Hansraj Sachdeva (Dead) Thr. Lrs 1) Brij ... vs Vijay Dharmsuri Samadhi Mandir ...
2023 Latest Caselaw 20579 MP

Madhya Pradesh High Court

Hansraj Sachdeva (Dead) Thr. Lrs 1) Brij ... vs Vijay Dharmsuri Samadhi Mandir ... on 6 December, 2023

Author: Anand Pathak

Bench: Anand Pathak

    IN THE HIGH COURT OF MADHYA PRADESH
                AT G WA L I O R
                              BEFORE
             HON'BLE SHRI JUSTICE ANAND PATHAK

                ON THE 6th OF DECEMBER, 2023

                 MISC. PETITION No. 4926 of 2018

BETWEEN:-
1. HANSRAJ SACHDEVA (DEAD) THR. LRS
   1) BRIJ MOHAN SACHDEVA S/O LATE
   SHRI HANSRAJ SACHDEVA, AGED
   ABOUT 4 YEARS, COURT ROAD,
   SHIVPURI (MADHYA PRADESH)
2. DARSHAN KUMAR SACHDEV S/O LT
   SHRI HANSRAJ SACHDEVA, AGED
   ABOUT 63 YEARS, COURT ROAD
   SHIVPURI (MADHYA PRADESH)
3. JAGENDRA PAL SACHDEVA S/O LT
   SHRI HANSRAJ, AGED ABOUT 60
   YEARS, COURT ROAD SHIVPURI
   (MADHYA PRADESH)
4. MAHENDRA PAL SACHDEVA S/O LT
   SHRI HASRAJ, AGED ABOUT 57 YEARS,
   COURT ROAD SHIVPURI (MADHYA
   PRADESH)
                                                      .....PETITIONER
(BY SHRI ROHIT BANSAL - ADVOCATE)

AND
VIJAY DHARMSURI SAMADHI MANDIR
VEERTATWA PRAKASHAK     MANDAL
TRUST SHIVPURI THR. NOT MENTION
HEAD   OFFICE MUMBAI, BRANCH
LALBAG (MAHARASHTRA)
                                                    .....RESPONDENTS
(BY SHRI AKSHAT KUMAR JAIN ON BEHALF OF SHRI SUNIL KUMAR
JAIN - ADVOCATE)
      This petition coming on for hearing this day, the court passed the
following:
                                  ORDER

1. The present petition under Article 227 of the Constitution has been preferred by the petitioners being crestfallen by the order dated 29.09.2018 (Annexure P/1), whereby Executing Court directed to initiate the proceedings of execution and issue warrant of possession and attachment of properties.

2. Precisely stated facts of the case are that initially respondent and one Kashinath Saraf who happens to be Manager of Samadhi Mandir Veertatwa Prakashak Mandal Trust filed a suit against the defendant/Hansraj Sachdewa for eviction of the rented shop and for recovery of rent. Defendants filed written statements and denied the allegation of plaint. The rent is of Rs.50/- per month which is not enhanced to Rs.75/-. Trial Court after framing the issues and while ignoring the findings on legal questions, decreed the suit vide judgment and decree dated 19.08.1999. Against the said judgment, defendants preferred an appeal which got dismissed on 03.04.2001 for want of prosecution, thereafter, M.A. No.155/2005 was filed for restoration of appeal which was allowed and appeal was restored vide order dated 20.05.2006. Thereafter, appeal was also dismissed while affirming the judgment and decree passed by the trial court vide order dated 09.10.2006.

3. Thereafter, against the order dated 09.10.2006 defendant/Hansraj Sachdeva filed Second Appeal No.1001/2006 wherein direction for calling the record has been issued and interim relief has also been granted. During the second appeal, defendant/Hansraj Sachdeva and respondent No.2/Roopchand Bhansali have expired and petitioners have been substituted in place of defendant. Thereafter, trial court issued notice to legal representatives of deceased Hansraj Sachdeva and after notice, impugned order was passed, therefore, petitioners are before this Court.

4. It is the submission of the learned counsel for the petitioners that the trial court erred in passing the impugned order without appreciating evidence. Respondent obtained judgment and decree in his favour from the executing court without considering the judgment of Apex Court in the case of Asian Resurfacing of Road Agency Pvt. Ltd. Vs. Central Bureau of Investigation reported in AIR 2018 SC 2039 and initiated execution proceedings and directed to issue warrant of possession and attachment of moveable and immoveable property which is contrary to law, therefore, the same may kindly be set aside.

5. Learned counsel for the respondent vehemently opposed the prayer and supported the impugned order.

6. Heard the learned counsel for the parties and perused the documents appended thereto.

7. This is case where petitioners/defendants/tenants/judgment debtors are before this Court.

Following dates and events are important.

 Sr.       Dates                                    Events
 No.
1.     09/01/1969        Hasraj Sachdeva has been a tenant of Respondent/Trust. The

rent was Rs.50/- per month, for the purpose of truck transport. Rate of rent subsequently enhanced to Rs.75/- (mentioned on page No.13 in para No.2)

2. 1996 Civil Suit was filed by the respondent/plaintiff under Section 12(I) (a) and Section 12 (1)(c) of the MP Accommodation and Control Act, for eviction from suit property on the grounds of non-payment of rent by petitioner and nuisance.

3. 19/08/1999 Civil Suit of respondent/plaintiff was decreed and petitioner was directed to evict the suit property and to pay the pending rent.

4. 07/01/2000 Execution proceedings filed by respondent. As Ex. Case No.177-A/96x04 (As mentioned in order impugned in present petition)

5. 03/04/2001 First Appeal filed by petitioner was dismissed for non-

appearance of counsel of petitioner before first appellate court. An application for restoration of First Appeal was filed, same was also dismissed. Petitioner preferred M.A. No.155/2005 before this court.

6. 20/05/2006 This Court restored the First Appeal of petitioner through M.A. No.155/2005.

7. 09/10/2006 First Appeal filed by petitioner was dismissed after hearing.

And the judgment and decree of learned trial court was affirmed. (Annexure P/2, Page No.12)

8. 09/12/2006 Second Appeal No.1001/2006 filed by petitioner. (Annexure P/3, Page No.26)

9. 14/12/2006 This Court was pleased to grant interim relief as "In the meanwhile considering the age of the appellant it is directed that appellant shall not be dispossessed from the suit property till the next date of listing. However; the same would be subject to the condition to comply monetary part of the decree." (Annexure P/4, Page No.34)

10. 28/03/2018 Hon'ble Supreme Court of India was pleased t pass direction in Asian Resurfacing of Road Agency Pvt. Ltd. Vs. Central Bureau of Investigation (2018) 16 SCC 299. Whereby in Para 36, Hon'ble Supreme Court was pleased to directed that "in all pending matters before the high courts or other courts relating to PC Act or all other civil or criminal cases, where stay of proceedings in a pending trial is operating, stay will automatically lapse after six months from today unless extended by a speaking order on above parameters. Same course may also be adopted by civil and criminal appellate/revisional courts under the jurisdiction of the high courts. The trial courts may, on expiry of above period, resume the proceedings without waiting for any other intimation unless express order extending stay is produced."

11. 29/09/2018 Learned Executing Court had fixed date of hearing on 29/09/2018 for presence of parties and to inform executing court with regard to proceedings before this Court. The judgment of Hon'ble Supreme Court of India in Asian Resurfacing of Road Agency Pvt.Ltd. (supra) was produced before learned Executing Court. Hence, in compliance of order of Hon'ble Supreme Court of India, learned Executing court issued warrant of possession and seizure warrant to satisfy the decree in favour of Judgment Creditor/Respondent. (Annexure P/1, Page 10)

12. 15/10/2020 Hon'ble Supreme Court of India in Misc. Application No.1577/2020 filed in Criminal Appeal No.1375-1376 of 2023 in Asian Resurfacing of Road Agency Pvt. Ltd. (supra) had clarified that the decision passed in the case of Asian Resurfacing of Road Agency Pvt. Ltd. (supra) will also apply to the stay granted by the High Courts as "Learned Additional Chief Judicial Magistrate, Pune, by this order dated 04.12.2019, has instead of following our judgment in letter as well as spirit, stated that the complainant should move application before the High Court to resume the trial. The Magistrate goes on to say: " The lower Court cannot pass any order which has been stayed by the Hon'ble High Court, Bombay with due respect of ratio of the judgment in Asian Resurfacing of Road Agency Pvt. Ltd. & Anr (supra)." We must remind the Magistrates all over the country that in our pyramidical structure under the Constitution of India, the Supreme Court is at the Apex, and High Courts, though not subordinate administratively, are certainly subordinate judicially. This kind of orders fly in the face of para 35 o our judgment. We expect that the Magistrates all over the country will follow our order in letter and spirit. Whatever stay has been granted by any court including the High Court automatically expires within a period of six months, and unless extension is granted for good reasons, as per our judgment, within the next six months, the trial court is, on the expiry of the first period of six months, to set a date for the trial and go ahead with the same."

8. Petitioners being judgment debtors and tenants lost from two courts and interim relief was given on 14.12.2006 in Second Appeal No.1001/2006 subject to condition to comply monitory part of the decree. It is the specific submission of counsel for the petitioners that petitioners are not paying the rent (Rs.48/- per month), therefore, it is all the more atrocious for a litigant who obtained decree way back in year 1999 but still awaiting for the fruits of the decree.

9. So far as the contention of the petitioners that judgment of Apex Court is not applicable in the present case because present case is execution proceedings and judgment of Apex Court oust the execution proceedings but on close scrutiny, it appears that said contention does not hold ground.

Relevant paras in judgment are reproduced for ready reference :-

"36. In view of the above, situation of proceedings remaining pending for long on account of stay needs to be remedied. Remedy is required not only for corruption cases but for all civil and criminal cases where on account of stay, civil and criminal proceedings are held up. At times, proceedings are adjourned sine die on account of stay. Even after stay is vacated, intimation is not received and proceedings are not taken up. In an attempt to remedy this situation, we consider it appropriate to direct that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from today unless in an exceptional case by a speaking order such stay is extended. In cases where stay is granted in future, the same will end on expiry of six months from the date of such order unless similar extension is granted by a speaking order. The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalized. The trial Court where order of stay of civil or criminal proceedings is produced, may fix a date not beyond six months of the order of stay so that on expiry of period of stay, proceedings can commence unless order of extension of stay is produced.

37. Thus, we declare the law to be that order framing charge is not purely an interlocutory order nor a final order. Jurisdiction of the High Court is not barred irrespective of the label of a petition, be it under Sections 397 or 482 Cr.P.C. or Article 227 of the Constitution. However, the said jurisdiction is to be exercised consistent with the legislative policy to ensure expeditious disposal of a trial without the same being in any manner hampered. Thus considered, the challenge to an order of charge should be entertained in a rarest of rare case only to correct a patent error of jurisdiction and not to re-appreciate the matter. Even where such challenge is entertained and stay is granted, the matter must be decided on day-to-day basis so that stay does not operate for an unduly long period. Though no mandatory time limit may be fixed, the decision may not exceed two-three months normally. If it remains pending longer, duration of stay should not exceed six months, unless extension is granted by a specific speaking order, as already indicated. Mandate of speedy justice applies to the PC Act cases as well as other cases where at trial stage proceedings are stayed by the higher court i.e. the High Court or a court below the High Court, as the case may be. In all pending matters before the High Courts or other courts relating to PC Act or all other civil or criminal cases, where stay of proceedings in a pending trial is operating, stay will automatically lapse after six months from today unless extended by a speaking order on above parameters. Same course may also be adopted by civil and criminal appellate/revisional courts under the jurisdiction of the High Courts. The trial courts may, on expiry of above period, resume the proceedings without waiting for any other intimation unless express order extending stay is produced."

10. Later on, in the case of Asian Resurfacing of Road Agency Pvt. Ltd. Vs. Central Bureau of Investigation, 2022 (10) SCC 592 between the same parties, Apex Court has again reiterated the spirit of the order and cautioned the High Courts/Magistrates to follow the order. By effect of this judgment and Section 141 of CPC, execution proceedings are included and covered by the judgment of Apex Court.

11. Recently in the case of Rahul S. Shah Vs. Jinendra Kumar Gandhi and others reported in (2021) 6 SCC 418 has held in following manner :-

"23. This court has repeatedly observed that remedies 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 Counsel in The General Manager of the Raja Durbhunga v. Maharaja Coomar Ramaput Sing 14 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 @ Shub Karan Prasad Bubna v Sita Saran Bubna, wherein it recommended that the Law Commission and the Parliament should bestow their attention to provisions that enable frustrating successful execution. The Court opined that the Law Commission or the 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 handmaid of justice and sub-serve the cause of justice are, in effect, becoming tools which are being easily misused to obstruct justice.

24. In respect of execution of a decree, Section 47 of CPC contemplates adjudication of limited nature of issues relating to execution i.e., discharge or satisfaction of the decree and is aligned with the consequential provisions of Order XXI. Section 47 is intended to prevent multiplicity of suits. It simply lays down the procedure and the form whereby the court reaches a decision. For the applicability of the section, two essential requisites have to be kept in mind. Firstly, the question must be the one 11 arising between the parties and secondly, the dispute relates to the execution, discharge or satisfaction of the decree. Thus, the objective of Section 47 is to prevent unwanted litigation and dispose of all objections as expeditiously as possible.

25. These provisions contemplate that for execution of decrees, Executing Court must not go beyond the decree. However, there is steady rise of proceedings akin to a re- trial at the time of execution causing failure of realisation of fruits of decree and relief which the party seeks from the courts despite there being a decree in their favour. Experience has shown that various objections are filed before the Executing Court and the decree holder is deprived of the fruits of the litigation and the judgment debtor, in abuse of process of law, is allowed to benefit from the subject matter which he is otherwise not entitled to.

26. The general practice prevailing in the subordinate courts is that invariably in all execution applications, the Courts first issue show cause notice asking the judgment debtor as to why the decree should not be executed as is given under Order XXI Rule 22 for certain class of cases. However, this is often misconstrued as the beginning of a new trial. For example, the judgement debtor sometimes misuses the provisions of Order XXI Rule 2 and Order XXI Rule 11 to set up an oral plea, which invariably leaves no option with the Court but to record oral evidence which may be frivolous. This drags the execution proceedings indefinitely.

27. This is anti-thesis to the scheme of Civil Procedure Code, which stipulates that in civil suit, all questions and issues that may arise, must be 12 decided in one and the same trial. Order I and Order II which relate to Parties to Suits and Frame of Suits with the object of avoiding multiplicity of proceedings, provides for joinder of parties and joinder of cause of action so that common questions of law and facts could be decided at one go.

28. XXX

29. XXX

30. XXX

31. XXX

32. XXX

33. XXX

34. XXX

35. XXX

36. XXX

37. XXX

38. XXX

39. XXX

40. XXX

41. XXX

42. All Courts dealing with suits and execution proceedings shall mandatorily follow the below- mentioned directions:

42.1. In suits relating to delivery of possession, the court must examine the parties to the suit under Order X in relation to third party interest and further exercise the power under Order XI Rule 14 asking parties to disclose and produce documents, upon oath, which are in possession of the parties including declaration pertaining to 13 third party interest in such properties. 42.2. In appropriate cases, where the possession is not in dispute and not a question of fact for adjudication before the Court, the Court may appoint Commissioner to assess the accurate description and status of the property.

42.3. After examination of parties under Order X or production of documents under Order XI or receipt of commission report, the Court must add all necessary or proper parties to the suit, so as to avoid multiplicity of proceedings and also make such joinder of cause of action in the same suit. 42.4. Under Order XL Rule 1 of CPC, a Court Receiver can be appointed to monitor the status of the property in question as custodia legis for proper adjudication of the matter.

42.5. The Court must, before passing the decree, pertaining to delivery of possession of a property ensure that the decree is unambiguous so as to not only contain clear description of the property but also having regard to the status of the property. 42.6. In a money suit, the Court must invariably resort to Order XXI Rule 11, ensuring immediate execution of decree for payment of money on oral application. 42.7. In a suit for payment of money, before settlement of issues, the defendant may be required to disclose his assets on oath, to the extent that he is being made liable in a suit. The Court may further, at any stage, in appropriate cases during the pendency of suit, using powers under Section 151 CPC, demand security to ensure satisfaction of any decree.

42.8. The Court exercising jurisdiction under Section 47 or under Order XXI of CPC, must not issue notice on an application of third-party claiming rights in a mechanical manner. Further, the Court should refrain from entertaining any such application(s) that has already been considered by the Court while adjudicating the suit or which raises any such issue which otherwise could have been raised and determined during adjudication of suit if due diligence was exercised by the applicant.

42.9. The Court should allow taking of evidence during the execution proceedings only in exceptional and rare cases where the question of fact could not be decided by resorting to any other expeditious method like appointment of Commissioner or calling for electronic materials including photographs or video with affidavits. 42.10. The Court must in appropriate cases where it finds the objection or resistance or claim to be frivolous or mala fide, resort to Sub-rule (2) of Rule 98 of Order XXI as well as grant compensatory costs in accordance with Section 35- A. 42.11. Under section 60 of CPC the term "...in name of the judgment- debtor or by another person in trust for him or on his behalf" should be read liberally to incorporate any other person from whom he may have the ability to derive share, profit or property.

42.12. The Executing Court must dispose of the Execution Proceedings within six months from the date of filing, which may be extended only by recording reasons in writing for such delay. 42.13. The Executing Court may on satisfaction of the fact that it is not possible to execute the decree without police assistance, direct the concerned Police Station to provide police assistance to such officials who are working towards execution of the decree. Further, in case an offence against the public servant while discharging his duties is brought to the knowledge of the Court, the same must be dealt stringently in accordance with law. 42.14. The Judicial Academies must prepare manuals and ensure continuous training through appropriate mediums to the Court personnel/staff executing the warrants, carrying out attachment and sale and any other official duties for executing orders issued by the Executing Courts.

43. We further direct all the High Courts to reconsider and update all the Rules relating to Execution of Decrees, made under exercise of its powers under Article 227 of the Constitution of India and Section 122 of CPC, within one year of the date of this Order. The High Courts must ensure that the Rules are in consonance with CPC and the above directions, with an endeavour to expedite the process of execution with the use of Information Technology tools. Until such time these Rules are brought into existence, the above directions shall remain enforceable."

12. Incidentally petitioners are not pressing interim relief in second appeal and as submitted, second appeal has not been admitted yet. However; petitioners are trying to thwart the proceedings in the present case which is uncalled for.

13. Considering all the aspects this Court in the case of Dharmendra Kumar Jain and others Vs. Harpal Singh, Manu/MP/3032/2023 has considered plight of plaintiff/decree holders vis-à-vis defendants/judgment debtors and directed the Executing Court to take the execution proceedings with promptitude and no undue leniency be shown towards judgment debtors.

14. Contentions of the learned counsel for the petitioners that judgment as pronounced by Apex Court in the case of Asian Resurfacing of Road Agency Pvt. Ltd. Vs. Central Bureau of Investigation, 2022 (10) SCC 592 has referred to Larger Bench, therefore, stay be granted does not hold ground because in that position till Larger Bench consider the issue and make pronouncement, judgment as prevailing today is binding over the courts. Therefore, on this count also, case of petitioner lacks merit.

15. This Court again reiterates to the Executing Court that it is their duty to help out the plaintiff by taking out from cobwebs of procedures and to serve the cause of justice by realization of fruits of decree to the plaintiff. It is hereby directed that day to day proceedings be held by the Executing Court and all endeavours shall be made to decide the execution petition within next three months without any delay.

16. Resultantly petition stands dismissed with cost of Rs.2000/- to be paid to the decree holder.

(ANAND PATHAK) JUDGE

Rashid

RASHID KHAN 2023.12.09 17:19:38 +05'30'