East Delhi Municipal Corporation vs Daljit Singh Bhatia & Ors.
2014 Latest Caselaw 3067 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CM(M) No. 725/2012 & CM No. 10855/2012

%                                                    11th July , 2014

EAST DELHI MUNICIPAL CORPORATION            ......Petitioner
                  Through: Mr. Sudhir Nandrajog, Sr. Adv. with
                           Mr. Anuphav Mehrotra, Adv.

                          VERSUS

DALJIT SINGH BHATIA & ORS.                                 ...... Respondents
                  Through:               Mr. Kirti Uppal, Sr. Adv. with Ms.
                                         Aastha Dhawan, Adv. for R-1.

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

To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)

1.    This petition under Article 227 of the Constitution of India is filed

against the order of the executing court dated 8.6.2012 by which the

executing court issued warrants of possession with respect to the suit land

comprised in the decree passed by the civil court dated 9.4.2003 in suit no.

164/2000 titled as Daljit Singh Bhatia & Ors. Vs. Municipal Corporation

of Delhi & Ors. The decree dated 9.4.2003 was affirmed in appeal by a

Division Bench of this Court in RFA 746/2003 decided on 15.10.2008.

Therefore, now the position which emerges is that the possession of the suit

land, which is 2000 sq. yds of land forming part of K.No. 778/601/110,
CM(M) 725/2012                                                              Page 1 of 4
 Subhash Mohalla, Gandhi Nagar, Village Seelampur, Delhi, under the

decree has to be handed over to the decree-holders (the respondents in this

petition).

2.           Learned senior counsel for the petitioner essentially argued

before this Court that taking the decree as final in favour of the respondents

with respect to the suit land, however, now subsequent events have taken

place whereby with respect to the suit land not only notifications under

Sections 4,6 and 9 of the Land Acquisition Act, 1894 have been issued,

even a notification taking emergency possession has also been issued under

Section 17 of the Land Acquisition Act, 1894 on 9.9.2013, and

consequently, it is argued that the petitioner/judgment-debtor is in

possession of the suit land as per the subsequent proceedings under the Land

Acquisition Act, 1894. It is prayed that the subsequent events be taken note

of and warrants of possession be recalled.


3.           Though not argued, essentially what is argued is that as per

Section 11 CPC a decree is final only with respect to the issues decided in

the suit. Section 11 CPC uses the expression "under the same title" meaning

thereby if title or ownership is claimed in the suit land, not under the title

which was the subject matter of the suit whose decree is being executed, but

CM(M) 725/2012                                                             Page 2 of 4
 independently under a different title, the earlier decree will not operate as res

judicata and hence would not operate for executability. Against the

petitioner in view of the subsequent proceedings under the Land Acquisition

Act, 1894 the subject decree is now not executable.


4.           Before me it is not disputed and could not be disputed on behalf

of the respondents/decree-holders, that, there have taken place with respect

to the land which is the subject matter of the decree dated 9.4.2003,

proceedings for acquisition of this very land under the Land Acquisition Act,

1894 and notifications have been issued under Sections 4, 6, 9 and 17 of the

Land Acquisition Act, 1894.        Thus, the possession which is with the

petitioner/judgment-debtor will not be liable to be taken under the decree

dated 9.4.2003 because possession is claimed under the title which was not

the title in issue in the judgment and decree dated 9.4.2003.


5(i)   Learned senior counsel for the respondents-decree-holders however

vehemently argued that the ex parte orders which were granted by a learned

Single Judge of this Court on 2.7.2012 in this petition were obtained on

wrong basis by concealing facts, and hence/since the officials of the

petitioner are guilty of perjury, therefore this Court must take note

accordingly, and still grant execution of the decree.

CM(M) 725/2012                                                                Page 3 of 4
 (ii)   In this regard, all that is required to be noted is that the

respondents/decree-holders can always, in accordance with law of course, if

according to them the officials of the petitioner are guilty of perjury or any

other offence, initiate proceedings under Section 340 Cr. P.C, however, that

cannot take away the fact that the decree dated 9.4.2003 is no longer

executable in view of the subsequent events of acquisition having been

initiated under the provision of Land Acquisition Act.


5.           In view of the above, this petition is allowed and disposed of by

noting that the judgment and decree dated 9.4.2003 will no longer be

executable in favour of the decree-holders, (respondents herein) with respect

to 2000 sq. yds of land forming part of K.No. 778/601/110, Subhash

Mohalla, Gandhi Nagar, Village Seelampur, Delhi. However, it is clarified

if for some reason land acquisition proceedings do not achieve finality,

including for the reason that the same having been challenged by the decree-

holders, then, decree-holders will always be entitled to execute the judgment

and decree dated 9.4.2003. Parties are left to bear their own costs.




JULY 11, 2014/ib                              VALMIKI J. MEHTA, J.