 present. The counsel for Judgment debtor present. As per the orders dt: 10-08-2021 the execution petition of this court is maintainable and the Decree holder is entitled for the reliefs claimed as per the decree. On verification of the record available found there was no prior attachment of property in respect of B & C properties and for recovery of amount. The decree is field for delivery of possession, recovery of mesne profits and the prayer is to attach B & C schedule properties and for sale for recovery of the decreetal amount. Therefore, it is just and necessary in the interests of justice to issue warrants and petition is disposed off. (Presiding Officer is transferred). E.A.No.65 of 2021 is also pending. Hence for issuance of warrants call on 23-08- 2021."
13. Lastly, the order passed by the Hon'ble Supreme Court while allowing the Civil Appeal No.6933 of 2023 which was filed challenging the order passed by the High Court in Civil Revision Petition No.1264 of 2021. The relevant portion of the said order of the Hon'ble Supreme Court for ready reference is reproduced herein under:
"Therefore we have no hesitation in setting aside the order impugned passed by the High Court in C.R.P. No.1264 of 2021 dated 23-11-2021, by restoring the one passed by the Executing Court, i.e., the Court of the III-Additional Chief Judge, City Civil Court at Hyderabad in E.P.No.29 of 2014 dated 10-08-2021. The appeal stands allowed. No costs."
14. It is also relevant at this juncture to take note of the wordings given in the order of the trial Court while closing the EP PSK, J ::7:: C.R.P.No.906 of 2024&Batch on 14.12.2021. The EP was closed in the light of allowing of Civil Revision Petition No.1264 of 2021 whereby the High Court had held that the Waqf Tribunal did not have jurisdiction to pass the decree which was under challenge in the Civil Revision Petition. Since the order of the High Court in Civil Revision Petition No.1264 of 2021 was subjected to challenge by way of Civil Appeal before the Hon'ble Supreme Court, at the behest of the decree holder itself, the order of 14.12.2021 closing the EP was passed. The relevant portion of the order passed by the Hon'ble Supreme Court while closing the EP is reproduced herein under:
"As Honourable High Court observed that EP is not maintainable and as the counsel for Decree holder submitted that he wants to file SLP. EP is closed for the time being with liberty to parties to seek reopen if orders in CRP.1264/2021 is reversed. Accordingly Execution Petition closed."
15. A plain reading of the order dated 14.12.2021 would clearly give an indication that EP on 14.12.2021 was closed reserving the liberty of the decree holder to reopen the same if the orders in Civil Revision Petition No.1264 of 2021 is reversed. In the context of the said liberty to reopen the EP, it is necessary to read the order of the Hon'ble Supreme Court dated 20.10.2023 while allowing the Civil Appeal No.6933 of 2023. The Hon'ble Supreme Court in very categorical terms have ordered for restoring the order passed by the executing Court on 10.08.2023. 10.08.2023 was the order by which the trial Court had held that the decree passed by the Waqf PSK, J ::8:: C.R.P.No.906 of 2024&Batch Tribunal was maintainable. If the decree was held to be maintainable by the Hon'ble Supreme Court and the order dated 10.08.2021 stood restored back, the execution proceedings which stands closed was in fact liable to be reopened which the trial Court has done on a memo moved by the decree holder himself subsequent to the order of the Hon'ble Supreme Court.
16. It would also reveal that on the memo that was filed by the decree holder, the counsel appearing for the judgment debtor was also informed and they had entered their appearance. It would also be evident that they have also filed EA's again raising objections after objections. As it is in the process, the decree holder in spite of having a decree in his favour for more than twenty-two (22) years has not been able to reap the fruits from the decree and he started entertaining EA's.
17. All these technical grounds which the petitioner had now highlighted on earlier occasions have already been dealt with in the ten (10) years period that the EP was pending before the trial Court. It would in fact be an injustice to the decree holder even if he is not able to get the decree itself.
18. For all the aforesaid reasons, this Court does not find any good ground made out by the petitioner calling for an interference with the impugned orders.
PSK, J
::9:: C.R.P.No.906 of 2024&Batch
19. The three Civil Revision Petitions therefore being devoid of merits, deserves to be and are accordingly rejected. However, there shall be no order as to costs. As a sequel, miscellaneous petitions pending if any, shall stand closed.
__________________ P.SAM KOSHY, J Date: 22.03.2024 GSD