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Ashok Asandas Baherwani v. Ishwarprakash Chopra
Structured Summary of the Opinion — Revision Against Order Dated 17-2-1988 (Warrant of Possession)
Factual and Procedural Background
The revision challenges an order dated 17-2-1988 of Shri K.J. Rohi, Assistant Sessions Judge, Nagpur (In-charge Judge of the Small Causes Court, Nagpur), directing the issue of a warrant of possession in Small Cause Darkhast No. 103 of 1988.
The factual matrix: the applicant (tenant, later referred to as Ashok) occupied a house at Plot No. 3, Shirkey Layout, Chhaoni, Nagpur since April 1985 at a monthly rent of Rs. 1,800. The non-applicant is the owner/landlord. The applicant defaulted in rent and the landlord obtained distress warrants (Application No. 14 of 1986 and Application No. 85 of 1986) by which the tenant's movable goods were attached; arrears at one point were Rs. 16,200 and subsequently further arrears of about Rs. 9,000 accrued. Sales were fixed for attached goods on 27-10-1986 and 13-11-1986.
To prevent sale of the attached goods the tenant gave undertakings in Court to pay rent and to vacate by 31-3-1987; partial payments were made but the undertakings were breached. The landlord moved contempt proceedings (Contempt Petition No. 13 of 1987), which the tenant resisted by another undertaking to pay by 29-4-1987; that contempt petition was disposed of on the basis of that undertaking, but the undertaking was again breached.
The landlord filed Contempt Petition No. 50 of 1987. On 16-12-1987 this Court held the tenant guilty of contempt and, inter alia, (a) imposed a fine of Rs. 2,000 (or one week simple imprisonment if not paid), (b) directed vacant possession on or before 31-1-1988 and payment of rent up to vacation on or before 5-2-1988, (c) directed that breach would attract one week simple imprisonment on each count (to run concurrently), (d) directed that attached property remain under attachment till compliance, and (e) ordered costs of Rs. 1,000. Rule was made absolute in terms of these paragraphs.
The tenant filed Contempt Appeal No. 1 of 1988 (filed 19-1-1988; admitted 29-1-1988). A stay was granted on 1-2-1988 stating: "Stay in respect of sentence only. Appeal to be heard on 29-8-1988."
Thereafter the landlord sought execution of the contempt order in the Small Causes Court by seeking a warrant of possession (Small Cause Darkhast No. 103 of 1988) and permission to break locks and have police assistance. The Small Causes Court ordered issue of warrant on 17-2-1988, and the warrant was executed on 18-2-1988; possession was handed to the non-applicant despite objections by the applicant's mother. The present revision attacks that order of 17-2-1988.
Legal Issues Presented
- Whether a decision in contempt proceedings (the Court's directions in Contempt Petition No. 50 of 1987) can be treated as a "decree" under section 2(2)/section 39 of the Code of Civil Procedure or as an "order" within the meaning of section 2(14) and therefore be executed by a Civil Court under section 36/CPC execution provisions.
- Whether a stay limited to the sentence (as ordered on 1-2-1988: "Stay in respect of sentence only") also operated to stay the direction for vacation of possession (i.e., whether stay of sentence effectively stayed the obligation to give vacant possession or the execution of possession).
Arguments of the Parties
Applicant's Arguments
- The order of 17-2-1988 of the Small Causes Court directing a warrant of possession was illegal, arbitrary and without jurisdiction because a Small Causes Court could not issue a warrant of possession in the absence of any order or decree passed by a Civil Court.
- Because the appellate order granted a stay "in respect of sentence only," the applicant contended that the consequences of breach (including delivery of vacant possession) were also stayed in substance; therefore the applicant was not obliged to comply with the directions in paragraph 39 of the contempt judgment and there was effectively a stay of possession.
Non-Applicant's Arguments
- The non-applicant contended that the contempt court's decision could be treated as an "order" executable under section 36 of the Code of Civil Procedure. The non-applicant relied upon Kilachand Devchand and Co. v. Ajodhyaprasad Sukhanand (AIR 1934 Bombay 452) for the proposition that an order made on a notice of motion falls within the definition of "order" (section 2(14) CPC) and thus is capable of execution under section 36.
- Implicitly, the non-applicant treated the contempt court directions as enforceable by execution proceedings in a Civil/Small Causes Court, including issue of warrant of possession and assistance to effect possession.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Kilachand Devchand and Co. v. Ajodhyaprasad Sukhanand (AIR 1934 Bombay 452) | Held that an order made on a notice of motion is an "order" within section 2(14) of the Code of Civil Procedure and could therefore be executed under section 36; suggested that section 36 is not limited to orders under the Code but to all decisions falling within the definition of "order". | The Court considered this authority but declined to extend its reasoning to final orders in contempt proceedings. The Court held that the Kilachand decision does not mean that contempt orders (which are not the product of a "suit") automatically qualify as an executable "order" or "decree" under the CPC; therefore the precedent did not carry the day for the non-applicant's execution argument. |
Court's Reasoning and Analysis
The Court analysed two linked legal questions: (a) whether the contempt court's decision is a "decree" (within the meaning of section 2(2) of the Code of Civil Procedure) or an "order" (section 2(14)), and thus executable under sections 36 and 38 of the CPC; and (b) whether the stay of sentence also stayed the obligation to vacate the premises.
Step-by-step reasoning as recorded in the opinion:
- Definitional analysis: The Court recited the statutory definition of "decree" under sub-section (2) of section 2 of the CPC as "a formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in a suit" and observed that one condition of a decree is that the decision must be arrived at in a suit. The Court concluded that contempt proceedings, although civil in nature, do not amount to a "suit" as understood in the Code; therefore a decision in contempt proceedings cannot be termed a "decree" within the CPC definition.
- Consideration of "order": The Court noted the non-applicant's reliance on Kilachand Devchand (AIR 1934 Bombay 452) which treats orders on notice of motion as "orders" within section 2(14) CPC and therefore amenable to execution under section 36. The Court examined the statutory definition of "order" (section 2(14) CPC: "the formal expression of any decision of a Civil Court which is not a decree") and expressly stated that the definition could not be extended to include final orders passed in contempt proceedings.
- Execution framework: The Court reviewed the execution regime — execution is the enforcement by the process of the Court of its own decree or order. It referred to section 38 (decree may be executed by the court which passed the decree or by the court to which it is sent for execution) and section 36 (provisions relating to execution of decrees apply, so far as applicable, to execution of orders). Even with these provisions, the Court held that a decision in contempt proceedings cannot be regarded as a 'decree' or an 'order' executable by the route used by the Small Causes Court for issuing a warrant of possession.
- Conclusion on execution: On the statutory and conceptual analysis, the Court concluded that the execution proceedings in the Small Causes Court were misconceived. The issue of a warrant of possession by the Small Causes Court on 17-2-1988 was therefore held to be wholly illegal, arbitrary and without jurisdiction, and the order deserved to be quashed.
- On the stay point (secondary issue): Although it found the primary execution point decisive (making it unnecessary to decide the stay point), the Court nevertheless addressed it. The Court observed that paragraph 39 of the contempt judgment had unequivocally ordered vacation of the premises on or before 31-1-1988. That direction had already been breached by 31-1-1988. The stay granted on 1-2-1988 operated only in respect of the sentence; it did not retrospectively prevent the breach or convert the breach into a non-event. Because the obligation to vacate expired before the stay of sentence was granted, the stay of sentence did not excuse or stay the direction to vacate. Thus, even on the secondary contention, the applicant could not claim that possession had been stayed.
Holding and Implications
Holding:
Revision application allowed. The Court set aside the order dated 17-2-1988 (by which the Small Causes Court issued a warrant of possession) as being illegal, arbitrary and without jurisdiction.
Direct implications for the parties (as stated in the opinion):
- The execution proceedings before the Small Causes Court were held to be misconceived; the warrant issued on 17-2-1988 was quashed and the impugned order set aside.
- The Court also rejected the applicant's contention that the stay of sentence operated to stay the obligation to vacate, holding that the direction to vacate had been breached before the stay and the stay of sentence did not carry with it a stay of possession.
- In the circumstances, the Court ordered that there would be no order as to costs.
Broader implications: The opinion does not purport to create a new rule of general application beyond its statutory analysis; it confined itself to statutory definitions and to the question whether contempt decisions qualify as executable decrees or orders under the Code. The opinion does not discuss broader precedential ramifications beyond the decision rendered.
1. This revision is directed against the order dated 17-2-1988 passed by Shri K.J Rohi, Assistant Sessions Judge, Nagpur (In-charge Judge of the Small Causes Court, Nagpur) on Exh. 1 in Small Cause Darkhast No. 103 of 1988, whereby the teamed Judge directed the issue of warrant of possession.
2. The facts giving rise to this revision are unusual. The applicant is a tenant of house situated on plot No. 3, Shirkey Layout, Chhaoni, Nagpur, since the month of April, 1985 on monthly rent of Rs. 1800/-. The non-applicant is the owner of the said premises and hence the landlord of the applicant. Since the applicant was not paying the rent regularly, the non-applicant applied for distress warrant before the Court of Small Causes, Nagpur, vide Application No. 14 of 1986 and the moveables belonging to the applicant came to be attached. At the relevant time the rent of Rs. 16,200/- was outstanding against him. Even thereafter the applicant failed to pay the rent and further outstanding arrears were to the tune of Rs. 9,000/-. Another application for distress warrant was also filed and that was registered as Application No. 85 of 1986. The goods belonging to the applicant were again attached. The goods so attached under the two warrants were to be sold on 27-10-1986 and 13-11-1986. It appears that the applicant with a view to save the goods from being sold gave an undertaking before the Court of Small Causes, Nagpur, whereby he agreed to pay the entire rent and also vacate the house by 31st March, 1987. Some amount was paid by the applicant in cash. Since, however, the applicant did not abide by his undertaking a petition for taking action under the Contempt of Courts Act was filed by the non-applicant. The said application was registered as Contempt Petition No. 13 of 1987. When the petition was listed for hearing, the applicant again gave an undertaking that he would pay the entire amount of rent on or before 29th April, 1987. Acting on this undertaking the contempt petition was disposed of by this Court. Once again the applicant committed the breach of the undertaking. The premises were also not vacated by the applicant.
3. The non-applicant therefore, filed Contempt Petition No. 50 of 1987 which came to be decided by this Court on 16-12-1987 holding the applicant Ashok guilty of contempt of Court, the operative part of which reads as under:
“38. As regards the action to be taken against the respondent for contempt of Court committed by him by breach of his undertaking in respect of non-payment of arrears of rent and vacation of the tenanted premises, it may be that there is no extenuating circumstances in his favour. He has strangely justified his action and even as regards non-payment of rent his apology is not clean and unequivocal. Moreover, his conduct subsequent to 29-4-1987 would show that he wants to harass the petitioner by not clearing his arrers and not paying rent even thereafter regularly. Taking all these circumstances into consideration the ends of justice would be served if a fine of Rs. 2,000/- is imposed upon the respondent for committing contempt of Court in not complying with his undertakings about payment of arrears of rent and about vacation of the tenanted premises. The respondent is directed to pay the above fine of Rs. 2,000/- within one month from the date of this order, failing which he is directed to undergo a simple imprisonment for one week.
39. Besides the above punishment for committing contempt of Court, the respondent is directed to comply with his undertaking relating to vacation of the suit premises by giving vacant possession to the petitioner of the said premises on or before 31-1-1988. The respondent is also directed as per his original undertaking dated 27-10-1986 to pay the rent upto the date of vacation of the tenanted premises, on or before 5-2-1988. If any of the above directions are breached the respondent is sentenced to undergo simple imprisonment for one week on each count Both the sentences, however, shall run concurrently if the breach is committed of both these directions. Looking to the conduct of the respondent as is clear from the facts and circumstances narrated in this judgment it is directed by modifying the order dated 15-4-1986 passed in the previous contempt case that as per the original undertaking the attached property shall continue to remain under attachment and in the custody of the petitioner till the above directions are complied with by the respondent.
40. The respondent is directed to pay costs of the instant contempt petition to the petitioner which are quantified at Rs. 1,000/- and which he should pay to the petitioner along with the rent payable on or before 5-2-1988.
41. Rule in this contempt petition is thus made absolute against the respondent in terms of paras 38, 39 and 40.”
4. The applicant feeling aggrieved by the order filed Contempt Appeal No. 1 of 1988 on 19-1-1988. The appeal was admitted on 29-1-1988. Rule on stay was however issued and was made returnable on 1-2-1988. On that day the following order came to be passed:
“Stay in respect of sentence only. Appeal to be heard on 29-8-1988.”
5. The non-applicant filed an execution application in the Court of Small Causes. Nagpur, which was registered as Small Cause Darkhast No. 103 of 1988. By this application the non-applicant prayed for execution of the order passed by this Court in Contempt Petition No. 50 of 1987 by issue of warrant of possession of the suit premises. Simultaneously the non-applicant also applied for permission to break open the lock and also sought police help. The learned Judge of the Small Causes Court passed an order on 17-2-1988 directing issue of warrant of possession. Accordingly the warrant came to be executed on 18-2-1988 despite objection being raised by the mother of the applicant and the non-applicant was placed in possession of the premises. The order dated 17-2-1988 is now being impugned in this petition.
6. Two contentions were raised on behalf of the applicant-tenant. The main contention was that the impugned order is wholly illegal, arbitrary and without jurisdiction inasmuch as the Judge of the Small Causes Court could not have issued a warrant of possession in the absence of any order or decree being passed by the Civil Court. The other contention was that since the consequences of not following the directions was stayed, it was not obligatory on the applicant to follow either of the directions given by the Court in para 39 of the judgment in Contempt Petition No. 50 of 1988. In substance there was also a stay of possession.
7. What falls for consideration is whether the order passed by this Court in contempt proceedings under relevant provisions of the Contempt of Courts Act can be deemed to be an “order” falling under section 36 or a “decree” falling under section 39 of the Code of Civil Procedure. The term “decree” is defined under sub-section (2) of section 2 of the Code of Civil Procedure to mean a formal expression of an adjudication which, so far as regards Court expressing, it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in a suit and may be either preliminary or final. To constitute a decree one of the conditions therefore is that the decision must be arrived in a suit. Though proceedings in the Contempt of Courts Act may be a Civil proceeding, yet it cannot be regarded as a suit. A suit is a process of recovering or enforcing a substantive right or claim by the procedure laid down in the Code. Therefore, the decision in contempt proceedings cannot be termed as a decree within the meaning of the word “decree” as defined in the Code.
8. Relying on the decision in Kilachand Devchand and Co. v. Ajodhyaprasad Sukhanand (AIR 1934 Bombay 452) it was contended on behalf of the non-applicant that the order made on a notice of motion is an order within the meaning of section 2(14) of the Civil Procedure Code and could, therefore, be executed under section 36. It is further held that section 36 is not limited to orders only under the Code, but is applicable to all orders which could be included in the definition of the term “order”. With reference to the facts in that case it was held that the order passed upon notice of motion did fall under the definition of the term “order”. It is to be seen whether the decision in contempt proceedings can be termed as an order. It has been defined in section 2(14) of the Code as under:
“In this Act, unless, there is anything repugnant in the subject or context; “order” means the formal expression of any decision of a Civil Court which is not a decree.”
(Emphasis supplied).
9. The aforesaid definition cannot be so extended as to include even the final orders passed in the contempt proceedings.
10. It is now well settled that the execution is enforcement by the process of Court of its own decree or order. Section 38 of the Code of Civil Procedure provides that the decree may be executed either by the Court which passed the decree or by the Court to which it is sent for execution. Section 36 of the Code of Civil Procedure enacts that the provisions of the Code relating to execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders. A decision in contempt proceedings cannot be regarded as a ‘decree’ or ‘order’ executable in the manner adopted by the Judge of Small Causes Court With these findings the entire execution proceedings are misconceived and the issuance of warrant by the order dated 17-2-1988 was wholly illegal, arbitrary and without jurisdiction. The order impugned deserves to be quashed.
11. Because of the aforesaid finding, it is not necessary for this Court to consider the other contention that because the sentence was stayed it was not obligatory to deliver vacant possession. Only because the arguments were advanced at length, it would be appropriate to decide this point as well.
12. It was submitted on behalf of the applicant that the order passed in the contempt petition was a composite order inasmuch as this Court directed the applicant to comply with his undertaking by giving vacant possession on or before 31-1-1988 and also ordered that in case the direction is breached, the applicant was to suffer simple imprisonment for one week. Since the sentence was stayed, it was contended that the direction was also stayed. In substance there was stay of possession as well. The contention is both fallacious and wrong.
13. This Court in para 39 very categorically ordered the applicant to comply with the direction of vacating the premises on or before 31-1-1988. Admittedly this direction has been breached since the premises were not vacated by the date given. The only course left was that the consequences should follow, but before the punishment could be imposed the sentence alone is stayed by an order passed on 1-2-1988. The direction to vacate the premises was already breached on 31-1-1988 before the consequences of its breach was stayed on 1-2-1988. Even otherwise, merely because the sentence was stayed, no advantage could flow therefrom to the applicant. He cannot claim that possession was stayed more so when the date for vacating the premises had also expired. The breach of the direction is complete and in terms of the judgment in Contempt Petition No. 50 of 1987 the consequence must follow. In the result, the revision application is allowed and the order impugned is set aside. In the circumstances of the case, there would be no order as to costs.
Revision application allowed.
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