Sh.Bhuwaneshwar Pandey vs Sh.Piyush & Anr.
2014 Latest Caselaw 6993 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+            Ex.F.A.No.18/2013 & C.M.Nos.20777-20778/2014

%                                                    19th December, 2014

SH.BHUWANESHWAR PANDEY                                        ......Appellant
                Through:                 Mr.Avdesh Kumar Singh, Advocate.

                           VERSUS
SH.PIYUSH & ANR.                                           ...... Respondents
                           Through:

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

C.M.Nos.20777/2014 (For Restoration) & 20778/2014 (Exemption)

1.     This execution first appeal was ordered as being dismissed as not

pressed in terms of the order dated 01.12.2014, and which order reads as

under:-

           " Vide order dated 12.11.2014 these execution first appeals
     have been listed in Court by the Registrar on recording the
     statement of the appellant that the appellant does not want to pursue
     the appeals.
             Appeals are accordingly dismissed as not pressed."


2.     This order was passed on 01.12.2014 inasmuch as before the Registrar

on 12.11.2014, counsel for the appellant made the statement that the matter


Ex.F.A.No.18/2013                                              Page 1 of 7
 be listed in Court because the appellant does not want to pursue the appeal.

This order dated 12.11.2014 of the Registrar reads as under:-

     " CM APPLs. 11161/2014 (u/O 22 R 3 CPC r/w Sec. 151 CPC filed by
     LRs of deceased appellant), 1162/2014 (u/Sec. 5 of Limitation Act
     filed by LRs of deceased appellant) and 11163/2014 (delay in re-
     filing)
         Counsel for the appellant seeks permission to withdraw these
     applications.

      All the three applications are dismissed as withdrawn.

     EX.F.A.18/2013

        Counsel for the appellant does not wish to pursue this appeal and
     seeks permission to withdraw the same.

        List the matter before Hon'ble Court for orders on 01.12.2014."


3.    For three dates prior to the order of the Registrar dated 12.11.2014 viz

for 23.9.2014, 07.8.2014 and 15.7.2014, notices could not be issued to the

respondents on the applications being C.M.No.11161/2014 filed under Order

XXII Rule 3 of the Code of Civil Procedure, 1908 (CPC) and the connected

application being C.M.No.11162/2014 under Section 5 of the Limitation

Act, 1963 on account of non-filing of the process fee. After three defaults in

filing of the process fee, on 12.11.2014 counsel for the appellant made the

statement that the appellant does not wish to pursue this appeal.




Ex.F.A.No.18/2013                                               Page 2 of 7
 4.    Before turning to the prayer made in this application to recall the

order dated 01.12.2014 on the ground that the counsel for the appellant was

not instructed by the appellant to withdraw the appeal, certain facts as

regards the merits of the matter are required to be noted.


5.    This execution first appeal impugns the order of the executing court

dated 12.7.2013 by which the executing court dismissed the application filed

by the appellant under Order XXI Rule 90 CPC and by which application the

appellant/objector prayed that auction conducted of the property No.TA 209,

Gali No.1, Tuglakabad Extension, New Delhi on 10.5.2013 be set aside.


6.    By the impugned order dated 12.7.2013, the application under Order

XXI Rule 90 CPC was dismissed by the executing court making scathing

remarks against the appellant/objector who was held guilty of gross abuse of

the process of the law. The impugned order notes that the appellant/objector

had earlier moved an application for stay of the auction, and which

application was dismissed by the detailed order dated 01.5.2013 by imposing

costs of Rs.20,000/- upon the appellant/objector. The impugned order also

notes that every sort of tactic was used before the executing court to delay

and defeat the execution with respect to the money decree passed in favour

of the decree holder who is the respondent no.1 herein and against the


Ex.F.A.No.18/2013                                            Page 3 of 7
 judgment debtor. It is also noted in the impugned order dated 12.7.2013 of

the executing court that the right which the appellant/objector claimed in the

suit property had been rejected even by this Court, inasmuch as the civil suit

being CS(OS) No.23/2010 filed before this Court by the appellant/objector

claiming that he is the owner of the suit property stood dismissed. The

impugned order also notes that the appellant/objector was taking conflicting

stands including contending that the suit property in fact belonged to the

Government and not to him. The impugned order discusses in detail all the

three objections which were urged on behalf of the appellant/objector, and

by the detailed impugned order the executing court rejected the objections

noting that both the appellant/objector and his brother/ the judgment debtor

and the respondent no.2 herein, used to regularly appear in the court, and in

fact there was a clear-cut collusion between the judgment debtor and the

appellant/objector, as noted in the earlier detailed order dated 01.5.2013

passed by the executing court.


7.    The fact that the appellant/objector was using all tactics to delay the

execution   proceedings    becomes     clear   from    the   fact   that    the

appellant/objector also tried to get the case transferred from the court which

passed the impugned order to another court, but that endeavour was also not

successful. Accordingly, there was in fact no case on merits even in the

Ex.F.A.No.18/2013                                             Page 4 of 7
 execution first appeal itself which was filed by the appellant (who has since

expired and who is now represented by his legal heirs who have filed the

present application). Obviously, there being no substance in the appeal,

counsel for the appellant/objector would have been advised not to pursue the

present appeal.


8.    In the present case, it is noted that though the legal heirs of the

deceased appellant/objector who have filed the application for recall of the

order dated 01.12.2014 state that they had not given any instructions to their

counsel to withdraw the appeal, however along with this application, leave

aside mentioning of filing of any complaint with the bar council against the

earlier Advocate, there is not attached even a copy of a legal notice which

was required to be sent to the earlier counsel that he had committed an

illegality in withdrawing the appeal because no such instructions were given

to him. Also, and as already stated above, the appeal was prayed to be

withdrawn at that stage when for three hearings no process fee was filed for

service of the respondents, and that too in an appeal which was ex facie

without any merit and substance whatsoever.


9.    Learned counsel for the appellant/applicants has placed reliance upon

the order passed by the Supreme Court reported as Baligar Sahamulia Vs.


Ex.F.A.No.18/2013                                             Page 5 of 7
 Baligara Fakruddin Sab (dead) by LRs (2005) 10 SCC 214 to argue that

unless advocates receive instructions, they cannot withdraw the matter,

however, in my opinion the short order of about 12 lines in the case of

Baligar Sahamulia (supra) has no application to the facts of the present

case because as stated above there is not only not attached with this

application copy of any complaint filed against the earlier counsel with the

bar council, but also there is no copy of any legal notice sent to the earlier

counsel mentioning that he had acted without any instructions.


10.   In view of the above, it is clear that this application is only an

endeavour to somehow or the other continue the malafide action in objecting

to the execution proceedings for thwarting and frustrating the execution of

the money decree and the auction proceedings which have taken place to sell

the property of the judgment debtor. Obviously, the applicants, and earlier

the appellant/objector Sh.Bhuwaneshwar Pandey are/were in league with the

respondent no.2/judgment debtor/Sh.Ram Awadh Pandey (brother of the

appellant) to frustrate the money decree.


11.   In view of the above, there is no merit in the application, and the same

is therefore dismissed with costs of Rs.15,000/-, which shall be paid to the




Ex.F.A.No.18/2013                                             Page 6 of 7
 Prime Minister's National Relief Fund. Costs shall be deposited within a

period of six weeks from today.




DECEMBER 19, 2014/KA                           VALMIKI J. MEHTA, J.