Deepak Jain vs Narmada Club
2023 Latest Caselaw 19686 MP

Madhya Pradesh High Court

Deepak Jain vs Narmada Club on 24 November, 2023

Author: Vishal Dhagat

Bench: Vishal Dhagat

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                         BEFORE
         HON'BLE SHRI JUSTICE VISHAL DHAGAT
               WRIT PETITION No.5887 of 2006
   Between:-

   DEEPAK JAIN S/O LATE SUMERCHAND
   JAIN, AGED ABOUT 45 YEARS, 744 SARAFA
   BAJAR NEAR KAMANIA GATE JABALPUR
   (MADHYA PRADESH)

                                               .....PETITIONER

   (BY SHRI R.K. SANGHI - ADVOCATE)

                           AND

   1.   THE STATE OF MADHYA PRADESH
        THROUGH CHIEF SECRETARY, GOVT. OF
        M.P. VALLABH    BHAWAN,   BHOPAL
        (MADHYA PRADESH)

   2.   NARMADA CLUB HOSHANGABAD, A
        REGISTERED SOCIETY (UNDER SOCIETY
        REGISTRATION ACT, 1960) THR. ITS
        PRESIDENT,      CIVIL       LINES,
        HOSHANGABAD (MADHYA PRADESH)

   3.   THE    COLLECTOR  HOSHANGABAD
        DISTRICT HOSHANGABAD (MADHYA
        PRADESH)

   4.   SUPERINTENDENT    OF    POLICE,
        HOSHANGABAD (MADHYA PRADESH)

   5.   ADDITIONAL    DISTRICT   JUDGE,
        HOSHANGABAD (MADHYA PRADESH)

   6.   DR. AKSHAY A. DHOBLEY S/O LATE LT.
        COL ASHOK DHOBLEY AKSHAY DEEP,
        PLOT NO. 42, DHANTOLI, BANERJEE
        MARG,NAGPUR M.H. (MAHARASHTRA)
                                                                    WP No.5887 of 2006
                                         -   2 -

       7.      DR.  MRS.  NEETA SHABDE   22,
               GLADSTONBURY GRONE, JASMOND,
               NEW CASTLE ON TYNE NE2- 2HB
               (MAHARASHTRA)

       8.      MRS. SHEELA MULYE FLAT NO.1, NEAR
               SUN GRANCE, HIGH SCHOOL, VANWADI
               (MAHARASHTRA)

       9.      SMT. SUNANDA TARE W/O LATE ASHOK
               TARE R/O SAI CHHAYA, B-2 PAVITRA
               APARTMENT, PACHPEDI, SOUTH CIVIL
               LINES, JABALPUR (MADHYA PRADESH)

       10.     SHRI KALPAK TARE S/O LATE ASHOK
               TARE R/O SAI CHHAYA, B-2 PAVITRA
               APARTMENT, PACHPEDI, SOUTH CIVIL
               LINES, JABALPUR (MADHYA PRADESH)

       11.     MS. KAVITA D/O LATE ASHOK TARE R/O
               SAI CHHAYA, B-2 PAVITRA APARTMENT,
               PACHPEDI,    SOUTH    CIVIL  LINES,
               JABALPUR (MADHYA PRADESH)

       12.     MS. MONIKA D/O LATE ASHOK TARE R/O
               SAI CHHAYA, B-2 PAVITRA APARTMENT,
               PACHPEDI,   SOUTH     CIVIL   LINES,
               JABALPUR     JABALPUR       (MADHYA
               PRADESH)


                                                                ....RESPONDENTS

       (SHRI AMIT SETH - DEPUTY ADVOCATE GENERAL)
----------------------------------------------------------------------------------------
       Reserved on                   :       01.05.2023
       Delivered on                  :       24.11.2023
----------------------------------------------------------------------------------------
                                                         WP No.5887 of 2006
                                 -   3 -

      This petition having been heard and reserved for orders,
coming on for pronouncement this day, the Court pronounced the
following:

                               ORDER

Petitioner has filed this petition under Article 226/227 of the Constitution of India making following prayers:-

(i) to direct the respondent No.5 to issue a warrant of possession and cost in favour of the petitioner against the respondents. Respondent No.5 may be directed to recover the rent and the mesne profit upto the date of recovery of possession in favour of the petitioner.

(ii) to direct the respondents to pay the expenditure and expenses of litigation to the petitioner incurred by him. The amount on this account is Rs.2,00,000/-

(Rs. Two Lacs).

(ii-a) To quash Annexure-P/10 dated 13.09.2004 and Annexure-P/13 dated 07.09.2012 and to restrain the respondents from taking possession of the suit property except in accordance with law.

(iii) This Hon'ble Court be further pleased to pass any such other orders as this Hon'ble Court may deem fit under the circumstances of the case.

2. There was dispute between petitioner and respondent No.2 in respect of ownership and possession over the land and building (Narmda Club). Kamlini Tare who is wife of P.K. Tare was vested with disputed property by virtue of Will/Bakshishnama dated 23.02.1967. Property in question was given on lease by grant order dated 26.03.1912 by I.C.S. Officer under Secretary A.B. Knowles Esquire to one Narayan Tukaram

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Ingle. Property passed to his sons through guardian P.K. Tare and later on gifted to wife of Shri P.K. Tare i.e. Kamlini Tare @ Nalini Tare. She filed a Civil Suit No.3-A/1992 before Court of First Additional District Judge, Hoshangabad against Narmada Club. She became owner of property in question and her name was also entered in revenue records as per order dated 16.08.1967 in Review Case No.29-A/6/1966-67.

3. In civil suit no.3-A/1992, defendant did not appear and were proceeded ex-parte. Judgment and decree was passed on 22.11.1993. Declaration of ownership was made in favour of plaintiff Kamlini Tare. Kamlini Tare was declared to be owner of Plot No.24, Sheet No.59, area 85575 (1.96 acre). Defendants were decreed to hand over the vacant possession of disputed property to plaintiff and cost of Rs.350/- was also imposed till possession is given.

4. Narmada Club through its President filed an application for setting aside ex-parte decree. Said application i.e. MJC No.18/1994 was dismissed vide order dated 17.12.1998. MA No.445/1999 was preferred against order dated 17.12.1998. Said MA was also dismissed vide order dated 29.10.2002. Civil Appeal No.641/2003 was filed before Supreme Court. Said appeal was also dismissed by Supreme Court vide its order dated 19.08.2004. While dismissing the appeal, Supreme Court concurred with the view taken by High Court and Court below that appellants were duly served but they failed to appear in Court despite service of notice. Henceforth, appeal was dismissed as it sans of merits. Court further ordered to vacate the stay granted by it on 27.01.2003 and ordered to punctually carry out execution of orders.

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5. Thereafter, respondents filed FA No.577/2004 before the High Court challenging judgment and decree dated 22.11.1993 passed in civil suits No.3-A/1992. Said first appeal was supported by an application for condonation of delay i.e. IA No.4242/2005. High Court dismissed the said application for condoantion of delay and also dismissed the first appeal.

6. On 30.08.1994, execution case No.3-A/1992 was filed by decree holder. Decree holder obtained possession and was satisfied by partial execution of decree. On said satisfaction, execution case was dismissed vide order dated 30.08.1994.

7. Later on, petitioner filed review for issuance of possession warrant. It was submitted that actual possession was not given by warrant of possession dated 24.08.1994. Review application for issuance of fresh possession warrant was dismissed on 13.09.2004.

8. Under strength of order of Apex Court, petitioner filed an application for execution of judgment and decree dated 22.11.1993. Said application was considered by Executing Court and it was held that execution case was dismissed on 30.8.1994 after satisfaction as possession has been delivered. Order was passed by Supreme Court in appeal in respect of setting aside of ex-parte judgment and decree. Question of execution of judgment and decree was not before Supreme Court. Another MJC No.01/1996 in which application under Section 47 and 151 was filed for repossession of property is under consideration. Executing Court held that since execution case was dismissed under

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satisfaction of plaintiff and another MJC No.01/1996 is filed for review which is under consideration, therefore, repeat warrant of possession cannot be issued under Order 21 Rule 35. Order was passed to place the case along with MJC No.01/1996. In execution case, an application was filed under Section 47 read with 151 and Order 47 Rule 1 of the CPC for reviewing order dated 13.09.2004. Executing Court directed the petitioner to clarify what further proceeding is wanted by him in execution case. Said execution case was listed on various dates before executing court. On 10.02.2005, none appeared for decree holder or judgment debtor. At 04:00 pm case was dismissed for want of prosecution.

9. During pendencey of execution case, order dated 13.09.2004 was challenged in Civil Revision No.746/2004 before High Court. High Court dismissed the civil revision on ground that after amendment of Code of Civil Procedure w.e.f. 01.07.2002, civil revision is maintainable only against orders which finally dispose of suit or other proceedings. By impugned order dated 13.09.2004, proceedings were not finally disposed off. In these circumstances, revision was dismissed as not maintainable by order dated 27.02.2006.

10. Petitioner preferred contempt petition before Supreme Court bearing CONC (c) No.189/2005 arising out of Civil Appeal No.641/2003. Contempt petition was dismissed by Apex Court on 19.09.2005 reserving liberty to petitioner to move contempt petition before High Court where revision petition against dismissal of execution proceedings is pending.

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11. Petitioner filed Contempt Petition No.387/2010 before the High Court of Madhya Pradesh. Contempt petition was dismissed vide order dated 07.05.2010 holding that it is not proper to initiate action for contempt, instead petitioner may get the decree executed in accordance with law.

12. During pendency of proceedings a Will was executed on 24.01.2005 by Kamlini Tare in name of daughters namely Anuradha Dhobley, Sheela Mulye and Neeta Shabde. As per said Will, possession of property is to be given to petitioner-Deepak Jain S/o Sumerchand Jain and he will pay Rs.8 Lac to each of the daughters and daughters will only have minority rights over the property. On strength of said Will, Deepak Jain filed petition for obtaining probate of Will. Probate case No.5/2007 was allowed vide order dated 18.10.2011 and probate was issued.

13. Petitioner filed writ petition under Article 226/277 of the Constitution of India and made prayer to direct respondent No.5 to issue warrant of possession and cost in favor petitioner and also for direction to recover rent and mesne profit up to date of recovery of possession and further prayer was made to quash order dated 13.09.2004 (Annexure- P/10) and order dated 07.09.2012 (Annexure-P/13). Order dated 07.09.2012 is passed in Execution Case No.3-A/1992. Execution Case No.3-A/1992 was dismissed on 10.02.2005 for want of prosecution. It is not clear whether execution case was restored or not. Since, executing Court has passed another order in Execution Case No.3-A/1992 on 07.09.2012, therefore, it appears that execution case may have been restored and executing court proceeded to pass order dated 07.09.2012.

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By said order, executing Court refused to issue possession warrant as same is barred by principles of res judicata. In execution case vide order dated 13.09.2004 prayer for issuance of possession warrant had been rejected and repeat possession warrant cannot be issued. It has also been mentioned in said order that WP No.5887/2006 is pending before High Court for issuance of direction in execution case. In said circumstances, executing court proceeded only for execution of decree in respect of recovery of an amount of Rs.94,366/- and issued attachment warrant.

14. Following questions are before this Court:-

(i) Whether repeat warrant of possession can be issued when first execution proceeding filed by petitioner was disposed of with satisfaction of petitioner?

(ii) Whether direction to recover rent and mesne profit up to date of recovery of possession can be ordered by this Court?

(iii) Whether cost of Rs.2,00,000/- can be awarded?

(iv) Whether order dated 13.09.2004 and order dated 07.09.2012 are bad in law and deserve to be quashed?

15. Execution case in Civil Suit No.3-A/1992 was disposed off in satisfaction of decree as possession had been delivered to him. In these circumstances, executing court has rejected the prayer of petitioner for

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issuing of second warrant of possession vide its order dated 13.09.2004. An application filed for reviewing order dated 13.09.2004 was also dismissed vide on 01.11.2004. Petitioner had filed Civil Revision No.746/2004 against order dated 13.09.2004. Said civil revision was dismissed vide order dated 27.02.2006 as not maintainable. Petitioner also has approached Supreme Court by filing contempt petition wherein direction was given to approach High Court. Petitioner filed contempt petition before High Court and said petition was dismissed with liberty to petitioner to get the decree executed in accordance with law.

16. Since, first execution case has been disposed of in satisfaction of decree and petitioner had obtained possession, therefore, order passed in executing court will operate as res judicata and no direction can be given in this writ petition for issuance of second warrant of possession. So far as question of recovery and mesne profit is concerned, executing court has issued attachment warrant in respect of said prayer. No further order of executing court regarding recovery or dismissal of said case is placed before this Court. In absence of same, no order can be passed for recovery and mesne profit. Cost can also not be awarded to the petitioner.

17. Resultantly, writ petition filed by petitioner, is dismissed.

(VISHAL DHAGAT)

Date: 2023.11.28 17:31:17 +05'30'