WPMS/44/2021
2021 Latest Caselaw 83 UK

        THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL
              On the 08th Day of January, 2021
                            Before:
            Hon'ble Justice Sharad Kumar Sharma

           Writ Petition (M/S) No. 44 of 2021

BETWEEN

1.    Shanti Devi
2.    Shri Yogendra Singh
3.    Km. Namrata
4.    Kuldeep Singh
                                                ...Petitioners

(By Sri Siddhartha Sah, Advocate)

AND

1.    Collector Court Compound
      Dehradun
2.    Secretary, Krishi Mandi Utpadan Samiti,
      Saharanpur Road, Niranjanpur, Dehradun.

                                              ...Respondents


(Mr. Pradeep Hariya, Sanding Counsel along with Mr.
Gajendra Tripathi, Brief Holder for the State of
Uttarakhand)
(Respondent no. 2 represented by Mr. N.S. Pundir,
Advocate)

                            ORDER

Explanation VII of Section 11 of the CPC, which is equally applicable over the Land Acquisition proceedings and in all the proceedings, which are held under the Land Acquisition Act, it creates a specific bar as provided under the principles of Section 11 of the C.P.C., i.e. the resjudicata, and the same has been made applicable also to the execution proceedings. Section 11, to be read with Explanation VII, contained therein, is referred to hereunder:

"11. No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit

between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation VII.- The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree."

2. The brief facts, which emerges before this Court for consideration in the present case, is that the land, which was vested with the predecessor of the present petitioner, was made as a subject matter of the acquisition proceedings, which was ultimately laid to rest; by a reference proceeding being decided on 28.05.2011; by the Court of III Additional District Judge, Dehradun, in LA Case No. 106 of 2009 'Virendra Pal Singh vs. Collector', whereby, the reference under Section 18, thus was answered determining and quantifying the compensation payable for the land acquired under the Act, in the light of the parameters, which are provided under Section 23 (1-A) of the Act.

3. The said reference proceedings, which was decided on 28.05.2011; was later on made as a subject matter of challenge in First Appeal No. 81 of 2011 'Mandi Samiti Dehradun through its Secretary vs. Smt. Kamlesh Chandel and Another', by invoking the appellate provisions contained under Section 54 of the Land Acquisition Act, 1894, which too was decided by this Court on 28.03.2014 and, subsequent thereto, the judgment rendered by the Reference Court; as well that by the First Appellate Court; under Section 54, was affirmed by the judgment of the Hon'ble Apex

Court with the dismissal of SLP on 08.12.2014. It is now, at this stage, the controversy germinates to be considered in the present writ petition.

4. After the affirmation of the award, which was rendered by the Reference Court; under Section 18, the land losers, whose land was acquired, had put the decree to execution, as was rendered by the Reference Court, to an execution, which was numbered as an Execution Case No. 43 of 2014 'Smt. Shanti Devi vs. Collector and Others'. The said execution proceeding was ultimately decided by the Executing Court vide its judgment rendered on 02.11.2015. The execution proceedings were closed with the followig conclusion:

"lquk ,oa i=koyh dk ifj"khyu fd;k x;kA fu.khZr _.kh la[;k 2 }kjk izkFkZuk i= 11lh esa ;g vafdr fd;k x;k gS fd ekuuh; mPp U;k;ky; mRrjk[k.M] uSuhrky ds vkns"kkuqlkj ekuuh; mPp U;k;ky; esa fnukad 28-02-2014 dks fMØh dh /kujkf"k 1]14]19][email protected]& :Ik;s VsUMj }kjk tek djk;s x;s FksA VsUMj dh QksVks dkWih lkFk esa layXu gSA blds vfrfjDr fu.khZr _.kh la[;k 2 dh vksj ls izkFkZuk i= 13lh esa ;g vafdr fd;k x;k gS fd "ks'k /kujkf"k 5]14][email protected]& :Ik;s fnukad 08-03-2014 dks ekuuh; mPp U;k;ky; mRrjk[k.M] uSuhrky ds vkns"kkuqlkj ekuuh; mPp U;k;ky; esa tek fd;s x;s gSa] VsUMj dh QksVks dkWih layXu gSA U;k;ky; }kjk layXu VsUMj dh QksVks dkWih 12lh ,oa 14lh dk voyksdu fd;k x;kA VsUMj dh QksVks dkWih 12lh ls Li'V gS fd fnukad 28-02-2014 dks VsUMj }kjk 1]14]19][email protected]& :Ik;s fu.khZr _.kh }kjk tek djk;s x;s gSa rFkk VsUMj dh QksVks dkWih 14lh ls Li'V gS fd fu.khZr _.kh la[;k 2 }kjk fnukad 10-03-2014 dks 5]14][email protected]& :Ik;s VsUMj }kjk tek djk;s x;s gSaA bl izdkj fu.khZr _.kh la[;k 2 }kjk fMØh dh lEiw.kZ /kujkf"k 1]19]34][email protected]& :Ik;s ¼,d djksM+ mUuhl yk[k pkSarhl gtkj lRrkbl :Ik;s½ ekuuh; mPp U;k;ky; mRrjk[k.M] uSuhrky esa iwoZ esa tek djk;s tk pqds gSaA ,sls ifjfLFkfr;ksa esa bl btjk; okn dks vkxs pyk;s tkus dk Hkh dksbZ vkSfpR; ugha gSA rnkuqlkj btjk; okn fujLr fd;k tkrk gSA i=koyh ckn vko";d dk;Zokgh fu;ekuqlkj nkf[ky n¶rj gksA"

5. As a consequence of the judgment of 02.11.2015 (Annexure-7 to the writ petition), the reference proceedings and its execution, was laid to rest to the satisfaction of the decree for compensation as was determined therein.

6. This judgment of 02.11.2015, admittedly has attained finality and with the finality attached to the said judgment in the Execution Case No. 43 of 2014, the execution has been brought to an end with its satisfaction. Its not only that after the closure of execution proceedings on 02.11.2015, the petitioners, all of a sudden, almost after more than 3 years woke up from their slumber and filed yet an another execution application on 25.01.2019; contending thereof that certain part of interest, which has been more particularly detailed in clause-7 Entry 10 of the execution application, had fallen due to be paid, which is still remain unpaid despite of the closure of the execution on 02.11.2015. The amount as detailed and sought to be claimed for by way of an interest was referred to as under:

"10. Interest @ 15% from 1-1-2009 to 3-3- 2014 i.e. 1887 days per day"

7. It was an interest, which was admittedly claimed to be payable from 01.01.2009 to 03.03.2014. On a simple logic, if it this amount of interest, which is now claimed by the petitioners in the subsequent execution proceedings, which is the subject matter in the present writ petition, it was apparently an amount of interest, which, if at all, was due to be paid to the petitioner, it ought to have been made as a subject matter of claim in the earlier execution proceedings No. 43 of 2014 itself, which was decided much later, thereafter on 02.11.2015. If the petitioners themselves have not pressed for the payment of the said interest for the aforesaid earlier period prior to 02.11.2015 at the stage when the first execution proceedings was being decided and that too for a period prior to the decision of the execution itself, I am

of a confirmed view that the registration of the subsequent execution proceedings by way of Execution Case No. 106 of 2009, on 25.01.2019 would be explicitly barred by Explanation VII to Section 11 of the CPC.

8. Consequently, I do not find any error in the impugned order under challenge.

9. The writ petition lacks merit and the same is, accordingly, dismissed.

(Sharad Kumar Sharma, J.) 08.01.2021 Pooja