IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No 228 of 1991 For Approval and Signature: Hon'ble MR.JUSTICE K.M.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : @ ANISH RAMESHBHAI PATEL Versus ABBASBHAI MAHMADALI VANIA -------------------------------------------------------------- Appearance: 1. Second Appeal No. 228 of 1991 MR SURESH M SHAH for Petitioner No. 1 .......... for Petitioner No. 2 MR CJ VIN for Respondent No. 1 MS ROOPAL R PATEL for Respondent No. 1 MR MA KHARADI for Respondent No. 1 .......... for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE K.M.MEHTA Date of decision: 20/08/2002 C.A.V. JUDGEMENT 1. Anish Rameshbhai Patel and Smt.Mitaben Rameshbhai Patel - appellants (original obstructors) defendants in suit have filed this Second Appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 30th October, 1991, passed by learned Extra Assistant Judge, Jamnagar, in Regular Civil Appeal No.70 of 1991. The learned Judge by his impugned judgment and decree was pleased to dismiss the appeal and confirmed the order dated 23rd September, 1991, passed by the learned 2nd Jt.Civil Judge (S.D.), Jamnagar, in Regular Darkhast No.123/84 order passed below Ex.84, 87 and Ex.94. The learned trial Judge by his impugned judgment pleased to reject Exh.84, 87 & 94 filed by the objector Rameshchandra Manji as well as the wife and children of the applicants in this behalf. The learned trial Judge further held that the execution proceedings be proceeded from the stage at which these applications were filed. 2. The relevant facts giving rise to this Second Appeal are as under:- Background of the matter : Re. Civil Suit No.60/76 2.1 Before I set out the facts giving rise to this appeal it is better if I set out the pedigree in this behalf so that the facts can be properly appreciated in its true perspective. Hansraj | | ------------------------------------------------------------------ | | | | | Ramuben Keshavaji Manji Nanji Jadavaji (wife) | | | | | | | Dhirajben Shivalal (def. Madhabhai (def. Thakeshi (widow) no.2) no.3) | Velaji Ramesh(pltff) Magabhai (def. Pratap Monabhai | Prakash no.4) Kanabhai Mitaben (daug.) Naran Ratilal Anish (son.) Piyush 2.1(A) Descriptions of the Parties:- The family of Hansrajbhai was at the relevant time mentioned in pedigree. Hansrajbhai's wife was Ramuben and his sons are Keshavji, Manji, Nanji and Jadavji. Keshavji had son Shivlal (defendant No.1). Manjibhai had two sons Madhabhai (defendant No.3) and Rameshbhai (father of present appellant). Nanjibhai had son Thakeshi. Jadavji had son Pratapbhai and widow Dhirajben. Mitaben and Anish are the daughter and son of Rameshbhai and, therefore, it was a joint family of Hansrajbhai. 2.1(B) In 1947 they were residing at Karachi but thereafter Hansrajbhai died in Karachi. In 1947 after the partition of the countries India and Pakistan, Ramuben, Manjibhai, Nanjibhai, Dhirajben widow of Jadavji and jadavji's son Pratapbhai all came to India and they have decided to stay at Jamnagar. Out of all these family members Shivlal i.e. Keshavji's son had studied and he was acting as a Karta of Hindu Joint Family. 2.2 There is a property situated at Jamnagar Hospital Road opposite Mahila Mandal known as "Abbasi Building" (hereinafter referred to as 'the suit property'). Abbasali Mahmadali Vania original plaintiff is the owner of the suit property. The plaintiff has let out the suit property to family of Patel Shivlal Keshavaji residing at Bombay (defendant in the suit). The property was let out to the family members of the defendant since long time. However, since 1st November, 1974 to 30th April, 1975 the defendant failed and neglect to make the payment of rent, the plaintiff addressed a statutory notice vide Exh.50 dated 1st May, 1975 terminating the tenancy of the defendant. 2.3 As defendant failed to hand over the suit premises the plaintiff thereafter filed a suit on 30th January, 1976, being Civil Suit No.60/76 before the learned Civil Judge (S.D.), Jamnagar for obtaining possession of the suit premises. In the suit the plaintiff has claimed rent for the period from 1.11.74 to 30.4.1975 Rs.480/- and mesne profit Rs.720/- from 1.5.1975 to 31.1.1976 in all Rs.1200/- and possession of the suit premises. The plaintiff also produced necessary documentary evidence in this behalf. 2.4 The defendant Patel Shivlal Keshavji filed a written statement at Exh.38 and denied the contentions therein. He has raised the dispute regarding standard rent. He has denied the termination of tenancy in this behalf. It was specifically admitted that the possession of the suit premises is with the plaintiff and his family members. The said written statement was filed. Thereafter issues were raised. 2.5 On behalf of plaintiff Abbasali Mohmadali was examined at Exh.49, one Jayesh Hariprasad clerk of the office of Deputy Collector was examined at Exh.56. One Idas a clerk in the supply department was also examined at Exh.59. Over and above the plaintiff has also produced notice and the acknowledgment receipt, certificate from extract of Final Electoral Roll at Exh.53 which shows the name of Patel Shivlal Keshavji and family members of Shivlal were residing at Bombay. He has also produced the list of Gujarat State Vidhansabha Electoral Roll where the name of Madhukar Manjibhai, Nirmalaben Madhukarbhai, Rameshchandra Manjibhai and Kiranben Rameshchandra was stated at Exh.58 and copy of ration card at Exh.60. 2.6 On behalf of defendant Madhubhai was examined at Exh.66. One Valjibhai Mavjibhai was examined at Exh.71. A copy of power of attorney was also produced by which Shivlal has given his power of attorney to his brother Madhubhai. 2.7 Ultimately the trial Court heard the matter and by its judgment and decree dated 31st December, 1982, the trial Court pleased to pass a decree in favour of the plaintiff and directed the defendants to hand over the possession of the suit premises in this behalf. 2.8 Being aggrieved and dissatisfied with the aforesaid judgment and decree, Shivlal Keshavji filed Regular Appeal being Regular Civil Appeal No.55 of 1983 before the District Court at Jamnagar on 2nd April, 1983. It appears that on 16th July, 1983, appellant desire to withdraw the appeal and therefore the appellate court passed following order on 16.7.83. "Appellant wants to withdraw. His Advocate Shri Raval admits it. Recorded refund be given as per rules." CIVIL SUIT NO.694/83: 2.9 It appears that thereafter Rameshchandra Manjibhai - father of the present appellants original obstructors and son of Manjibhai, cousin brother of Shivlalbhai original tenant filed a Civil Suit No.694/83 before the learned Civil Judge (S.D.), Jamnagar. In the said suit he has stated that Abbasali Mohmadali Vania defendant no.1 has obtained the decree for possession in Civil Suit No.60/76 regarding suit property has been obtained fraudulently and therefore declared the same as nullity. 2.10 In the suit it was prayed that decree obtained in Civil Suit No.60/76 was not binding on him and for permanent injunction he has also obtained interim injunction against execution of the said decree. 2.11 The said suit was filed on 16th July, 1983. On 12.8.83 the parties entered into compromise in which it was agreed between Ismailbhai - original plaintiff and Patel Shivlal Keshavji that whatever goods of Shivlalbhai may be sold by Abbasali within 12 months and two rooms may be retained by tenant but the possession of the two rooms may be handed over to plaintiff Ismailbhai. 2.12 It appears that Rameshchandra Manjibhai who claims to be tenant of the suit premises and who had filed Regular Civil Suit No.694/83 gave application Exh.12 to the Court of learned Civil Judge (S.D.), Jamnagar on 22nd January, 1987, stating that the he had never instructed to his lawyer to withdraw the suit on 12.8.83 or to abandon any relief or claim and there was no reason for withdrawal and he intends to continue this suit and prayed that the order passed below Exh.10 & Exh.1 dated 12.8.83 be declared as nullity that was Exh.12 for declaration that the decree dated 12th August, 1983, be declared as nullity and Exh.15 for interim injunction that defendant may not execute the decree in this behalf. On that day he also gave application Exh.15 for interim injunction for executing the decree passed in Regular Civil Suit No.60/76. The learned Civil judge granted application Exh.15 on 19th March 1987 and Ex.12 came to be allowed on 15th May, 1987. The learned Civil Judge was of the view that the withdrawal of the suit has no legal effect. 2.13 Being aggrieved and dissatisfied with the said order, Abbasali Mohmadali Vania filed Civil Revision Application No.275 of 1987 so far it relates to order dated 19th March 1987 i.e. order passed below Exh.15 before this Court. The said revision application was filed on 16th April, 1987. So far as the order dated 15th March, 1987, passed below Exh.12, Abbasali Mohmadali Vania filed Civil Revision Application No.555 of 1987 before this Court on 14th July, 1987. Both these civil revision applications was heard by this Court (Coram: G.T.Nanavati, J. (as he was then) ). The learned Judge by his judgment and order dated 27th November, 1989, pleased to allow the revision application No.555/87 and set aside the order passed below Exh.12. The learned Judge also set aside the order passed below Exh.15 dated 19th March, 1987, and said revision application was also allowed. The learned Judge thereafter directed the learned Civil Judge to hear applications Exh.12 and 15 afresh after giving an opportunity to both the sides to lead evidence in their possession. The learned Single Judge also directed the learned Civil Judge to dispose of those applications as expeditiously as possible and further directed that till application Exh.12 is decided, the interim injunction which was granted by the trial Court on 15th May, 1987, shall be continued in this behalf. 2.14 After the judgment of this Court again Exhs.12 and 15 were heard. In the said two applications the owner filed reply at Exh.17 and 18 and ultimately the trial Court by detailed order dated 5.3.91 pleased to dismiss both the applications. 2.15 Being aggrieved and dissatisfied with the said order, Rameshchandra Manjibhai filed Civil Revision Application No.351 of 1991 before this Court on 3rd April, 1991. This Court (Coram: B.C.Patel, J. (as he was then) vide order dated 11th April, 1991, pleased to reject the said application. CIVIL SUIT NO.179 of 1986: 3. Mita Rameshchandra Patel and Anish Rameshchandra Patel daughter and son of Rameschandra present appellants through her mother Kiranben Rameshchandra Patel filed another suit No.179 of 1986 before the learned Civil Judge (S.D.) Jamnagar on 5.12.1986. In the said suit also it was prayed that the decree dated 31st December, 1982, passed in Civil Suit No.62/76 has obtained fraudulently and same may be declared as nullity. The plaintiff may be declared as tenant of the suit premises and defendant Abbasali Mohmadali Vania in that suit namely original plaintiff be restrained from taking possession of the suit premises. 3.1 It may be noted that Shivlal Keshavji and Rameshchandra Manjibhai were joined as defendants No.2 and 3 in the said suit. In the said suit application Exh.5 was also filed for obtaining interim injunction before the trial Court. The trial Court by its judgment and order dated 17th January, 1987, passed below Exh.5 in Suit No.179/86 pleased to reject the said application. (Re. page 781 of the compilation). 3.2 In the said suit the plaintiff gave application being Civil Misc.Application No.11 of 1987 under Section 24 of CPC for transferring of Special Civil Suit No.179 of 1986 from the court of 3rd Jt.Civil Judge (S.D.), Jamnagar to any other court. The learned District Judge, Jamnagar by his judgment and order dated 5th March, 1987 pleased to reject the transfer application and further directed the learned trial Judge to proceed with the suit in this behalf. It appears that on 17th January, 1987, the plaintiff gave application for withdrawal of the suit and the learned trial judge by his order dated 17th January, 1997, pleased to withdraw the suit when the aforesaid second appeal pending before this Court. The certified copy of the said withdrawal has been produced by decree holder in this behalf and which has been taken on record. REGULAR DARKHAST NO.123/84 FROM WHICH THE PRESENT PROCEEDINGS WERE INITIATED. 4. Abbasali Mohmadali Vania - original plaintiff and decree holder filed a regular darkhast before the learned Civil Judge (S.D.) Jamnagar on 12th November, 1984, for obtaining the possession of the suit premises on the strength of decree dated 31st December, 1982, in Civil Suit No.60/76. In the said darkhast application plaintiff decree holder produced certain documents in this behalf. In that application Rameshchandra Manjibhai and others obstructionists filed reply on 23rd April, 1985, and opposed warrant for possession in this behalf against the decree holder. The learned 3rd Jt.Civil Judge (S.D.), Jamnagar passed an order on 18th September, 1986, passed below Ex.1 and held that the warrant for possession under Order 21 Rule 25 read with Order 21 Rule 20 be given in favour of decree holder and same can be executed against the judgment debtor. 4.1 It appears that being aggrieved and dissatisfied with the said order dated 18th September, 1986, rejecting the objection raised by Rameshchandra and granting possession warrant in favour of Abbasali Mohmadali Vani, Rameshchandra filed Civil Revision Application No.1317/86 before this Court somewhere in October 1986. This Court originally passed order on 7th October, 1986, but ultimately it appears that the said civil revision application was withdrawn on 14th October, 1986. (Re. page 351 of the compilation). The same has been produced at Exh.89 on page 749 of the compilation). 4.2 Being aggrieved and dissatisfied with the aforesaid order dated 18th September, 1986, Rameshchandra Manjibhai filed Regular Civil Appeal No.135/87 before the learned Joint District Judge, Jamnagar, wherein trial Court rejected for postponement of possession warrant. The learned Jt.District Judge by his judgment and order dated 29th September, 1988, pleased to reject the said appeal in this behalf. The order of the said appeal has been produced at Exh.63 page 515 of the compilation. 4.3 Thereafter the plaintiff decree holder again filed application Exh.50 on 30th December, 1986, for warrant for possession may be executed through Court bailiff. 4.4 Thereafter again plaintiff decree holder filed an application Ex.62 dated 7th October, 1988, for obtaining for warrant of possession in this behalf and also prayed that the tenant be directed to pay Rs.9565/for the rent till 30th September 1988. The said application has been produced at Ex.62 page 511 of the compilation. 4.4(A) The obstructionists opposed the said application. The learned 3rd Jt.Civil Judge (S.D.), Jamnagar, by his judgment and order dated 10th April, 1989, ordered that execution petition and both the applications Exh.50 and 62 be stayed till further orders. (See. Page 361 of the compilation). 4.5 It appears that somewhere on 3rd April, 1991, Rameshchandra Manjibhai gave undertaking before the Darkhast Court that he will hand over the possession of the suit premises in this behalf. The copy of the said application dated 3rd April, 1991, is not on the record. The plaintiff thereafter gave application Exh.75 dated 8th April, 1991, that the undertaking which he has given be further extended and the Court further extended the stay in this behalf and passed order from time to time. The plaintiff also thereafter gave application on 19th April, 1991, at Exh.79 supported by affidavits at Exh.80 for obtaining possession help of police may be given to him. PRESENT CONTROVERSY: 5. Mitaben Rameshchandra and Anish Rameshchandra filed application in Regular Darkshat No. 123/84 on 23.4.91 praying that the decree for possession obtained by Abbasali Mohmadali Vania Civil Suit No.60/76 regarding the suit property is not binding on them because the same was obtained by Shivlal and the plaintiff may not be able to obtain possession (i.e. Exh.82 See page 575 of the compilation). Alongwith the said application application Exh.84 on 23.4.91 was also filed by obstructionists that till Exh.82 is decided the decree for possession passed in Civil Suit No.60/76 may not be executed. The said application was filed on 23rd April, 1991, page 595 of the compilation. The applicant also gave application Exh.94 dated 26th April, 1991, on the ground that the decree for possession which was obtained by plaintiff there is a misdescription of the property and, therefore, decree for possession may be granted and thereafter same can be executed. 5.1 The original plaintiff thereafter filed reply in the said application on 24th April, 1991, at Exh.90 (Page 893 of the compilation) against the injunction application. The plaintiff also filed reply against the applications dated 23rd April, 1991, at Exh.91 (page 903 of the compilation) in this behalf. The plaintiff also produced necessary documentary evidence in this behalf. 5.1(A) The learned trial Judge by his judgment and order dated 23rd September, 1991, heard Exhs.84, 87 & 94 together. He has considered the application and the reply filed by the original plaintiff. After considering the entire evidence on record, the learned trial judge held that the present application is not required to be stayed. The learned trial Judge further held that the decree passed in Civil Suit No.60/76 is not required to be returned to decree holder for getting it amended through court which passed the decree. Ultimately the learned trial Judge pleased to reject the applications Exh.84, 87 & 94 filed by objectors Rameshchandra as well as wife and children of applicants present appellants herein. The learned trial Judge directed that the execution proceedings be proceeded further from the stage which these applications have been filed. 5.2 Being aggrieved and dissatisfied with the aforesaid order, Anish Rameshchandra Patel and Mita Rameshchandra Patel filed Regular Civil Appeal No.70/91 before the learned Extra Assistant Judge, Jamnagar, on 26th September, 1991. The learned Extra Assistant Judge by his judgment and order dated 30th October, 1991, pleased to dismiss the appeal. The learned Judge after considering the entire evidence on record came to the conclusion that the impugned order passed by the learned trial Judge is legal and valid and, therefore, appeal requires to be dismissed. 5.2(A) While dismissing the appeal, the learned appellate Judge has considered the proceedings of Civil Suit No.60/76, Civil Suit No.694/83, Civil Suit No.179/86 and also the present proceedings and held that in view of the aforesaid proceedings the Court has come to the conclusion that the present appellants have come before the executing court raising the same plea under their objections vide Ex.82 and Ex.84 with a view to prolong the proceedings of the Darkshat. Under these circumstances the appellants' objections and their claim under the above objections are barred by the principles of res-judicata. The appellate court further held that the appellants are further being son and daughter of Rameshchandra falling in the head of Rameshchandra in the pedigree of the family members given in their applications Ex.82 and Ex.84, therefore, the decision of the executing court upon the objections raised by the Rameshchandra before it precludes the present appellants raising the same plea under their different applications before the executing court by virtue of the principles of res judicata. The provisions of Sec.11 of C.P.C. are applicable to the proceedings for execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Thus, the decision taken against Rameshchandra Manaji in the execution proceeding of the Darkhast No.123/84 operates as a res judicata against the present appellants and, therefore, such plea raised by the present appellants cannot be considered by the court. 5.2(B) The appellate court further held that in the present case the objections raised by the present appellants are not the objections raised by them against the execution of the decree for the first time. It is an admitted fact that the present appellants had also filed one Special Civil Suit No.179/86 against the execution of the decree passed in the Regular Civil Suit No.60/76 and in that suit the appellants have sought for setting aside the decree passed in the above suit on the ground of fraud and collusion. The grounds taken in the above Special Civil Suit No.179/86 are the same grounds taken by the present appellants in their applications Ex.82 and Ex.84 in the Darkhast proceedings. In that matter injunction application was rejected and thereafter appeal was filed which was pending. The court further held that the documents produced by the appellants before the executing court and their contentions raised before it also there is no prima facie case established by the appellants for the grant of injunction against the execution of the decree passed in Regular Civil Suit No.60/76. The appellants have also not established prima facie that they are holding the possession of the decretal property under their own rights and not derived from the judgment debtor. The court held that Rameshchandra Manji the father of the appellants had filed his objections before the executing court and he has been succeeded in prolonging the execution petition, however he himself has instigated his son and daughter the present appellants to file the Special Civil Suit No.179/86 wherein the present appellants were succeeded to get ad-interim injunction but the said temporary injunction issued by the court in the said suit has been vacated subsequently after a considerable period. 5.3 Being aggrieved and dissatisfied with the said judgment and order the present appellants have filed this appeal challenging the said judgment and order dated 15th November, 1991. This Court passed an order on 18th November, 1991, and granted necessary stay of the order of trial Court. 5.4 It may be noted that the said appeal was admitted by this Court on 13th December, 1991, where this Court has raised two substantial question of law in this behalf: (1) Whether in the facts and circumstances of the case, it can be held that inquiry or investigation was carried out regarding the obstruction offered by the appellants? (2) Whether there is any substantial error in disposing of Ex.82, though arguments were heard on Exs.84, 87 and 94? 6. Mr.S.M.Shah, learned senior counsel for the appellant original obstructionists has argued the matter at length before me in this behalf. He has made following submissions: 6.1 He submitted that both the trial court as well as appellate court has not considered the provisions of Order 21 Rule 35 and Rule 97 to Order 21 Rule 103 & Rule 104 which falls within the chapter of resistance to delivery of possession to decree holder or purchaser. 6.2 Order 21 provides Execution of Decrees and Orders. 6.3 He has also relied upon Order 21 Rule 35 which reads as under: "Rule 35 Decree for immovable property :- (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property. (2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree. (3) Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable