Senior Civil Judge vs Jinendra Kujmar Gandhi & Others ...
2022 Latest Caselaw 1566 AP

           THE HON'BLE SRI JUSTICE NINALA JAYASURYA

              CIVIL REVISION PETITION No.183 of 2022

ORDER:

The present Civil Revision Petition is filed under Article 227 of the

Constitution of India against the Order dated 06.01.2022 passed in

E.P.No.4 of 2018 in O.S.No.1198 of 2006 on the file of the II Additional

Senior Civil Judge, Vijayawada, Krishna District.

2. Heard the learned counsel for the petitioner and the learned

counsel for the respondent.

3. The petitioner herein is the judgment-debtor in O.S.No.1198 of

2006. Seeking execution of the Decree the respondent/decree holder filed

E.P.No.4 of 2018. Seeking appointment of an Advocate-Commissioner, the

petitioner/judgment-debtor filed E.A.No.140 of 2021. The Executing Court

after considering the contentions of both sides formulated the following

points for consideration:-

i) Whether the Proceedings in E.P could not be decided without recording

evidence of the parties or not?

ii) Whether the Judgment-debtor is liable to be evicted by ordering delivery

warrant under Order XXI, Rule 35 of CPC or not?

4. In so far as Point No.1 is concerned, the Executing Court referring

to the Judgment of the Hon'ble Supreme Court in Rahul S Shah vs.

Jinendra Kujmar Gandhi & Others (Civil Appeal Nos.1659-1660 of

2021 dated 22.02.2021), opined that the Proceedings in the Execution

Petition, could as well be decided, even without recording the evidence of

the Judgment-debtor. Accordingly, the application E.A.No.140 of 2021,

seeking appointment of Advocate-Commissioner with regard to

cross-examination of R.W.1/J.Dr was rejected. The said application was

NJS, J Crp_183_ 2022

filed for the purpose of proving the fact that there was a letter of

undertaking executed by the decree-holder to the effect that he agreed to

sell the property in question to the judgment-debtor for a consideration of

Rs.1,71,00,000/-.

5. With regard to Point No.2, the matter was considered with

reference to the earlier proceedings between the parties upto the

dismissal of Second Appeal filed by the petitioner/judgment-debtor, the

Award dated 16.03.2017 passed in terms of the compromise and also Writ

Petitions filed by the petitioner/judgment-debtor challenging the said

award vide W.P.No.876 of 2018, which was dismissed by an Order dated

05.01.2018. After dealing with the matter extensively, the learned

Executing Court answered the point in favour of the decree-holder inter

alia holding that the petitioner/judgment-debtor fell in arrears of rent of

more than Rs.27,00,000/- and suppressed the filing of Writ Petitions and

allowed E.P.No.4 of 2018 ordering to issue delivery warrant under Order

XXI, Rule 35 of CPC. Aggrieved by the present Civil Revision Petition

is filed.

6. The learned counsel for the petitioner, inter alia, contended that the

Execution Petition i.e., E.P.No.4 of 2018 as is filed is not maintainable,

since the same was filed in O.S.No.1198 of 2006, but not in the Lok-Adalat

Award dated 16.03.2017 in Lok-Adalat Case No.891 of 2017. It is his

submission that in view of the Award passed by the Legal Services

Authority, the Decree and Judgment of the Trial Court in the above suit

would not have any legal efficacy, therefore the E.P Proceedings for

executing the Decree are not maintainable and if at all, the

petitioner/judgment-debtor can be evicted only by filing Execution Petition

for enforcing the Award passed by the Legal Services Authority. The

NJS, J Crp_183_ 2022

learned counsel for the petitioner further contends that before the Court

below arguments were advanced in E.A.No.140 of 2021 only, but a

Common Order was passed in both E.A.No.140 of 2021 and E.P.No.4 of

2018 and therefore the Order under Revision is not tenable.

7. With regard to findings of the Court below, the learned counsel

submits that the same are erroneous and passed without proper

appreciation of the relevant aspects. He submits that in terms of the

Award, if the judgment-debtor had not vacated and delivered the suit

schedule premises within the time stipulated, the decree-holder has to

seek eviction and in the meanwhile enhanced rents as per the Lok-Adalat

Award have to be deposited. He submits that when the Execution Petition

was filed for eviction, the observation of the Court below regarding arrears

of rents is not warranted. He further submits that if the Execution

Proceedings are allowed to continue, it would result in irreparable

prejudice to the petitioner in as much as the petitioner would lose her only

source of income. In any event, the learned counsel submits that the

Orders under Revision are without jurisdiction and the same are

accordingly liable to be set aside.

8. On the other hand, the learned counsel for the respondent refuting

the submissions made on behalf of the petitioner supported the Order

under Revision. She submits that the Court below has taken all the

relevant aspects into consideration and passed a detailed Order,

containing cogent reasons. She submits that the petitioner/judgment-

debtor having dragged on the matter upto the stage of Second Appeal and

lost the same, instead of vacating the premises in terms of the

compromise has been further protracting the matter only with a view to

deprive the decree-holder from enjoying the fruits of the Decree. She

NJS, J Crp_183_ 2022

further submits that the petitioner/judgment-debtor subsequent to passing

of the Award made another attempt to drag on the proceedings by

challenging the Award before this Court and the attempts in this regard

were unsuccessful. The learned counsel submits that though the Decree

and Judgment were passed in favour of the respondent/decree-holder, as

long back as long on 18.01.2010, the respondent/decree-holder was not in

a position to take possession of the suit schedule property. She also

submits that the contention that the Court below has no jurisdiction is not

tenable and the present Revision Petition is lacking in bonafides and yet

another attempt to protract the litigation. Making the said submissions,

the learned counsel would urge for dismissal of the Revision Petition.

9. This Court has considered the submissions of the learned counsel

for the respective parties and perused the material on record. Before

dealing with the specific contentions, it may be appropriate to note that

challenging the Lok-Adalat Award that it was at variance with the terms of

compromise, the petitioner/judgment-debtor filed W.P.No.876 of 2018.

This Court while dismissing the said Writ Petition inter alia opined that

"according to the petitioner as per the terms of compromise, the landlord

had no alterative except either to put up with him or to sell the property to

him. This ground is not available for challenge to the Lok-Adalat Award".

10. It appears that against the said orders, no appeal was filed and the

same has become final. However, without disclosing the said crucial

aspect, the petitioner/judgment-debtor filed the application seeking

appointment of Advocate Commissioner. The learned Trial Court took

serious view of the matter and deprecated the conduct of the

petitioner/judgment-debtor observing that it amounts to playing fraud on

the Court. Even in the present petition, nothing is divulged about filing of

NJS, J Crp_183_ 2022

the Writ Petitions and dismissal of the same. Further, the findings of the

Executing Court in this regard have not been challenged. In such

circumstances, the petitioner is not entitled to any relief and the Civil

Revision Petition is liable to be dismissed for non-disclosure of material

facts. Further, the learned Executing Court passed a Common Order in

E.P.No.4 of 2018 and E.A.No.140 of 2021 in O.S.No.1198 of 2006. Against

the order of dismissal of E.A.No.140 of 2021, no separate Civil Revision

Petition has been filed. Thus, the order of dismissal has become final. The

present Civil Revision Petition is therefore liable to be dismissed on this

ground also.

11. Be that as it may. Though it is contended by the learned counsel for

the petitioner that in view of the subsequent compromise, it is the Award

which has to be executed, but not the Decree of the Civil Court, no

supporting precedents were cited. On the failure of the judgment-debtor

to vacate the premises within the stipulated time i.e., 14.01.2018 as per

the terms of the compromise, the Decree became executable and initiation

of Proceedings for executing the same are therefore tenable. In so far as

contentions with reference to E.A.No.140 of 2021 are concerned, as noted

earlier, the Order in E.A.No.140 of 2021 was not challenged separately.

Even otherwise, the Executing Court gave cogent reasons after affording

opportunity to the petitioner. In the Judgment relied on by the Executing

Court i.e., Rahul S Shah's case referred to supra, the Hon'ble Supreme

Court while issuing certain directions to be followed in Execution

Proceedings inter alia held at Para 42.9 that "The Court should allow

taking of evidence during the execution proceedings only in exceptional

and rare cases where the question of fact could not be decided by

resorting to any other expeditious method like appointment of

NJS, J Crp_183_ 2022

Commissioner or calling for electronic materials including photographs or

video with affidavits". In the present case, the Executing Court after

examining the matter in the light of the expression of the Hon'ble

Supreme Court was not inclined to accept the prayer for appointment of

the Advocate Commissioner. This Court see no reason to take a different

view. In the light of the aforesaid conclusions, this Court is not inclined to

accept the contentions raised on behalf of the petitioner and the same are

rejected.

12. Viewed from any angle, there are no merits warranting interference

by this Court in exercise of its powers under Article 227 of the Constitution

of India, as the Order under Revision is well considered, judicious and the

same does not suffer from any material irregularity nor the Executing

Court exceeded its jurisdiction.

13. For the foregoing reasons, the Civil Revision Petition is dismissed.

No order as to costs.

As a sequel, miscellaneous applications, if any, pending shall stand

disposed of.

__________________ NINALA JAYASURYA, J Date: 30.03.2022

IS

NJS, J Crp_183_ 2022

THE HON'BLE SRI JUSTICE NINALA JAYASURYA

Civil Revision Petition No.183 of 2022 Date: 30.03.2022

IS