Dinesh Singh v. Satyadeo Prasad

learned appellate court while dismissing the appeal has affirmed the order dated 17.10.2008 passed by the learned Execution Munsif, Gaya in Execution Case No. 17 of 1994, whereby the objection as to the maintainability of the execution case raised by the judgment debtor who are the petitioners before this Court, was Patna High Court C.R. No.1666 of 2009 (8) dt.14-05-2013 2 rejected. With the consent of the parties the matter has been taken up for disposal at the stage of admission itself. To appreciate the contention raised by the judgment-debtor who are petitioners before this Court it would be but appropriate to mention the march of events leading to the impugned order. A title suit was filed by the plaintiff-opposite party under the provisions of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the „Act‟) for eviction of the petitioners herein giving rise to Title Suit No. 258 of 1971 and which was decreed in favour of the plaintiff under the judgment and order passed on 4.09.1976. The petitioners herein filed another suit bearing Title Suit No. 391 of 1971 seeking to set aside the ex parte judgment and decree dated 4.09.1976 and which suit upon transfer was numbered as 391 of 1971/275 of 1978 and was decreed on 28.02.1979 thereby setting aside the ex parte decree passed in Title Suit No. 258 of 1971. Three years thereafter, the plaintiff herein filed a second suit bearing Title Suit No. 2 of 1982/418 of 1979 under the Act seeking eviction of the petitioners and which suit was decreed under a judgment and order dated 19.04.1982. The trial court even while holding that no landlord-tenant relationship existed between the parties, treated the petitioners as trespassers and ordered for their eviction from Patna High Court C.R. No.1666 of 2009 (8) dt.14-05-2013 3 the suit premises. The defendant-petitioners filed a Title Appeal No. 34 of 1982/10 of 1982 which was allowed under a judgment and decree dated 14.12.1983 and the judgment and decree of the trial court dated 19.04.1982 was set aside. The plaintiff being aggrieved by the judgment and decree of the appellate court preferred a second appeal giving rise to S.A. No. 113 of 1984 and which was dismissed on 14.03.1985. The plaintiff being aggrieved by the orders passed by the 1st and 2nd appellate court moved the Supreme Court in Civil Appeal No. 3184 of 1985 and which appeal was allowed by judgment and order dated 8.4.1993 in the following terms: “Since the appellant has now even stated on affidavit that he is willing to make good the court fee in all the courts below and correct suit valuation, we extend the time for the purpose uptil 30th June, 1993 and on the compliance thereof he shall get his decree. The appeal is allowed in these terms. No costs.” It is not in dispute that in terms of the directions of the Supreme Court the court fee was deposited within the time prescribed. Following the deposit, the execution case in question was filed by the plaintiff giving rise to Execution Case No. 17 of 1994 which was filed on 10.05.1994. As a consequence of the order passed by the Supreme Court the Second Appeal No. 113 of 1984 was reconsidered by this Court and by a judgment and order passed on 5.7.1999, this Patna High Court C.R. No.1666 of 2009 (8) dt.14-05-2013 4 Court while taking note of the fact that the plaintiff had deposited the ad valorem court fee for all the courts including this Court, remitted the matter to the 1st appellate court for deciding the issue afresh after giving due opportunity of hearing to the contesting parties. It is not in dispute that upon remand the appellate court dismissed the appeal on 18.11.2003 thus affirming the judgment and decree of the trial court. The second appeal preferred by the defendant-petitioners herein bearing S.A. Appeal no. 16 of 2004 was also dismissed on 05.12.2012. It is however stated that a Civil Review No. 74 of 2013 has been filed before this Court and is pending. This completes the sequence of events as regarding the various stages to which the litigation has gone through. The only issue which is being raised by Ms. Prasad, learned counsel appearing for the defendant-petitioners is that the execution case filed on 10.05.1994 was not sustainable in law for more than one reason. She submits that as on the said date there was no decree enforceable, the execution case was not maintainable and secondly since the same was filed after an expiry of more than 12 years of the passing of the judgment and decree on 19.4.1982, the execution case was barred by limitation in terms of Article 136 of the Limitation Act, 1963. Ms. Prasad, learned counsel has relied upon the full bench decision of this Court reported in AIR 1987 Patna 133 : 1987 PLJR 172 (Jokhan Rai vs. Patna High Court C.R. No.1666 of 2009 (8) dt.14-05-2013 5 Baikunth Singh), more particularly paragraph-7 and 8 thereof. It is thus sought to be canvassed that as the execution case itself was not maintainable on the date the same was filed before the executing court, an objection to the said effect was filed by the defendant-petitioners and learned executing court by misappreciation of the legal position, has dismissed the same. The arguments of Ms. Prasad has been contested by Mr. Partha Sarthy who has simply referred to the order of the Supreme Court placed at Annexure-E of the counter affidavit filed in the proceedings and the order of this Court in S.A. No. 113 of 1984 passed in consequence of the order of the Supreme Court placed at Annexure-F to submit that as the petitioners had admittedly paid the ad valorem court fee in terms of the Supreme Court order, before filing the execution case, he became entitled to the decree in terms of the decree of the trial court and hence the execution case was in accordance with law and within the period prescribed under the Limitation Act, 1963. I have heard learned counsel for the parties and I have perused the materials on record. The only issue that requires to be considered is whether or not the execution case was maintainable on the date it was filed i.e. 10.05.1994 or was hit by Article 136 of the Limitation Act. The arguments of Ms. Prasad, learned counsel appearing for the judgment debtors is not Patna High Court C.R. No.1666 of 2009 (8) dt.14-05-2013 6 acceptable for more than one reason. The first of such reason is the conduct of the judgment debtors themselves inasmuch as the execution case having been filed on 10.05.1994 and the judgment debtor having filed their appearance on 24.7.1996 it took them more than 12 years to realize that the execution case was not maintainable and an objection was filed on 4.8.2008, when practically the execution case was at its conclusion. The conduct of the judgment debtors to have submitted to the jurisdiction of the executing court and having participated in the execution proceedings without questioning the maintainability thereof, the objection, if any, so raised is not tenable on the principles of acquiescence and waiver. Even otherwise, the objection raised lacks substance, in view of the judgment and order of the Supreme Court which held the plaintiff entitled to the decree upon payment of the ad valorem court fee and which was deposited within the time prescribed by the Supreme Court as is manifest from the order dated 10.08.2001 passed by Additional District Judge- 7th, Gaya in Title Appeal No. 125 of 1999 / 34 of 1982 placed at Annexure-I of the counter affidavit. Thus the plaintiff considering himself to be entitled to the decree of the trial court in terms of the Supreme Court order, had correctly filed the execution case on 10.05.1994 and there is no legal infirmity therein. Even otherwise the objections raised is Patna High Court C.R. No.1666 of 2009 (8) dt.14-05-2013 7 bordering on hyper technicality. The judgments of this Court and the Supreme Court on the issue of relevance of subsequent events for shortening litigation and for finally concluding an issue or to do complete justice to the parties does not persuade this Court to grant any indulgence to the objections raised. Reference in this regard is made to the following judgments of the Supreme Court: (i) AIR 1973 SC 171 (M. Laxmi & Co. v. A.R. Deshpande), paragraph 27 (ii) (2002)2 SCC 256, (Om Prakash Gupta v. Ranbir B. Goyal) paragraph 11 and 12 (iii) (2009)10 SCC 197 Jai Prakash Gupta vs. Riyaz Ahmad and another) paragraph 20 to 23. The reasons aforementioned would lead to only one conclusion and that is the dismissal of this application. This Civil Revision application is accordingly dismissed. However, without any order as to costs. S.Sb/- (Jyoti Saran, J)