Delhi High Court
Sanjeev Kumar Jain S/O Late Shri ... vs Shri Raghubir Saran Charitable ... on 25 October, 2004
Author: M B Lokur
Bench: M B Lokur
JUDGMENT
Madan B. Lokur, J.
1. The Petitioner is aggrieved by an order dated 20th September, 2004 passed by the learned Civil Judge rejecting the objections filed by the Petitioner (Judgment Debtor) in respect of the decree dated 23rd August, 2003.
2. The Respondent/Decree Holder had filed a suit for possession and mesne profits in respect of the mezzanine floor of property bearing No.E-11, Connaught Place, New Delhi.
3. It appears that the Petitioner was given adequate opportunities for filing his written statement but he did not do so. Consequently, on 8th February, 2002, the defense of the Petitioner was struck off. The Petitioner filed a petition seeking a review of the order dated 8th February, 2002 but on 11th September, 2002 the review petition was dismissed.
4. Thereafter, on the basis of the evidence on record, the learned Trial Judge passed the judgment and decree dated 23rd August, 2003 requiring the Petitioner to hand over vacant possession of the suit property.
5. On 30th September, 2003, the Respondent initiated execution proceedings and on 16th December, 2003 the decree was executed. The report of the Bailiff shows that the representative of the Petitioner, Ram Sukhani, Manager, wanted one month's time to vacate the suit premises but the Respondent did not agree to give time to the Petitioner. Accordingly, the Petitioner removed its goods and handed over vacant possession of the suit property to the Respondent. However, certain fixtures in the wall, some a r-conditioners and three counters were kept in the premises for being removed a little later. There is no dispute that possession of the suit premises was peacefully handed over to the Respondent but the items above-mentioned were kept back. One can on my guess from the events that transpired at that time, that it was not possible for the Petitioner to remove those objects immediately and, therefore, it was agreed that they may be removed at a mutually convenient time.
6. After the decree was executed on 16th December, 2003, the Petitioner filed a first appeal challenging the judgment and decree dated 23rd August, 2003. The appeal was considerably delayed and, therefore, an application under Section 5 of the Limitation Act was filed by the Petitioner for condensation of delay in filing the first appeal.
7. By an order dated 28th April, 2004, the First Appellate Court declined to condone the delay on the ground that a valuable right had accrued in favor of the Respondent since the decree had become final and was even executed and possession of the suit property was received by the Respondent.
8. Against the First Appellate order dated 28th April, 2004, the Petitioner filed a second appeal, which was withdrawn on 11th October, 2004
9. In the meanwhile, on 16th January, 2004, exactly a month after the decree was executed, the Petitioner filed objections to the decree under Section 47 of the CPC. These objections were dismissed by the impugned order dated 20th September, 2004
10. Learned counsel for the Petitioner raised three contentions before me. It was contended that the suit had been filed by a Trust and not by its trustees. Since the suit was not filed by the trustees, it was not maintainable. In any case, all the trustees were not before the Court and some of the persons who were shown on the record of proceedings were, in fact, not trustees of the Respondent.
11. I am afraid none of these submissions require any serious consideration. The objections to the decree can be raised in respect of its execution, discharge or satisfaction. In the present case, the decree has been executed. The contentions urged by learned counsel for the Petitioner ought to have been more properly taken up by filing a written statement, which was not done for reasons best known to the Petitioner. Some of these objections were in fact taken up in the first appeal but that appeal was time barred and the First Appellate Court declined to condone the delay in filing the first appeal. The order passed by the First Appellate Court has attained finality, so far as I am concerned. The contentions urged by learned counsel for the Petitioner really relate to the proceedings in the suit rather than to execution proceedings and, therefore, cannot be entertained at this stage.
12. Learned counsel for the Petitioner contended that in fact the decree had not been executed because some of the goods of the Petitioner were still lying in the suit premises. It was, therefore, open for the Petitioner to object to the execution of the decree.
13. In this regard, it was pointed out that both the Bailiff as well as the Executing Court have specifically recorded that the Respondent has received possession of the suit property through the Bailiff and only some goods are lying in the suit premises. As already mentioned above, it appears that the Petitioner could not immediately take away those goods and had arranged with the Respondent to have them removed at a mutually convenient time. The Respondent could very well have thrown out the goods bu did not do so perhaps out of humanitarian considerations. The Petitioner cannot be permitted to take advantage of this situation. In fact, apparently Realizing this, even the Executing Court gave fifteen days time to the Petitioner to remove its goods failing which they would be dispatched to the Malkhana of the concerned police station. There is more than sufficient material on record to reach the conclusion that possession of the suit property was peacefully handed over by the Petitioner to the Repondent and it was in this spirit that the Respondent permitted the Petitioner to leave some goods in the suit premises for being removed on a later date at a mutually convenient time.
14. There is no merit in the petition filed by the Petitioner. The impugned order does not suffer from jurisdictional error nor is it perverse, in any manner. The Executing Court has considered all the material on record and has rightly come to the conclusion that the objections filed by the Petitioner were not worthy of acceptance. From the material on record discussed above, it cannot now be held that the decree was a nullity.
15. The petition is dismissed.
