The chief end of law is the welfare of society and the rule that misses ts target cannot permanently justify its existence. It is the function of the court to keep the doctrine up-to-date with the mores by continual reinstatement and by giving them a new content. The object of procedural law is to deliver justice and serve the people. The Court are service institutions and duty bound to see that law serves the cause of justice.
2. In the instant case a somewhat new problem has arisen. At first Mush the question appears to be simple, but I find it trifle interesting. Bearing in mind that the core objects and policy of the Code of Civil Procedure are to uphold the cause of justice, to avoid multiplicity of litigation as far as practicable and to provide relief to needy persons avoiding injustice, let me proceed to set out the questions and resolve them.
3. The core questions are: (a) Whether a dccree-holder, having executed the decree of the first appellate court and obtaining possession can institute a fresh execution case on the basis of “the second appellate decree”, being ousted from the decretal land during the pendency of the proceeding? (b) Whether a fresh execution case instituted on the basis of the decree passed by the High Court to obtain delivery of possession of the suit land is maintainable in view of the order in the previous execution case where the court had recorded an order stating that possession had been delivered to the decree-holder in pursuance to the writ of delivery issued by the court in the execution of the decree of the first appellate court?
4. The relevant facts are as follows: About 18 years ago Dehi Ram (since dead) instituted T.S No. 55 of 1965 in the court of the Munsiff at Mangaldoi against the petitioner and others for ejectment and delivery of possession of the suit land and obtained a decree in or about 1967. The defendant preferred an appeal which was allowed and the matter was remanded to the trial court for disposal. After remand, the suit was again decreed in favour of Dehi Ram and the defendants preferred an appeal which was dismissed by the first appellate Court on 1.6.72 and the decree of the first instance was affirmed. On 9.6.72 the defendants prayed for stay of execution of the decree before the Munsiff who passed an order that the application with the prayer should be put up when the execution case would be filed. Dehi Ram, the predecessor-in-interest of the present Opposite Parties 1 to 5 filed Title Execution Case No. 10/72 in the court of the Munsiff for recovery of possession of the suit land. However, learned Munsiff, on consideration of the application the defedants had filed granted them two months time to obtain a stay order from the High Court. The defendants filed a Second appeal No. 37/73 and an application under Order 41 Rule 5 of the C.P.C supported by an affidavit praying for stay of further proceedings in Title Execution Case No. 10/72 till the disposal of the second appeal. The High Court by its order dated 15.9.72 stayed further proceedings in the Execution case. However, in the meantime, the period of two months granted by the Munsiff had expired and plaintiff-decree-holder, late Dehi Ram, obtained a writ of delivery of possession of the decretal land and obtained delivery of possession. The judgment-debtor filed an application before the Executing Court for stay. The court rejected the application. The Second appeal was heard and dismissed by the High Court which upheld the judgment and decree passed by the courts below. During the pendency of the appeal Dehi Ram died leaving behind his wife opposite party No. 1 and four sons, Opposite parties 2 to 5. After the disposal of that appeal Opposite Parties 1 to 5, legal heirs and successors - in - interest of the decree holder filed an application for execution of the decree of the first appellate court as well as that of the High Court in Second appeal. The execution of the decree was opposed by the petitioner on the ground that during the pendency of the second appeal late Dehi Ram had obtained writ of delivery of possession in execution of the decree and the possession of the suit land was delivered to him. In short, the petitioner objected on the ground that the decree had been fully satisfied during the pendency of the second appeal and therefore the present execution case was impermissible. The decree-holders claimed that the decree could not be properly executed as the decree-holders could not obtain any effective possession. The decree holders claimed that they were ousted from the suit land during the pendency of the second appeal and they were executing the decree passed by the High Court, which was the final decree. They claimed that insted of relegating them to file another suit, effective relief should be granted in the execution proceedings. Upou hearing the parties the learned Munsiff upheld the plea of the decree-holders and called upon them to proceed on with the execution case.
5. The petitioner has preferred this application under section 115 of the Civil Proceedure Code contending that the executing court had no jurisdiction to allow the decree-holders to entertain fresh execution proceedings when their predecessor-in-interest had executed the decree and which had been fully satisfied and nothing remained to be executed afresh. Mr. B.M Goswami learned counsel for the petitioner has submitted that there is no provision permitting a decree-holder to start a second execution proceeding when the decree was fully satisfied in the eaalier execution case. In support of the contention, learned counsel for the petitioner has relied on Shew Bux v. Bengal Beverage, AIR 1961 SC 137.
6. The following facts stare on the face of the records.
(a) that the decrees of the courts below were confirmed and merged in the decree of the High Court in the Second appeal;
(b) that the decree of the High Court is the formal expression of the adjudication which conclusively determined the rights of the parties with regard to the controversies in the suit;
(c) That the decree of the High Court is live and executable decree;
(d) that there is no law prohibiting the execution of the said dectee;
(e) that the suit instituted by Dehi Ram in 1965 culminated in the final decree after a lapse of about 14 years and that a fresh suit is not likely to terminate within 10 to 12 years.
(f) that the decree-holders, the widow and her children, would be deprived of the fruit of the litigation merely because the petitioner judgment-debtor could manage to take repossession of the suit land without the intervention of the court when the proceeding in the second appeal were continuing;
(g) that claim of the decree holder is that they were dispossessed after the execution of the decree in the first execution case;
(h) that the petitioner himself admits that Dehi Ram had taken possession of the suit property by way of execution of the decree and the decree was satisfied but he objects to the execution case claiming that the judgment -debtors are in possession of the suit land.
Therefore, after Dehiram had secured lawful possession of the suit property in execution of the decree, the judgment-debtor dispossessed the decrce-holder during the pendency of the second appeal.
7. Now, the crucial question for determination is whether there is any prohibition or bar for the second execution case when the decree-holders were dispossessed during the proceedings of the second appeal, which is admittedly the continuation of the proceedings of the suit. If a new or subsequent event takes place during the proceedings of the suit, a party to the suit is entitled to the relief occasioned by such happening. If after a decree is passed but the proceeding continues, the happening of a subsequent event may entail setting aside of the decree due to the happening of the event. The rationale is that during the course of the proceedings of the suit and/or the appeal, the court retains the power to actualize relief to deliver justice to the parties. If that be the position, should a decree-holder dispossessed after the execution of a decree during the proceedings before the appellate court, be disentitled to the reasonable relief to put him back in possession? Can an unlawful act of a party to the suit, during the course* of the appellate proceedings, snatch away a lawful right of his adversary? Can the judgment-debtor nullify the decree of the highest court and make it ineffective by forcibly and/or wrongfully dispossessing the decree-holdor from the suit land? If that is allowable, all strong and powerful adversary will nullify the effect of the execution by forcibly driving out a decree-holder and relegating him to another suit. The act of dispossession, during the course of the second appeal, as claimed by the petitioner, is a reprehensible act and no court can grant sanction to such an act. The judgment-debtors flouted the authority of the court, invalidated the lawful right of the decree-holders, without a valid and legal order from the court, and, now desires to occupy the driver's seat If such things are allowed, might will be right. If a decree-holder is not permitted to nullify the illegal act by the Court system, it would mean that by such illegal acts the courts can be made powerless to grant appropriate relief to a needy litigant. The strong and powerful will always drive the weak and powerless law-abiding decree-holders to continuous litigation. It would encourage multiplicity of litigation. Where is the bar for permitting the decree holder to execute his lawful, valid, live and executable decree obtained by him in the second appeal? Mr. B.M Goswami, learned counsel for the petitioner submits that Order 21 rule 35 is a bar. Counsel submits that once the decree is satisfied it cannot bs executed afresh. Learned counsel has also pointed out Section 11 Explanation VI inserted by the Civil Procedure Code (Amendment) Act, 1976. In my opinion Order 21 rule 35 does not contain any such disabling provision. It is true that if a decree-holder executes his decree and claims one relief and abandons the other reliefs he should not be permitted to ask for those reliefs he had abandoned. Similarly, if a decree- holder enters into a settlement with the Judgment-debtor or any other person and does not obtain full and complete relief in the execution proceedings, he cannot come around and ask for the abandoned relief in a subsequent execution case. He cannot nullify a settlement made with non-litigants by executing the decree against them. Ordinarily once a decree is executed it should not be allowed to be executed afresh unless there are strong reasons therefor. Once a decree is executed and the proceedings in the suit and/or the appeal terminates and the court ceases to exercise jurisdiction over the subject matter, the decree-holder may not be entitled to ask for a second execution. In my opinion Order 21 rule 35 does not contain any express or implied bar to execute the appellate decree, when the result of the first execution has been nullified by the wrongful act of the judment-debtor during the proceedings of an appeal. I am also of the opinion that Section 11 Explanation VII of the Code does not apply in a case where fresh cause of action arises for the execution of the decree on account of dispossession of the decree-holder by the judgment-debtor, during the poceedings before the appellate court. In the earlier execution proceeding there was no question of dispossession of the decree-holder by an unlawful act of the judgment-debtor. This is a new cause of action, which has arises after the first execution and before the decree-holder obtained another decree in the second appeal, which is also an executable decree. Under these circumstances the question of ‘res-judkata’ does not arise at all.
8. If it is looked at from another angle one obtains the same result. The Court retains the power to finally adjudicate in respect of the subject-matter of the suit during the entire proceedings of the suit until it is finally disposed by the final court in appeal. In my opinion, the courts should always avoid to deprive the legitimate decree-holder of his legitimate right and should always avoid multiplicity of litigation where admittedly the judgment-debtor had dispossessed the decree-holder before the final decison of the case in appeal. After the decree, the dccree-hdlders can surely come and ask for execution of the appeallate decree. In Thevana Pillai v. Kulla Pillai, (1910) 7 MLT 107 : 5 I.C 776, it has been held that if the decree-holder got possession in the execution of the original decree, but subsequently dispossessed by the judgment-debtor without the authority of an order of the court before the final decree of the appellate court which restored the original dccree of the Munsiff, the decree-holder would be entitled to apply for delivery of possession in a second execution case. The plaintiff got a decree and obtained possession in execution of decree. The defendants appealed and the decree was reversed. The defendants then took possession bat without obtaining any order from the court or in any execution proceedings. On Second appeal, the original decree was affirmed. The question arose whether the plaintiff was entitled to possession of the land in a subsequent Execution case. In Thavana Pillai (supra) it was observed:
“If the defendants had taken possession by process of execution there can be no doubt that the plaintiff could have got possession in execution under the provisions of section 583, Civil Procedure Code. We do not think that the plaintiff should be put in a worse position because the defendants took possession without the intervention of the court and in defiance of an order of the court…”.
Similarly, in Vankata Lakhmi Ammal v. Sadasiva Ayer, AIR 1924 Madras 200, Spencer and Vankatasubba JJ. expressed the same view. Their Lordships held:
“Even if she had got possession in execution of the original decree, and if subsequently she was wrongly dispossessed before the final decree of the appellate court restoring the original decree of the District Munsiff, she should on the authority of Thevana Pillai v. Kalla Pillai be entitled to apply for delivery of possession a second time”.
The fame view has been expressed in K. Ramalingam v. K.N K. Reddy, AIR 1974 Madras 325. The sheet anchor of the petitioner is Shew Bux v. Bengal Beverage, AIR 1961 SC 137. The relevant observations are quoted herein below.
“It is true that the Nazir's return showed that defendant No. 4 had not been bodily removed. But the same return also shows that it had not been so removed because of certain arrangement arrived at between it and the decree-holders and as the decree-holders had not required the removal of defendant No. 4 from the premises. Now under Order 21, Rule 35, a person in possession and bound by the decree has to be removed only if necessary, that is to say, if necessary to give the decree-holder the possession he is entitled to and asks for. It would not be necessary to remove the person in possession if the decree-holder does not want such removal. It is open to the decree-holder to accept delivery of possession under that rule without actual removal of the person in possession. If he does that then he cannot later say that he has not been given that possession to which he was entitled under the law. This is what happened in this case. The decree-holders in the present case of their own accepted delivery of possession with defendant No. 4 remaining on the premises with their permission. They granted a receipt acknowledging full delivery of possession. They permitted the execution case to be dismissed on 8.9.1949, on the basis that full possession had been delivered to them by defendant No. 4. The fact that they put their giurds on the premises as mentioned in the Nazir's return would also show that they had oblained full possession. It was open to the decree-holders to accept such possession. Having done so they are bound to the position that the decree has been fully executed, from which it follows, that it cannot be executed any more. In the case of Maharaja Jagadish Nath Roy v. Nafar Chandra Parmanik, 35 Cal. WN 12 : (AIR 1931 Cal. 427), an exactly similar thing had hapened and it was held that the decree was not capable of further execution, it was there said at page 15.
The case, therefore, seems to me to be one of those cases in which a decree-holder having armed himself with a decree for khas possession executed that decree in the first instance by obtaining symbolical possession only with some ulterior object of his own, and thereafter subsequently and as a second instalment asks for khas possession. The question is whether such a course is permissible under the law. I am of opinion that it is not. We entirely agree with the view that was there expressed”
From the statement of law extracted above it will appear that if the decree is satisfied with alleged delivery of possession physical or symbolic, the decree-holder cannot, on a subsequent date, ask for actual possession by filing a second application. The decision lays down that if the decree-holder having armed himself with a decree for khas possession, executes the decree in the first instance by obtaining symbolic possession only with some ulterior object of his own, and thereafter subsequently as a second instalment asks for khas possession, he should not be allowed to execute the decree for the second time. The same decree cannot be executed twice. But what about the appellate decree and what about frustration of the execution of the decree during the course of the appellate proceedings? In my opinion their Lordships have never laid down that the second execution is not maintainable, on the facts and circumstances of a case like the present one. In Shew Bux (Supra) the decree-holder wanted to execute the decree by instalments. Shew Bux is not a case where the decree-holder was ousted and the execution of the decree was made otiose by the judgment-debtor during the proceedings of the appeal and thereafter the decree- holder obtained a final appellate decree in his favour. In my opinion the principles set forth in Shew Bux are not applicable in the facts and circumstance of the case. The decision was on a different set of facts altogether, with which we are not concerned in the present case.
9. However, we have a decision within this court in Ghanashayam Das Mour v. Fatik, AIR 1957 Assam 123 (DB), where the plaintiffs obtained a decree for possession and compensation. He levied execution of the decree and prajed for possession, and compensation. A writ of delivery of possession was issued in his favour and he got possession and the execution case was dismissed as satisfied. The judgment debtor filed an appeal against the decree. There was no stay order and the appeal was eventually dismissed. The decree-holder took out a fresh execution of the decree, prayed for delivery of possession. The judgment-debtor raised objection to the execution on the ground that the second execution was not maintainable inasmuch as in the previous execution case delivery of possession had already been effected. Under the circumstancs, their Lordships held that decree-holder should not be debarred from the remedy by way of execution, he should not be driven to a separate suit for the purpose of obtaining possession of the property which he was entitled to obtain by the appellate decree itself. There Lordships have held that if after obtaining the decree of the appellate court the decree-holder is dispossessed then he is entitled to levy fresh execution of the appellate decree in order to obtain back the possession of the suit property. Their Lordships observed:
“It was suggested that it after delivery of possession, the judgment-debtor dispossessed the dicree-holder the right course of the decree-holder, if any, was to institute a suit for recovery of possession, and not to file a fresh execution case. Even if that were so, the aaswer to the argumept is that if anything had been done by the judgment-debtor to dispossess the decree-holder during the pendency of the appeal, the fact that the appeal was eventually decided in favour of the decree-holder gave him a fresh right to levy execution on the basis of that decree, and if by any act or conduct the judgment-debtor, during the interim period, sought to interfere with the possession of the decree-holder or to deprive him of that possession he did so at his peril, and the matter could be rectified in a fresh execution case on the basis of the appel late court's decree:
[Emphasis added]
In my opinion, the findings underscored are fairly and squarely applicable in the instant case.
10. Learned counsel for the parties in the true tradition of the Bar, referred to an unreported judgment of this court in Sudhir Kumar Mitra v. Murali Mohan Pyne, Misc. Appeal (First) 27 of 1960 decided on 16.9.64 I called for the decision and examined the same. In Sudhir Kumar (supra) the decree holder purchased the undivided interest of two out of the three owners of the property. Sudhir filed a suit for partition, a preliminary decree was passed on 11.6.48, a Commission was appointed to make an allotment of the suit land and the Commissioner submitted a report wherein he allotted 5 plots in favour of the plaintiff. The final decree in terms of the Commissioner's report was passed on 4.2.49 In 1950, the plaintiff made an application for execution of the decree for getting possession of the land and for costs. The plaintiff got possession. During the execution an appeal against the final decree was pending and the same was dismissed on 7.3.55 Thereafter, the decree bolder filed another execution case against the decree of the High Court and joined 30 persons. However, only the judgment-debtors 1 to 9 were parties in the original suit and in the appeal. The positive claim of the decree-holder was that he was satisfied with the symbolic possession as the appeal was pending in the High Court against the final decree. He claimed that in the previous execution case he got only symbolic possession and as such wanted to execute the decree for khas possession on the basis of the High Court decree regarding tbe judgment-debtors who were not parties to the suit it was claimed that they were impleaded as mere representative in law of the original judgment-debtors. The court below turned down his second execution case. Against it decree-bolder came up in appeal. The trial court held that in an earlier order it had passed that J.D No. 11 series were not the legal representatives and accordingly, the matter could not be reopened as it was barred by res-judicata. Accordingly, the execution proceedings against judgment-debtors No. 11 series was held to be not maintainable. As regards the other judgment-debtor, the matter was allowed to proceed on merits. Against the said decision the decree holder filed the appeal and challenged the findings of the court. It will appear from the judgment that the decree-holder consistently contended before the Executing court that he had already been given possession. The conclusive finding of all the courts was that the decree-holder himself treated the delivery of symbolic possession as full and complete execution of the decree for possession. On these facts their Lordships held that no fresh execution would lie.
11. I have very carefully gone through the judgment in Sudhir Kumar (supra) and find that the contingencies which have arisen in the instant case were all absent. In that case, the judgment-debtors did not dispossess the decree-holder during the pendency of the appeal, to give rise to a fresh cause of action. In that case, the judgment-debtors never claimed that they violated the authority of the court during the pendency of the proceedings. Under these circumstances, the questions raised in this case were not before the court. I am bound by the decision and respectfully agree with the views expressed by their Lordships on the facts and circumstances of that case. However, the relevant factors present in the case were conspicuously absent in Sudhir Kumar (supra). It is well known that a case is an authority for what it decides and not for what can be deduced from it. Dr. (Mrs.) Sashi Choudhury v. State of Jammu & Kashmir, 1969 U.J (SC) 241 (para 8). In Sudhir's case, the decree-holder had abandoned some of the reliefs and he was satisfied with the relief granted. As such, his execution case for getting khas possession was turned down by the High Court. In my opinion, in the instant case, a fresh cause of action arose for which tbe court was entitled to grant relief. Further, in the instant case, the judgment-debtor during the pendency of the appeal defied the authority of the Court, took law in their hands and ousted the decree-holders. As such, in my opinion, the principles enunciated in Sudhir Kumar (supra) are not applicable in the instant case.
12. In Sudhir Kumar (supra) there are observations that the mere fact that an appeal has been preferred against the judgment or order and that appeal had confirmed the judgment or order under appeal, would make no charge whatsoever in regard to the rights of the decree holder; the question, if at all, would arise only when the decree under appeal is modified on appeal. It has been observed that when there is no such modification and the appellate decree merely affirms the decree under appeal, no change is brought about and no fresh rights accrue in regard to the original decree, and hence, there can be no question of any fresh execution case being filed after the desposal of the appeal. Since these observations were made, their Lordships in the Supreme Court ruled otherwise in Gojer Brothers, (1974) 2 SCC 453 : AIR 1974 SC 1380. In AIR 1971 Cal. 439, Ratanlal v. Gojer Brothers, the High Court held in the same line with the views expressed in Sudhir Kumar (supra.) In Gojer Brothers (Supra) their Lordships have held that where the decree of the trial court is carried in appeal and the appellate court disposes of the appeal after a contested hearing, the decree to be executed is the decree of the appellate court and not of the trial Court. It has been held that when the decree of the court of the first instance is confirmed by the High Court and the said decree is confirmed by the Privy Council the decree capable of execution is the decree of the Privy Council. Their Lordships have held that if the court of appeal confirms, varies or reverses the decree of the lower court, the decree of the appellate court is the only decree that can be amended. Chandracbud, J, as the Hon'ble Chief Justice then was, observed as under:—
“The fundamental reason of the rule that where there has been an appeal, the decree to be executed is the decree of the appellate Court is that in such cases the decree of the trial Court is merged in the decree of the appellate Court. In course of time, this concept which was originally restricted to appellate decrees on the ground that an appeal is a continuation of the suit, came to be gradually extended to other proceedings like Revisions and even to proceedings before quasi-judicial and executive authorities.”
Their Lordships, thereafter, settled the principles of marger. The learned Judge of the High Court had held that:
“in cases where the appellate Court merely dismisses the appeal, the principle of merger have no application in cases of execution of the original decree except as to limitation and will not affect an executable decree passed by an ‘inferior Court, in sofar as its execution is concerned. The position would be otherwise if the decree is modified or varied by such appellate authority as, in such event, the original decree will be inexecutable”
Their Lordships held that the conclusion was clearly opposed to the view expressed by the Supreme Court and reversed the decision. Thereafter, their Lordships concluded that the decree of the trial court merged in the decree of the High Court and that the decree of the High Court was the only executable decree. In view of the law laid down by their Lordships in Gojer Bros, (supra), I have no hesitation in reaching the conclusion that when the decree of the trial court was carried in appeal to the High Court, which disposed of the appeal after contested hearing, the decree to be executed is the decree of the appellate court and not that of the trial court. However, this apart I have already held that it was a case where the judgment debtor, during the proceedings of the appeal before the High Court, illegally and wrongfully dispossessed the decree-holders. That is also one of the main grounds why the second execution case is maintainable.
13. For the foregoing reasons, I bold that in the instant case the decree-holders, the widow and her children, are entitled to execute the appellate decree of this Court in the execution proceedings. They should not be relegated to a subsequent suit, the fruit of which they may not obtain during their life time. I find that the impugned order is just, appropriate and proper and hold that the executing court has had jurisdiction to proceed with the cast.
14. In the result, the petition is dismissed but on the facts and circumstances of the case 1 make no order as to costs.
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