Share Link Mobile View

Delhi High Court

Dev Raj & Ors vs Satpal Gulia on 19 March, 2020

$~

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 31st January, 2020
Date of decision: 19th March, 2020
+ CM(M) 1448/2019, CM APPLs. 43987/2019 & 43988/2019
DEV RAJ & ORS ..... Petitioners
Through: Mr. B.B. Gupta, Senior Advocate with
Mr. Devesh Pratap Singh, Advocate.
(M:9999814755)
versus
SATPAL GULIA ..... Respondent
Through: Mr. R.K. Saini, Ms. Bhavana Jain and
Ms. Tavishi Vats, Advocates.
(M:8447641995)
CORAM:
JUSTICE PRATHIBA M. SINGH
JUDGMENT

Prathiba M. Singh, J.

1. The Petitioners - Shri Dev Raj, Shri Shiv Raj and Shri Hans Raj were the Plaintiffs (hereinafter,
"Plaintiff Nos. 1-3") in a suit for permanent injunction in respect of property bearing No. 223, Village
Mangolpur Kalan, Delhi (hereinafter, "suit property"). In the said suit, an interim order was passed in
the application under Order XXXIX Rules 1 and 2 CPC on 15 th February, 1994 to the following
effect: -

"4. I have perused the report of the local commissioner. The local commissioner has
categorically stated in his report that he served a notice upon the defendant with regard to
his appointment to execute the commission but the defendant deliberately refused to
accept the notice. The defendant deliberately and intentionally did not take part in the
proceedings held by the local commissioner. It is reported by the local commissioner in his
report that the defendant was constructing a wall with the help of the police and the wall
was just adjoining the doors of the house of the plaintiffs, which were mostly about to
close. After carefully considering the arguments of the plaintiff counsel and in view of the
nature of the suit and inasmuch as the documents placed on record by the plaintiff counsel
in support of his contention particularly when the plaintiffs claimed themselves to be the
owner of the suit property_____house and whereas the defendant has failed to appear
despite service and information particularly given by the local commissioner who executed
the commission after giving notice to the defendant and since the doors of the house of the
plaintiffs are closed on account of raising the wall and whereas it has become difficult for
the plaintiffs to enter in the back portion of the house or to open the doors or to tether the
cattle. I am of the view that these are the exceptional circumstances where the court must
intervene and the Court should not hesitate even to grant the relief which is in the nature of
the mandatory form. I accordingly allow the application moved by the plaintiffs as the
defendant has not appeared despite knowledge and I order that the walls raised in front of
the doors of the house of the plaintiffs be removed in order to facilitate the plaintiffs for
their egress and ingress in the premises. In case the hurdle of raising the wall in front of
the doors is not removed, the plaintiffs are likely to suffer irreparable loss. The plaintiffs
shall remove the wall, raised by the defendant as alleged in front of the doors of the house
and if necessity be the plaintiffs shall take the assistance of the local police. The local
:
 police is also directed to get this order implemented. I am of the considered view that since
the defendant is absent despite knowledge inasmuch as where the process has not been
received in the court issued to the defendant in pursuance to order contained in order 39
rule 3 CPC I in the interest of justice once again order that the defendant be again served
with the restraint orders on filing of P.F. R.C. etc. for 28.2.94."

The Court, by way of an interim mandatory order, had thus directed removal of the wall so as to
provide access to the Plaintiffs on the basis that the Plaintiffs were the owners of the property.

2. The said suit, however, came to be finally dismissed by the ld. Trial Court vide judgment/decree
dated 24th December, 1999, which reads as under: -

"17. In view of the foregoing discussions and facts and circumstances of the case and on
perusal of the material placed on record, I am of the view that the plaintiff have totally
failed to prove that they are the owners and entitled to possess the suit property, falls in the
back portion of their houses and also failed to prove that they are entitled to open the doors
towards the suit land i.e. the land pertains to khasra No.70/1/1, 70/34 and 70/32 as shown
in the site plan not belonging to them.Whereas the wall which was in existence at the time
of filing of the suit was demolished in pursuance of ad interim order dt. 15.2.94, therefore,
the suit property be restored to its original condition.

18. In view of the foregoing discussions and facts and circumstances of the case, I
accordingly dismiss the suit of the plaintiffs, with cost of Rs.5000/- Decree sheet be
prepared accordingly. File be consigned to R/R."

At the final stage, the trial court came to the conclusion that the Plaintiffs had failed to establish
ownership and thus, while dismissing the suit, directed the re- construction of the wall which was
demolished and restoration of the same to its original condition.

3. The said judgment/decree was challenged by Plaintiff Nos. 1-3. The first appeal was dismissed on
16th May, 2018 and the second appeal was dismissed on 14th September, 2018. In effect, the original
judgment/decree was maintained by both the Appellate Courts.

4. Considering the nature of the judgment/decree which was passed by the Trial Court, the
Respondent/Defendant (hereinafter, "Defendant") in whose favour a final order of restoration was
passed by the Trial Court, sought execution of the judgment/decree. The Executing Court considered
the judgment/decree and on 26th April, 2019, dismissed the objections filed by Plaintiff Nos. 1-3 and
directed as under:

"20. The suit was filed in year 1993 and JDs got into the illegal possession of the suit
property on 30.03.1994 and since then they are in the illegal possession of the suit
property. JDs are in the possession of the suit property for the last 25 years and for that
period DH has been deprived of the enjoyment of his immovable property. JDs are reaping
unjust benefits from the suit property for the last 25 years and on the other hand, DH is
being deprived of enjoying the suit property and of profit generated from it. Therefore,
equity demands that JDs should pay damages / mesne profits to the DH for the period they
were in illegal possession of the suit property and compensate the DH.

21. The photographs filed alongwith the execution petition clearly shows that suit property
is used for commercial purpose i.e. as a godown for keeping marble slabs and stones.
Judicial notice is taken of the fact that village Mangolpur kalan i.e. the area where the suit
property is located is a well known market of marble slabs. Therefore, in the opinion of the
Court, the DH is entitled to damages / mesne profit of Rs. 1 lac for each year for which the
suit property was in the possession of the JDs. Hence, DH is entitled to damages / mesne
profit of Rs. 25 lacs from the JDs.
:
 DH is entitled to recover the damages / mesne profit of Rs. 25 lacs only after depositing
the requisite Court fee.

In case, JDs did not comply with this order then DH can get the order executed through the
Court so that the order can be implemented in letter and spirit.

Application disposed of accordingly."

Thus, the executing court came to the conclusion that on the basis of the initial interim injunction
which was granted in favour of the Plaintiffs, they continued to enjoy benefit of the order and
possession of the property since 1994, while the Defendant was deprived of the enjoyment of the
property, though finally the suit was dismissed. Thus, the court observed that the Defendant ought to
be compensated for enjoying the property during the said period and directed the payment of
damages/mesne profits of Rs. 25 lakhs. In order to implement its order, the Executing Court appointed
a bailiff vide a separate order of the same date i.e., 26th April 2019, in the following terms:

"Vide separate order passed today, the objections filed by the Jds has been dismissed and it
was held that DH is entitled to erect the western boundary wall upto the height of about
Nine feet, in front of four doors as shown A,B,C and D in the site plan Ex. PW 1/A and
also entitled to the possession of the suit property and also entitled to have the suit
property in the same condition as it was in at the time when the suit was filed and as
shown in photographs no. 5 and 6 filed on 24.09.2018.

Counsel for DH/defendant submitted that original position of the suit property be restored.
Bailiff of this court is directed to restore the original position of the suit property i.e.
erecting a wall in front of four doors as shown at A,B, C and D in the site plan attached
herewith which was demolished in pursuance of court order dated 15.02.1994 and file
report on the next date of hearing.

Issue warrants of possession against the JD qua the suit property i.e. House No. 176
having area of 1160 sq. yards approximately in Khasra No. 70/1/1, Khasra No. 70/31,
70/32, Village Mangol Pur Kalan as shown at point ABJI in the site plan Ex. PW 1/A for
NDOH on filing of PF.

................

Further permission to break open the lock is also granted if it is required to execute the
warrant."

5. Plaintiff Nos. 1-3 thereafter preferred an appeal which has been dismissed vide the impugned order
dated 16th September, 2019 on the ground that the same is not maintainable.

6. Mr. B.B Gupta, ld. Sr. Counsel appearing for Plaintiff Nos. 1-3 submits that on the issue of
maintainability of the appeal, the Appellate Court was completely wrong in law. He submits that even
objections under Section 47 CPC have to be treated as those filed under Order XXI Rule 97 CPC as
the term "any person" in Rule 97 includes the Judgment Debtor. Since the objections under Order XXI
Rule 97 CPC have to be decided under Rule 98 and are appealable under Rule 103, the finding of the
Appellate Court is erroneous in law and the appeal has to be decided on merits. He relies on the
following judgments -

i. Murti Bhawani Mata Mandir Represented Through Pujari Ganesh Lal (Dead) Through
Legal Representative Kailash v. Ramesh and Others, (2019) 3 SCC 707 ii. Bhanwar Lal v.
Satyanarain and Another, (1995) 1 SCC 6 iii. Asgar & Others v Mohan Verma & Others
2019 (3) CLJ 16 (SC) iv Babulal v Raj Kumar & Ors. (1996) 3 SCC 154

7. On the other hand, Mr. R.K. Saini, ld. counsel appearing for the Defendant submits that this is a
case of gross abuse by Plaintiff Nos. 1-3 who ensured that they enjoyed the property in question,by
:
way of interim relief in a suit which was finally dismissed. He submits that Plaintiff Nos. 1-3
deliberately delayed the adjudication of the first appeal and have, in effect, enjoyed the property for
almost 20 years after the passing of the decree. It was under these circumstances, that the Court has
the power of restitution under Section 144 CPC wherein the Court, while ensuring that the benefit of
the interim order which was originally passed is no longer enjoyed by Plaintiff Nos. 1-3, directed
construction of the wall, as also payment of mesne profits. He submits that such an order would not be
appealable, inasmuch as the Judgment Debtor was all along a party to the suit itself, and thus the order
passed dismissing the objections by the Judgment Debtor would not be appealable as the same was
under Section 47 CPC.

8. In order to decide whether the order dated 26th April, 2019 was an appealable order or not, what is
important to be seen is the nature of the order which was passed. The Executing Courtconsidered the
entire issue of restitution which was directed by the final judgement and also held that since the
Judgment Debtors had come into possession of the property due to the interim/mandatory injunction
which was passed by the Court on 15 th February, 1994, and the suit having been dismissed resulting
in the said order being vacated, the Court ought to put the Defendant in the same position as it was,
prior to the filing of the suit. In the Court‟s opinion, restitution was in two forms-

First, by restoring the original position of the property i.e. by erecting a wall which had
earlier been demolished pursuant to the interim order and Secondly, by directing the
Judgment Debtors to pay damages for the occupation of the said property from 1994 till
2019 i.e. a period of almost 25 years.

9. The CPC contemplates various orders that can be passed in execution proceedings. Whenever there
are questions which arise between the parties to the suit in respect of either the execution, discharge or
satisfaction of the decree, the same can be determined by the Executing Court itself under Section 47
CPC. Section 47 reads as under:

"47. Questions to be determined by the Court executing decree. - (1) All questions arising
between the parties to the suit in which the decree was passed, or their representatives, and
relating to the execution, discharge or satisfaction of the decree, shall be determined by the
Court executing the decree and not by a separate suit.

(3) Where a question arises as to whether any person is or is not the representative of a
party, such question shall, for the purposes of this section, be determined by the Court.

[Explanation I. - For the purposes of this section, a plaintiff whose suit has been dismissed
and a defendant against whom a suit has been dismissed are parties to the suit.

Explanation II. - (a) For the purposes of this section, a purchaser of property at a sale in
execution of a decree shall be deemed to be a party to the suit in which the decree is
passed; and

(b) All questions relating to the delivery of possession of such property to such purchaser
or his representative shall be deemed to be questions relating to the execution, discharge or
satisfaction of the decree with the meaning of this section.]"

10. There is no dispute as to the legal proposition that if objections are filed in execution proceedings,
if the Court is of the opinion that there are any complex facts evolved, evidence would have to be
recorded. Bhanwar Lal (supra) cited by the Plaintiffs, holds that under Order XXI Rule 97 CPC the
term „any person‟ would include a Judgment Debtor. However, the nature of the order needs to be
considered to see whether an order passed by the executing court is one under Order XXI Rule 97
CPC, where the decree holder faces obstruction or resistance, or is an order which is implementing the
decree. The mandatory nature of the injunction which was granted in the final judgment/decree has
resulted in warrants of possession being issued by the Executing Court, and rightly so. It is the settled
position that dismissal of a suit also constitutes a decree. The dismissal of the suit in the present case is
:
not a mere dismissal, but a dismissal which entailed a final order by the Court, that the Defendant
needs to be restored possession of the property, which was occupied by the Plaintiffs due to the
operation of an interim order of the Court itself. Such an order, is clearly one that is passed exercising
the inherent powers of the Court to restitute a party to the same position as he or she was at the time
when the suit was filed when, the status quo had been changed due to an order passed by the Court,
and ultimately the Court has dismissed the suit itself. The Executing Court was merely implementing
the original judgment/decree.

11. The judgment in Babulal v. Raj Kumar And Others (supra) isclearly distinguishable on facts,
inasmuch as in the said case, the party objecting to the execution of the decree was not a party to the
original judgment/decree for specific performance. The executing court had not conducted any
enquiry into the objections filed by him, and it was in that context that the Supreme Court held that the
executing Court ought to have enquired into the matter. The facts in the present case are different,
inasmuch as the Plaintiffs who are objecting to the execution of the decree were party to the suit since
inception. They enjoyed the interim order which was originally passed by the Court. The judgment/
decree, to which they were a party has attained finality.

12. Even in Asgar & Ors v. Mohan Varma & Ors.(supra)the parties who were objecting to the decree,
were not parties to the original judgment and were strangers to the decree. Since the objectors set up
an independent claim, the Supreme Court held that the executing court had to decide the issue as to
whether the claim was justified or not. The Supreme Court had observed as under:

"The provisions of Order XXI Rules 97 to 103 constitute a complete code and provide the
sole remedy both to parties to a suit and to a stranger to a decree. All questions pertaining
to the right, title and interest which the appellants claimed had to be urged in the earlier
Execution Application and adjudicated therein. To take any other view would only lead to
a multiplicity of proceedings and interminably delay the fruits of the decree being realized
by the decree holder."

Thus, the executing court has very vast powers while deciding an execution. The intention of the Code
as also the judgements has been to ensure that delays are not caused in execution of decrees and
multiplicity of proceedings is avoided, by permitting the executing courts to decide the issues even
relating to title if raised.

13. The powers of the Executing Court are quite broad. Under Order XXICPC, the various steps that
can be taken by the Executing Court for implementing a decree are stipulated. The same
includegranting of set off, sale of the property, auctioning of the property, execution of a document,
endorsement of immovable property, taking custody of movable property, directing oral examination
of a Judgment Debtor, attachment of agricultural produce, orders against garnishee, attachment of
salaries, attachment of partnership property, attachment of immovable property, conduct of sale by
public auctioning, etc. In the case of immovable property, if there is any resistance, by any person
including the Judgment Debtor, the Decree Holder can approach the Executing Court, which shall then
pass orders under Order XXI Rule 98 CPC. Any order passed at the behest of a Decree Holder under
Order XXI Rule 97 and 98 CPC would constitute a decree under Order XXI Rule 103 CPC. The same
would then be appealable. If a person is wrongly dispossessed, such person can approach the
Executing Court under Order XXI Rule 99 CPC for orders to be passed in terms of Order XXI Rule
100 CPC, which would also constitute a decree under Order XXI Rule 103 CPC.

14. The Plaintiffsargue that the orders passed by the Executing Court, first by appointing a bailiff to
restore the original position of the suit property, and secondly by directing payment of damages for
illegal possession are both orders under Section 47 CPC, and hence no appeal lies to the ADJ from the
said order.

15. The scheme of Order XXI Rules 97 to 106 CPC is quite clear. If there is obstruction or resistance
by any person, the Decree Holder approaches the Executing Court under Order XXI Rule 97 CPC. If
:
the person in occupation has been wrongly dispossessed, so long as that person is not the Judgment
Debtor, the Executing Court can be approached under Order XXI Rule 99 CPC. What happens if the
Judgment Debtor who is bound by the decree is dispossessed? Would such dispossession be covered
under Order XXI Rule 99 CPC or under Section 47 CPC? This issue needs to be examined.

16. The nature of the order passed in the present case has the following elements:

i) the order is against the Judgment Debtors;

ii) it is of a mandatory nature i.e., the Judgement Debtors have to restore the property to its
original condition. The exact wording of the final decree, while dismissing the suit is as
under:

"....Whereas the wall which was in existence at the time of filing of the suit was
demolished in pursuance of ad interim order dt. 15.2.94, therefore, the suit property be
restored to its original condition....."

iii) the Plaintiffs did not comply with the same hence the Defendant sought execution;

iv) the Judgment Debtors were the Plaintiffs in the original suit and have enjoyed
possession;

v) the executing court thus directs the bailiff to restore possession from the Judgment
Debtors;

vi) rightly or wrongly, the Executing Court has directed the Judgment Debtors to pay
damages.

17. Clearly, it is the Judgment Debtors who are sought to be dispossessed. By a simple reading of
Order XXI Rule 99, it is clear that the impugned order is not an order under the said provision.

18. Further, the order that has been passed by the executing court is not in respect of obstruction or
resistance by the Judgment Debtors for which the Decree Holder has approached the Executing Court.
The Judgement Debtors have simply failed to comply with a mandatory order or mandatory
injunction.

Thus, this is not an order under Order XXI Rule 97 either. In the present case, the Decree Holder has
sought orders under Order XXI Rule 32 CPC for enforcement of a mandatory injunction which
directed restoration of the wall to its original condition. The executing court holds that the said
provision does not apply.

19. An order like the impugned order, would, in the opinion of this Court be an order under Section 47
CPC i.e., it would relate to execution, discharge or satisfaction of the decree by the Executing Court.
The final decree directing restitution and the same being given effect to by the executing court, would
also be an order relating to the implementation of the decree and not one under Order XXI Rule 97
CPC which contemplates resistance or obstruction to the execution of a decree.

20. The ld. ADJ exercising appellate jurisdiction, has also observed that the order passed by the
Executing Court is under Section 47 and is not appealable under Order XXI Rule 103. The
observations of the ld. ADJ are as under:

"12. Since the maintainability of the appeal has been seriously challenged by learned
counsel for the respondent, I am of the view that it will be appropriate to test the
maintainability of the appeal before going into merits.

13. The objections which were filed by the appellants before the Ld. Executing Court were
titled as „objections on behalf of judgment debtors/objectors under order XXI R 97 of the
Code of Civil Procedure read with all other enabling provisions and also under section 47
:
 of Code of Civil Procedure to the execution petition filed by the alleged decree holder. The
executing court while deciding the objections has observed that, "Vide this order, the court
shall decide, the objections filed by the JDs u/sec. 47 of CPC." The present appeal has
been titled as "Appeal u/O 21 R 58/97/98/99/100/101/103/104/105 CPC..."

14. So far as provisions invoked in the present appeal are concerned, most of the
provisions do not in any manner provide for any appeal. Only Rule 103 of Order XXI CPC
prescribes that any order passed under Rule 98 on an application under rule 97 and rule
100 on an application under rule 99 of order XXI CPC shall be deemed to be a decree
which means that such an order is appealable. For the purpose of provisions of Order XXI
R 103 CPC, it is to be seen whether the impugned order was actually an order passed
under Rule 97 to rule 100 CPC. In this regard, it is found from the record that though the
application/objections were titled under order XXI Rule 97 CPC but in fact the said
provision was not attracted in the given situation and probably due to this reason only the
Ld. Executing Court has treated the objections only under 47 CPC which deals with the
questions arising between the parties to the suit in relation to execution, discharge or
satisfaction of the decree.

15. Rule 97 of Order XXI CPC deals with a remedy available to the decree holder and a
purchaser of the property when there is resistance to execution of warrant of possession
etc. The appellant is not a decree holder or purchaser of property in this case; so, there
does not arise any question of the appellant availing the abovesaid provision.

16. Similarly, Rule 99 of Order XXI CPC deals with the remedy available to a third person
who is dispossessed during execution of a decree. The appellants also do not fall in the
category of third person as they were party to the suit and are judgment debtors in the
present execution petition. So, this provision is also not available to the appellants.

17. There is an argument on behalf of appellant that the ld. Executing court has taken
recourse to section 144 CPC, which deals with restitution, so, by virtue-of the definition of
term decree u/sec. 2(2) CPC which includes an order u/sec. 144 CPC, the impugned order
is appealable. In this regard, it is to be seen that, order of restitution has already been
passed by the Ld. Trial Court vide judgment dated24.12.1999 and it can be taken that the
ld. executing court has simply analyzed the same for the purpose of execution in its letter
and spirit. The judgment dated. 24.12.1999 has already been challenged by way of first
and second appeal and both appeals filed by the appellants have already been dismissed
vide judgment dated 16.05|.2018 and 14.09.2018. Without commenting upon the
correctness of impugned order. It can be said that the different reliefs have been granted by
the ld. executing court to the decree holder while deciding the objections filed by the
appellants as a measure to ensure restitution as per the judgment passed by the ld.Trial
court and not as an independent measure for restitution.

18. In view of above. It can be said that the objections were treated u/sec. 47 CPC by the
ld. Executing Court which deals with questions arising between the parties to the suit
relating to the execution, discharge or satisfaction of the decree. It iswell settled that it is
the substance and not the nomenclature which is material. So, far as an order passed u/sec.
47 CPC is concerned, the same is not an appealable order as it does, not find mention
either in section 104 or in order 43 CPC which prescribe exhaustive list of the appealable
orders.' There is also no special provision which makes the order u/sec. 47 CPC an
appealable order. An order u/sec. 47 CPC is also not covered by the existing definition of
term decreeu/sec. 2(2) of CPC.

19. Considering the above facts and circumstances, I am of the considered view that
present appeal is not maintainable in this court and same is accordingly dismissed."
:
21. It is the settled position in law that the nomenclature of an application does not govern the nature
of the application, or the order passed in the same. Clearly the order passed by the Executing Court in
this case is one under Section 47 CPC and not under Order XXI Rule 97 CPC. The question as to
whether the Judgment Debtor is covered under the term "any person" in Rule 97 does not even arise in
the present petition inasmuch as the said provision has in fact been wrongly invoked in the title of the
application. The order passed is one for implementing the mandatory injunction as granted by the
original decree dated 24th December, 1999 along with restitution in the form of damages. Such an
order cannot constitute an order under Order XXI Rule 97 CPC and is clearly an order under Section
47 CPC.

22. In cases of this nature, if the Judgment Debtor himself is provided repeated remedies for indirectly
challenging the judgment/decree which has attained finality, that too by invoking provisions which are
not applicable, the same would result in complete injustice. The decree which is sought to be executed
in the present case was originally passed in 1999 i.e., two decades ago. The same was upheld in
2018.As per the said decree, the Judgment Debtors had to restore the property to its original condition
which they failed to do. The Executing Court has given effect to the said decree. No issues have been
raised before the Executing Court, which warrant any enquiry. If such orders are held to be appealable,
the same would result in providing repeated remedies to a Judgment Debtor who was a party to the
original decree which has attained finality. Any interpretation that delays the execution ought to be
avoided. The ADJ -as the Appellate Court was right in the view that was taken. Accordingly, the
present petition and all pending applications are dismissed.

PRATHIBA M. SINGH JUDGE MARCH19, 2020 Rahul/Rg

: