Delhi High Court
Smt. Noor Jahan And Ors. vs Shri Harbir Singh And Ors. on 27 August, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No. 1298/2013
%
Reserved on: 5th August, 2014
Pronounced on: 27th August, 2014
SMT. NOOR JAHAN AND ORS. ......Petitioners
Through: Mr. R.L. Kohli, Advocate.
VERSUS
SHRI HARBIR SINGH AND ORS. ...... Respondents
Through: Mr. R.D. Sharma, Advocate with Mr.
Rajat Sharma, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J
1. The challenge by means of this petition under Article 227 of the
Constitution of India is to the impugned order of the executing court dated
27.11.2013 by which the executing court has refused the prayer of the
petitioners/judgment debtors to dismiss the execution petition of the
respondents/decree holders. The petitioners, who are the judgment debtors in
the court below, pleaded that the subject/present execution petition does not
lie because an earlier execution petition was dismissed as satisfied.
C.M.(M) No.1298/2013 Page 1 of 6
2. The original judgment and decree which was passed in favour
of the decree holders/respondents is dated 8.11.2012 and to execute which
the execution petition was filed. The decree of eviction dated 8.11.2012 was
passed by the Additional Rent Controller against the petitioners/judgment
debtors on account of non-payment of rent and the default in complying with
the order dated 1.7.2010 passed under Section 15(1) of the Delhi Rent
Control Act, 1958 for depositing of the rent by the petitioners/judgment
debtors. The fact that the judgment and decree dated 8.11.2012 was not
appealed from and hence became final is not disputed by the
petitioners/judgment debtors because in fact admittedly an earlier execution
petition was filed for execution of the judgment and decree dated 8.11.2012.
3. What is contended on behalf of the petitioners/judgment
debtors is that since an earlier execution petition was dismissed as satisfied
on 24.5.2013 in terms of a statement made on behalf of the decree holders,
therefore, the second/subject execution petition cannot lie. Reliance in
support of the argument is placed upon the judgments of the Supreme Court
in the cases of Sarguja Transport Service Vs. State Transport Appellate
Tribunal, M.P., Gwalior and Ors. AIR 1987 SC 88 and Rampartap Vs.
India Electric Works Ltd.1 (1966) ILR Punjab and Haryana 28.
4(i) There is no quarrel to the proposition of law that once an
C.M.(M) No.1298/2013 Page 2 of 6
execution petition is satisfied, a further execution petition cannot lie,
however, it is equally settled law that if an execution petition is dismissed as
satisfied on a specific statement of the decree holder based on a particular
fact, and subsequently it is found that the factual basis on which the decree
holder had stated that the execution petition was satisfied actually does not
turn out to be true, then, the decree holder can surely apply for recall of the
earlier order dismissing the execution petition as satisfied inasmuch as the
premise and substratum on which the execution petition was dismissed as
satisfied is not borne out of facts which subsequently come to light. Once
the basis of making the statement goes then the order which was passed on
the basis of the statement also indubitably goes. Therefore, the second
execution petition is really not a second execution petition but actually it is
to be treated only as an application for recalling of the order dated 24.5.2013
by which the earlier execution petition was dismissed as satisfied.
(ii) I may state that it is not disputed before this Court by the
petitioners/judgment debtors that the earlier execution petition was
dismissed as withdrawn as satisfied for no other reason except that there was
an agreement by which the petitioners/judgment debtors had agreed to
purchase the suit property from the respondents/decree holders. Once there
is no dispute between the parties that the earlier execution petition was
C.M.(M) No.1298/2013 Page 3 of 6
withdrawn as satisfied on 24.5.2013 only on account of parties having
entered into an agreement, and which agreement ultimately either could not
be entered into or the same did not fructify because the actual satisfaction
did not take place, and resultantly the decree holder was put under a wrong
impression for withdrawing as satisfied of the earlier execution petition, in
law nothing consequently prevents a decree holder from again applying for
execution. Of course, if the case of the petitioners/judgment debtors would
have been that the settlement was that the judgment debtors had paid an
amount to the decree holders as a result of which the earlier execution
petition was withdrawn as satisfied on 24.5.2013 then the position would
have been different, but, that is not the case here and the case of the
petitioners themselves is only that the first execution petition was withdrawn
as satisfied only because of an agreement that the petitioners/judgment
debtors would purchase the property. In fact since as per the
petitioners/judgment debtors the decree holders/respondents have failed to
sell the property, therefore, petitioners/judgment debtors have filed a suit for
specific performance against the decree holders/respondents which is
presently pending.
(iii) Once therefore a mistake of fact occurs and which mistaken
impression led to withdrawing of the first execution petition, then, such
C.M.(M) No.1298/2013 Page 4 of 6
mistake of fact and impression can always be sought to be got corrected by
seeking recall by the respondents/decree holders of the earlier orders
withdrawing as satisfied the first execution petition i.e the
respondents/decree holders can file a fresh execution petition and which is
really an application to recall and deal with the earlier execution petition
which was filed.
(iv) The case of the petitioners/judgment debtors is that the suit
property was agreed to be sold for a sum of Rs.3,500 per sq yd; the suit
property being of approximately 33 sq yds; and to which counsel for the
respondents/decree holders states that the same is not correct as the property
actually is worth about Rs.75,000/- per sq yd and therefore it cannot be sold
at Rs.3,500/- per sq yd. In fact, counsel for the respondents/decree holders
makes a very fair offer before this Court to the petitioners/judgment debtors
that the respondents/decree holders are in fact ready to pay to the
petitioners/judgment debtors amount @ Rs.3,500/- per sq yd for the disputed
property so that petitioners/judgment debtors vacate the suit property, but,
the petitioners/judgment debtors are not agreeable to take the sum of
Rs.3,500/- per sq yd for vacating the suit property.
5. In view of the above, it is clear that the present/second
execution application is really an application for recall of the order dated
C.M.(M) No.1298/2013 Page 5 of 6
24.5.2013, and which order was premised on a mistake of fact and mistaken
impression of finality of a compromise/agreement, but which
compromise/agreement could not be arrived at. The agreement/compromise
to purchase/sell the suit property could not reach finality because as per the
decree holders/respondents it is the petitioners/judgment debtors who have
committed the breach whereas as per the petitioners/judgment debtors it is
not them but it is the respondents/decree holders who are at fault.
6. In this view of the matter, though this petition is dismissed,
nothing contained in the present judgment is a reflection on merits of the
matter in the suit for specific performance filed by the petitioners/judgment
debtors against the respondents/decree holders and in case the
petitioners/judgment debtors succeed in the suit for specific performance,
then, the decree holders/respondents if they take possession in execution of
the subject judgment and decree dated 8.11.2012, then they will hand over
possession back to the petitioners/judgment debtors.
AUGUST 27, 2014 VALMIKI J. MEHTA, J.
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