The procedural aspect of raising objections by the judgment debtor manifested in the various provisions of the CPC, particularly Order 21 thereof, has become an arena where objections after frivolous objections are raised by the judgment debtors. The process of issuance of notice and consideration of each and every objection on merits is leading to a situation where frequently the decree and decree holder are left exasperated and frustrated. In this situation, unscrupulous litigants are having a field day. To raise an objection by the use of the word "fraud" has become almost like a Mantra, which then thwarts the entire process of execution and throws it into disarray, on the basis that fraud vitiates everything and that a detailed enquiry is required before the decree is executed. In order to ensure that such a situation does not occur frequently, it would be necessary that the Executing Court takes into consideration the question at the outset as to whether any prima facie material or ground is made out for an enquiry into the alleged "fraud". If it is found, as in the present case, that there is no necessity to enter into an enquiry and further delay execution of the decree, the Executing Court would be well within its powers to reject such objections raised by the judgment debtor.
44. It is found in the present case additionally that the nature of objections sought to be raised by the judgment debtor is nothing but an attempt to challenge the decree on merits, although it has attained finality upto the Hon'ble Supreme Court.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Writ Petition Nos. 5680 of 2018 and 162 of 2019
Decided On: 28.03.2019
Jayashree Avinash Banait Vs. Govind Devidin Gupta
Hon'ble Judges/Coram:
Manish Pitale, J.
Citation: 2019(6) MHLJ 166
1. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel appearing for the parties.
2. These two writ petitions arise out of execution proceedings wherein the petitioner in Writ Petition No. 5680 of 2018 (respondent in W.P. No. 162 of 2019) is the decree holder and that respondent in Writ Petition No. 5680 of 2018 (petitioner in Writ Petition No. 162 of 2019) is the judgment debtor. For the sake of convenience, the parties are being referred to as the decree holder and the judgment debtor.
3. In Writ Petition No. 5680 of 2018, the decree holder has challenged order dated 12.03.2018 passed by the Court of 5th Joint Civil Judge, Junior Division, Nagpur (Executing Court), whereby an application for permission to lead evidence filed by the judgment debtor (Exh. 63) has been allowed and it has been held that evidence needs to be led, on an application under Order 21 Rule 29 of the Code of Civil Procedure, 1908 (CPC) filed on behalf of the judgment debtor.
4. By Writ Petition No. 162 of 2019, the judgment debtor has challenged orders passed by the Executing Court, whereby objections raised on his behalf have been rejected and prayer for stay of the execution proceedings has also been rejected. Insofar as the impugned orders in Writ Petition No. 162 of 2019 are concerned, the Executing Court has found that the nature of objections raised on behalf of the judgment debtor amount to going into the merits of the judgment and decree passed in favour of the decree holder, which is impermissible. It has been further held that since possession warrant had been already issued by the Executing Court, before which the judgment debtor had failed to raise any objection, by applying the law laid down by the Hon'ble Supreme Court in the case of Barkat Ali .vs. Badrinarain reported in MANU/SC/0783/2008 : (2008) 4 Supreme Court Cases 615, the objection itself was untenable. As a consequence, the prayer for stay of the execution proceedings has been rejected by the Executing Court.
5. By the order impugned in Writ Petition No. 5680 of 2018, the Executing Court has proceeded on the basis that since reference to some other proceedings was made by the judgment debtor, which allegedly had nexus with the decree sought to be executed and the parties had failed to place on record documents in support of their respective stands, it was necessary to give an opportunity for evidence to be led in the matter.
6. Mr. M.G. Bhangde, learned senior counsel appearing along with Mr. M.M. Agnihotri, Advocate for the judgment debtor, submitted that the Executing Court had erred in rejecting the objections raised on behalf of the judgment debtor and in rejecting the prayer for stay of the execution proceedings by applying the judgment of the Hon'ble Supreme Court in the case of Barkat Ali .vs. Badrinarain (supra) because in the present case the warrant of possession issued by the Executing Court on 09.12.2016 itself stood stayed on 15.02.2016 and that due to pendency of second appeal filed by the judgment debtor against the decree, on 17.04.2017 the Executing Court had specifically rejected another application for possession warrant filed by the decree holder. It was further pointed out that there were two subsequent applications for issuance of possession warrant filed on behalf of the decree holder and that the said applications were still pending, demonstrating that the dictum laid down in the case of Barkat Ali .vs. Badrinarain (supra) did not apply to the facts of the present case.
7. It was further submitted on behalf of the judgment debtor that the objections raised before the Executing Court were not properly dealt with and that when a specific plea of fraud was raised by the judgment debtor, it was incumbent upon the Executing Court to have gone into the objections raised by the judgment debtor, so as to examine whether the decree obtained by the decree holder was vitiated by fraud. It was submitted that when fraud was pleaded and proved, the principle of res judicata did not apply and even if the decree passed in favour of the decree holder had been confirmed upto the Hon'ble Supreme Court, the Executing Court in the present case ought to have considered and decided the question of fraud. It was submitted that sufficient material was placed on record for the Executing Court to have gone into the said question and failure to do so, rendered the impugned orders erroneous and unsustainable. It was submitted that the identity of the property in the present case was seriously in doubt and that, therefore, the decree was not executable until and unless proper steps were taken before the Executing Court for identifying the property that could be made subject matter of the decree passed in favour of the decree holder.
8. As regards the order of the Executing Court challenged by the decree holder in Writ Petition No. 5680 of 2018, it was submitted on behalf of the judgment debtor that the said order was an innocuous order, only permitting the judgment debtor to lead evidence in furtherance of its contention that there were two more proceedings relevant to the question of execution of decree in the present case. It was necessary to permit the judgment debtor to place on record the documents in support of the said contentions, which the Executing Court had correctly granted. On this basis, it was submitted that the said writ petition deserved to be dismissed.
9. Apart from this, the judgment debtor sought to raise another aspect of alleged fraud committed by the decree holder by referring to various sale deeds in pursuance of which the decree holder had purchased portions of land, including the land that was subject matter of the decree. It was contended that since the decree holder conceded to the fact that the judgment debtor had also purchased land in the vicinity from the original vendor, a reading of the sale deeds executed in favour of the decree holder by the original vendor, as also the sale deed executed in favour of the judgment debtor, demonstrated that a fraud had been committed on the judgment debtor. According to the judgment debtor, there was no land existing for being sold by the original vendor to the decree holder and, therefore, the sale deed on the basis of which decree was obtained by the decree holder was vitiated by fraud. These contentions were raised before this Court for the first time on behalf of the judgment debtor. In support of the contentions raised on behalf of the judgment debtor, reliance was placed on judgments of the Hon'ble Supreme Court in the cases of Jai Narain Ram Lundia .vs. Kedar Nath Khetan reported in MANU/SC/0004/1956 : AIR 1956 Supreme Court 359, Pratibha Singh .vs. Shanti Devi Prasad reported in MANU/SC/1098/2002 : (2003) 2 Supreme Court Cases 330, Ram Chandra Singh .vs. Savitri Devi reported in MANU/SC/0802/2003 : (2003) 8 Supreme Court Cases 319, Hamza Haji .vs. State of Kerala reported in MANU/SC/8416/2006 : (2006) 7 Supreme Court Cases 416 and Union of India .vs. Ramesh Gandhi reported in MANU/SC/1339/2011 : (2012) 1 Supreme Court Cases 476 as also the judgment of this Court in the case of Dr. Madhukar Trimbak Gore .vs. Vasant Ramkrishna Kolhatkar reported in MANU/MH/0261/1983 : AIR 1983 Bombay 277.
10. Per contra, Mr. R.S. Sundaram, learned counsel appearing for the decree holder contended that the Executing Court had committed an error in passing the impugned order that was subject matter of challenge in Writ Petition No. 5680 of 2018, because the Executing Court failed to appreciate that the application filed on behalf of the judgment debtor under Order 21 Rule 29 of the CPC was not pertaining to any prayer for grant of permission to lead evidence. The frame of the application and the prayer made therein did not justify the relief granted by the Executing Court. It was submitted that even otherwise there was no substance in the request made on behalf of the judgment debtor to lead evidence because the two proceedings to which reference was being made on behalf of the judgment debtor had no bearing on the question of execution of the decree in the present case and that it was just another frivolous attempt on the part of the judgment debtor to delay the inevitable event of execution of the decree in favour of the decree holder. It was submitted that the judgment debtor had delayed the proceedings at every stage of the litigation and even after the decree had been confirmed in favour of the decree holder upto the Hon'ble Supreme Court, for one reason or the other the execution of the decree was being delayed and an attempt was made to frustrate and tire the decree holder to such an extent that she would lose interest in enjoying the fruits of the decree passed in her favour.
11. In Writ Petition No. 162 of 2019, it was submitted by the learned counsel for the decree holder that the said writ petition had been obviously filed as a counter blast to the Writ Petition No. 5680 of 2018 filed by the decree holder. It was submitted that the orders challenged in Writ Petition No. 162 of 2019 were passed on 07.01.2017, 05.04.2017 and 14.11.2017, while the said writ petition was filed before this Court on 07.01.2019. The aforesaid delay in fling the writ petition on behalf of the judgment debtor itself demonstrated that the said writ petition did not deserve to be considered by this Court. It was further submitted that the objections had been correctly rejected by the Executing Court and stay of the execution proceedings was rightly rejected because there was no substance in the objections raised on behalf of the judgment debtor. The contentions raised on behalf of the judgment debtor concerned merits of the judgment and decree confirmed in favour of the decree holder upto the Hon'ble Supreme Court and such objections could never be considered on merits by the Executing Court. It was further submitted that the judgment debtor was unnecessarily harping on the word "fraud" so as to somehow delay the proceedings before the Executing Court and to frustrate the decree in one way or the other. It was further submitted that the Executing Court had correctly applied the law laid down by the Hon'ble Supreme Court in the case of Barkat Ali .vs. Badrinarain (supra) because when possession warrant had been issued, there was no question of considering the objection raised on behalf of the judgment debtor by the Executing Court.
12. As regards the plea of fraud raised on behalf of the judgment debtor by relying upon the sale deeds executed in favour of the decree holder in the year 1989 and 1991, as also the sale deed executed in favour of the judgment debtor in the year 1968, it was submitted on behalf of the decree holder that such plea was being raised for the first time in the writ petition before this Court. It was further submitted that there was no substance in the said contentions because insofar as the decree that was sought to be executed by the decree holder was concerned, the property had been specifically identified and stated in the schedule of property along with the plaint, and the judgment and decree passed in favour of the decree holder which was confirmed upto the Hon'ble Supreme Court, clearly identified boundaries of the suit property located in Khasra Nos. 22, 23 and 30, while the property of the judgment debtor even according to his own contention, was located in Khasra No. 29. It was submitted that the judgment debtor was raising objections one after the another, repeatedly alleging fraud without any basis and only with the intention to somehow delay and frustrate the execution of the decree passed in favour of the decree holder. It was submitted that when the defence of the judgment debtor before all the Courts, right upto the Hon'ble Supreme Court, was that he had perfected title by adverse possession, there was no question of the judgment debtor now claiming that there was some confusion regarding identity of the property and that therefore, such a plea deserved to be rejected at the outset. The pleas sought to be raised on behalf of the judgment debtor had been raised in the second appeal before this Court as well as the special leave petition before the Hon'ble Supreme Court and that now the judgment debtor could not be permitted to raise the same before the Executing Court. The learned counsel placed reliance on judgments of the Hon'ble Supreme Court in the case of Barkat Ali .vs. Badrinarain (supra), Satyawati .vs. Rajinder Singh reported in MANU/SC/0569/2013 : (2013) 9 Supreme Court Cases 491 and Bhagwan Devi .vs. Sunil Kumar Rajput reported in (2015) 14 Supreme Court Cases 420.
13. Heard counsel for the parties and perused the record.
14. The two writ petitions for consideration before this Court concern orders passed by the Executing Court in the process of execution of a decree passed in favour of the decree holder and confirmed upto the Hon'ble Supreme Court. In order to appreciate the contentions of the rival parties, it would be necessary to briefly refer to the journey of the litigation between the parties. The decree holder filed a suit for possession, damages and mandatory injunction against the judgment debtor in the year 1993 relying on registered sale deed dated 18.09.1991 executed by the original vendor in favour of the decree holder, whereby land admeasuring about 5000 sq. ft. (464.40 square meters) forming part of Khasra Nos. 22, 23 and 30 situated in mouza Ajni, Ward No. 5, Laxminagar Nagpur, was sold to the decree holder. The schedule of property appended to the plaint clearly described the dimensions of the property as also its four boundaries. It was stated by the decree holder that the original vendor had informed her about the fact that the judgment debtor had encroached upon part of the aforesaid suit property. In fact a reference was made in the plaint itself about the fact that the judgment debtor had purchased adjoining land in Khasra No. 29 by registered sale deed dated 15.11.1968 from the same vendor to the extent of 5000 sq. ft. A reference was also made to the fact that original vendor, as far back as on 18.03.1985, issued notice calling upon the judgment debtor to vacate the encroached portion, but the judgment debtor failed to do so and in reply to the said notice, claimed that he was in possession of the said encroached portion in pursuance of an agreement to purchase the same.
15. The judgment debtor filed his written statement before the trial Court claiming that he had perfected his title by adverse possession and that the decree holder had no right to claim any relief in the matter. The theory regarding agreement mentioned in the reply to the notice given by the original vendor, was completely given up by the judgment debtor. The trial Court dismissed the suit filed by the decree holder on the basis that the contention of adverse possession raised by the judgment debtor was acceptable.
16. Aggrieved by the same, the decree holder filed appeal before the District Court (Appellate Court). By judgment and order dated 01.04.2016, the appeal was allowed and the suit filed by the decree holder was decreed in her favour. The appellate Court found that the trial Court had committed a grave error in accepting the theory of perfection of title by adverse possession raised by the judgment debtor and it was found that the decree holder was entitled for possession of the suit property. The appellate Court found that at the first opportunity while replying to the notice issued by the original vendor, the judgment debtor had never raised the defence of adverse possession and had not denied the title of the original vendor or even the decree holder and, therefore, there was a grave error committed by the trial Court in dismissing the suit.
17. Aggrieved by the said judgment and decree passed in favour of the decree holder, the judgment debtor filed second appeal before this Court bearing Second Appeal No. 418 of 2017. By judgment and order dated 12.09.2017, this Court dismissed the second appeal, finding that the appellate Court had reached correct conclusions on the basis of evidence and material on record and that the decree holder was entitled to possession of the suit property. Aggrieved by the same, the judgment debtor filed Special Leave Petition (C) Diary No. 1129 of 2018 before the Hon'ble Supreme Court, wherein various grounds of challenge were raised, including the question of identity of the property in terms of the sale deeds executed by the original vendor in favour of the decree holder as well as the judgment debtor. By order dated 16.02.2018, the special leave petition was dismissed by the Hon'ble Supreme Court, thereby confirming the decree passed in favour of the decree holder.
18. On the decree holder approaching the Executing Court, notice was issued to the judgment debtor and despite service, he failed to appear before the Executing Court. As a consequence on 09.12.2016, the Executing Court issued warrant of possession against the judgment debtor, which was made returnable on 04.01.2017. But, on 15.12.2016 the judgment debtor appeared before the Executing Court in Regular Darkhast No. 183 of 2016 and filed an application for stay of the warrant of possession. The Executing Court stayed the execution proceedings on the same day i.e. 15.12.2016. Thereupon, on 21.12.2016, the judgment debtor filed an application raising objection (Exh. 21) under Section 47 of the CPC before the Executing Court. On 04.01.2017 the judgment debtor filed an application for permission to lead evidence (Exh. 22) and on 07.01.2017 the judgment debtor filed an application for stay of execution proceedings till decision of objections (Exh. 23) before the Executing Court. In response, on 31.01.2017, the decree holder filed an application for dismissal of the objections (Exh. 24).
19. On 05.04.2017, the Executing Court passed the impugned order rejecting the aforesaid applications filed by the judgment debtor at Exhs. 21, 22 and 23, while allowing the aforesaid application Exh. 24 filed on behalf of the decree holder. Thus, the objections raised on behalf of the judgment debtor stood rejected. In this situation, on 17.04.2017 the decree holder submitted an application for issuance of possession warrant but by an order passed on the same day, the Executing Court rejected the said application on the ground that the second appeal filed by the judgment debtor was pending before this Court. It has come on record that thereafter the decree holder did file two more applications for issuance of possession warrant which are still pending for consideration before the Executing Court.
20. It is in the backdrop of these facts that the first contention raised on behalf of the judgment debtor needs to be considered, i.e. whether the Executing Court was justified in applying the judgment of the Hon'ble Supreme Court in the case of Barkat Ali .vs. Badrinarain (supra) to hold in the impugned order dated 05.04.2017 that warrant of possession having been issued on 09.12.2016, the objections raised on behalf of the judgment debtor could not be considered.
21. In the aforesaid judgment in the case of Barkat Ali .vs. Badrinarain (supra), the Hon'ble Supreme court was considering the question of applicability of the principle of constructive res judicata in a situation where warrant of possession was issued by the Executing Court and objection was sought to be raised by the judgment debtor. After considering the relevant provisions of the CPC, the Hon'ble Supreme Court in the said case of Barkat Ali .vs. Badrinarain (supra) held as follows:-
"11. There is no dispute and it has not been agitated that the order for proceeding by the judgment under Order XXI Rule 22 amounts to a decree under Section 47 of CPC and it is appealable as a decree i.e. to say it is not an appeal against the interim order but an appeal against the decree which is provided against the final order. It means that at the different stages of the execution orders passed by the executing court have attained finality unless they are set aside by way of appeal before the higher forum. Otherwise they bind the parties at the subsequent stage of the execution proceedings so that the smooth progress of execution is not jeopardised and the stage which reached the finality by dint of various orders of the Order XXI, operates as res judicata for the subsequent stage of the proceedings. Since the order passed at different stage itself operates as a decree and is appealable as such, the same cannot be challenged in appeal against subsequent orders also, because appeal against an order passed under Order XXI Rule 22 does not amount to appeal against order at initial stage, but amounts to a decree finally determining the question. That is why no appeal against orders made under Order XXI has been provided under Order 43.
12. In this background, where a judgment-debtor has an opportunity to raise an objection which he could have raised but failed to take and allowed the preliminary stage to come to an end for taking up the matter to the next stage for attachment of property and sale of the property under Order XXI Rule 23 which fell within the above principle, the judgment-debtor thereafter cannot raise such objections subsequently and revert back to earlier stage of proceedings unless the order resulting in termination of preliminary stage which amounts to a decree is appealed against and order is set aside or modified."
22. In the present case, there is no dispute about the fact that although the possession warrant was issued on 09.12.2016, on 15.12.2016 it stood stayed by the Executing Court and that subsequently after the impugned order dated 05.04.2017 was passed, even later application for issuance of possession warrant was rejected by the Executing Court, for the reason that the second appeal was pending before this Court. Two applications filed thereafter by the decree holder for issuance of possession warrant are pending even today before the Executing Court. It has also come on record that the application filed by the judgment debtor for stay of possession warrant was rejected by order dated 07.01.2017, which is also made subject matter of challenge in Writ Petition No. 162 of 2019 before this Court. In such a situation, although it is true that when the impugned order dated 05.04.2017 was passed by the Executing Court rejecting the objections raised by the judgment debtor, inter alia, by applying judgment of the Hon'ble Supreme Court in the case of Barkat Ali .vs. Badrinarain (supra), the possession warrant issued on 09.12.2016 was no longer stayed, but considering the fact that the decree itself was subject matter of challenge on merits in the second appeal pending before this Court, it could be said that the Executing Court was required to consider the objection raised on behalf of the judgment debtor on merits.
23. But, even if the said view is taken by this Court, it is found that in the impugned order dated 05.04.2017, the Executing Court did consider the merits of the objections raised on behalf of the judgment debtor and upon enumerating the objections in paragraph 15, it found that the objections concerned merits of the judgment and decree passed in favour of the decree holder and on that basis, rejected the objections. Since the judgment debtor, by the impugned order dated 05.04.2017 was not non-suited only on the ground of applicability of the judgment in the case of Barkat Ali .vs. Badrinarain (supra), this Court is of the opinion that the view taken by the Executing Court in rejecting the objections raised on behalf of the judgment debtor on merits, needs to be considered.
24. The main thrust of the contentions raised on merits and objection to the executability of the decree, as raised by the judgment debtor, is that there has been a fraud committed by the decree holder and that there is serious doubt about the identity of the property, due to which the decree is incapable of being executed. In support of the contentions regarding fraud, the judgment debtor has also sought to raise certain pleas for the first time in his Writ Petition No. 162 of 2019, by referring to the sale deeds executed by the original vendor in favour of the judgment debtor as well as the decree holder.
25. As regards the question of fraud and inexecutability of the decree raised before the Executing Court by the judgment debtor, it appears that emphasis has been on the fact that the suit property has not been demarcated and identified and that there is fraud on the part of the decree holder because it is not clear whether the suit property is part of Khasra Nos. 22, 23, and 30 or part and parcel of Khasra No. 29. In this regard, it is necessary to refer to the plaint and the schedule of property appended thereto. A perusal of the plaint clearly shows that the decree holder sought possession of 464.40 square meters (5000 sq. ft.) of land which she had purchased by way of registered sale deed dated 18.09.1991. It is clearly stated in the plaint that the said land is located in Khasra Nos. 22, 23 and 30 and specific four boundaries of the suit property have been stated in the schedule of property. The Schedule of Property appended to the plaint reads as follows:-
"SCHEDULE OF PROPERTY
All that piece and parcel of land admeasuring 464.40 sq. mtrs. as detailed hereunder:-
Khasra No. 22.. 167.10 Square metres
Khasra No. 23.. 100.60 Square metres
Khasra No. 30.. 196.70 Square metres
---------
464.40 Square metres
situated in Mouza Ajani, Nagpur, bearing Municipal Corporation House No. 791/of Ward No. 75, Laxminagar, Nagpur within the limits of Nagpur Municipal Corporation and Nagpur Improvement Trust. The land admeasures North-South 25.24 mt. on South and 16.50 on North approximately, so also East West approximate 22.00 Mtrs; on East and 22.50 Mtrs. approximately on West. The land is bounded as under:-
The said property forms part of City Survey No. 383, sheet No. 211/38, of mouza Ajni, Nagpur."
26. The judgment debtor never raised any question regarding identity of the property in response to the claims made by the decree holder. In fact, the specific plea of the judgment debtor was that he was owner of 5000 sq. ft. of land in adjoining Khasra No. 29 by way of registered sale deed dated 15.11.1968 executed by the original vendor and that the additional land that he was holding, also belonged to him as he had perfected his title by adverse possession. When such a specific defence was taken, the judgment debtor clearly conceded to the identity of the property because he was very clear about the fact that he had openly and in a hostile manner retained possession of the suit property, thereby perfecting his title by adverse possession. Although the trial Court in the first instance accepted the plea raised on behalf of the judgment debtor, the first appellate Court and this Court as well as the Hon'ble Supreme Court rejected the same and granted decree of possession in respect of the suit property in favour of the decree holder. Thus, the decree passed in favour of the decree holder was in respect of clearly identified suit property located in Khasra Nos. 22, 23 and 30, which was bound by the four boundaries specifically stated in the above quoted schedule of property appended to the plaint.
27. Despite the said fact that emerged from the record, the judgment debtor did try to obfuscate the issue by raising such pleas of difficulty in identifying the property in the appeal before this Court as well as in the special leave petition filed before the Hon'ble Supreme Court. The said pleas were rejected and the decree stood confirmed in favour of the decree holder. In this situation, it cannot be said that the executing Court committed any error in refusing to accept the objections raised by the judgment debtor by claiming that there was confusion with regard to identity and demarcation of the suit property.
28. Insofar as the aspect of alleged fraud by the decree holder is concerned, a perusal of the objection raised by the judgment debtor under Section 47 of the CPC (Exh. 21) shows that the judgment debtor has harped upon the manner in which he had purchased the property in Khasra No. 29 admeasuring 5000 sq. ft. from the original vendor and then reference has been made to certain other litigation filed by the decree holder against some other parties. Thereafter, it has been claimed that there is fraud committed by the decree holder and that fraud has vitiated everything. Thereafter, it is claimed that the Executing Court ought to have ascertained whether the suit property was part of Khasra Nos. 22, 23 and 30 or part and parcel of Khasra No. 29 before issuing possession warrant. It is difficult to understand as to the nature of fraud sought to be claimed by the judgment debtor. Even the objection regarding identity of property and its location is also without any substance because the description of the property along with its four boundaries was specifically pleaded by the decree holder and the decree has been granted only in respect of such specific property. Even otherwise, such claim made before this Court and the Hon'ble Supreme Court has been rejected. Hence, merely use of the word "fraud" cannot come to the aid of the judgment debtor, in order to delay execution of the decree that has been confirmed upto the Hon'ble Supreme Court. Therefore, it cannot be said that the Executing Court committed any error in the impugned order dated 05.04.2017, by holding that the nature of objections raised by the judgment debtor were nothing but an attack on the merit of the judgment and decree passed in favour of the decree holder. Considering the fact that such objections on merits stood rejected right upto the Hon'ble Supreme Court, no case is made out by the judgment debtor for interfering in the impugned order dated 05.04.2017.
29. The judgment debtor has made another attempt by raising certain facts and grounds for the first time in the writ petition before this Court by referring to the sale deeds executed by the common original vendor in favour of the judgment debtor as well as the decree holder. A contention is sought to be raised that the sale deeds executed in favour of the decree holder, including the sale deed dated 18.09.1991, were executed in a well planned manner so as to commit a fraud on the judgment debtor. It was sought to be portrayed that the original vendor and the decree holder had acted in this manner only to deprive the judgment debtor of the land belonging to him, which he had admittedly purchased from the same original vendor way back in the year 1968. Such facts and grounds raised for the first time in the writ petition before this Court are again with a view to claim that fraud has been committed by the decree holder. This Court is of the opinion that the entire attempt on the part of the judgment debtor is to create a situation where the word "fraud" can be repeatedly used so as to take advantage of the position of law that fraud vitiates everything and that an enquiry or examination would be required even in the present case to examine as to whether the decree passed in favour of the decree holder stood vitiated by fraud.
30. But, in order to accept the said plea, the Court will first have to come to a conclusion that there appears to be some substance in the plea of fraud sought to be raised on behalf of the judgment debtor. In the present case as noted above, in the proceedings leading upto the Hon'ble Supreme Court, whereby decree of possession stood confirmed in favour of the decree holder, the identity of the property, its placement in Khasra Nos. 22, 23 and 30, as opposed to the land belonging to the judgment debtor in Khasra No. 29, has been well established and there is no ground made out as regards any confusion with regard to the same. The decree passed in favour of the decree holder can in no manner adversely affected the right of the judgment debtor in the land admeasuring 5000 sq. ft. located in Khasra No. 29 and, therefore, there is no question of there being any confusion with regard to identity or demarcation of the property. Once this aspect is clear, there is absolutely no necessity for any enquiry into the manner in which the sale deeds were allegedly executed by the original vendor in favour of the decree holder or the effect such sale deeds would have on the land belonging to the judgment debtor in Khasra No. 29. In fact, it has been stated on behalf of the decree holder that she is interested only in possession of the suit property in terms of the decree passed in her favour and confirmed upto the Hon'ble Supreme Court.
31. In this backdrop, it appears that the judgment debtor in the present case is repeatedly raising unsustainable pleas of fraud only to somehow delay and consequently frustrate the decree itself. The fact that the judgment debtor was himself clear about the identity and demarcation of the property becomes obvious from the stand that was taken by him in the proceedings leading upto the decree passed against him. The plea of adverse possession was based on a clear understanding about the nature and extent of his property in Khasra No. 29 and the property that he had encroached upon, which was subject matter of the suit filed by the decree holder.
32. The approach of the judgment debtor throughout the litigation has been to somehow keep the litigation festering and to delay the inevitable. An indication of the same is the following observation made by the appellate Court in its judgment and order dated 01.04.2016, which reads as follows:-
"21. After fling of written notes of arguments by the appellant on 01.09.2015 The Ld. Counsel for respondent repeatedly sought adjournment and lastly argued on 05.11.2015 alongwith his arguments on Exh. 31 & 33. Both these application were decided on 15.12.2015. On 04.01.2016 appellant filed pursis Exh. 44 that respondent is prolonging the effective progress and disposal of appeal and fixing of appeal for judgment. Accordingly, from 12.01.2016 the matter was repeatedly adjourned at the stage of judgment on the request of Ld. Counsel for the respondent. He also filed review applications of Exh. 31 & 33 the same are also decided on merit. The Ld. Counsel for the respondents also not argued their appeal bearing No. 464/11 and ultimately the same is also pending for dismissal. Both the matters are being simultaneously taken for hearing on same dates. Considering the avoidance on the part of the respondents and their counsel to advance argument and the opportunities given, matter has been kept for judgment."
33. Even before the Executing Court, applications have been filed by the judgment debtor raising the plea of "fraud" to keep the proceedings pending so that the decree itself remains in abeyance. The pleas raised on behalf of the judgment debtor do not appear to be bona fide at all and there is no supporting material for the questions of "fraud" and confusion in identify of the property raised on behalf of the judgment debtor. Therefore, no error can be attributed to the impugned order dated 05.04.2017 passed by the Executing Court rejecting the objections raised on behalf of the judgment debtor. Consequently, the Executing Court cannot be said to have committed error in the said impugned order by rejecting the other applications for leading evidence (Exh. 22) and for stay of the execution proceedings filed by the judgment debtor.
34. Insofar as the impugned order dated 12.03.2018 passed by the Executing Court which is subject matter of Writ Petition No. 5680 of 2018, it is found that the Executing Court has allowed the said application only on the basis that the judgment debtor would be deprived of property legally purchased by him for valuable consideration, if the said application at Exh. 63 is not granted. The said reasoning of the Executing Court is not sustainable because it has proceeded on the said contention of the judgment debtor that it is difficult to ascertain as to whether the decree in the present case pertains to land out of Khasra Nos. 22, 23 and 30 or that it is part and parcel of Khasra No. 29. As noted above, when the identity of the property specifically stated in the schedule to the plaint is clear and it is not even the claim of the decree holder that the suit property, the possession of which is sought to be obtained by execution of the decree, falls in Khasra No. 29, there is no question of any requirement of opportunity to be given to the parties to lead evidence in that context. The reference to certain other litigations initiated by the decree holder or the original vendor has nothing to do with execution of the decree in the present case and, therefore, the Executing Court clearly erred in granting the application at Exh. 63 filed on behalf of the judgment debtor. Therefore, the decree holder is justified in claiming that the said impugned order dated 12.03.2018 is wholly unsustainable and that the decree is required to be executed expeditiously.
35. Both parties have relied upon judgments in support of their respective contentions and the same are required to be dealt with. The judgment debtor relied upon judgment of the Hon'ble Supreme Court in the case of Jai Narain Ram Lundia .vs. Kedar Nath Khetan (supra), wherein it has been held that it is only the Executing Court which can consider the question as to whether the defendant would be in a position to perform his part of the decree and to address the question regarding dispute about identity of property. There can be no quarrel with the said proposition and in the present case, since it is found that the question of identity of property was raised by the judgment debtor even before this Court on merits and the Hon'ble Supreme Court in the special leave petition and yet the decree was confirmed, it is found that the said judgment can be of no assistance to the judgment debtor.
36. Reliance was placed on behalf of the judgment debtor on the case of Pratibha Singh .vs. Shanti Devi Prasad (supra) wherein the Hon'ble Supreme Court directed the Executing Court to offer an opportunity to the parties to raise their claims about identity of the property and it was held that it would be in the discretion of the Executing Court to take necessary steps for fixing identify of the property. In the present case, there is no material to doubt the identity of the property and repeated attempts made by the judgment debtor to create confusion and to claim "fraud" are found to be without any substance. Even if there was an iota of substance in the allegations made on behalf of the judgment debtor, the Executing Court could have been said to have committed an error. But, on facts, the present case is distinguishable and, therefore, reliance placed by the judgment debtor on the aforesaid judgment of the Hon'ble Supreme Court is misplaced.
37. In the case of Ram Chandra Singh .vs. Savitri Devi (supra) relied upon by the judgment debtor, it was held that once it was found that a judgment and decree had been obtained by practicing fraud on the Court, the principle of res judicata would not apply. There could be no doubt about the said principle repeatedly laid down by the Hon'ble Supreme Court, but first a Court has to come to at least to a prima facie conclusion that there is possibility of fraud, for which the judgment debtor can be permitted to lead evidence or to successfully raise an objection before the Executing Court. In the present case, there is absence of any such material.
38. In Hamza Haji .vs. State of Kerala (supra), the Hon'ble Supreme Court in the facts of the said case found that the appellant had suppressed certain specific facts with an intention to deceive, thereby demonstrating that the decree was obtained by fraud. In such a situation, the Hon'ble Supreme Court found that such a decree could not lead to relief to the decree holder. In the present case, as noted above, the judgment debtor has failed to make out even a prima facie case of fraud and, therefore, he cannot claim any relief on the basis of the said judgment of the Hon'ble Supreme Court.
39. In the case of Union of India .vs. Ramesh Gandhi (supra), it has been held that a decree obtained by fraud is a nullity and that it has to be treated as non est by every Court and further that an enquiry into such a question must be undertaken. In the present case, the judgment debtor has been harping on "fraud" committed by the decree holder, but in the facts of the present case, particularly the stand taken by the judgment debtor in the suit filed by the decree holder, it becomes clear that there is no material to even initiate an enquiry and on that ground to further delay execution of the decree.
40. In the case of Dr. Madhukar Trimbak Gore .vs. Vasant Ramkrishna Kolhatkar (supra), this Court found that the decree that was drawn up in favour of the decree holder did not even give a description of the room of which possession was to be handed over. But, in the present case, the identity of the suit property clearly stood established, particularly in view of the nature of defence raised on behalf of the judgment debtor, it can never be said that there was any confusion with regard to the identity and location of the suit property. Therefore, the said judgment would be of no avail to the judgment debtor.
41. The judgments in the cases of Satyawati .vs. Rajinder Singh (supra) and Bhagwan Devi .vs. Sunil Kumar Rajput (supra) of the Hon'ble Supreme Court, relied upon by the decree holder show the concern of the highest Court of this Country to the distress faced by the decree holders in our system, as they have to wait for years together for the decree to be confirmed after a series of stages of appeals and thereafter before the Executing Court where applications after applications and frivolous objections are filed by the judgment debtor to ensure that the delay in execution of the decree is such that the decree holder is left absolutely frustrated, amounting to a fraud on the decree holders themselves. In the aforesaid judgments, the Hon'ble Supreme Court has referred to earlier judgments wherein it has been noted that procedure is meant to advance the cause of justice and not to delay it and further that the judgment debtor tries to frustrate the execution of the decree by all possible objections.
42. As noted in the aforesaid judgment of this Hon'ble Court, in the case of Kuer Jang Bahadur .vs. Bank of Upper India Ltd. -MANU/OU/0064/1925 : AIR 1925 Oudh 448 PC, the Privy Council as far back as in 1925 observed as follows:-
"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."
43. The aforesaid observations made by the Hon'ble Supreme Court show that in our system providing multiple levels of appeals and opportunities even before the Executing Court to raise objections in respect of the decrees, the process of a decree being passed in favour of the decree holder itself takes long period of time and thereafter the proceedings before the Executing Court, sometimes take the same amount of time or even more for execution of the decree, as a result of which the decree holder is unable to enjoy the fruits of the decree. Although, the multiple stages of appeals and opportunity before the Executing Court are available so as to ensure that injustice is not done to either party, the process has become so long drawn that the litigant who ultimately succeeds, is not able to enjoy the fruits of the decree in the true sense. The procedural aspect of raising objections by the judgment debtor manifested in the various provisions of the CPC, particularly Order 21 thereof, has become an arena where objections after frivolous objections are raised by the judgment debtors. The process of issuance of notice and consideration of each and every objection on merits is leading to a situation where frequently the decree and decree holder are left exasperated and frustrated. In this situation, unscrupulous litigants are having a field day. To raise an objection by the use of the word "fraud" has become almost like a Mantra, which then thwarts the entire process of execution and throws it into disarray, on the basis that fraud vitiates everything and that a detailed enquiry is required before the decree is executed. In order to ensure that such a situation does not occur frequently, it would be necessary that the Executing Court takes into consideration the question at the outset as to whether any prima facie material or ground is made out for an enquiry into the alleged "fraud". If it is found, as in the present case, that there is no necessity to enter into an enquiry and further delay execution of the decree, the Executing Court would be well within its powers to reject such objections raised by the judgment debtor.
44. It is found in the present case additionally that the nature of objections sought to be raised by the judgment debtor is nothing but an attempt to challenge the decree on merits, although it has attained finality upto the Hon'ble Supreme Court. In the present case, it cannot be said that the Executing Court committed any error in passing the impugned orders that are subject matter of Writ Petition No. 162 of 2019 and at the same time it is found that the Executing Court did err in passing the impugned order, which is subject matter of challenge in Writ Petition No. 5680 of 2018.
45. In view of the above, Writ Petition No. 162 of 2019 is dismissed while the Writ Petition No. 5680 of 2018 is allowed. Consequently the Executing Court is directed to decide the execution proceedings i.e. Regular Darkhast No. 183 of 2016 expeditiously.
46. Rule is discharged in Writ Petition No. 162 of 2019 and Rule is made absolute in Writ Petition No. 5680 of 2018. There shall be no order as to costs.
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