Friday, 28 December 2018

How to execute decree if description of suit property is vague?

 These principles of law would apply to a case wherein the description of the suit property is vague or the suit property is unidentifiable and the mistake has been corrected by the executing court or the clarification has been given by the executing court which amounts to going behind the decree. Similarly, these principles of law would not apply where description of the suit property is clear and the property is identifiable. Between these two categories of cases, there could be an intermediate category where there is some doubt about description of the property. In such intermediate category of cases, the executing court can make efforts to remove the doubt by examining the pleadings of the parties and the findings recorded by the court passing the decree. Some time in such cases, there arises a conflict between the area and boundaries of the suit property. In case of such a conflict, the law is that statement as to boundaries shall prevail. 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 1209 of 2018

Decided On: 05.12.2018

 Shaikh Jalil  Vs. Mohamed Rizwanul Haq and Ors.

Hon'ble Judges/Coram:
S.B. Shukre, J.




1. Heard. Rule, made returnable forthwith by consent of parties.

2. This petition challenges the legality and correctness of the two orders, one passed by the learned Principal District Judge, Akola on 12.2.2018 transferring the execution proceedings from the Court of 5th Joint Civil Judge, Junior Division, Akola to the Court of 3rd Joint Civil Judge, Junior Division, Akola and the other passed by the executing court on 17.4.2018 directing execution of the decree by removing Judgment-Debtor from the suit property which falls within the four boundaries, as described in the decree obtained in favour of the decree holders.

3. This case depicts a story wherein patience of the decree holders has been put on test. They have in their hands a decree of the Civil Court dated 11.9.2003 passed in Regular Civil Suit No. 107 of 2002, which has been confirmed upto the Hon'ble Supreme Court, but not the suit property. The suit property is still with the judgment-debtors, the petitioner is one of them, for all these years. Concomitantly, the case has also reflections of its own nature on the ability of the system of administration of civil justice to inject flesh and blood into proverbial saying that a decree of the civil court should not be a mere paper decree, but a real decree which would enable the decree-holder to have the fruits of the decree.

4. The dispute dates back to the year 2002. But, it appears that ordeal of the decree-holder started only after the decree was passed on 11.9.2003.

5. Respondents No. 1 to 4, the decree holders, had filed a civil suit being Regular Civil Suit No. 107 of 2002 against the petitioner (original judgment-debtor No. 2) and respondent No. 5 (judgment-debtor No. 1) for eviction, possession, recovery of rent, taxes and for damages. The suit property was also described in the plaint.

6. What was claimed in the suit was possession of open piece of land admeasuring 1280 square feet out of the total plot bearing Nazul Plot No. 9 and the description of the suit property given in the plaint would show that the suit plot admeasuring 1280 square feet was specifically described to be bound by the land marks mentioned therein. This suit proceeded ex parte and the judgment and decree dated 11.9.2003 were rendered ex parte. However, the judgment and decree ultimately got the final seal of approval from the Hon'ble Supreme Court.

7. The respondents, on 27.4.2005, initiated execution proceedings being Regular Darkhast No. 94 of 2005 as the decree was not obeyed by the judgment-debtors including the petitioner. There was resistance put to it by the judgment-debtors. Applications (exhibits 13 and 46) were moved by the judgment-debtors taking objection as to the maintainability of the execution proceedings. Applications (exhibits 53 and 56) were also filed for grant of permission to lead evidence. These applications were rejected by the executing court by the order dated 6th December 2017. The order was challenged by one of the judgment-debtors, who is the present petitioner, by filing Civil Revision Application (St) No. 194 of 2017. This Court rejected the revision application on 10th April 2017 noting that this petitioner had stalled the execution proceedings for the last more than ten years and was not permitting the decree holder to enjoy fruits of the decree. Costs of Rs. 10,000/- were also imposed upon the petitioner and directions were given to the executing court.

The decree, however, could not be executed. The executing court also sought extension of time for execution of the decree from this Court.

8. The efforts to get the decree were continued. The warrant of possession was issued by the executing court and the bailiff visited the place where the suit property was situated. The bailiff, however, did not execute the decree and returned empty handed. He prepared a spot panchanama in presence of the parties present. The power of attorney holder of the decree holders was present and so also, this petitioner, though the legal representatives of original defendant No. 1 were absent. The bailiff noted therein that since the warrant of possession did not indicate the direction from which the possession of the suit property was to be handed over, the possession warrant could not be executed. He further noted that the decree-holder desired possession from the southern direction and on the other hand, the judgment-debtor, present at the spot, submitted that the bailiff should indicate as to from which direction, he would measure the suit property and that the judgment-debtor would not create any obstacle in handing over of the possession. He also mentioned that the present judgment-debtor informed him that the possession be handed over according to the rules and civil court's decree. Bailiff further mentioned in the panchanama that towards the southern side of the suit property, there was a tin-shed consisting of two rooms in which there was an all religion prayer hall and that electricity supply was provided to it. On this panchanama, the bailiff also prepared a report dated 24.7.2017 with same contents and then prepared yet another report on 27.11.2017 containing the gist of his earlier report. These were all submitted to the Court by the bailiff.

9. The respondents, left with no other alternative, filed an application on 21.12.2017 for issuance of direction to the executing court to give possession from the southern side i.e. hospital of Dr Rahman Khan so that the so-called confusion of the bailiff was removed.

10. It appears that prior to submission of the bailiff report and filing of the application on 2nd December 2017, the learned counsel for the decree-holders/respondents, losing his cool, gave vent to his frustration and made some outbursts in Marathi before the executing court which, when freely translated, indicated that he addressed the Court in the words that the Court need not tell him as to how the compliance was to be made and that inspite of the execution proceedings having been filed way back in the year 2005, the executing court was unable to ensure handing over of possession of the suit property to the decree-holders. He also quipped that there being no compliance with the order of the High Court, he would show to the court what it meant to be contempt of the order of the High Court. The executing court was prompt enough to reduce into writing these utterances by way of a note made below exhibit 1, the execution application, on 11.10.2017.

11. Coming back to the application dated 2nd December 2017 seeking specific direction from the executing court for handing over of the possession, the same executing court which had noted the heated words of the learned counsel for the respondents on 11.10.2017 below exhibit 1, rejected the application by the order passed on 6th December 2017.

12. It appears that the order dated 5th December 2017 proved to be the last straw in the pool of patience of the respondents. They filed an application under Section 24 of the Code of Civil Procedure for transfer of execution proceedings from the file of 5th Joint Civil Judge, JD, Akola, the executing court hitherto, to any other court. Taking into consideration the grounds raised in the application and specific order of the High Court to the executing court for ensuring execution of decree and submitting its report within six months to the High Court and other attendant circumstances, the learned Principal District Judge, Akola by the order passed on 12th February 2018, allowed the application. This order though passed without issuing any notice to the judgment-debtors including the petitioner, was based upon consideration of the material which was already a matter of record. Being aggrieved by this order, the petitioner has filed the present writ petition.

13. It appears that during the pendency of this petition, the respondents filed another application before the new executing court seeking a direction for delivery of possession as per the four boundaries. A detailed reply to this application was filed by the petitioner. The new executing court, the Court of 3rd Joint Civil Judge, directed the judgment-debtors by the order passed on 14.4.2018 that the decree be executed by removing the judgment-debtor from the property which fell within the four boundaries, as referred to in the earlier part of the order. This order has also been challenged by the petitioner by effecting necessary amendment to the petition.

14. Shri Mehadia, learned counsel for the petitioner submits that the order dated 12.2.2018 passed by the learned Principal District Judge is patently illegal as it has been passed without issuing any notice to the petitioner and the legal representatives of the other judgment-debtors and is based upon irrelevant considerations. He submits that such an order, if allowed to stand, would have a tendency to adversely reflect upon the conduct of the transferring court, especially when some false allegations were made against that court. He further submits that this order is against the well settled principles of law.

15. Shri Mehadia further submits that the order dated 17.4.2018 directing execution of the decree by removing the judgment-debtor from the possession of the piece of land in question falling within the boundaries, is nothing but an example of going behind the decree and doing something which was not done by the civil court while passing the decree and, therefore, it deserves to be quashed and set aside. Shri Mehadia also submits that the executing court ought not to have passed the other impugned order dated 17.4.2018 for the reason that the description of the suit property given by the respondents is quite incorrect and the decree turned out in the present case, has become unenforceable owing to the same.

16. Learned counsel, Shri B.N. Mohta, for the respondents supports both the impugned orders submitting that they have been passed in accordance with law. He also questions the approach and attitude of the petitioner stating that the petitioner on the one hand submits that he would have no objection in execution of the decree through the court as per the description of the property given in the plaint and the execution application, the same party, when it comes to taking measurement on the spot, acts differently and not only that, wages a serious battle against the respondents in various courts just to the see that the execution of the decree is prolonged and ultimately frustrated, on the other.

17. The first impugned order is of the date of 12th February 2018. It has been passed by the learned Principal District Judge, Akola on an application filed under Section 24 of the Code of Civil Procedure for transferring the execution proceedings pending on the file of 5th Joint Civil Judge, JD, Akola to any other Court at Akola. This order, apart from the ground of not following the mandate of Section 24 CPC, has been challenged by the petitioner on the ground that the order has been passed upon considerations which were really not germane to the issue involved and has a potential of showing one civil court in poor light.

18. So far as the objection regarding irrelevant factors considered or ignorance of the factors which ought to have been considered is concerned, I must say, a bare perusal of the order shows that such is not the case here. There was already an order passed by the High Court in CRA (St) No. 194 of 2017 filed by the petitioner on 10th April 2017 expediting the execution proceedings and directing the executing court to submit its report of the decree having been executed satisfactorily within six months from the date of order. In this order, this Court also recorded its grave concern over the delay occurred in execution of the decree. The relevant observations and directions of this Court appearing in paragraphs 6 and 7 are reproduced as under:

"6. The applicant has stalled the execution proceedings for last more than ten years and is not permitting decree holder to ripe fruits of the decree.

7. In view of thereof, in my opinion, the revision is liable to be dismissed with costs of Rs. 10,000/- (Rs. Ten thousand only), to be deposited within four weeks from today before executing court and if not amount is deposited, it will be recovered through same execution proceedings. The execution proceedings are expedited. The executing Court to submit report to this Court of the decree being executed satisfactorily within six months from today."

After this order, it was necessary for the executing court to show all promptitude at its command to comply with the above-referred direction of the High Court, which having attained finality, held the field. However, the position was not to be so and the decree was not executed. The executing court was also expected to be concerned about a 2003 decree lying unexecuted in its court and whether there was a direction given by the High Court for expeditious execution of the decree or not, the executing court for this reason alone should have acted with sense of urgency and responsibility. If the executing court in a case like this does not assure the parties by the way it administers justice that it is a court of law where the court's own orders, whether decree or other orders, are respected, given effect to and are not allowed to be seen as mere scarecrow like paper orders, it defeats the object of its own existence. The executing court exists for enhancing respect for law and reaffirming litigants' faith in the system of administration of justice. When the executing court does not or is not allowed to instill a sense of purpose into its action, cause of justice suffers greatly leading to development of frustration among litigants. Some parties having great patience in them may not give vent to their frustration, but some parties not being endowed with such quality may not be so temperate. It is, therefore, necessary that a court of law takes any execution proceeding with as much seriousness and concern as it would take a proceeding initiated for declaration and settlement of rights. If this does not happen, a day would not be far off when litigants will turn their back on the civil courts and head for some other alternatives which could be of extra-judicial nature. That would be a beginning of an era where not the courts of law, but the courts of men will rule the roost. It is time for the courts of law to realize these dangerous consequences and start giving their equal attention to the execution proceedings and frustrate, not the attempts of the rightful, but of the frivolous, the prolonger and the disrespectful.

19. It appears that the first executing court, which was the court of 5th Joint Civil Judge, Junior Division, did not take the specific directions of the High Court given in its order dated 10th April 2017 with any seriousness. It also appears that the delay in execution of the decree inspite of the direction given by the High Court was perhaps the reason for the learned counsel for the respondents to make his outpourings before the executing court on 11.10.2017. Of course, no one can justify such a reaction coming from a lawyer. But, one has also to be conscious of the ordeal that the litigant faces which invariably is passed by a litigant on to his lawyer. This reminds me of the incisive words of the Privy Council expressed in the year 1872, which were - " ..... The difficulties of a litigant in India begin when he has obtained a decree". In Kuer Jang Bahadur v. Bank of Upper India Ltd., Lucknow reported in MANU/OU/0064/1925 : AIR 1925 Oudh 448, the Court made another reflective observation-

"Courts in India have to be careful to see that process of the Court and the law of procedure are not abused by the 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."

20. In Babulal v. Hazari Lal Kishori Lal & Ors. reported in MANU/SC/0049/1982 : (1982) 1 SCC 525, it is observed-

"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 a possible objections..."

21. In Shub Karan Bubna alias Shub Karan Prasad Bubna v. Sita Saran Bubna & Ors. reported in MANU/SC/1607/2009 : (2009) 9 SCC 689, the Hon'ble Supreme Court has observed as follows:

"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."

22. The law on the point of effective and timely execution of a decree thus is consistent. But, what is not consistent is obedience to the law. Some time, we have seen that the technical objections, petty grounds, minuscule deficiencies in the description of the property are used as instruments for delaying the execution of the decree and when this happens too often or at least perceived to be so by the litigant or his lawyer, the outbursts such as those which have been referred to earlier come out and so they need to be understood from a proper perspective. They are of a party waiting for more than a decade to see that the paper decree he carries in his hands becomes a reality. They are of a party which still has a faith in the system of administration of justice, which is the reason why it does not take refuge in extra-judicial means in having the benefits of the decree. Such a party is more in need of kind help of the court rather than fulmination of the court. This is how the loud words of learned counsel for the respondents, spoken somewhat in anger in the court, could have been understood. But, the learned Civil Judge, JD took a written note below exhibit 1 thereof on 11.10.2017 reducing into writing the words of the learned counsel and making his observations that the learned counsel was trying to pressurize the Court. I think, the angry words of the senior counsel, though not appreciable, having a very trying background of twelve long years pendency of the execution proceeding, were capable of being viewed in a different way. However, that did not happen.

23. Be that as it may. After the afore-stated incident, the learned Civil Judge was at least expected to give the clarification the bailiff was looking for to remove his confusion in execution of the decree. Although, on reading the bailiff report one could see that there was nothing for the bailiff to entertain any doubt in measuring the suit property and handing its possession over to the respondents, still, if the bailiff desired a specific direction regarding the side from where the measurement was to be taken by mentioning the same specifically in the warrant of possession, learned Civil Judge could and should have issued the necessary clarification. After all, it is the bounden duty of the executing court to ensure that a decree which has been confirmed right upto the Hon'ble Supreme Court and which has been directed to be executed expeditiously by the High Court, is executed at the earliest.

24. It is also well settled that if there is a conflict between the area and the boundaries, the boundaries would prevail. It is equally well settled that for removal of any further doubt in understanding the decree for its execution, even pleadings of the parties could be looked into as they provide circumstances in which specific directions taking shape of a decree are given. In this case, the boundaries of the suit property admeasuring 1280 square feet have been already specifically stated in the plaint and, therefore, there should have been no confusion for taking measurement of the suit property. This could also have been explained specifically by the executing court to the bailiff if it did not want to give the clarification sought by the bailiff. But, when the application for giving specific direction to the bailiff came to be filed, it was filed because the bailiff in his report dated 24.11.2017 had mentioned that the warrant of possession did not indicate the direction or the side from which the measurement was to be taken, the learned Civil Judge rejected the application observing that the power of attorney holder of the decree-holder created obstructions while executing the warrant and that he could not ask for any excessive steps or a direction to the bailiff to start measurement from his side which is adjacent to his plot. As a matter of record, these observations are not supported in any manner by the bailiff report dated 24.11.2017. It does not show that any excessive step was asked for by the power of attorney holder of the respondents. It only notes the desire of the decree-holder that the measurement of the suit property be initiated from the southern side. The report also shows that even the judgment-debtor who was present at the spot expressed that he would not create any obstacle and would have no objection to deliver possession of the suit property in terms of the decree. His only expectation was that he should be informed as to from which side or direction the measurement would be taken. The report does not state that the judgment-debtor also desired that measurement be taken from a particular direction or the side. But, the executing court did not appreciate these too visible facts of the bailiff report to be pointed out by somebody and went on to dispose of the application, and it had a background of note dated 11.10.2017 taken by it below exhibit 1, execution application.

25. The first impugned order passed by the learned Principal District Judge, it appears, has considered the whole background of the dispute relating to the execution of the decree between the parties, although it has not been stated so in a detailed manner and, therefore, it could not be said that on merits, this order of the learned Principal District Judge could be seen as eclipsed with flaws and follies. For these reasons, I do not think that the order passed by the learned Principal District Judge is based upon irrelevant considerations or ignorance of relevant considerations or accepts false allegations, in fact there are none in the application showing the court in a poor light.

26. As regards the other objection of the learned counsel for the petitioner that the learned Principal District Judge has passed the impugned order under Section 24 of the Code of Civil Procedure without issuing notice to the petitioner, I would say that it is a fact that the order has been passed without issuing notice to the petitioner. In the case of Jitendra Singh v. Bhanu Kumari & Ors. reported in MANU/SC/1926/2008 : AIR 2008 SC 2987, the Hon'ble Supreme Court has held that the power conferred by Section 24 CPC is discretionary and the same may be exercised suo motu as well as for any administration reason, but when an application for transfer is made by a party, the court is required to issue notice to the other side and hear the parties before directing transfer. The Hon'ble Apex Court further observed, "To put it differently, the Court must act judicially in ordering a transfer on the application of a party". This would make it clear to us that in such a case, the duty is to act judicially to prevent any prejudice from being caused to the party. In the present case, it is seen that no prejudice has been caused to the petitioner nor any specifics of the prejudice likely to be caused have been spelt out by the petitioner. On the other hand, if this order is upset on this ground, it would result in further delay and prejudice to the decree-holder and then, in my humble opinion, the Court would be failing in its duty to act judicially in a case where the order of the High Court issued to the executing court to execute the decree satisfactorily within six months has attained finality.

27. About the prejudice factor, I must say, it was absent in this case. This is apparent from the bailiff report and panchanama dated 24.11.3017. These documents clearly show that the petitioner was present at the spot during the visit of bailiff on 24.11.2017 and that power of attorney holder of the respondents was also present. They further disclose that this petitioner informed the bailiff that the judgment-debtors were ready and willing to hand over possession as per the court decree and that they expected that they were informed by the bailiff about the direction or the side from which the possession would be handed over. It was also stated by the petitioner that he would not obstruct the bailiff in any manner in handing over possession of the suit property to the respondents and, therefore, it be done as per the order of the court. This would only show that basically, the petitioner never had had any objection about execution of the decree in terms of the operative portion of the judgment and that judgment-debtors were willing to hand over possession in terms of the decree. It is also not the case of the petitioner that the transferee court suffered from any handicap or disqualification. If this is so, it would not matter for the petitioner as to in which court the execution proceedings shall be dealt with. After having taken such a stand, the petitioner now cannot go back or otherwise, it would amount to approbation and reprobation in the same breath, not permissible under the law. In this view of the matter, it would not be proper to make any interference with the impugned order passed by the learned Principal District Judge.

28. Now, let us deal with the second impugned order dated 17.4.2018. According to learned counsel for the petitioner, this order is illegal as it goes behind the decree. He submits that the description of the suit property itself being vague, the decree is unenforceable. This has been disagreed to by learned counsel for the respondents. While it is true that when description of the suit property is not clear and the suit property is not identifiable, the Court of Law should refrain from passing a decree which is not capable of enforcement. It is equally true that it is impermissible for the executing court to rectify description of the property incorrectly described in the decree itself and it is for the court which passed the decree to correct the mistake in exercise of its inherent power under Section 151 of the Code of Civil Procedure. These are the settled principles of law and for this purpose a useful reference can be made to the cases of Pawan Kumar Dutt & anr v. Shakuntala Devi & Ors. reported in MANU/SC/1332/2003 : (2010) 15 SCC 601 and P. Chandrasekharan & Ors. v. S. Kanakarajan & Ors. reported in MANU/SC/7357/2007 : (2007) 5 SCC 669 as also Krishnaya Parbhaya Chintalwar & Ors. v. Meghraj Paparam Teli reported in MANU/MH/0085/1939 : 1939 ILR 708.

29. These principles of law would apply to a case wherein the description of the suit property is vague or the suit property is unidentifiable and the mistake has been corrected by the executing court or the clarification has been given by the executing court which amounts to going behind the decree. Similarly, these principles of law would not apply where description of the suit property is clear and the property is identifiable. Between these two categories of cases, there could be an intermediate category where there is some doubt about description of the property. In such intermediate category of cases, the executing court can make efforts to remove the doubt by examining the pleadings of the parties and the findings recorded by the court passing the decree. Some time in such cases, there arises a conflict between the area and boundaries of the suit property. In case of such a conflict, the law is that statement as to boundaries shall prevail. (See: The Palestine Kupat AM Bank Cooperative Society v. Government of Palestine, 1948 Privy Council 21 and T. Rajlu Naidu v. M.E.R. Maslak, MANU/NA/0075/1938 : AIR 1939 Nagpur 197). These principles of law should help us now to appreciate the rival arguments made as regards the validity or otherwise of the second order.

30. Let us first look into the description of the suit property in the plaint. It reads thus:

"An open plot, situated in the area popularly known as Shrawagi Plots, Akola bearing Nazul Plot No. 9, Nazul Sheet No. 52 of Akola, out of the total plot, owned by the plaintiffs, an open plot admeasuring East-West 32 ft., and North-South 40 ft., the total area of the plot, 1280 sq. ft. to which four boundaries are as under:



Reading this description, I do not think that any person of ordinary prudence would nurture any doubt about the description of the suit property or would say that the suit property is not identifiable. Although it is true that the suit property, having a small area of 1280 square feet, is a part of a larger piece of land of Nazul Plot No. 9, finding out location of this area on the bigger terra firma of Nazul Plot No. 9 is neither difficult, muchless impossible, nor confusing for the bailiff who had visited the spot for handing over the possession. The location of the suit property has been delineated by its boundaries. The eastern boundary is of ZP Urdu School playground while the western boundary is the hospital of Dr Chiraniya; northern boundary is a plot of land of the respondents in possession of the tenant and the southern side is bounded by hospital of Dr Rahman Khan. I do not think that anyone can reasonably say that such description of the property is vague and has made the suit property as unidentifiable rendering the decree itself unexecutable. In any case, the law is that the boundaries prevail over the area where there is a conflict between area and boundaries. Of course, such conflict is absent here.

31. Thus, I find that the cases referred to earlier would have no or very little application to the facts of the present case. After having found that there is sufficient clarity in the description of the suit property, I would only say that what the bailiff was required to do in this case was to see the boundaries of the suit property on the spot and then measure the area and mark for its being handed over to the respondents. This is all the moreso, because the petitioner, one of the judgment-debtors, himself was present on the spot and had no objection in execution of the decree and handing over possession of the suit property to the decree-holders in terms of the decree. His only expectation was that he be informed by the bailiff as to from which side or direction, the measurement would start. It was not his case that the measurement should start only from a particular direction or side. But, the bailiff still had the doubt or confusion. He was not ready to look into the boundaries and insisted on a specific mention in the warrant of possession regarding the direction or the side from which the measurement was to take place. Giving of any such specific direction was not necessary as it concerned the actual action of handing over of the possession. A warrant of possession would not always give the minutest details of the measures to be employed for execution of the decree, for, it is not humanly possible given the varied nature of difficulties that may be experienced at the spot by an executor of the decree. In the present case, considering the no objection given by the petitioner, there was no difficulty for the bailiff in going ahead with the measurement and if he entertained any doubt as to the direction or the side from which he could have started the measurement, the power of attorney holder of the respondents was very much present at the spot to help clear the doubt. He had told him that the measurement should commence from the southern direction and unless it was found to be adding to the existing confusion, the bailiff could not have refused to start the measurement from that direction. After all, the decree-holders would be in a better position to indicate as to how the bailiff should go about the job of measurement, they being well acquainted with the local conditions and that would be all the more-so when even the judgment-debtor did not insist upon any other way of measurement. But, the bailiff returned empty-handed only to foment further litigation, more wranglings and more disappointments.

32. There is one more reason given by the bailiff for not executing the decree. He has referred to existence of some two rooms having tin shed wherein is situated an all-religion prayer hall provided with electricity connection. This tin shed, without any dispute, exists on the piece of land owned by the respondents. Now, there is also no dispute about the fact that the judgment-debtors do not have any title, right or interest in the same as no court of law has given any declaration in this regard in their favour. The panchanama made by the bailiff also did not show any such claim having been made by the judgment-debtor at that time. But, even then, the bailiff put forward existence of the tin shed as a ground or if I may say so, as an excuse, for not executing the decree. In the facts and circumstances of the case, this cannot be appreciated.

33. The discussion so far made would lead me to find that in the present case, the description of the suit property is not vague and it has been given with clarity. The other facts and circumstances of the case which have been discussed in detail earlier would also show that there was no room left for anyone to have any confusion about the manner in which the decree was to be and could have been executed. But, the decree was not executed and, therefore, the executing court in the impugned order only says that the decree be executed by removing the judgment-debtors from the property which is within four boundaries described in the plaint. The relevant portion of the second impugned order reads thus:

"The judgment debtors have no right in the property within four boundaries described by decree holders. The judgment debtors have not also claimed any right in "SARVA DHARMIYA PRARTHANA STHAL" Accordingly, the judgment debtors have no right in the property, which is within four boundaries described by decree holders. The decree is to be executed accordingly. Such decree is also to be executed by removing the judgment debtors from the property which is within four boundaries referred above. Accordingly, the application is disposed of."

34. This direction does not show that it goes behind the decree. Whatever has been directed is nothing less and nothing more than the directions given in the decree. It says that the decree be executed by removing the judgment-debtors from the property which is within the four boundaries. When a direction says that the judgment-debtors be removed from the property, it only means the possession of the suit property be taken over from the judgment-debtors and handed over to the decree-holders. Therefore, I do not find any illegality or perversity in the second impugned order and the objections taken by learned counsel for the petitioner as regards the correctness of this order, are rejected, they having no substance.

35. The writ petition stands dismissed. Rule is discharged. No costs.

36. Shri A.S. Mehadia, learned counsel for the petitioner, at this stage, has sought for eight weeks' time or at least four weeks' time for approaching the Hon'ble Apex Court to challenge the order with a further prayer that the effect and operation of this order be stayed. The prayer is opposed by the learned counsel for respondents.

In ordinary course, I would have granted the request for four weeks. But, considering the fact that the decree of the civil court has been confirmed by the Hon'ble Apex Court way back in the year 2003 and the decree has not been executed even today, it may not be proper to concede to such a request. But, at the same time, I deem it proper to grant some more time for approaching the Hon'ble Apex Court and accordingly, effect and operation of this order is stayed for a period of two weeks only.




Print Page

No comments:

Post a Comment