Chattisgarh High Court

Nikku @ Nek Singh vs Ramesh Kumar Arora on 6 December, 2022

                                 1

                                                                 AFR

        HIGH COURT OF CHHATTISGARH, BILASPUR

                      WP227 No. 747 of 2022

   1. Nikku @ Nek Singh S/o Kishanlal, Aged About 38 Years

   2. Jawahar S/o Kishanlal Aged About 40 Years

      Both are R/o Shop No. 4, Block No. 3, Sarkular Market, Bhilai
      Power House, Tahsil And District-Durg, Chhattisgarh
      .............Plaintiffs, Chhattisgarh

                                                       ---- Petitioner

                              Versus

   1. Ramesh Kumar Arora S/o Late Tarachand Arora Aged About 48
       Years R/o Camp-2, Bhilai, Tahsil And District- Durg (CG)
       ............Defendants.

   2. Wazir Chand S/o Ishar Das, Aged About 70 Years R/o Block-3,
      Shop No. 7-8, Camp 2, Bhilai Tahsil And District- Durg,
      Chhattisgarh

                                                      ---- Respondent

For Petitioner Mr. Punit Ruparel, Advocate

SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari

Order On Board 6/12/2022

1. Heard.

2. This petition has been preferred against the order dated

6.8.2022 passed in Execution Case No.1489/2003, whereby, the

application preferred by the petitioners/judgment-debtors

under Order 21 Rule 29 of CPC, has been dismissed with a cost

of Rs.1000/-.

3. Brief facts of the case are that respondent No.1 Ramesh Kumar

Arora has filed a Civil Suit No.2-A/2002 against the present

petitioners and respondent No.2, for eviction of the shop

situated at Circular Market, Bhilai and for arrears of rent and

damages. The said suit was decreed in favour of respondent

No.1 vide judgment dated 19.4.2003, which was affirmed by this

Court vide judgment dated 21.8.2018 passed in FA

No.107/2003, (preferred by respondent No.2 - Wazir Chand). In

the said judgment, it has categorically been mentioned that the

present petitioners, who were defendants No.1 & 2 in the said

case, were inducted as tenants from the year 1998 and

defendants 2 & 3 have not paid any rent to the Landlord after

21.5.1992 and therefore, defendants 1 & 2 are further liable to

pay damages for occupation of the premises, to the plaintiffs @

Rs.1500/- per month from July 1993 till the vacant possession of

the premises is handed over to the plaintiffs. Hence, the

judgment and decree passed by the Court below for

possession, arrears of rent as also damages was affirmed.

4. The present petitioners had challenged the judgment dated

21.8.2018 passed in FA No.107/2003 before the Supreme Court

in Special Leave to Appeal (C) No.3883/2019 and it came to be

dismissed vide order dated 15.2.2019 with a direction to the

present petitioners to vacate the suit premises within 3 months

on filing usual undertaking before the Supreme Court within

two weeks from the date of passing of that said order and

paying all arrears of rent, if any, and paying three months rent in

advance by way of use and occupation charges to the

respondent-owner.

5. On being asked by this Court about the undertaking, learned

counsel for the petitioner submits that such undertaking has

been filed by the petitioners before the Supreme Court.

However, learned counsel fairly admits that till today, the

petitioners have not vacated the suit premises.

6. It is very surprising that after giving an undertaking before the

Supreme Court of India and losing the legal battle in the first

round of litigation, the judgment-debtor/present petitioners,

cunningly, have filed a new suit before the Seventh Additional

District Judge, Durg for declaration and injunction with respect

to the same suit premises and also for the relief to set-aside the

judgment and decree dated 19.4.2003 passed in Civil Suit No.2-

A/2002, which came to be registered as Civil Suit No.18-A/2019

and instituted on 13.5.2019. The petitioners have also moved

an application under Order 39 Rule 1 & 2 of CPC in the said suit,

which has been dismissed vide order dated 12.5.2022. Against

th said order, MA No.72/2022 has been filed by the petitioners

before this Court, in which, the notice has been issued to the

respondents. The petitioner further filed WP227 No.414/2022 ,

in which, by order dated 11.7.2022, the petitioners prayed for a

direction to dispose of Civil Suit No.18-A/2019 within the

stipulated time and considering the limited prayer by learned

counsel for the petitioners, this Court allowed the prayer and

directed the trial Court to complete the trial of the said suit

within an outer limit of 1 year 6 months from the date of receipt

of copy of the said order.

7. The decree-holder/respondent No.1 Ramesh Kumar Arora has

filed the Execution Proceeding on 28.7.2003, in pursuance of

the judgment and decree dated 19.4.2003 passed in his favour

in Civil Suit No.2-A/2002. In the said execution case, the

judgment-debtors/petitioners have raised objection, which has

been dismissed by the impugned order. Hence, this petition.

8. Mr. Punit Ruparel, learned counsel for the petitioners, would

submit that due to discovery of new facts, the

petitioners/judgment-debtors have filed a separate civil suit

bearing No.18-A/2019 and if the execution proceedings goes

on, then, the said suit would become infructuous. Hence, he

prays that the execution proceedings may be stayed till the final

disposal of Civil Suit No.18-A/2019.

9. I have heard learned counsel for the petitioners and also

perused all the documents annexed with the petition with

utmost circumspection.

10. In the matter of Rahul S. Shah Vs. Jitendra Kumar Gandhi and

others, 2021 6 SCC 418, the Supreme Court with regard to

execution proceeding, has observed thus :

23. This court has repeatedly observed that remedies provided for preventing injustice are actually being misused to cause injustice, by preventing a timely implementation of orders and execution of decrees. This was discussed even in the year 1872 by the Privy Counsel in

General Manager of the Raj Durbhunga v.

Maharaja Coomar Ramaput Sing which observed that the actual difficulties of a litigant in India begin when he has obtained a decree. This Court made a similar observation in Shub Karan Bubna v Sita Saran Bubna, wherein it recommended that the Law Commission and the Parliament should bestow their attention to provisions that enable frustrating successful execution. The Court opined that the Law Commission or the Parliament must give effect to appropriate recommendations to ensure such amendments in the Code of Civil Procedure, 1908, governing the adjudication of a suit, so as to ensure that the process of adjudication of a suit be continuous from the stage of initiation to the stage of securing relief after execution proceedings. The execution proceedings which are supposed to be handmaid of justice and sub-serve the cause of justice are, in effect, becoming tools which are being easily misused to obstruct justice.

24. In respect of execution of a decree, Section 47 of CPC contemplates adjudication of limited nature of issues relating to execution i.e., discharge or satisfaction of the decree and is aligned with the consequential provisions of Order 21 CPC. Section 47 is intended to prevent multiplicity of suits. It simply lays down the procedure and the form whereby the court reaches a decision. For the applicability of the section, two essential requisites have to be kept in mind. Firstly, the question must be the one arising between the parties and secondly, the dispute relates to the execution, discharge

or satisfaction of the decree. Thus, the objective of Section 47 is to prevent unwanted litigation and dispose of all objections as expeditiously as possible.

25. These provisions contemplate that for execution of decrees, Executing Court must not go beyond the decree. However, there is steady rise of proceedings akin to a re-trial at the time of execution causing failure of realisation of fruits of decree and relief which the party seeks from the courts despite there being a decree in their favour. Experience has shown that various objections are filed before the Executing Court and the decree holder is deprived of the fruits of the litigation and the judgment debtor, in abuse of process of law, is allowed to benefit from the subject matter which he is otherwise not entitled to.

40. In Ghan Shyam Das Gupta v. Anant Kumar Sinha, this Court had observed that the provisions of the Code as regards execution are of superior judicial quality than what is generally available under the other statutes and the Judge, being entrusted exclusively with administration of justice, is expected to do better. With pragmatic approach and judicial interpretations, the Court must not allow the judgment debtor or any person instigated or raising frivolous claim to delay the execution of the decree. For example, in suits relating to money claim, the Court, may on the application of the plaintiff or on its own motion using the inherent powers under Section 151, under the circumstances, direct the defendant to provide security before

further progress of the suit. The consequences of non-compliance of any of these directions may be found in Order 17 Rule 3. "

11. Reverting back to the facts of the present case, it is quite vivid

that in light of the principles propounded in Rahul S. Shah

(supra), the instant case is a glaring example of abuse of

process of law and the same has filed to frustrate the execution

of decree. This Court finds that the decree-holder inspite of

winning the case from the Supreme Court is deprived from the

fruit of the decree. The present petitioners/judgment-debtors

have also given an undertaking before Hon'ble the Supreme

Court to vacate the suit premises within the stipulated time, but

instead of complying with the order(s), they have filed a

separate Civil Suit bearing No.18-A/2019, challenging the order