Monday, 13 March 2017

Whether person claiming through judgment debtor can resist execution of decree?

 It, therefore, follows that, when the appellants are claiming
possession over the suit land on the basis of the tenancy created during
pendency of the Suit, then such tenancy or possession being hit by the
principle of lis pendens, under Section 52 of the Transfer of Property Act,
they have no right at all to resist execution of the decree. The law on this
aspect is no more res integra and no authority is required to state the
legal position that an obstructionist can successfully resist execution of
the decree only he is able to establish his independent right, title over the
property. In this case, on their own pleadings and evidence, the appellants
have miserably failed to do so, as they are claiming through the
Judgment-Debtor.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.797 OF 2016

Veljiben V. Satra 
 V
 Kanaiyalal Purshottamdas Shah 
CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
DATE : 5 TH OCTOBER 2016.
Citation: 2017(1) MHLJ 335 Bom

2. Learned counsel for the respondents waives service of notice. By
consent, these First Appeals are heard finally and disposed of at the stage
of admission itself.
3. All these First Appeals, along with the Civil Applications therein, are
heard and decided together by this common Judgment, as the issues
involved and the reliefs claimed therein are the same, coupled with the
fact that the respondents herein are also the same.
4. These First Appeals are filed against the Judgment and Order
passed by City Civil Court, Mumbai in three different Chamber Summons
filed by the appellants/obstructionists, under Order XXI Rule 97 of the
Code of Civil Procedure, 1908, seeking declaration that the Decree
passed in Suit No.1173 of 1971 dated 15th April 1997 by the City Civil
Court, Mumbai, cannot be executed against them; and that the order
passed in Chamber Summons No.397 of 1999 on 19th September 2000 to
take forcible possession of the suit land by removing original defendant
Nos.1 and 2 from the said land and also for removing the suit structures
standing thereupon by breaking open the lock with the help of Police, is
illegal.
5. The appellant in First Appeal No.797 of 2016 and 798 of 2016 –
Smt. Veljiben – is the mother of appellant – Nitin – in First Appeal No.799
of 2016. She claims to be in possession of Gala Nos.28 and 29; whereas,
her son claims to be in possession of Gala No.30 in T.M. and D.M. Chawl
since 1996.
6. Respondent Nos.1 to 11 – original plaintiffs had filed Suit bearing
No.1173 of 1971 against respondent Nos.12 and 13, (hereinafter referred
to as, 'defendant Nos.1 and 2'), for declaration of their rights, title and
interests in respect of the suit land, admeasuring about 28,427.40 square
meters, equivalent to 34,000 square yards, bearing Survey No.92, Hissa
No.4 (Part), Survey No.118, Hissa No.1 (Part) and Survey No.120, Hissa
Nos.3, 4 and 5, situate at Village Pahadi, Taluka Borivali in Greater
Bombay. According to the appellants, their property is, however, situate
on C.T.S. No.454/G, which forms part of Survey No.120. It is further their
case that the suit land is a large plot of land, which is not bounded by any
demarcation. Respondent Nos.1 to 11, who are original plaintiffs, are
claiming possession of only a portion of the larger plot from respondent
Nos.12 and 13, who are original defendant Nos.1 and 2, and under the
guise of execution of the Decree, they are attempting to grab the
surrounding land and areas. Therefore, it is necessary to restrain
respondent Nos.1 to 11 from executing the Decree against the appellants
and, in the meanwhile, to get the suit land officially surveyed and
measured by the District Inspector of Land Records, (for short, “DILR”),
by appointing him as Court Commissioner.
7. According to learned counsel for the appellants, the Court Receiver
was appointed in the year 1980 to measure the suit land and to
demarcate the total construction standing thereon. As per the report of the
Court Receiver, there was an encroachment to the extent of 1,094 square
yards on the suit land at the time of filing of the Suit. The Court Receiver
was directed by an order dated 27th October 1980 to take symbolic
possession of the encroached area to the extent of 1,094 square yards.
Accordingly, the Court Receiver has taken possession of the suit land and
in the list prepared by the Court Receiver, the name of the uncle of
appellant - Nitin, who was earlier in possession of the suit Galas, was not
appearing, thereby clearly indicating that the uncle of the appellant – Nitin
was on a separate piece of land forming part of Survey No.120 and not on
the suit land bearing Survey No.118.
8. It is further case of the appellants that the Officers of the Court
Receiver had visited the suit land on 4th July 2013 and demanded
possession of the suit premises for execution of the Decree dated 15th
April 1997 passed in the above-said Suit No.1173 of 1971. According to
the appellants, this Decree cannot be executed against them, as the suit
structures are not falling in Survey No.118, relating to which the Decree
was passed, but their suit structures are falling in Survey No.120. Hence,
the appellants filed the Chamber Summons before the Trial Court,
obstructing execution of the Decree against them. In the Chamber
Summons, the relief was sought for appointment of DILR as Court
Commissioner to survey and measure the suit land, in order to know the
exact location; whether the suit structures really fall in Survey No.118 or
120.
9. It is further urged that, as the suit structures are forming part of
C.T.S. No.454/G, which is declared as slum area, under Notification dated
4
th February 1989, published in the Government Gazette dated 2nd March
1989, and re-notified in the Government Gazette dated 19th December
1991, as well as under Notification dated 30th December 1993, published
in the Government Gazette dated 20th January 1994, without permission
of the Competent Authority, under Section 22 of the Maharashtra Slum
Areas (Improvement, Clearance and Redevelopment) Act, 1971, the
decree also cannot be executed.
10. With these submissions, it was urged before the Trial Court that the
Decree cannot be executed against the appellants. However, the
Chamber Summons preferred by the appellants came to be dismissed by
the Trial Court vide impugned Judgment and Order and hence it is urged
that the findings recorded by the Trial Court, in paragraph No.38 of its
impugned Judgment and Order, do not touch the real dispute and
controversy between the parties. It is submitted that, the Trial Court has
rejected the appellants' application for appointment of DILR as a Court
Commissioner to measure the land, calling it as a last ditch attempt made
by the appellants, only to obstruct execution of the Decree. It is submitted
that, as the appellants are having independent right to remain in
possession of the suit structures, as their structures are not falling in the
suit land, in respect of which the Decree came to be passed, their
possession needs to be protected.
11. In support of this submission, learned counsel for the appellants has
relied upon the maps produced on record, at Page Nos.252 and 253 of
the paper-book, drawn by the DILR and by the City Survey Officer, to
contend that C.T.S. No.454/G is part of Survey No.120, which is on the
periphery of the suit land and not the part of the suit land. According to
learned counsel for the appellants, therefore, having regard to these
maps, it is necessary that respondent Nos.1 to 11 be restrained from
executing the decree against them and if there is any doubt, at-least, pass
an order for fresh survey and measurement of both the lands by
appointment of DILR as Court Commissioner, in order to ascertain exact
location of the suit structures; to know whether they fall in the four corners
of the suit land, as described in the Decree, or, in the surrounding area.
12. These Chamber Summons and the Appeals came to be resisted
strongly by learned counsel for the respondent Nos.1 to 11 and in my
considered opinion, rightly so. In the first place, it is a matter of record that
the decree passed in Civil Suit No.1173 of 1971 on 15th April 1997 against
original defendant Nos.1 and 2 is confirmed upto the Hon'ble Supreme
Court. It pertains not only to Survey No.92, Hissa No.4 (Pt), Survey
No.118, Hissa No.1 (Pt), but also Survey No.120, Hissa Nos.3, 4 and 5.
The said Suit was filed by respondent Nos.1 to 11 for declaration and also
for possession of the suit land. In that Suit, plaintiffs had filed Notice of
Motion, under Order XXXIX Rule 2 of CPC, and also an application on 29th
March 1980 for appointment of Court Receiver to measure the suit land in
order to ascertain the exact area encroached upon by original defendant
Nos.1 and 2. That application was allowed and the Court Receiver was
appointed to measure the suit land and to demarcate the total
construction thereon. The Court Receiver measured the suit land and
submitted his report on 30th March 1980. The report demonstrates that the
Court Receiver found encroachment to the extent of 1,094 square yards.
In pursuance of this report, by an order dated 27th October 1980, the Court
Receiver was directed to take symbolic possession of the encroached
portion from defendant Nos.1 and 2 and other occupants. Defendant
Nos.1 and 2 challenged the appointment of Court Receiver by preferring
Appeal No.460 of 1981, which came to be dismissed. Accordingly, the
Court Receiver took symbolic possession from defendant Nos.1 and 2
and other occupants and prepared the list of persons, who were found in
possession of the suit land through defendant Nos.1 and 2.
13. Admittedly, the names of the appellants are not appearing in the
said list. Hence, it clearly indicates that when possession of the suit land
was taken over by the Court Receiver, appellants were not in possession.
According to the very case of the appellants also, they came in
possession since 1996. The law is well settled, as observed by this Court
in the case of Aboobakar Abdulrehman and Co. Vs. Shreeji Properties,
AIR 1993 Bombay 265(1) after going through the various decisions, that,
“during the time the property is in custody / charge of the Court in the
hands of the Receiver on behalf of the Court, no rights of the Receiver on
behalf of the Court, no rights can be created in the property which would
defeat the ends of justice and incapacitate the Court from giving relief to
the one who is entitled to it according to the decree or final order of the
Court.”
14. As the appellants, admittedly, came in possession of the suit land
after the suit land became custodia legis since 27th October 1980, they
have no right to resist or obstruct execution of the decree.
15. Moreover, it is also a matter of record that the appellants are
claiming their possession through original defendant No.2, as his tenants.
It is again a matter of record that the appellants had filed Suits for
declaration of their tenancy rights in the suit structures in the Small
Causes Court against defendant No.2. In this respect, it would be useful
to refer to the cross-examination of appellant – Nitin Welji Satra, who has
examined himself in his own Chamber Summons and also as Power of
Attorney holder of his mother Veljiben, who is applicant in other two
Chamber Summons. It is admitted by him that appellants are in
possession of the suit structures since 1996. Previous to appellants, uncle
of appellant – Nitin was in possession of the suit structures i.e. Gala
Nos.28 to 30. The uncle of appellant - Nitin had gifted the suit structures to
him and his mother. The Gift Deed was oral. However, it is not mentioned
in his affidavit that his uncle had gifted the suit structures. Further it is
stated that the appellant - Nitin has paid maintenance charges to
defendant No.2-Rajendra Brothers. However, he is not having any receipt
to show that he has paid this amount as maintenance charges. He has
admitted that, in all those receipts, defendant No.2-Rajendra Brothers had
mentioned that the amount was received from him and his mother towards
the rent. He has admitted that he has not filed any application to correct
the contents of the rent receipts to show that he has paid those charges
as maintenance and not as rent. However, he has not taken any action
against defendant No.2 for issuing rent receipts instead of maintenance
receipts. He has further admitted that, in the affidavit filed in support of the
Chamber Summons, he has stated that defendant No.2 had issued a rent
receipts in his favour. Further, he has admitted that he has filed a Suit in
the Small Causes Court, Mumbai, wherein he has sought a declaration
that he is tenant of the suit structures. He has not filed any Suit or
application in any Court claiming himself as owner of the suit structures,
on the basis of the alleged oral Gift Deed.
16. Thus, his cross-examination is more than sufficient to prove that the
appellants are not having any independent right over the suit structures
and they are claiming those rights through original defendant No.2 as his
tenants. This Rajendra, who has issued rent receipts to the appellants, is
a son of defendant No.1-Tarachand and on the rent receipts, the address
of Tarachand Mishra Chawl is mentioned, which clearly shows that the
appellants' structures are standing on the suit land.
17. It, therefore, follows that, when the appellants are claiming
possession over the suit land on the basis of the tenancy created during
pendency of the Suit, then such tenancy or possession being hit by the
principle of lis pendens, under Section 52 of the Transfer of Property Act,
they have no right at all to resist execution of the decree. The law on this
aspect is no more res integra and no authority is required to state the
legal position that an obstructionist can successfully resist execution of
the decree only he is able to establish his independent right, title over the
property. In this case, on their own pleadings and evidence, the appellants
have miserably failed to do so, as they are claiming through the
Judgment-Debtor.
18. As to the contention raised by the appellants relating to exact
location of the suit structures, if one has regard to the facts discussed
above, then it is apparent that this contention is clearly a last ditch attempt
on the part of defendant Nos.1 and 2 to protract execution of the decree
one way or another and now through appellants, whom they have
inducted in the suit structures during pendency of the Suit. Once it is held
that the appellants are claiming through original defendant No.2, then it
follows that the decree is passed in respect of the structures which were
falling in part of the suit land, on which defendant Nos.1 and 2 were found
to have made encroachment in the year 1980, when Court Receiver was
appointed to measure the suit land in order to assess the encroachment
made thereon by defendant Nos.1 and 2.
19. It is also a matter of record that in Execution Application No.102 of
1999, arising out of the decree passed in Suit No.1173 of 1971,
respondent Nos.1 to 11 – original plaintiffs had taken out Chamber
Summons No.397 of 1999 for direction to Court Receiver to take
possession of the suit land, by removing structures standing thereon, from
the tenants, occupants, agents and the defendants. After service of notice
of that Chamber Summons, original defendants took out Notice of Motion
No.3077 of 1999 for setting aside the decree dated 15th July 1997.
However, the same was dismissed. Defendant No.2 preferred Appeal from
Order No.600 of 2000, which also came to be dismissed by this Court.
The Chamber Summons No.397 of 1999 taken out by the plaintiffs was
made absolute on 19th September 2000. Defendant No.2 challenged that
order by filing Writ Petition No.5680 of 1998 in this Court, which came to
be dismissed by this Court on 10th January 2013. Thus, it is clear that after
all the attempts made by defendant No.2, the Judgment-Debtor has failed,
now this is one more attempt made by him, through his tenants – the
appellants herein, to obstruct execution of the decree.
20. Even in respect of the contention of the appellants that suit
structures fall in Survey No.120, which is on periphery of Survey No.118,
the learned counsel for respondent Nos.1 to 11 has produced on record
the copy of the common order passed by this Court on 9th July 2015 in
Writ Petition Nos.6456 of 2015, 6558 of 2015, 6460 of 2015 and others,
which were preferred by these appellants and other occupants
challenging the order passed by the executing court on 26th June 2015 in
Chamber Summons No.984 of 2015 filed by the appellants and other
occupants for amending their pleadings relating to location of their suit
structures on the basis of the plan drawn by DILR. The same documents
and the plans, which are now relied upon, were produced and relied upon
in the Trial Court and in this Court also in these Writ Petitions. The similar
contention was advanced that their structures are in Survey No.120 and
not in Survey No.118. It was also contended that under the garb of
executing the decree passed in S.C. Suit No.1173 of 1971, the
respondents – decree holders will dispossess them from Survey No.120.
This Court has categorically observed, while dismissing the Writ Petitions,
that, the amendment proposed by the appellants is malafide, not bonafide
and is made with a view to delay execution of the decree. Special Leave
Petition No.21286 of 2015 preferred against the said order also came to
be dismissed by the Hon'ble Supreme Court on 7th August 2015. Hence,
now nothing remains at all to look into that issue again.
21. Now, once the decree is passed against original defendant No.2, it
follows that the present appellants, who are claiming through defendant
No.2, are also bound by the said decree and now it is too late in a day for
the appellants to contend that the said decree is not binding on them and,
therefore, it should not be executed on the count that their structures are
falling outside the area of the suit land.
22. As to the contention of the appellants that the suit structures have
been declared as falling in slum area and hence, without permission of the
Competent Authority, under Section 22 of the Maharashtra Slum Areas
(Improvement, Clearance and Redevelopment) Act, 1971, decree cannot
be executed against them, it would be again useful to refer to the crossexamination
of the appellant – Nitin.
23. He has admitted that he has not paid any charges to Slum
Rehabilitation Authority in respect of his structures and, by mistake, he
has not mentioned in the Suit filed in Small Causes Court that the
structures are falling in the slum area. He has also admitted that he has
not received any notice from Slum Rehabilitation Authority or Mumbai
Metropolitan Region Development Authority in respect of the suit
structures and he is also not having document, like, photo-pass, to show
that the suit structures are falling in the slum area.
24. In this respect, learned counsel for the respondents has also
pointed out that the dispute involved in the instant case is already covered
in earlier litigation and has attained finality. It is a matter of record that
there were in all 34 occupants, against whom the decree was sought to be
executed. Out of them, 18 occupants had filed Chamber Summons in the
Trial Court. On dismissal of those Chamber Summons, they had preferred
various Appeals in this Court, bearing No.1190 of 2015 and others, and
this Court has, vide its order dated 24th February 2016, dismissed all those
Appeals. Against the said order, Review Petition No.3 of 2016 was
preferred, which also came to be dismissed on 12th April 2016. Against the
said order, Special Leave Petition No.13566-13597/2016 was preferred in
the Hon'ble Supreme Court and it also came to be dismissed on 6th June
2016.
25. Even the cursory perusal of the averments made in the Special
Leave Petition and in the earlier Chamber Summons preferred by the
other occupants reveals that the similar contentions, which are raised in
these Appeals, were raised therein also, that, the structures in their
possession are not falling in Survey No.118, but in Survey No.120 and the
said area is covered under the Slum Zone. All those contentions were
considered at length by this Court in the above-said First Appeals and
thereafter, having regard to all the documents produced on record,
especially, the fact that these occupants are claiming possession through
original defendant No.2 as the tenants of defendant No.2, they have no
independent right to remain in possession of the suit structures and there
was also no ground or reason to have any confusion about the location of
the suit structures; especially, considering the map drawn by the Court
Receiver, at the time of taking possession of the suit land. Those
contentions were rejected. The said observations and findings, as
recorded by this Court in the above-said First Appeals, were challenged
before the Supreme Court and, as stated above, the Hon'ble Supreme
Court, in Special Leave Petition No.13596-13597/2016, has categorically
held that, no ground for interference is made out in exercise of its
jurisdiction under Article 136 of the Constitution of India. All Civil Special
Leave Petitions were, accordingly, dismissed. It was also further directed
that all the petitioners therein should vacate and handover peaceful
possession of the premises in their occupation on or before 31st July 2016.
It is admitted position on record that, accordingly, all the petitioners therein
have handed over peaceful and vacant possession of the premises in
their possession.
26. Now, so far as the present appellants are concerned, having regard
to the fact that they have raised the same contentions, which were already
raised in the said litigation filed by those occupants, and as those
contentions are already rejected on merit by this Court and those findings
have achieved finality, being confirmed by the Apex Court by dismissing
the Special Leave Petitions preferred by them, the issue involved in the
present Appeals being no more open for consideration, the net result is
that these Appeals and the Civil Applications filed therein for
measurement of the land through DILR need to be and, accordingly, stand
dismissed.
27. These matters are circulated again on 6th October 2016 by learned
counsel for the appellants seeking stay to the order passed by this Court
on the ground that the status-quo order was running till 19th August 2016.
Now the appellants intend to approach the Hon'ble Supreme Court
against this order passed by this Court and hence the same protection
may be extended to the appellants, otherwise the Court Receiver may
demolish the suit structures.
28. Learned counsel for the respondents strongly resists this prayer on
the count that the appellants are not at all in possession of the suit
structures. They have already created third party interests. The Court
Receiver has sealed the suit structures. The matter is kept lingering since
1971 and hence when there is no order of status-quo running as on today
or till yesterday, when the matter was decided, there is no question of
extending the said protection.
29. There is much substance in the submission advanced by learned
counsel for the respondents that, as on the date, when the matter was
decided yesterday by this Court, the order of status-quo was not in
existence. It was not extended from 19th August 2016. Moreover, it is the
Court Receiver who is in possession and not the appellants and the
matter is being protracted since the year 1971. Hence, there is no
question of granting any stay to this order passed by this Court or
extending the order of status-quo. This prayer is, accordingly, rejected.
[DR. SHALINI PHANSALKAR-JOSHI, J.]

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