Delhi High Court
Madan Lal Suryawanshi vs Tara Devi (Now Deceases Through ... on 12 July, 2022
$~5 (Appellate)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 460/2022 & CM APPL. 23411/2022, CM APPL.
23412/2022
MADAN LAL SURYAWANSHI ..... Petitioner
Through: Mr. Bharat Malhotra, Adv.
with petitioner in person
versus
TARA DEVI (NOW DECEASES THROUGH ITS LRS
..... Respondent
Through: None
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
J U D G M E N T (ORAL)
% 12.07.2022
1. This petition, under Article 227 of the Constitution of India,
assails orders dated 7th December 2018 and 29th March 2022, passed
by the learned Civil Judge in Ex. 96232/2016 (Tara Devi v. Madan
Lal Suryawanshi).
2. The impugned orders have come to be passed in proceedings
initiated by the respondent, seeking execution of a judgment and
decree dated 25th May 2011. Though it is not strictly relevant for the
purposes of the present petition, it may be noted that the operation of
the said judgment and decree dated 25th May 2011 was stayed by the
learned Civil Judge on 18th September 2015, and continued to remain
stayed till 29th March 2022, on which date the impugned order came to
be passed.
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By:SUNIL SINGH NEGI
Signing Date:13.07.2022
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3. Consequent on the passing of the impugned order, the learned
Civil Judge has directed issuance of warrants of attachment against the
movable property of the petitioner. That, however, is not the issue in
controversy in the present case.
4. The judgment and decree dated 25th May 2011, having been
passed ex-parte, was set aside on an application of the petitioner under
Order IX Rule 13 of the CPC, by the learned Civil Judge, vide order
dated 18th September 2015, subject to the petitioner depositing a sum
of ₹ 75,000/- by way of FDR before the learned trial Court.
5. The petitioner assailed the order dated 18th September, 2015, to
the extent the order required the petitioner to furnish an FDR for ₹
75,000/-, before this Court by way of CM(M) 18/2016 (Madan Lal
Suryawanshi v. Tara Devi).
6. During the pendency of the said CM(M) 18/2016, Tara Devi
expired on 25th March 2016. On 11th August 2016, when the matter
was next listed before a coordinate Bench of this Court, the following
order was passed:
"IN THE HIGH COURT OF DELHI AT NEW DELHI
+CM(M) 18/2016 & CM NO.938/2016
MADANLAL SURYAWANSHI .. ... Petitioner
Through Petitioner in person
versus
TARADEVI ..... Respondent
Through Mr. Shekhar Kumar, LR for R-1
CORAM:
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By:SUNIL SINGH NEGI
Signing Date:13.07.2022
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HON'BLE MR. JUSTICE JAYANT NATH
ORDER
11.08.2016
Respondent is stated to have expired on 25.3.2016.
Learned counsel for the respondent to place on record a list of
legal heirs of the respondent to enable filing of the application
to bring on record the Legal Heirs of the deceased respondent.
List on 18.11.2016.
AUGUST 11, 2016 JAYANT NATH, J.
N"
7. Subsequently, vide order dated 12th February 2018, a coordinate
bench of this Court dismissed CM(M) 18/2016. Resultantly, the order
dated 18th September 2015 whereby the judgment and decree dated
25th May 2011 was set aside subject to deposit of ₹ 75,000/- by the
petitioner by way of FDR, stood revived.
8. Learned Counsel for the petitioner submits, on instructions, that
the aforesaid amount of ₹ 75,000/- was not deposited by the petitioner,
as a result of which the setting aside, by the order dated 18 th
September 2015, of the judgment and decree dated 25 th May 2011
never came into effect and, therefore, the judgment and decree dated
25th May 2011 became executable.
9. It is in these circumstances that Execution 96232/2016 was
again prosecuted by the respondent.
10. Tara Devi, the decree holder, expired on 25th March 2016. She
was survived by her son and two daughters as her only legal heirs.
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11. The aforesaid legal heirs filed an application, for being
substituted in execution proceedings under Order XXII Rule 3 of the
Code of Civil Procedure, 1908 (CPC). The application was
accompanied by a separate application for condonation of delay in
filing the substitution application.
12. In the application for condonation of delay accompanying the
substitution application, filed by the respondent, for being impleaded
in place of Tara Devi, it was sought to be contended that the legal
heirs of Tara Devi came to know of the pendency of the proceedings
initially only with respect to CM(M) 18/2016, and of the pendency of
the proceedings before the learned executing Court only thereafter.
13. This specific averment to this effect, as contained in the
application for condonation of delay, reads thus:
"3. That the son of the plaintiff came to know about the
pendency of the petition in high court after the death of Tara
Devi and later on he came to know about the pendency of
present execution petition. As the civil appeal filed by the
judgement debtor was pending before the Hon'ble High Court
of Delhi and the present proceeding were kept pending for
waiting the decision of the Hon'ble High court of Delhi in the
said appeal.
4. That the civil appeal was dismissed by the Hon'ble
High Court of Delhi vide Order dt. 12.02.2018. A copy
downloaded from the High Court website is annexed
herewith.
5. That it is pertinent to mention here that the judgment
debtor has not complied with the ·order dt. 18.09.2015 of this
Hon'ble Court and the original suit was never revived,
however, the process of execution petition was stayed during
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the pendency of said appeal. After dismissal of the abovesaid
appeal, the Legal heir are filing the application Under Order
XXII Rule 3 read with Section 151 CPC alongwith the present
application after dismissing the said appeal."
14. The learned Civil Judge, vide order dated 7th December 2018,
even while noting that there was considerable delay in the preferring,
by the respondent, of the application under Order XXII Rule 3 of the
CPC, was of the view, nonetheless, that the application for
condondation of delay deserved to be allowed. The learned Civil
Judge accepted the contention of the legal heirs of Tara Devi,
regarding lack of knowledge of the execution proceedings pending
before the learned Civil Judge. Relying on the axiom that technical
considerations ought not to come in the way of dispensation of
substantial justice, the order dated 7th December 2018 condoned the
delay in filing the application under Order XXII Rule 3 by the legal
heirs of Tara Devi and, consequently, allowed their impleadment in
the execution proceedings.
15. The petitioner moved an application under Section 114 read
with Order XLVII Rule 1 of the CPC, seeking review of the aforesaid
order dated 7th December 2018 which has also come to be dismissed
by the learned Civil Judge by the order dated 29th March 2022.
16. The learned Civil Judge has also noted the fact that, in the
interregnum, on 17th July, 2017, the petitioner had filed an application
seeking dismissal of the main suit preferred by Tara Devi against the
petitioner. This application, obviously, was thoroughly misplaced, as
the suit already stood decreed on 25th May 2011 on which date Tara
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By:SUNIL SINGH NEGI
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Devi was alive. Any default, on the part of the legal heirs of Tara
Devi, in impleading themselves in the execution proceedings, cannot,
by operation of any provision of the CPC, constitute a basis for
seeking dismissal of the suit which already stood decreed.
17. Be that as it may, the order dated 29th March 2022 found no
case made out for reviewing the earlier order dated 7 th December 2018
and accordingly dismissed the petitioner‟s review petition.
18. Aggrieved, the petitioner is before this Court.
19. I have heard Mr. Bharat Malhotra, learned Counsel for the
petitioner at some length.
20. Mr. Malhotra initially contests the impugned orders on the
ground that no case for condonation of the delay in filing the
application, by the legal heirs of Tara Devi for their substitution in Ex.
96232/2016, was made out. He has invited my attention to paras 3
and 4 of the application for condonation of delay, which stand
reproduced hereinabove. He submits that the Counsel who had filed
CS 212/2010, by Tara Devi against the petitioner, was the Counsel
who, later came to file the application under Order XXII Rule 3 of the
CPC, engaged on behalf of the legal heirs of Tara Devi. He also
invites my attention to the order dated 11 th August 2016, passed by the
coordinate bench of this Court in CM(M) 18/2016, to submit that Mr.
Shekhar Kumar, the legal representative of Tara Devi, was present on
the said date in Court.
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By:SUNIL SINGH NEGI
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21. These facts, he submits, belies the contention, in para 3 of the
condonation of delay application filed by the legal heirs of Tara Devi,
that they did not have the knowledge of pendency of the execution
proceedings before the learned Civil Judge.
22. Besides, he submits, the application seeking condonation of
delay was vague and did not disclose the date when knowledge of the
execution proceedings was actually acquired by the legal heirs of Tara
Devi.
23. In these circumstances, he submits, the learned Civil Judge
ought not to have mechanically condoned the delay in filing the
application for substitution of legal heirs.
24. I have heard and perused the record.
25. On the advisability of an Article 227 Court interfering with an
order condoning delay, the Supreme Court has this to say in
Mohammad Shafeeq v. Mirza Mohammad Husain1:
"3. In our opinion, the High Court has taken too technical
a view of the error committed by the appellant in pursuing the
remedy available to him under the law. The appellant had
been prosecuting his remedy diligently and there is nothing to
doubt his bona fides. These aspects were taken into
consideration by the learned Additional District Judge while
condoning the delay in filing the revision. In our opinion, the
High Court ought not to have interfered with the order of the
Additional District Judge, condoning the delay in filing the
revision, being an order passed in exercise of discretion
(2002) 9 SCC 460
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vested in the learned Additional District Judge and for that
reason, was not open to interference by the High Court in
exercise of its supervisory jurisdiction under Article 227 of
the Constitution."
26. Ordinarily, an order condoning delay is discretionary order in
nature and the Article 227 Court would be loath to interfere thereafter.
On the scope of interference with discretionary orders even in appeal,
the Supreme Court holds thus, in Wander v. Antox India Pvt Ltd 2:
"13. On a consideration of the matter, we are afraid, the
appellate bench fell into error on two important propositions.
The first is a misdirection in regard to the very scope and
nature of the appeals before it and the limitations on the
powers of the appellate court to substitute its own discretion
in an appeal preferred against a discretionary order. The
second pertains to the infirmities in the ratiocination as to the
quality of Antox„s alleged user of the trademark on which the
passing-off action is founded. We shall deal with these two
separately.
14. The appeals before the Division Bench were against
the exercise of discretion by the Single Judge. In such
appeals, the appellate court will not interfere with the exercise
of discretion of the court of first instance and substitute its
own discretion except where the discretion has been shown to
have been exercised arbitrarily, or capriciously or perversely
or where the court had ignored the settled principles of law
regulating grant or refusal of interlocutory injunctions. An
appeal against exercise of discretion is said to be an appeal on
principle. Appellate court will not reassess the material and
seek to reach a conclusion different from the one reached by
the court below if the one reached by that court was
reasonably possible on the material. The appellate court
would normally not be justified in interfering with the
exercise of discretion under appeal solely on the ground that if
it had considered the matter at the trial stage it would have"
27. It is only where, therefore, there is complete non-application of
1990 Supp SCC 727
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mind in condoning delay which is inexorable, or where no reasons for
condonation of delay are forthcoming in the order passed by the Court
below, that an Article 227 Court would ordinarily interfere.
28. In the present case, the learned Civil Judge has proceeded on
the premise that the legal heirs of Tara Devi did not possess the
requisite knowledge of the pendency of the execution proceedings, so
as to move the application under Order XXII Rule 3 of the CPC within
time. He has accepted the contention, to the said effect, as contained in
the application for condonation of delay.
29. The submission of Mr. Malhotra, in this regard, cannot make
out a sufficient case for this Court to interfere with the decision of the
learned Civil Judge in exercise of its supervisory jurisdiction under
Article 227 of the Constitution of India.
30. Mr. Malhotra has not relied on any positive material to indicate
that the legal heirs of Tara Devi were, in fact, aware of the
proceedings pending before the learned Civil Judge.
31. The fact that the Counsel who had initially filed the suit on
behalf of Tara Devi against the petitioner also came , later, to file the
application under Order XXII Rule 3, cannot lead to any such
inference. Similarly, the fact that, in the order dated 11 th August 2016,
passed by the coordinate bench of this Court in CM(M) 18/2016, the
presence of the legal representative of Tara Devi is recorded, can also
not lead to an inevitable inference that the said legal representative
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By:SUNIL SINGH NEGI
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was also aware of the pendency of the execution proceedings before
the learned Civil Judge. Significantly, the order dated 11 th August
2016 records the fact that Tara Devi had expired on 25 th March 2016,
and calls on learned Counsel for Tara Devi to place on record a list of
the legal heirs of Tara Devi so that they could be brought on record in
CM(M) 18/2016.
32. The order dated 11th August 2016 does not record the
appearance of Tara Devi and, instead, records the appearance of the
legal representative of Tara Devi.
33. Holistically seen, the said order cannot justify any conclusive
inference that the legal representatives of Tara Devi were in fact
aware, at that stage, of the pendency of the execution proceedings
before the learned Civil Judge.
34. Execution proceedings, even otherwise, are required to be
accorded a treatment qualitatively different from that which is
accorded to original proceedings. This aspect has been underscored
by the Supreme Court in its decision in Rahul S. Shah v. Jinendra
Kumar Gandhi3, thus.
"22. These appeals portray the troubles of the decree-holder
in not being able to enjoy the fruits of litigation on account of
inordinate delay caused during the process of execution of
decree.
*****
23. This Court has repeatedly observed that remedies
(2021) 6 SCC 418
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provided for preventing injustice are actually being misused
to cause injustice, by preventing a timely implementation of
orders and execution of decrees. This was discussed even in
the year 1872 by the Privy Council in General Manager of
the Raj Durbhunga v. Coomar Ramaput Sing4, which
observed that the actual difficulties of a litigant in India begin
when he has obtained a decree. This Court made a similar
observation in Shub Karan Bubna v. Sita Saran Bubna5,
wherein it recommended that the Law Commission and
Parliament should bestow their attention to provisions that
enable frustrating successful execution. The Court opined that
the Law Commission or Parliament must give effect to
appropriate recommendations to ensure such amendments in
the Code of Civil Procedure, 1908, governing the
adjudication of a suit, so as to ensure that the process of
adjudication of a suit be continuous from the stage of
initiation to the stage of securing relief after execution
proceedings. The execution proceedings which are supposed
to be a handmaid of justice and subserve the cause of justice
are, in effect, becoming tools which are being easily misused
to obstruct justice."
35. Once a party succeeds in a suit, and obtains a decree in her/his
favour, the effort of the Court has, at all times, to see that the decree is
executed and that execution of the decree is not impeded or hindered
on technical considerations. The approach that the Court adopts
during the course of trial in a suit is qualitatively different from the
approach to be adopted while dealing execution proceedings.
36. The Supreme Court in Rahul S. Shah3, has also lamented at the
fact that, often times, the travails of a litigant commence after he
succeeds in a suit and obtains a decree in his favour.
37. Given all these considerations as well as the limited scope of the
1872 SCC OnLine PC 16 : (1871-72) 14 Moo IA 605
(2009) 9 SCC 689 : (2009) 3 SCC (Civ) 820
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By:SUNIL SINGH NEGI
Signing Date:13.07.2022
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jurisdiction vested in this Court by Article 227 of the Constitution of
India, I do not feel that the present case calls for any interference with
the impugned orders dated 7th December 2018 and 29th March 2022,
passed by the learned Civil Judge in Ex. 96232/2016.
38. As such, this petition is dismissed with no order as to costs.
39. Needless to say, the petitioner would be at liberty to file
objections, if he so chooses, before the learned executing Court in
accordance with law.
C. HARI SHANKAR, J.
JULY 12, 2022
dsn
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:13.07.2022
18:21:11
