Vijay Kumar Sharma vs Bodhraj Sharma
2021 Latest Caselaw 109 Jhar

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          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    C.M.P. No. 132 of 2020

     Vijay Kumar Sharma                           ...     ...      Petitioner
                                       Versus
     Bodhraj Sharma                       ...    ...     Respondent
     CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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     For the Petitioner      : Mr. Ashutosh Anand, Advocate
     For the Respondent      : Mr. Amresh Kumar, Advocate
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03/08.01.2021    The present C.M.P. is taken up today through Video
     conferencing.

The present civil miscellaneous petition has been preferred for quashing and setting aside the order dated 14.03.2019 passed by the Civil Judge (Senior Division)-II-cum-L.A. Judge, Ranchi in Execution Case No. 17 of 2011, whereby the application of the decree holder/respondent for delivery of possession of the property was allowed. Further prayer has been made for quashing the order dated 06.01.2020 passed by the learned Munsif, Ranchi in Execution Case No. 165 of 2019 (renumbered after Execution Case No. 17 of 2011 upon transfer), whereby the petition filed by the petitioner for recall of the order dated 14.03.2019 has been rejected.

2. The factual background of the case as stated in the civil miscellaneous petition is that the respondent herein had filed Partition Suit No. 153 of 2000 wherein preliminary decree was prepared on 02.08.2004 confirming the pleader commissioner's report and thereby allowing half share of the plaintiff. The petitioner challenged the preliminary decree by filing appeal being F.A No. 53 of 2004. In the meantime, the final decree was prepared on 25.11.2011 and as such the petitioner filed F.A No. 19 of 2012 challenging the final decree, however, both the appeals were dismissed on 14.03.2018 and the final decree dated 25.11.2011 passed by the trial court was confirmed. Thereafter, the decree holder filed a petition on 19.01.2019 in Execution Case No. 17 of 2011 praying for delivery of possession claiming that the judgment debtor would try to resist the delivery of possession. The petitioner filed reply to the said petition on 08.02.2019 stating that there was nothing to execute and there was no occasion for issuance of writ of delivery of possession. It was further stated that neither there was any lock in the

premises nor he intended to put any obstruction, however, the court below vide order dated 14.03.2019 allowed the petition of the decree holder dated 19.01.2019. Thereafter, the petitioner filed a petition dated 18.04.2019 under Section 151 CPC to recall the order dated 14.03.2019 stating that the ground raised by the petitioner in his reply dated 08.02.2019 were not considered by the court while passing the order dated 14.03.2019. The court below, however, dismissed the said petition vide order dated 06.01.2020. Hence, the present civil miscellaneous petition.

3. The learned counsel for the petitioner submits that the order passed on the basis of wrong document goes to the root of the matter and in such cases, inherent jurisdiction is required to be invoked to avoid abuse of the process of law and to prevent injustice to the affected party. It is further submitted that while passing the order dated 14.03.2019, the learned court below did not consider the reply dated 08.02.2019, rather considered altogether different issue which itself renders the order dated 14.03.2019 as illegal and such error could have been corrected while exercising the inherent power under Section 151 CPC. It is also submitted that the decree holder obtained the order dated 14.03.2019 by playing fraud to the court and as such in the interest of justice, the said order may be quashed. It is further submitted that the decree holder is in possession of its share and as such there was no need of issuing order of delivery of possession.

4. Heard the learned counsel for the petitioner and perused the materials available on record. The thrust of the argument of the learned counsel for the petitioner is that the court below ought to have exercised the inherent power under Section 151 CPC to recall the impugned order dated 14.03.2019 in the ends of justice and to prevent the abuse of the process of the court since while passing the order of delivery of possession, the court below had failed to consider the reply dated 08.02.2019 filed by the petitioner and altogether different issue was taken into consideration.

5. In the present case, the learned court below has declined to exercise the power under Section 151 CPC to recall the impugned order dated 14.03.2019 passed by the Civil Judge (Senior Division)-II-cum-L.A. Judge, Ranchi observing inter alia that there are many provisions which

empowers the aggrieved party to challenge the order taking recourse of proper forum and to get it recalled. The court below has also observed that the reply of the petitioner dated 08.02.2019 has also been mentioned in the order dated 14.03.2019 and if the court has not discussed certain points, the same will be deemed to have been rejected.

6. The Hon'ble Supreme Court, in the case of "Budhia Swain & Ors. Vs. Gopinath Deb & Ors." reported in (1999) 4 SCC 396 has held that a tribunal or court may recall an order earlier made by it if (i) the proceeding culminating in the order suffers from inherent lack of jurisdiction which is patent; (ii) fraud or collusion have been used to obtain the judgment; (iii) there has been mistake by the court prejudicing a party; or (iv) a judgment has been rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented. It has further been held that the right to seek vacation of a judgment may be lost by waiver, estoppels or acquiescence when the ground for reopening the proceedings or vacating the judgment was available to be pleaded in the original action or where a proper remedy in some other proceeding such as appeal was available but not availed of, the power to recall a judgment will not be exercised.

7. The intention of the legislature while putting Section 151 in the Code of Civil Procedure has been to deal with the situation for which no such express or implied particular procedure has been laid down in the CPC so as to prevent the abuse of the process of the court or for the ends of justice. However, the court should be more cautious while exercising such power as there is no legislative guidance to deal with the situation. The power under Section 151 CPC is used only where it is absolutely necessary and when there is no express provision in CPC, governing the matter as also when the bonafide of the applicant cannot be doubted.

8. Thus, I do not find any infirmity in the order dated 06.01.2020 passed by the learned Munsif declining to entertain the petition to recall the order dated 14.03.2019 filed by the petitioner. Moreover, the plaintiff/respondent had filed Partition Suit No. 153 of 2000 wherein a decree was passed allowing half share of the suit property to the plaintiff and the said decree has also been confirmed by the appellate Court. The petitioner has not averred that any further appeal

has been filed against it and as such the said decree appears to have attained finality. The decree holder had filed a petition in Execution Case No. 17 of 2011 for delivery of possession of the decreed property claiming that since the mediation had failed, he had reasons to believe that the judgment debtor would try to resist the delivery of possession. The petitioner filed reply to the said petition of the decree holder claiming inter alia that there was nothing to execute under the decree. It was stated that he had neither put lock nor had any intention to do so in the decreed property. However, the petitioner in paragraph-6 of the said reply stated that he was ready and willing to settle the mutual dispute and differences and it was the decree holder who was adamant and not willing to do so. It thus appears from the said averment that there were some differences between the petitioner and the respondent and as such the probability of resistance to the delivery of possession could not have been ruled out. The decree holder, in his application had prayed for breaking upon the lock, if any, to effect the delivery of possession. Thus, the argument of the learned counsel for the petitioner that the petitioner had not put any lock in the decreed property has no relevance in the present case. The only surviving issue is to effect the delivery of possession of the decreed property to the decree holder. Thus, I see no infirmity in the impugned order dated 14.03.2019, whereby the application filed by the decree holder for delivery of possession was allowed. Moreover, it is the petitioner's own averment that the decree holder is in possession of the decreed property and he is not interfering with his possession. If that is the position, no prejudice would be caused to the petitioner by the impugned order dated 14.03.2019 allowing the prayer of the decree holder/respondent for the delivery of possession.

9. In view of the aforesaid legal and factual position, I find no reason to interfere with the impugned orders dated 14.03.2019 and 06.01.2020 passed by the Civil Judge (Senior Division)-II-cum- L.A. Judge, Ranchi and Munsif, Ranchi respectively.

10. The Civil Miscellaneous Petition is accordingly dismissed.

I.A. No. 6396 of 2020 also stands dismissed accordingly.

(Rajesh Shankar, J.) Manish