Kokila Manohar Bhavsar And Anr. vs Sulochana Vasant Bhavsar
2004 Latest Caselaw 595 Bom

JUDGMENT

V.C. Daga, J.

1. Rule returnable forthwith:

Heard by consent of parties.

Perused petition,affidavits and counter affidavits with written submissions circulated by the rival parties.

2. This petition is filed by the judgment debtors in Suit No. 156 of 1995 who have basically challenged three judgments and orders, out of which two are passed by the Third Additional District Judge, Nasik; one dated 18th November, 2003 in Civil Appeal No. 197 of 2003 and, another dated 22nd August, 2003 in Civil Appeal No. 208 of 2003, and, third dated 19th December, 2003 by the Fourth Additional District Judge, Nasik in Civil Appeal No. 338 of 2003.

3. Out of the above three orders, an order dated 22nd August, 2003 has been passed by the Third Additional District Judge, Nasik in Civil Appeal No. 208 of 2003 arising out of order dated 30th July, 2003 passed below Exh. 128 in Regular Darkhast No. 141 of 2000 whereby the said application (Exh. 128) the judgment debtors had prayed for stay of the execution proceedings until the decision of the application marked as Exh. 127. The challenge to the said order has now become infructuous in view of the fact that application at Exh. 127 has been decided by the Executing Court vide its order dated 12th December, 2003. An appeal against this order has also been rejected by order dated 19th December, 2003 passed in Civil Appeal No. 338 of 2003. In this view of the matter, judicial scrutiny of only two orders, viz., order dated 18th November, 2003 passed by the third Additional District Judge, Nasik in Civil Appeal No. 197 of 2003 and order dated 19th December, 2003 passed by the Fourth Additional District Judge, Nasik in Civil Appeal No. 338 of 2003 needs to be made.

Consideration :

With respect to the order dated 18th November, 2003 passed by the Third Additional District Judge, Nasik in Civil Appeal No. 197 of 2003 :

4. The aforesaid appeal being Civil Appeal No. 197 of 2003 arose out of the order dated 24th June, 2003 passed by the executing Court in Regular Darkhast No. 100 of 2002, whereby the application purported to be under Order 21, Rule 97 of Code of Civil Procedure, 1908 seeking adjustments of certain payments, alleged to have been made during the pendency of the suit and/or execution proceedings, were claimed. While considering the said claim set up by the judgment debtors, executing Court permitted adjustment of the payment made to the extent of Rs, 30,500/-, whereas adjustment of other amounts alleged to have been paid to CIDCO in the sum of Rs. 1,09,940/- or that rights to claim payments of Rs. 1,21,413/- were rejected by the executing Court.

5. The lower appellate Court, in appeal, found that such adjustments could not have been claimed in the executing proceedings, whereby decree for mesne profits was sought to be executed because none of the payments were made after the decree was passed. The lower appellate Court, while disposing of the appeal against the decree for possession, also found that the appellate Court in Civil Appeal No. 226 of 2001 had dealt with the said claim of the judgment debtors, whereby they were claiming adjustments, and the said claim for refund or adjustment of the sum of Rs. 1,21,413/-, being the amount paid to CIDCO, was held to be not maintainable. At the same time, it was also held that the claim of the judgment debtors in the appeal, under Order 21, Rule 97 of Civil Procedure Code set out in application marked as Exh. 45 in Regular Darkhast No. 100 of 2002, was also not maintainable. This order is a subject matter of challenge in the present petition along with other orders as enumerated hereinabove.

6. Having gone through the said impugned order, no fault can be found with the view taken by the lower appellate Court. The lower appellate Court has rightly held that the application (Exh. 45) purported to be filed under Order 21, Rule 97 of Civil Procedure Code was not tenable. As a matter of fact, the said provision could not have been invoked by the judgment debtors for the reasons stated in the impugned order. The lower appellate Court, while holding that the application purported to be moved under Order 21, Rule 97 of Civil Procedure Code was not maintainable, went on to dismiss the appeal noticing the conclusive findings recorded by the lower appellate Court in the earlier round of litigation in the judgment and order dated 3rd August, 2002 delivered in Civil Appeal No. 226 of 2001. Thus, no case is made out to interfere with the said order.

With respect to the order dated 19th December, 2003 passed by the Fourth Additional District Judge, Nasik in Civil Appeal No. 338 of 2003 :

7. This appeal arose out of the common order dated 12th December, 2003 passed by the executing Court while disposing of three applications marked as Exh. 127, Exh. 135 and Exh. 137 respectively. Out of the said application, Exh. 135 was the application, whereby stay to the execution proceedings was sought by the judgment debtors. The said application came to be rejected by the executing Court for the reasons recorded it its order. No appeal lies against such order as such no appeal could have been filed against this order.

8. So far as application at Exh. 127 is concerned, it was styled under Order 21, Rule 97 of Civil Procedure Code by the judgment debtors. Similarly, application at Exh. 137 was also styled as application under Order 21, Rule 97 read with Order 34 and Section 151 of Civil Procedure Code. These applications came to be rejected as untenable under Order 21, Rule 97 of Civil Procedure Code for the reasons recorded in the impugned judgment and order.

9. At this juncture, it will not be out of place to mention that both applications, which have given rise to the appeals i.e. Civil Appeal No. 197 of 2003 and Civil Appeal No. 338 of 2003, were styled as applications under Order 21, Rule 97 of Civil Procedure Code. Said provisions was not at all applicable to claim adjustment of the alleged payments alleged to have been made during the pendency of the suit and/or executing proceedings. So far as payment made during the course of execution proceedings are concerned, they were allowed to be adjusted under order dated 24th June, 2003. Therefore, to that extent the grievance of the said judgment debtors as on date does not survive. So far as the finding regarding other payments, which were held as not tenable, also cannot be faulted in view of the settled law laid down by the Apex Court in the case of Shreenath vs. Rajesh, 1998 (3) Mh.L.J. (SC) 1. Even otherwise, bear reading of the provision would show that the said provision could not have been invoked by the judgment debtors. In this view of the matter, no fault can be found with any of the orders sought to be challenged in this petition.

10. At this stage, it will not be out of place to mention that after hearing of the petition was over, Mr. Kulkarni, learned counsel appearing for the petitioners circulated judgment and order dated 21st April, 2004 passed by the Fourth Additional District Judge, Nasik in Civil Appeal No. 108 of 2004 granting certain reliefs or adjustment of the deposits made in the sum of Rs. 40,600/-. This judgment was merely circulated along with the praecipe. No amendment to the petition was made. No pleadings were amended. No affidavit in that behalf was filed. No facts are to be found on record as to how that appeal arose. Since that order passed in the said appeal being in favour of the petitioners/judgment debtors, it cannot have any bearing on the legality of the impugned orders. Therefore, it is not necessary for this Court to consider the merits or demerits of the said order while deciding this petition.

Parties are left to work out their rights in accordance with law so far as this order is concerned.

11. The petition is, thus, devoid of any substance. In the result, same is dismissed. Rule stands discharged with no order as to costs.