Bombay High Court
Avinash Uttam Kadam vs Smt. Hajira Begum Nisar Ahmad And ... on 9 December, 2015
Bench: R.D. Dhanuka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL (ST.) NO.30922 OF 2015
along with
CIVIL APPLICATION NO.1789 OF 2015
in
SECOND APPEAL (ST.) NO.30922 OF 2015
Avinash Uttam Kadam )
Age - 30 years, Occupation : Business )
Residing at : A-1, Ashwini, )
Aakashganga Housing Complex, )
nd
2 Rabodi, Thane (W) - 400 601. ) .. Appellant
Vs.
1. Smt.Hajira Begum Nisar Ahmad )
Age 67-years, Occupation-Household )
2. Nisar Ahmad Mukhtar Ahmad )
Age -70 years, Occupation : Business )
Both residing at Tukaram Park, )
C.H.S. Ltd., Opp.Aakashganga C.H.S.)
2nd Rabodi, Thane (W) - 400 601. )
3. Mohamad Ismail Jalal Khan )
Age - 57 years, Occupation : Business)
residing at Asanpur, Tal.GumariaGanj )
District Siddharth Nagar, )
State of Uttar Pradesh. )
4. Taslim Construction through its )
Proprietor, Abdul Matwan Khan )
Age - 67 years, Occupation :Business )
having office at Shri Sagar Apartment )
Near St.John High School, )
Old Mumbai - Pune Road, )
Thane (W) - 400 601. ) .. Respondents
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ALONG WITH
SECOND APPEAL (ST.) NO.31310 OF 2015
along with
CIVIL APPLICATION NO.1883 OF 2015
in
SECOND APPEAL (ST.) NO.31310 OF 2015
1. Jayshree Suresh Pai )
Age 52 years, Occupation : Business )
2. Suresh Gopal Pai )
Age 57 years, Occupation : Business )
Both residing at 01, Ground Floor, )
Tukaram Park, A Wing, Opposite )
Akashganga Housing Complex, ig )
2nd Rabodi, Thane West. ) .. Appellants
Vs.
1. Smt.Hajira Begum Nisar Ahmad )
Age 67-years, Occupation-Household )
2. Nisar Ahmad Mukhtar Ahmad )
Age -70 years, Occupation : Business )
Both residing at Tukaram Park, )
C.H.S. Ltd., Opp.Aakashganga C.H.S.)
2nd Rabodi, Thane (W) - 400 601. )
3. Mohamad Ismail Jalal Khan )
Age - 57 years, Occupation : Business)
residing at Asanpur, Tal.GumariaGanj )
District Siddharth Nagar, )
State of Uttar Pradesh. )
4. Taslim Construction through its )
Proprietor, Abdul Matwan Khan )
Age - 67 years, Occupation :Business )
having office at Shri Sagar Apartment )
Near St.John High School, )
Old Mumbai - Pune Road, )
Thane (W) - 400 601. ) .. Respondents
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ALONG WITH
SECOND APPEAL (ST.) NO.31398 OF 2015
along with
CIVIL APPLICATION (ST.) NO.31400 OF 2015
in
SECOND APPEAL (ST.) NO.31398 OF 2015
Uttam Murari Kadam (since deceased)
through his legal heirs )
1. Smt. Urmila Uttam Kadam )
Age -55 years, Occupation : Business )
2. Shri Avinash Uttam Kadam )
Age 30 years, Occupation : Business )
3. Shri Mandar Uttam Kadam
ig )
Age -28 years, Occupation : Business )
4. Bharati Uttam Kadam )
Age -26 years, Occupation : Business )
All residing at A-1, Ashwini, )
Aakashganga Housing Complex, )
2nd Rabodi, Thane (W) - 400 601. ) .. Appellants
Vs.
1. Smt.Hajira Begum Nisar Ahmad )
Age 67-years, Occupation-Household )
2. Nisar Ahmad Mukhtar Ahmad )
Age -70 years, Occupation : Business )
Both residing at Tukaram Park, )
C.H.S. Ltd., Opp.Aakashganga C.H.S.)
2nd Rabodi, Thane (W) - 400 601. )
3. Mohamad Ismail Jalal Khan )
Age - 57 years, Occupation : Business)
residing at Asanpur, Tal.GumariaGanj )
District Siddharth Nagar, )
State of Uttar Pradesh. )
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4. Taslim Construction through its )
Proprietor, Abdul Matwan Khan )
Age - 67 years, Occupation :Business )
having office at Shri Sagar Apartment )
Near St.John High School, )
Old Mumbai - Pune Road, )
Thane (W) - 400 601. ) .. Respondents
---
Mr.M.S. Karnik i/by Mr.Harshad Inamdar for the appellants.
Ms.Neeta Karnik for the respondents.
---
CORAM : R.D. DHANUKA, J.
DATE : 9th December 2015
Oral Judgment:-
. By these three second appeals, all the appellants
(obstructionists) have impugned the order dated 26 th August 2015 passed
by the learned District Judge-11, Thane dismissing the appeals filed by
them.
2. Since the facts in all the three second appeals are identical,
all the three appeals were heard together and are being disposed of at the
admission stage by a common order.
3. It was the case of the respondent nos.1 to 3 herein (decree
holders) in these three appeals that they had purchased the suit property
for valuable consideration from the Judgment Debtor. On 2 nd May
1995, the respondent nos.1 to 3 (decree holders) filed a regular civil suit
against the respondent no.4 (Judgment Debtor) inter alia praying for
permanent injunction. In the said suit, the order of status-quo was passed
by the trial Court in favour of the decree holders. Inspite of the status-
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quo order, the Judgment Debtor illegally demolished the suit structures of
the decree holders. On 10th October 1995, the Judgment Debtors filed a
Civil Suit (1064 of 1995) in Thane Court seeking injunction against the
Judgment Debtor. In the said proceedings, the parties filed pursis before
the Civil Judge, Senior Division, Thane. Learned Civil Judge, Senior
Division, Thane passed a compromise decree on 29 th October 1996.
Under the said consent decree, the decree holders had agreed to hand
over possession of their plots to the Judgment Debtors. It was agreed
that the Judgment Debtors shall provide free of cost on ownership basis
an area of 1850 sq.ft. in the proposed building to the decree holders.
Pursuant to the said consent decree, all the pending litigations between
the parties including the High Court proceedings were withdrawn as per
the terms of the said consent decree.
4. On 15th February 1999, the decree holders filed Regular
Darkhast No.16 of 1999 against the Judgment Debtor for execution of
the said compromise decree. The Executing Court appointed a Court
Commissioner who submitted his report before the Executing Court
along with the map in which an area of 1850 sq.ft. was earmarked.
5. By an order dated 15th March 2002, the Executing Court
directed the Judgment Debtor to hand over the possession of the suit
property to the decree holders within 3 months from the date of the said
compromise decree. It is not in dispute that the said consent decree
entered into between the decree holders and the Judgment Debtor came
to be registered.
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6. The Judgment Debtor thereafter filed a suit inter alia praying
for setting aside the said consent decree on various grounds. The said
suit was resisted by the decree holders. In the meanwhile, the Executing
Court passed an order of injunction against the Judgment Debtor on
12th July 2002 restraining the Judgment Debtor from creating any third
party interest in respect of the suit properties till the disposal of the
Regular Darkhast No.16 of 1999.
7. This Court in Appeal from Order No. 244 of 2004 and
writ petition filed by the Judgment Debtor directed the trial Court to
appoint the Court Receiver in respect of the property demarcated by
the Court Receiver and liberty was granted to the decree holders to make
an application before the Executing Court. As per the said report
submitted by the Court Receiver on 7th August 2004, except in one matter,
in the other matters, possession of the obstructionists was not even
found in the suit property. The Court Receiver was directed to take
symbolic possession of the suit property.
8. On 27th June 2006, the Judgment Debtor filed a suit seeking
a declaration that the compromise decree passed in R.C.S. No.1064 of
1999 was null and void. In the writ petition filed in this Court arising out
of the interlocutory order passed in the said proceedings, this Court
rejected the said writ petition filed by the Judgment Debtor.
9. On 3rd August 2006, the Judgment Debtor filed an
application for issuing possession warrant as per the order dated 15 th
March 2002. The obstructionists refused to hand over the possession of
the suit property.
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10. The obstructionists thereafter filed an application before the
Executing Court for appropriate reliefs and obstructed the execution of
the decree obtained by the decree holders. In the said application filed
by the obstructionists, the decree holders filed their detailed reply and
once again prayed for possession of the suit property. Evidence was led
by both the parties in the said proceedings. The Executing Court finally
directed the obstructionists to hand over peaceful possession of the suit
property to the decree holders in appeal arising out of those orders
passed by the Executing Court in favour of the decree holders and
dismissed the appeals in each of the matters. These three second appeals
are arising out of the order dated dated 26 th August 2015 passed by the
learned District Judge, Thane thereby refusing to entertain the appeals
filed by the obstructionists.
11. Mr.Karnik, learned counsel appearing for the obstructionists
in all the three matters invited my attention to the findings rendered
by the two Courts below and made two submissions for consideration
of this Court. It is submitted by the learned counsel that one Mr.Nissar
Ahmed who was not a party to the suit who was examined as a witness
by the decree-holder, did not produce the original power of attorney
before the Executing Court and thus his evidence could not have been
considered by the Executing Court.
12. The next submission of the learned counsel for the
obstructionists is that when the obstructionists obstructed the decree
passed by the trial Court, the decree holders were required to file an
application under Order XXI Rule 97 of the Code of Civil Procedure,
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1908 complaining such resistance and obstruction raised by the
obstructionists. Learned counsel also placed reliance on Article 129 of
the Schedule to the Limitation Act, 1963 and would submit that since
the application for possession was to be made by the decree holders
within 30 days from the date of such resistance or obstruction and since
the application was not made within 30 days in view of Section 5 of
the Limitation Act, 1963, the Executing Court having no power to
condone the delay in filing the application under Order XXI Rule 97
which proceedings which were to be tried as a suit, the Executing Court
could not have passed any order for possession of the suit property in
favour of the decree holders.
13. Mrs.Neeta Karnik, learned counsel for the decree holders on
the other hand, invited my attention to the findings rendered by the
Executing Court and also by the lower Appellate Court. She submits that
the consent decree between the decree holders and the Judgment Debtor
was duly registered prior to the obstructionists claiming the alleged rights
through the Judgment Debtor. She submits that when the Court Receiver
submitted his report in the execution proceedings filed by the decree
holders, except the Judgment Debtor, none of the obstructionists were
found in possession of the suit property except in one matter.
14. My attention is also invited to the order passed by this Court
in Writ Petition No.1153 of 2010 which was filed by the obstructionists
in this Court. She submits that each of the obstructionists had rendered an
undertaking to this Court not to dispose of, alienate, encumber, part with
possession of or create any third party right, title and/or interest into,
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upon or in respect of the suit premises. Those undertakings were
accepted by this Court. It was ordered that the obstructionists shall not
even induct any party other than their immediate family members in the
suit premises even though they had no right whatsoever in the suit
premises. This Court also recorded the undertakings of the obstructionists
that they would hand over the possession of the premises in the event
of they being directed to do so in the appeal, without requiring the decree
holders to execute the decree. This Court accepted those undertakings
and it was ordered accordingly.
15.
Learned counsel for the decree holders also invited my
attention to the photographs annexed to the reply of the civil application
and would submit that inspite of such undertakings rendered by the
obstructionists to this Court, they have created third party rights and/or
handed over possession of Shop Nos.1 and 2. My attention is also
invited to the invitation card issued by such third parties and photographs
showing the possession of the third parties in respect of Shop Nos.1 and
2. She submits that suo-moto contempt notice be issued against the
obstructionists in Second Appeal Stamp Nos.30922 of 2015 and 31398
of 2015.
16. In so far as the submission of the learned counsel for the
obstructionists that the Executing Court could not have passed any order
of possession in view of the decree holders not having filed an application
under Order XXI Rule 97 of the Code of Civil Procedure, 1908 and issue
of limitation raised by the learned counsel is concerned, it is submitted
by the learned counsel for the decree holders that both the Courts below
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have rightly rejected the contention raised by the obstructionists. She
submits that before the obstructionists had obstructed the decree, the
decree holders had already filed an application for possession and on
such application, the Executing Court had already passed an order of
possession in favour of the decree holders. She submits that there is no
dispute that in the application filed by the obstructionists herein in
which the decree holders had filed their reply and had prayed for
possession of the suit property from the obstructionists. She submits that
the appropriate procedure required to be followed under Order XXI Rule
97 of the Code of Civil Procedure, 1908 was in fact followed by the
decree holders. The evidence led by both the parties was recorded. After
recording the evidence, the Executing Court had rejected the application
filed by the obstructionists and allowed the prayer made by the decree
holders in the affidavit-in-reply filed in those proceedings by treating
the same as a composite application.
17. In support of this submission, learned counsel placed
reliance on the judgment of the Supreme Court in the case of Shreenath
and Anr. Vs. Rajesh & Ors., reported in (1998) 4 SCC 543 and in
particular paragraphs 13 to 15 thereof and would submit that all the
objections of the obstructionists and the decree holders have to be
considered and adjudicated upon by the Executing Court in the execution
proceedings under Order XXI Rule 97. She submits that in any event,
the objection raised by the obstructionists before the Executing Court as
well as before the lower Appellate Court was hyper technical.
18. A perusal of the record indicates that there was no dispute
that there was a consent decree passed by the Civil Court on the basis of
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the consent terms arrived at between the decree holders and the
Judgment Debtor. The said consent decree was duly registered. The
Judgment Debtor, however, did not comply with the said consent decree
and filed a suit for a declaration that the said consent decree was
nullity in view of the alleged fraud. The said suit filed by the Judgment
Debtor is admittedly dismissed with costs by the Trial Court and the
said consent decree is in existence and has attained finality.
19. In so far as the obstructionists are concerned, they have
claimed rights through the Judgment Debtor during the pendency of the
execution proceedings filed by the decree holders. It is not in dispute
that when the obstructionists claimed their alleged rights from the
Judgment Debtor, the Executing Court had already granted injunction
against the Judgment Debtor from creating any third party rights. The
consent decree was already registered which amounted to public notice.
The obstructionists could not have claimed before the Executing Court
that they were bonafide purchasers without notice. The findings by the
Executing Court against the obstructionists had attained finality in view
of the confirmation thereof by the lower Appellate Court. I have perused
the findings rendered by both the Courts below and in my view, there is
no perversity in the concurrent findings rendered by both the Courts
below and thus cannot be interfered with under section 100 of the Code
of Civil Procedure, 1908.
20. In so far as the first submission of the learned counsel for the
obstructionists that one of the witnesses examined by the decree holders
did not produce any power of attorney before the Executing Court is
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concerned, Mrs.Karnik, learned counsel appearing for the original decree
holders submits that the original power of attorney was filed before the
Executing Court. Learned counsel for the obstructionists could not
dispute the statement made by the learned counsel for the decree holders.
In my view, there is thus no merit in this submission of the learned
counsel for the obstructionists.
21. In so far as the second submission of the learned counsel for
the obstructionists that the application under Order XXI Rule 97 of the
Code of Civil Procedure, 1908 was mandatory and since there was no
separate application made by the decree holders under Order XXI Rule
97 for complaining of such resistance or obstruction made by the
obstructionists, the Executing Court could not have passed any decree
for possession against the obstructionists is concerned, it is a common
ground that the obstructionists had filed an application before the
Executing Court asserting their alleged rights and applied for
adjudication thereof. It is not in dispute that in the said application filed
by the obstructionists, decree holders had filed a detailed reply pointing
out the previous orders and rights accrued in their favour on the basis
of the consent decree and applied for possession of the suit property.
The Trial Court proceeded with the application made by the
obstructionists and also the reply of the decree holders seeking possession
of the property by trying the same as suit and also followed the entire
procedure under Order XXI Rule 97 of the Code of Civil Procedure,
1908 and rendered a finding of fact that the obstructionists had no right
of whatsoever nature in the suit property and directed them to hand over
the possession of the suit property to the decree holders.
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22. A perusal of the orders passed by both the Courts below
clearly indicates that both the Courts below, in my view, have rightly
referred to the Civil Manual which prescribed the procedure to be
adopted for entertaining the miscellaneous proceedings requiring
judicial inquiry. It is held by the lower Appellate Court that the provisions
laid down in paragraph 337 to 341 of the Civil Manual are permissive
in nature which are the guidelines for the Court and therefore, it
should be interpreted liberally. It is held that it is for the Executing Court
to maintain the separate record in respect of the miscellaneous judicial
proceeding like proceeding under Order XXI Rule 97 of the Code of
Civil Procedure, 1908. The lower Appellate Court has held that the right
of the decree holders cannot be defeated for this technical reason. In
my view, the lower Appellate Court has rightly construed the provisions
under Order XXI Rule 97 read with paragraph 339 of the Civil
Manual and has rightly held that such procedure prescribed under the
Code of Civil Procedure read with Civil Manual are the rules of
procedure which are handmaid of justice and has to be interpreted
liberally.
23. Be that as it may, In my view, since the Executing Court
has followed the entire procedure prescribed under Order XXI Rule 97
of the Code of Civil Procedure, 1908 and has decided the objection of
the obstructionists and the reply of the decree holders by trying the
same as suit, I do not find any infirmity with the order passed by the
Executing Court in rejecting the application made by the obstructionists
and decided the prayer made by the decree holders in the detailed reply
filed before the Executing Court .
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24. In so far as the submission of the learned counsel for the
obstructionists that the application under Order XXI Rule 97 of the Code
of Civil Procedure, 1908 ought to have filed within 30 days under Article
129 of the Schedule to the Limitation Act, 1963 is concerned, in my
view, since the application filed by the obstructionists and the reply
filed by the decree holders were considered as an application under Order
XXI Rule 97 of the Code of Civil Procedure, 1908 and were tried as
suit, in this situation, Article 129 of the Schedule to the Limitation Act,
1963 would not be attracted.
25.
In so far as the last submission made by Mrs.Neeta Karnik,
learned counsel appearing for the decree holders that this Court shall
issue a suo-moto contempt notice against the obstructionists in Second
Appeal Stamp Nos.30922 of 2015 and 31398 of 2015 is concerned, a
perusal of the order passed by this Court in the writ petition clearly
indicates that the petitioners therein who are the obstructionists had
rendered undertakings before this Court that they would not create any
third party rights in respect of the suit property. Inspite of such
undertakings which were accepted by this Court, the obstructionists in
both these proceedings have parted with possession in respect of the
Shop Nos.1 and 2 in favour of the third parties. In my prima facie view,
parting with possession in respect of the Shop nos.1 and 2 in favour of
the third parties as can be seen from the photographs, invitation card and
the affidavit-in-reply to the civil application to which no rejoinder is
filed by the obstructionists, the obstructionists (the appellants in two
Second Appeals Stamp Nos.30922 of 2015 and 31398 of 2015) have
prima facie committed violations of the undertaking rendered to this
Court which were accepted by this Court.
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26. In my prima facie view, since such third parties who are
handed over the possession of the Shop nos. 1 and 2 is in violation of
the undertakings recorded by this Court, such third parties would not
have any right, title and interest of any nature whatsoever in respect of
the Shop nos.1 and 2. In my view, since the obstructionists have rendered
undertakings before this Court that they would not create any third party
rights in respect of the suit property including Shop nos.1 and 2, it is for
the obstructionists to comply with those undertakings rendered before this
Court and to hand over the possession thereof in respect of the Shop
nos.1 and 2 to the decree holders.
27. Since the obstructionists had agreed that if they did not
succeed in the proceedings filed before the appeal Court, they would
hand over the possession of the property to the decree holders, in my
view, the decree holders are not required to apply for execution of the
decree once again before the Executing Court and appropriate directions
in that regard can be passed by this Court in the present proceedings. In
my view, there is no substantial question of law arises in any of these
appeals. Appeals are devoid of merits and are accordingly dismissed. In
view of dismissal of the appeals, civil applications do not survive and
are accordingly disposed of. No order as to costs.
28. Learned counsel appearing for the obstructionists, on
instructions, at this stage, undertakes on behalf of his clients that they
would obtain vacant possession of Shop nos.1 and 2 from the third
parties and hand over the same to the decree holders within four weeks
from today. Learned counsel, on instructions, further undertakes that
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the remaining suit properties would also be handed over to the decree
holders within four weeks from today. Undertaking is accepted.
29. Court Receiver, High Court, Bombay is appointed as
Receiver in respect of all the suit properties which were subject matter
of the application filed by the obstructionists before the Executing Court
with a direction to take symbolic possession of the suit properties for a
period of four weeks from today and shall dispossess the obstructionists
or any person found in possession of the suit properties forcibly, if
necessary, with assistance of the police and hand over the same to the
decree holders.
30. In so far as the request for issuance of suo-moto contempt
notice against the obstructionists in the said two second appeals is
concerned, liberty is granted to the decree holders to file appropriate
proceedings for contempt, if they so desire. It is made clear that this
Court has not made any adjudication on the rights of the obstructionists
against the Judgment Debtor in these appeals and the same issue is kept
open.
31. Parties as well as the Court Receiver to act on the
authenticated copy of this order.
R.D. DHANUKA, J.
