Gopal Ji Agrawal vs Anurag Kumar Dixit And 44 Others
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Allahabad High Court

Gopal Ji Agrawal vs Anurag Kumar Dixit And 44 Others on 31 May, 2024

Author: Neeraj Tiwari

Bench: Neeraj Tiwari

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


A.F.R.
 
Neutral Citation No. - 2024:AHC:101061
 
Reserved on 27.05.2024
 
	Delivered on 31.05.2024
 

 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 6031 of 2024
 

 
Petitioner :- Gopal Ji Agrawal
 
Respondent :- Anurag Kumar Dixit And 44 Others
 
Counsel for Petitioner :- Kamlesh Kumar Tiwari
 
Counsel for Respondent :- Manoj Singh Rathaur,Udayan Nandan
 

 
Hon'ble Neeraj Tiwari,J.
 

1. Heard Sri Kamlesh Kumar Tiwari, learned counsel for petitioner and Sri Sashi Nandan, learned Senior Counsel assisted by Sri Udayan Nandan along with Sri Chandan Sharma, learned counsel for respondents.

2. Present petition has been filed with following relief;

" It is therefore most respectfully prayed that this Hon'ble Court may be pleased to set aside entire proceeding of Civil Revision No. 4/2024 (Anurag Kumar Dixit Vs. Sitaram and others) pending in the court of District Judge, Azamgarh and also further be pleased to set aside the impugned order dated 25.1.2024 passed by In-charge District Judge, Azamgarh in Civil Revision No. 4/2024 Anurag Kumar Dixit Vs. Sitaram and others)."

3. Brief facts of the case are that SCC Suit No. 8 of 1981 was filed by landlord/petitioner on 8.12.1981 and after hearing the parties, the same was dismissed on 27.11.1991 not accepting the tenant landlord relationship. Against the said order, SCC Revision No. 1 of 1992 was filed by the landlord/ petitioner, which was also dismissed vide order dated 20.07.1992. Civil Misc. Writ Petition No. 42284 of 1992 was filed before this Court challenging both the orders, which was allowed vide order dated 18.09.2008. Thereafter, Civil Misc. Review Application No. 250566 of 2008 was filed by the tenant, which was dismissed on 23.03.2010. S.L.P. No. 16223-16224/2010 was also filed before Hon'ble Apex Court by the tenant against the orders dated 18.09.2008 and 23.03.2010, which was dismissed on 7.2.2017. Issue attained finality.

4. As matter was remanded, SCC Court has again heard the case and SCC Suit No. 8 of 1981 also decreed on 22.03.2010. Thereafter, execution case no. 3 of 2010 was also filed by the landlord/ petitioner on 13.10.2010. Tenant filed SCC Revision No. 98 of 2010 challenging the order/ decree dated 22.3.2010. After hearing both the parties SCC Revision No. 98 of 2010 was dismissed vide order dated 23.01.2016. The aforesaid two orders were assailed by filing Misc. Petition U/A 227 No. 2639 of 2016 before this Court, which was dismissed vide order dated 18.10.2019. Matter attained finality as no SLP was filed.

5. Thereafter, defendant/tenant has also filed application to adjourn the case for filing objection under Section 47 CPC. After hearing the application filed by the tenant, executing court dismissed the objection on 5.5.2022. The order dated 5.5.2022 was assailed by the tenant/ defendant by filing SCC Revision No. 55 of 2022, which was also dismissed on 3.8.2022. The orders dated 5.5.2022 & 3.8.2022 were assailed by the tenant/defendant by filing Misc. Petition No. 6945 of 2022 on 17.8.2022. On 2.11.2022, Misc. Petition No. 2639 of 2016 and Misc. Petition No. 6945 of 2022 were clubbed together and dismissed after hearing the parties.

6. Thereafter, one another application was filed by tenant/ defendant under Order 13 Rule 10(1) CPC for summoning the record of Original Suit No. 35 of 1958 in which landlord/ decree holder has filed objection. On 18.01.2024, executing court after hearing the objection filed by decree holder bearing 251 Ga2, dismissed the application. Thereafter, tenant/ defendant challenged the order dated 18.01.2024 by filing revision before District Judge, Azamgarh and vide order dated 25.01.2024, order passed by executing court dated 18.01.2024 was stayed.

7. Learned counsel for the petitioner submitted that application No. 251 Ga2 has been filed under Order 13 Rule 10(1) CPC only to delay the execution proceeding, which was rightly rejected by execution court vide order dated 18.01.2024 observing the same.

8. He next submitted that against that Civil Revision No. 4 of 2024 was filed by the tenant/ defendant entirely on different facts, which are not the part of earlier application filed under Order 13 Rule 10(1) CPC in which revisional court has incorrectly stayed the order dated 18.01.2024 in execution proceeding. He firmly submitted that first of all, record so summoned through application under Order 13 Rule 10(1) CPC is not relevant for present controversy as the execution court may not travel beyond the judgment and decree passed by SCC Court. Secondly, revision may not be filed on a new fact about the pendency of application filed under Section 47 CPC, which is not the part of application filed under Order 13 Rule 10(1) CPC. In fact, in this application, there is no whisper about the pendency of application under Section 47 CPC. Therefore, on both the counts, revision absolutely lacks merit and liable to be dismissed, but contrary to this, it was entertained and order of stay has also been passed in teeth of settled provisions of law. Therefore, present petition may be allowed and impugned order dated 25.01.2024 may be quashed. In support of his contention, he has placed reliance upon the judgment of Apex Court as well as different judgments of other Court in the matters of Pradeep Mehra Vs. Harijivan J. Jethwa (since deceased THR. LRS.) & Others (Civil Appeal No. 6375 of 2023 ) decided on 30.10.2023, Shri Jagdamba Prasad (Dead) Thr. Lrs. & others Vs. Kripa Shankar (Dead) Thr. Lrs. & others; 2014(5) SCC 707, Jagbir Singh Vs. VIth Additional District and Sessions Judge Bijnor and others; 1997(30) ALR 358, Haryana Vidyut, Parsaran Nigam Limited & another Vs. Gulshan Lal & others; 2009 (13) SCC 354, Mr. Love Jain Vs. Sh. Manak Chand Jain; 2010(173) DLT 534 & Satya Narain & others Vs. District Judge, Churu & others; 2009 (1) W.L.N. 520`.

9. Learned Senior Counsel could not dispute the fact that pendency of Section 47 CPC has not been raised in application under Order 13 Rule 10(1) CPC and first time raised in revision, but only submitted that once application under Section 47 CPC is pending, execution proceeding may not be completed, therefore, revisional court has rightly stayed the process (parwana).

10. I have considered the rival submissions advance by learned counsel for the parties and perused the record as well as judgments relied upon.

11. From the perusal, it is apparently clear that two rounds of litigation had taken place. First round was about the tenant- landlord relationship, matter went up to the Apex Court and decided in favour of petitioner-landlord. Likewise in second round was for disposal of suit on merits, the matter was again decided in favour of petitioner-landlord, which attained finality at the stage of High Court as order of High Court has never been challenged before the Apex Court.

12. Now coming to the issue present before this Court. Undisputedly, in application under Order 13 Rule 10(1) CPC, defendant/ tenant are praying for summoning the record of Original Suit No. 35 of 1958 (Fern Rekhchand and others Vs. Sitaram and others), which is not relevant as the present execution proceeding was initiated to execute the judgment and decree dated 23.03.2010 in SCC Suit No. 8 of 1981. In fact, record of Original Suit No. 35 of 1958 cannot be taken into consideration for the very simple reason that executing court cannot travel beyond the judgment and decree for which execution proceeding has already been initiated. Therefore, this Court is of the firm view that filing of application under Order 13 Rule 10(1) CPC is nothing, but an attempt to adopt delay tactics.

13. The very similar issue was before the Apex Court in the matter of Pradeep Mehra (supra). Relevant paragraph is quoted below;

"A bare perusal of the aforesaid provision shows that all questions between the parties can be decided by the executing court. But the important aspect to remember is that these questions are limited to the "execution of the decree". The executing court can never go behind the decree. Under Section 47, CPC the executing court cannot examine the validity of the order of the court which had allowed the execution of the decree in 2013, unless the court's order is itself without jurisdiction. More importantly this order (the order dated 12.02.2013), was never challenged by the tenants/ judgment debtors before any forum."

14. This matter was also before this Court in the matter of Jagbir Singh (supra). Relevant paragraphs are being quoted below;

"10. Executing court can not go behind the decree is a well settled principle of law. The executing court is not invested with the right to determine controversial questions which are the basis of the decree to be executed. It can not go into such questions and act as a trial court.

11. The power of the executing court travels only to the extent of interpreting the decree or to identify the propriety. Even for the purpose of identifying the property or interpreting the decree it can not take additional evidence. It was so held in the case of Lalmani v. Shiv Shanker, AIR 1980 Patna 134 and Sheshwar Bhartia v. Udiasthree, (1994) Civil Law Journal 297 (Ori.) when a new right is claimed, which requires adjudication of a right in the property and thus indirectly seeking to avoid the decree passed, is in effect an adjudication leading to go behind the decree. In the case of Sarwan Lal v. Kami Prasad, AIR 1986 Allahabad 1, it was held that the objection to executability of decree which boils down to challenging the maintainability of suit can not be taken before the executing court. A mixed question of law and fact can not be raised for the first time in execution case Bhawarao v. Saritribai, AIR 1991 Bombay 55 at page 59 Objection tending to show that the decree is erroneous can not be raised under Section 47 CPC. In Manful Hussain v. Kiran Rano, (1993) 2 Civil Law Journal 456 (M.P.) in V.D. Modi v. R. Rahman, AIR 1970 Supreme Court 1475 the Apex Court held that the general rule is that an executing court can not go behind the decree. It must take the decree as it is and must proceed to execute it. It can not entertain an objection that the decree is incorrect in law or facts. In Addison Pains v. Sant Bux, AIR 1976 Delhi 137, it was held that Section 47 does not entitle the court to investigate into the question of validity of the decree when on the face of it there is nothing illegal in it."

15. Apex Court has also considered the same matter in the Haryana Vidyut, Parsaran Nigam Limited (supra). Relevant paragraphs are being quoted below;

"20. As indicated hereinbefore, for the purpose of allowing an objection filed on behalf of a judgment debtor under Section 47 of the Code of Civil Procedure, it was incumbent on him to show that the decree was ex facie nullity. For the said purpose, the court is precluded from making an indepth scrutiny as regards the entitlement of the plaintiff with reference to not only his claim made in the plaint but also the defence set up by the judgment- debtor. As the judgment of the Trial Court could not have been reopened, the correctness thereof could not have been put to question.

It is also well known that an Executing Court cannot go behind the decree. If on a fair interpretation of the judgment, Order and decree passed by a court having appropriate jurisdiction in that behalf, the relief sought for by the plaintiff appear to have been granted, there is no reason as to why the Executing Court shall deprive him from obtaining the fruits of the decree.

In Deepa Bhargava v. Mahesh Bhargava, 2009(1) RCR (Civil) 507: 2009(1) RAJ 202 : [2008(16) SCALE 305], this Court held as under:

"11.... An executing court, it is well known, cannot go behind the decree. It has no jurisdiction to modify a decree. It must execute the decree as it is. A default clause contained in a compromise decree even otherwise would not be considered to be penal in nature so as to attract the provisions of Section 74 of the Indian Contract Act."

22. We are not oblivious of the fact that the respondents legally would not have been entitled to the reliefs prayed for by them. However, as a decree has been passed, we do not intend to go behind the same. The Executing Court shall, it goes without saying, execute the decree strictly in terms thereof."

16. From perusal of judgments referred hereinabove, it is apparently clear that executing court cannot sit in appeal over the judgment and decree, which is to be executed and cannot examine the validity of judgment and decree. Execution Court has no jurisdiction to travel beyond the judgment and decree, but to execute the same. Therefore, Execution Court has rightly rejected the application under Order 13 Rule 10(1) CPC.

17. Now coming to the scope of revision, this Court is of the view that in a question of fact, which has not been raised in original application cannot be raised while filing revision.

18. The similar issue was before the Apex Court in the matter of

Shri Jagdamba Prasad (Dead) (supra). Relevant paragraph is being quoted below;

"According to the legal principle laid down by this Court in the case mentioned above, the power of the Revisional Authority under Section 48 of the Act only extends to ascertaining whether the subordinate courts have exceeded their jurisdiction in coming to the conclusion. Therefore, if the Original and Appellate Authorities are within their jurisdiction, the Revisional Authority cannot exceed its jurisdiction to come to a contrary conclusion by admitting new facts either in the form of documents or otherwise, to come to the conclusion. Therefore, we answer point no. 1 in favour of the appellants by holding that the Revisional Authority exceeded its jurisdiction under Section 48 of the Act by admitting documents at revision stage and altering the decision of the subordinate courts."

19. In present case, undisputedly, in application under Order 13 Rule 10(1) CPC, there is no whisper about the pendency of objection under Section 47 CPC rather the same was filed to summon the record of Original Suit No. 35 of 1958 except that nothing has been stated therein, therefore, pendency of application under Section 47 CPC cannot be a ground to be entertained by the revisional court. The revision must be confined to the facts mentioned in the original application. Passing the interim order considering any new fact beyond the original application under Order 13 Rule 10(1) CPC is bad in law. Therefore, revisional court has erred while entertaining the revision and staying the order dated 18.01.2024. Apex Court has also taken the same view that revision cannot be entertained beyond the facts, which is not the part of original application.

20. In fact after two rounds of litigation, which are attained finality at the level of Apex Court as well as High Court, filing of such application before the Execution Court is nothing but misuse of process of law. Similar issue was before the Delhi High Court in the matter of Mr. Love Jain (supra) and Delhi High Court has taken the same view. Relevant paragraphs are being quoted below;

"24. In the present case, petitioners having lost up to Supreme Court, now in the second round of litigation have filed frivolous objections just to deny the fruits of award which was made in favour of the respondent.

25. Present petition under Article 227 of the Constitution of India is nothing but gross abuse of process of law. A strong message is required to be sent to those litigants who are in the habit of filing bogus and frivolous objections in the execution proceedings and thereby deprive the decree holder fruits of the award passed in its favour."

21. Rajasthan High Court in the matter of Satya Narain (supra) has also considered the similar dispute that continuance of such proceeding entertaining the frivolous application amount to abuse of process of law. Relevant paragraphsd are being quoted below;

"17. Here in this case, when the facts are not in dispute and the facts show that judicial pronouncements by the courts either attained the finality or the applicant could not get the relief in his own suit and appeal and further appeal, then he submitted this application under Section 151 CPC before the court which cannot entertain the application for the relief prayed and there is no plea even for namesake how the application of the respondent is maintainable, then this Court is not inclined to reject the writ petition of the petitioners to perpetuate the harm which may be caused by the continuation of the proceedings in the court below initiated on the application filed by the respondent. At this juncture, this fact cannot be ignored that the judgment debtor in the civil original suit no.17/2004 is not a stranger but alleged to be closely associated with the present respondent Bajrang Lal and it is alleged that both Bhagwati Prasad and Bajrang Lal were members of the management committee governing the school in question.

18. Satya Narain & Ors. vs. District Judge, Churu & Ors. The further reason for entertaining this petition is that the respondent's suit itself has been dismissed by the trial court under Order 7 Rule 11 CPC and that dismissal has been upheld by this Court vide detail judgment dated 3.7.2006 and the Hon'ble Apex Court rejected the respondent's prayer for grant of interim relief. The respondent, therefore, is virtually trying to undo what has been done by the orders of the Court in his own suit by the trial court by judgment and decree dated 13.1.2006 and by this Court by judgment dated 3.7.2006 and furthermore, when injunction application has been dismissed by the Hon'ble Apex Court. How the respondent, who is pursuing his suit, can during pendency of that suit, seek a relief under Section 151 CPC which will necessarily involve determination of his right, title or interest in the property in question. It is case of rarest of rate nature because of the reason that the plaintiffs who were successful in the litigation initiated in the year 1994 after consuming ten years in the trial court and thereafter successful in the High Court wherein this Court dismissed the appeal of the judgment debtor and the respondent lost in his SB Civil Writ Petition No.1052/2008 Satya Narain & Ors. vs. District Judge, Churu & Ors. suit and regular appeal and the Hon'ble Apex Court specifically refused the interim relief, the High Court may under Article 227 of the Constitution of India exercise jurisdiction in pending proceedings in civil court in rarest of rate case and it is one of such case where the continuation of the proceedings in the trial court will amount to abuse of process of the court."

22. Therefore, under such facts and circumstances of the case, the impugned order dated 25.1.2024 passed by Revisional Court/ In-charge District Judge, Azamgarh is hereby quashed and petition is allowed. Execution Court is directed to proceed in accordance with law and complete the execution proceeding at the earliest considering this fact that SCC Suit for eviction was filed in 1981.

23. No order as to costs.

Dated.31.05.2024

Arvind.