WPMS/1099/2017
2021 Latest Caselaw 3304 UK

IN THE HIGH COURT OF UTTARAKHAND
                       AT NAINITAL
       ON THE 26TH DAY OF AUGUST, 2021
                              BEFORE:
     HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI


       Writ Petition (M/S) No. 1099 of 2017


BETWEEN:

Smt. Surendri Devi & others.                           .....Petitioners
      (By Mr. Mahavir Singh Tyagi, Senior Advocate, assisted by Mr. Chandra
      Prakash, Advocate)




AND:

Janeshwar Sharma & others.                           ...Respondents
      (By Mr. Nikhil Singhal, Advocate)




                           JUDGMENT

This is third round of litigation by the judgment debtors and, due to the unnecessary litigation by them, a decree passed on 25.03.1998 is yet to be executed.

2. Janeshwer Sharma (respondent no. 1) filed a suit for mandatory as well as permanent injunction, which was numbered as Original Suit No. 202 of 1991. Mam Chand, predecessor-in-interest of the petitioners, was defendant no. 1; while, one Rishi S/o Jaswant Singh was defendant no. 2 in the said suit. The suit was decreed by learned Civil Judge (Junior Division), Roorkee vide judgment dated 25.03.1998. Mam Chand challenged the said decree by filing First Appeal No. 29 of 1998, which

was dismissed vide judgment and decree dated 18.05.2001. Mam Chand, thereafter, filed Second Appeal No. 285 of 2001, which was dismissed by Coordinate Bench of this Court vide judgment dated 01.03.2012. On 24.05.2001, the decree holder filed an application for execution of the said decree, which was registered as Execution Case No. 05 of 2001. Mam Chand filed objection under Section 47 C.P.C., however, his objection was rejected by the Executing Court on 03.02.2009. Mam Chand challenged rejection of his objection by filing revision, however, his revision was dismissed by the revisional Court vide judgment dated 28.05.2011. Mam Chand, thereafter, filed WPMS No. 1509 of 2011, challenging the order dated 03.02.2009 passed by Executing Court and also the judgment dated 28.05.2011 passed by revisional Court, which too was dismissed by a Coordinate Bench of this Court vide judgment dated 27.07.2011.

3. Since the judgment debtors were creating obstruction in execution of decree, even after rejection of their objection filed under Section 47 C.P.C., consequently, the decree holder filed another application in the month of April, 2009 stating that, despite the order passed by Executing Court, the judgment debtors have not removed the disputed structure and execution of decree is not possible without detention of the judgment debtors in civil prison, therefore, for enforcing the decree, the judgment debtors be detained in civil prison for six months. The said application was numbered as Execution Case No. 02 of 2009. Mam Chand (predecessor-in-interest of the petitioners) filed

objection to the said application, contending that the application has been filed after more than three years from the date of judgment of First Appellate Court, therefore, the application filed by decree holder is time barred. Learned Civil Judge (Junior Division), Roorkee rejected Mam Chand's objection and allowed application of the decree holder vide order dated 17.09.2015. Mam Chand challenged the order dated 17.09.2015 by filing a revision under Section 115 C.P.C., which is registered as Civil Revision No. 83 of 2015. Mam Chand passed away during pendency of the said revision and his legal representatives (petitioners herein) were substituted in his place. The said revision was dismissed by learned IVth Additional District Judge, Haridwar vide judgment dated 24.04.2017.

4. In this petition under Article 227 of the Constitution, petitioners have challenged the order passed by Executing Court/Civil Judge (Junior Division), Roorkee on 17.09.2015 and also the judgment rendered by revisional Court on 24.04.2017.

5. Perusal of the record shows that an application under Order 22 Rule 10-A C.P.C. was moved supported by an affidavit of Sanjay S/o Janeshwer Sharma (respondent no. 1). By the said affidavit, an intimation was given regarding death of Janeshwer Sharma on 16.10.2019 and names of his legal representatives were also given in paragraph no. 3 of the affidavit. The said application was filed on 07.01.2020, after serving copy thereof to learned counsel for the petitioners, however, petitioners

have not cared to substitute the legal representatives of respondent no. 1 in the writ petition.

6. I have gone through the order passed by Executing Court on 17.09.2015. Learned Executing Court has considered the application made by decree holder for detention of the judgment debtors in civil prison, where details of the Execution Application No. 05 of 2001 filed by the decree holder was given. Learned Executing Court has rightly held that an application filed by the decree holder in 2009 is not a fresh/separate execution application, but, it is an application for enforcing the decree through different mode. It has further been held by the Executing Court that the decree passed by trial Court attained finality on 01.03.2012, when Second Appeal filed by the judgment debtors was dismissed, therefore, limitation for filing execution application will start from the date the judgment attained finality.

7. The view taken by the Executing Court is just & proper, which does not warrant any interference. The revisional Court has also considered the matter in great detail and, by a reasoned order, it has dismissed the revision petition filed by the judgment-debtor.

8. I concur with the view taken by learned Courts below that there was no delay in the execution application filed by the judgment-debtor.

9. Delays and difficulties in execution of decrees/awards erode public confidence and trust in the justice delivery system. Execution jurisdiction deserves special attention and expeditious disposal considering that the decree-holders have already succeeded in the litigation and hold a decree/award in their favour.

10. In Satyawati Vs. Rajinder Singh, reported in (2013) 9 SCC 491, Hon'ble Supreme Court quoted the Privy Council's judgment of 1872 that the 'difficulties of a litigant in India begin when he has obtained a decree' and observed that the position has not improved and the decree-holders still face the same problems. Hon'ble Supreme Court further observed that, if there is an unreasonable delay in execution of a decree, the decree-holder would be unable to enjoy the fruits of his success and the entire effort of successful litigant would be in vain.

11. The anguish expressed by Hon'ble Supreme Court in Satyawati's case (Supra), due to delaying tactics adopted by the judgment debtors in execution of decree, is reproduced below:

"12. It is really agonising to learn that the appellant-decree-holder is unable to enjoy the fruits of her success even today i.e. in 2013 though the appellant-plaintiff had finally succeeded in January 1996. As stated hereinabove, the Privy Council in General Manager of the Raj Durbhunga v. Coomar Ramaput Sing had observed that the difficulties of a litigant in India begin when he has obtained a decree. Even in 1925, while quoting the aforestated judgment of the Privy Council in Kuer Jang Bahadur v. Bank of Upper India Ltd.

the Court was constrained to observe that: (AIR p. 448) "Courts in India have to be careful to see that the process of the Court and the law of procedure are not abused by judgment-debtors in such a way as to make courts of law instrumental in defrauding creditors, who have obtained decrees in accordance with their rights."

13. In spite of the aforestated observation made in 1925, this Court was again constrained to observe in Babu Lal v. Hazari Lal Kishori Lal in para 29 that: (SCC p. 539) "29. Procedure is meant to advance the cause of justice and not to retard it. The difficulty of the decree-holder starts in getting possession in pursuance of the decree obtained by him. The judgment-debtor tries to thwart the execution by all possible objections."

14. This Court, again in Marshall Sons & Co. (I) Ltd. v. Sahi Oretrans (P) Ltd. was constrained to observe in para 4 of the said judgment that: (SCC p. 326) "4. ... it appears to us, prima facie, that a decree in favour of the appellant is not being executed for some reason or the other, we do not think it proper at this stage to direct the respondent to deliver the possession to the appellant since the suit filed by the respondent is still pending. It is true that proceedings are dragged for a long time on one count or the other and, on occasion, become highly technical accompanied by unending prolixity at every stage providing a legal trap to the unwary. Because of the delay, unscrupulous parties to the proceedings take undue advantage and a person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also a known fact that after obtaining a decree for

possession of immovable property, its execution takes a long time."

15. Once again in Shub Karan Bubna v. Sita Saran Bubna at para 27 this Court observed as under: (SCC p. 699) "27. In the present system, when preliminary decree for partition is passed, there is no guarantee that the plaintiff will see the fruits of the decree. The proverbial observation by the Privy Council is that the difficulties of a litigant begin when he obtains a decree. It is necessary to remember that success in a suit means nothing to a party unless he gets the relief. Therefore, to be really meaningful and efficient, the scheme of the Code should enable a party not only to get a decree quickly, but also to get the relief quickly. This requires a conceptual change regarding civil litigation, so that the emphasis is not only on disposal of suits, but also on securing relief to the litigant."

16. As stated by us hereinabove, the position has not been improved till today. We strongly feel that there should not be unreasonable delay in execution of a decree because if the decree-holder is unable to enjoy the fruits of his success by getting the decree executed, the entire effort of successful litigant would be in vain."

12. In such view of the matter, the writ petition fails and is dismissed.

13. Having regard to the facts & circumstances of the case, this Court is of the firm opinion that the judgment debtors have dragged the decree holder to unnecessary litigation. This is a vexatious writ petition aimed at further delaying

execution of the decree, which amounts to abuse of process of law, therefore, this Court imposes a cost of ` 10,000/- upon the petitioners, to be deposited by them before the Executing Court within three weeks from today, which shall be released in favour of decree holder. In case of failure on the part of the petitioners to deposit the amount of cost, the same shall be recovered from them as arrears of land revenue.

(MANOJ KUMAR TIWARI, J.) Navin