Shanti Devi & Ors. vs Laxmi Devi & Ors.
2017 Latest Caselaw 2983 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+            Review Petition No. 247/2017 in EX.S.A. 3/2014

%                                                        3rd July, 2017

SHANTI DEVI & ORS.                                      ..... Appellants
                           Through:      Mr. Ankur Bansal, Advocate.

                           versus

LAXMI DEVI & ORS.                                       ..... Respondents

                           Through:      None.

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

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

Review Petition No. 247/2017 in EX.S.A. 3/2014 and C.M. Appl. No. 22620/2017 (for condonation of delay of 26 days in filing the review petition) & C.M. Appl. No. 22621/2017 (for exemption)

1. The review petition and the connected applications are

hopelessly misconceived and an abuse of process of law. A detailed

order was passed on 20.4.2017 showing the tactics of the

appellants/judgment debtors/objectors/defendants to continue the

benefit of the interim order which they had obtained with respect to the

suit property of which they were in possession, and with respect to

which their rights have been rejected right till the Supreme Court. The

order dated 20.4.2017 reads as under:-

"1. The different order-sheets of this Court show that the appellants in spite of enjoying benefit of an interim order dated 13.5.2014 have been seeking repeated adjournments. Out of around last ten ordersheets most of the adjournments have been taken by the appellants.

2. In the morning an adjournment was sought on behalf of the appellants pursuant to an adjournment slip and which adjournment slip was very strongly opposed by the respondents as respondents are suffering prejudice by the interim order continuing in this appeal. In the morning when adjournment was sought on behalf of the appellants it was stated that the father-in-law of the counsel for the appellants was in ICU. As per the suggestion of the counsel for the respondents it was desired so that adjournment is granted only for a genuine reason that the proxy counsel must state that the main counsel is not being appearing in any court for a particular number of days and is not doing any work sitting in his chamber. After a pass-over when the matter is called out at 3.25 PM, counsel for the appellants in spite of directions to get specific instructions once again conveniently states that she cannot give a statement that the main counsel is not appearing in any Court and he is not doing any work as an Advocate.

3. In view of the above facts, learned counsel for the respondents, and in the opinion of this Court, rightly says that the tactics and strategies adopted by the appellants to continue this litigation and the interim order should be discouraged by this Court by dismissing the appeal for non- prosecution or in any case vacating interim order.

4. It is also prayed that in case the appeal continues then appellants should be put to strict terms of costs.

5. Though, in the interest of justice the matter is adjourned, adjournment is granted subject to payment of costs of Rs.25,000/- to the respondents. Also, since strategies are being played for continuing of the interim order, the interim order dated 13.5.2014 is vacated.

List on 30th August, 2017."

2. It is noted that the appellants were in fact the defendants

in the suit and who have lost right till the Supreme Court. Such

defendants who are already parties to the suit when they file objections

in execution proceedings, the scope of filing of objections by such

defendants is extremely limited because issues of merits had to be and

were decided in the main suit right till the Supreme Court. The

provision of Section 11 CPC makes it clear that even what might ought

to have been pleaded and argued is also deemed to have been pleaded

and argued and is covered under the doctrine of res judicata.

3. Fraud is not a mantra which is uttered for disturbing the

finality of an issue which has attained finality right till the Supreme

Court. No doubt, the provision of Section 44 of the Indian Evidence

Act, 1872 does permit filing of a suit to question the judgment on the

ground of fraud or collusion, however, the scope and applicability of a

cause of action pleaded under Section 44 of the Indian Evidence Act is

not to displace a judgment on merits which has been obtained in the

suit between the same parties as otherwise the provision of Section 11

CPC itself will be set at naught.

4. Learned counsel for the appellants also concedes that

possession of the suit property has already been taken over from the

appellants after the interim order was vacated by this Court vide its

order dated 20.4.2017.

5. In fact, though appellants could not even have been heard

before payment of costs of Rs.25,000/- as ordered in terms of the order

dated 20.4.2017, yet, I have heard the review petition and the

connected applications.

6. It may also be noted that the objections decided by the

executing court were in fact the second set of objections because the

first set of objections by these very appellants/defendants stood already

dismissed and therefore the second objections which were decided by

the impugned judgment of the executing court in fact could not even

had been filed.

7. There is no error apparent on the face of the record.

8. Since the review petition and the connected applications

are clearly an abuse of process of law, the same are therefore dismissed

with costs of Rs.10,000/- to be deposited in four weeks with the

website bharatkeveer.gov.in.

JULY 3, 2017                                     VALMIKI J. MEHTA, J
AK