IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. 134 of 2008. Judgement reserved on: 28.11.2008. Date of decision: 5.12.2008. M/s Hindustan Petroleum Corporation Ltd. & ors. ….. Petitioners. Vs. Sh. Bhagwan Dass & anr. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the petitioners : M/s Ajay Kumar & Rahul Mahajan, Advocates. For the Respondents : Mr. K.D. Sood, Advocate with Mr. Sanjeev Sood, Advocate. Kuldip Singh, Judge. This revision is directed against the order dated 30.5.2008 passed by Civil Judge, Senior Division, Kangra at Dharamshala in Execution Petition No. 53 of 2007, dismissing the objections of petitioners under Section 47 read with Section 151 C.P.C. The petitioner No.1 was defendant No. 3 in Civil Suit No. 89 of 1990 decided by the Senior Sub Judge, Kangra on 16.6.1995. The petitioners No. 2 and 3 are the Chief Regional Manager and Chairman-cum-Managing Director of petitioner No.1, respectively. Whether the reporters of the local papers may be allowed to see the Judgment? …2… The respondents are decree holders/ plaintiffs in Civil Suit No. 89 of 1990. 2. The facts in brief are that respondents filed Civil Suit No. 89 of 1990, in which Union of India, Oil Selection Board (north), Hindustan Petroleum Corporation Ltd., Kamal Abrol and Abhey Singh were the defendants. The suit was for declaration that selection of Kamal Abrol and Abhey Singh for allotment of LPG dealership/ distributorship is wrong, illegal, null and void, letter of intent dated 3.3.1988 issued by Hindustan Petroleum Corporation to Kamal Abrol or allotment of liquefied gas dealership/ distributorship for Kangra is illegal, null and void and does not confer any right, title and interest on Kamal Abrol. The respondents are entitled to allotment of LPG dealership/ distributorship for Kangra with consequential relief of permanent injunction restraining the defendants of the suit from proceeding to operate or run LPG dealership/ distributorship by Kamal Abrol with mandatory injunction directing defendants No. 1 to 3 of the suit to allot LPG dealership/ distributorship for Kangra to respondents. The suit was contested. It was partly decreed by the Senior Sub Judge, Kangra at Dharamshala on 16.6.1995. The respondents and Kamal Abrol filed separate appeals against the judgement, decree dated 16.6.1995, which were decided by common judgement dated 27.12.1996 by District Judge, Dharamshala. The District Judge dismissed the appeal filed by Kamal Abrol and decreed the suit of respondents for declaration to the effect that appointment of Kamal Abrol as dealer/ distributor of LPG at Kangra is illegal, wrong, null and void and she was not eligible alongwith defendant No. …3… 5 Abhey Singh, respondents are left to be given appointment of dealership/ distributorship to run the LPG agency at Kangra. The defendants No. 1 to 3 of the suit were directed to act on the basis of previous selection and merit list already made. The judgement, decree dated 27.12.1996 were assailed by Kamal Abrol in RSA Nos. 13, 14 of 1997 and by Hindustan Petroleum Corporation in RSA No. 103 of 1997. RSA Nos. 13, 14 and 103 of 1997 were decided by the learned Single Judge of this Court on 17.5.2007 to the following effect:- “As an upshot of the above discussion and findings, R.S.A. No. 14 of 1997 is dismissed. R.S.A. No. 13 of 1997 and R.S.A. No. 103 of 1997 are partly accepted and the decree as passed by the learned District Judge (first Appellate Court) is modified to the extent that instead of a direction to defendant No. 3 to appoint the plaintiffs/ respondents as distributors/ dealers of L.P.G. for Kangra, based on the selection and recommendation made by defendant No. 2, a decree of mandatory injunction directing defendant No. 3, i.e. The Hindustan Petroleum Corporation, to consider the names of the plaintiffs for appointment as distributors/ dealers of L.P.G. for Kangra, on the basis of the selection and recommendation already made by defendant No. 2, is passed.” 3. The respondents No. 1, 2 / plaintiffs filed an execution petition by way of application under Order 21 Rule 32 read with Section 151 CPC for execution of the decree dated 16.6.1995 passed by Senior Sub Judge read with judgement, decree dated 17.5.2007 in RSA Nos. 13, 14 and 103 of 1997. The petitioners filed objections under Section 47 read with Section 151 CPC and took preliminary objections that CWP No. 1121 of 2007 has been filed in the High Court by the respondents directing the petitioners to consider and allot the LPG distributorship/ dealership for Kangra on the basis of …4… merit list already prepared, hence, execution petition is not maintainable. The application, under Order 21 Rule 32 read with Section 151 CPC is neither competent nor maintainable in law and on facts. In accordance with judgement and decree dated 17.5.2007 of the High Court, the Corporation had considered the case of the decree holders and decision was communicated to the decree holders vide letters dated 21.6.2007 and July 2007. The Corporation is not in a position to appoint the decree holders as distributors/ dealers of LPG agency for Kangra, as the merit panel ceased to exist on completion of one year from the date of commissioning of the distributorship. It has been submitted that judgement debtors have complied with and obeyed the judgement, decree dated 17.5.2007 and terminated the distributorship agreement of Kamal Abrol vide letter dated 16.7.2007. The High Court had directed to consider the names of decree holders for appointment as distributors/ dealers of LPG for Kangra and there is no mandatory direction to allot the distributorship/ dealership. The decree is in- executable in law as the judgement and decree have already been complied with by the Corporation. The respondents filed rejoinder and reiterated their stand. The Executing Court dismissed the objections filed under Section 47 read with Section 151 CPC on 30.5.2008, hence this revision. 4. I have heard Mr. Ajay Kumar, learned counsel for the petitioners and Mr. K.D. Sood, learned counsel for the respondents and gone through the record. On behalf of the petitioners, it has been submitted that judgement and decree dated 17.5.2007 in RSA …5… Nos. 13, 14 and 103 of 1997 have been complied with. There was no mandatory injunction to appoint respondents No. 1, 2 / plaintiffs as distributors/ dealers of LPG for Kangra. The direction was to consider the case of respondents/ plaintiffs for appointment of distributors/ dealers for Kangra. The petitioners have considered their case and decision was communicated to them vide letters dated 21.6.2007 and July 2007. It has been submitted that in view of findings recorded in para-39 of judgement dated 17.5.2007, the case of respondents was to be considered in accordance with by-laws, regulations and guidelines of the Corporation for appointment of distributors/ dealers. In the light of by-laws, regulations and guidelines of the Corporation, after considering the case of respondents, they were informed that the Corporation is not in a position to appoint them as distributors/ dealers of LPG for Kangra as the merit panel ceased to exist on completion of one year from the date of commissioning of the distributorship. It has been submitted that judgement and decree dated 17.5.2007 has been complied with by the petitioners and, therefore, the decree is inexecutable. The learned counsel for the respondents has submitted that the operative part of the judgement in RSA Nos. 13, 14 and 103 of 1997 decided on 17.5.2007 is for consideration of the case of respondents for appointment of distributors/ dealers of LPG for Kangra. The refusal of petitioners to appoint respondents distributors/ dealers of LPG for Kangra is not inconsonance with judgement and decree dated 17.5.2007, rather it is in derogation, violation of judgement, decree dated 17.5.2007 and …6… they are liable to be proceeded against in accordance with Order 21 Rule 32 CPC. He has supported the impugned order. 5. The learned counsel for the petitioners has submitted that under by-laws, regulations and guidelines of the Corporation, panel of the selectees was valid for one year from the date of commissioning of the distributorship. The panel was prepared before the issuance of letter of intent (LOI) dated 3.3.1988. The LPG distributorship of the Corporation for Kangra was commissioned on 26.4.1991, therefore, panel would cease to exist on 26.4.1992. The Corporation has considered the case of respondents in terms of judgement, decree dated 17.5.2007 and in view of the fact that panel had ceased to exist on 26.4.1992, the Corporation had shown its inability to appoint respondents as distributors/ dealers of LPG for Kangra. The submission made by the learned counsel for the petitioners on its face appeared attractive but found hollow in the facts and circumstances of the case. The respondents had filed the suit on 19.3.1990 in which they assailed letter of intent dated 3.3.1998 for allotment of LPG dealership/ distributorship of the Corporation in favour of Kamal Abrol or allotment of liquefied petroleum gas distributorship/ dealership is wrong, illegal, null and void and for allotment of dealership/ distributorship of LPG at Kangra to respondents. The distributorship was commissioned on 26.4.1991. The respondents had not only filed the suit against the allotment of distributorship/ dealership to Kamal Abrol, rather they had also prayed for allotment of distributorship/ dealership to them. The commissioning of the distributorship on …7… 26.4.1991 took place during the pendency of the suit. The distributorship of M/s Abrol Gas Agency was terminated on 16.4.2007 by the Corporation. The rights of the respondents were crystallized on the date of filing of the suit on 19.3.1990. The distributorship according to petitioners was commissioned on 26.4.1991, therefore, the petitioners cannot be heard to say that since the distributorship was commissioned on 26.4.1991, therefore, after lapse of one year from the date of commissioning of distributorship the merit panel prepared by the Corporation ceased to exist. The Corporation in the suit or appeals did not think it fit to invite judgement that after 26.4.1992 the respondents have no right for appointment as distributors/ dealers of Corporation for Kangra on the ground that merit panel prepared by the Corporation has ceased to exist. The plea taken by the petitioners that since merit panel of the selectees had ceased to exist on completion of one year from the date of commissioning of the distributorship appears to be an afterthought and has been coined to deprive respondents the fruits of litigation which culminated in their favour after about seventeen years of litigation. 6. The learned counsel for the petitioners has relied V. Ramaswami Aiyengar & others vs. T.N.V. Kailasa Thevar AIR 1951 SC 189, The Barium Chemicals Ltd. and another vs. Sh. A.J. Rana and others 1972(1) SCC 240, Bhavan Vaja and others vs. Solanki Hanuji Khodaji Mansang and another AIR 1972 SC 1371 and The Divisional Personnel Officer Southern Railway and another vs. T.R. Challappan AIR 1975 SC 2216, in support of his …8… submissions and on the points of duty of the Executing Court to give effect to the terms of the decree and not to go beyond the decree, what is the meaning of word `consider’ and in appropriate cases the Executing Court should consider pleadings as well as the proceedings leading to the decree. I have gone through these judgments. The facts in the present case are entirely different. The question here is when the rights of the respondents crystallized, whether on the date of filing of the suit or on the date of decree and whether a non-statutory event which took place after the filing of the suit would have any bearing on the rights of the respondents. In a given case whether executing court is absolutely debarred from lifting the veil to test the plea against the executability of the decree. 7. In Rameshwar and others vs. Jot Ram and others AIR 1976 SC 49, the facts were that one Teja, a large land owner under the Punjab Security of Land Tenures Act, 1953 (for short, the Act) had three tenants, each of them applied for purchase of ownership under Section 18(1) of the Act, the Assistant Collector, primary authority found them to be eligible, fixed the price and instalments of payment and they duly deposited the first instalment. The statutory consequence of such deposit was title to the property vested in the tenants on that date. On the death of Teja at appellate stage his heirs contended that after the death of Teja they are entitled to shares and in this process of fragmentation they become small land owners within the meaning of Section 2(2) of the Act. The point for determination before the Supreme Court was whether subsequent event of the land owner’s death at the appellate stage unsettles the …9… right acquired by the tenants or whether the tribunal must uphold rights which have crystallized as on the date the applications were made and, in any event, the deposits of the first instalment were made by each of the tenants. The Supreme Court noticed the plea of the heirs of Teja that appeal is a continuation of original proceeding and, therefore, if there is a change of circumstances in the landlord’s ownership during the pendency of the appeal resulting in his legal representatives becoming small owners, the tenants will be disentitled to purchase the land. The Supreme Court in para-8 of the report has observed as follows:- “In P.Venkateswarlu v. Motor & General Traders, AIR 1975 SC 1409, 1410 this Court dealt with the adjectival activism relating to post- institution circumstances. Two propositions were laid down. Firstly, it was held that `it is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding.’ This is an emphatic statement that the right of a party is determined by the facts as they exist on the date the action is instituted. Granting the presence of such facts, then he is entitled to its enforcement. Later developments cannot defeat his right because, as explained earlier, had the court found his facts to be true the day he sued he would have got his decree. The Court’s procedural delays cannot deprive him of legal justice or rights crystallized in the initial cause of action. This position finds support in Bhajan Lal v. State of Punjab, (1971) 1 SCC 34.” The Supreme Court has further held as follows:- “One may as well add that while taking cautious judicial cognizance of `post-natal’ events, even for the limited and exceptional purposes explained earlier, no court will countenance a party altering, by his own manipulation, a change in situation and plead for relief on the altered basis.” …10… The apex court ultimately rejected the contention of heirs of Teja and dismissed the appeals. 8. The suit was filed on 19.3.1990. According to learned counsel for the petitioners distributorship/ dealership of LPG for Kangra of the Corporation was commissioned on 26.4.1991 and on account of this happening in view of by-laws, regulations and guidelines of the Corporation after one year from 26.4.1991 merit panel of selectees for distributorship/ dealership of LPG for Kangra ceased to exist. It is common case of the parties that respondents were in the panel dated 3.3.1998 of the Corporation and from this panel the allotment was made in favour of Kamal Abrol, which allotment was set-aside by the court. The basis of commissioning of distributorship/ dealership was allotment in favour of Kamal Abrol, which was set-aside by the court. Once the foundation of the distributorship/ dealership was knocked down by the court in the form of setting-aside of allotment in favour of Kamal Abrol, then commissioning of distributorship/ dealership of LPG for Kangra of Corporation also goes. It is not the case of the Corporation that commissioning of distributorship/ dealership of LPG for Kangra which was earlier allotted to Kamal Abrol on setting-aside of allotment by the court would independently survive. Therefore, the petitioners cannot be permitted to take shelter of the plea that after one year of commissioning of the dealership/ distributorship the merit panel of selectees ceased to exist and respondents cannot be granted distributorship/ dealership of LPG for Kangra by the petitioners. The executing court can certainly go into legality of such plea even …11… though peeping hole is narrow. This plea of the petitioners is ex-facie untenable and not available to the petitioners. The considerations of the objections of petitioners by Executing Court in accordance with law does not mean that Executing Court has gone behind the decree. The plea of the petitioners that distributorship/ dealership of LPG for Kangra cannot be allotted to the respondents due to ceasing of select panel is nothing but subterfuge to deprive the respondents benefit of decree. 9. The petitioners have denied the benefit of decree to the respondents only on the ground that merit panel of the selectees has ceased to exist one year after the commissioning of the dealership/ distributorship on 26.4.1991. The claim of the respondents has not been rejected on any other ground. In the facts and circumstances of the case even if stand of the Corporation is taken into consideration that case of the respondents is to be considered in the light of by- laws, regulations and guidelines of the Corporation for appointment of distributorship/ dealership and more particularly to the effect that merit panel would cease to exist after one year of the commissioning of distributorship/ dealership, still the commissioning of the distributorship/ dealership on 26.4.1991 in the present case cannot come to the rescue of the petitioners to deprive the respondents the fruits of the decree on the ground that such distributorship/ dealership took place during the pendency of the suit which is hit by the principle of lis-pendence. In addition to this, once the allotment of distributorship/ dealership in favour of Kamal Abrol was set-aside by the court, then the commissioning of the distributorship/ dealership on …12… the basis of such allotment also goes. The executing court has rightly appreciated the material on record. The learned counsel for the respondents has brought to my notice the order dated 4.4.2008 passed by the Division Bench in CMP No. 1870 of 2007 in CWP No. 1121 of 2007, which is to the following effect: “We have been informed that an application for execution of the decree passed by the Civil Court has been filed in the Executing Court, but reply to the said application has not been filed by the respondents. Learned counsel for the petitioners says that because of non-filing of the reply by the respondents, the matter is getting delayed in the Executing Court. We direct that the respondents shall file reply in the Executing Court within three weeks from today and thereafter within two months, the Executing Court shall dispose of the execution application. Till disposal of the Executing Petition, the present petition shall remain adjourned.” The Division Bench in the order dated 4.4.2008 had directed the Executing Court to dispose of the execution petition, as referred above. The parties have not brought to my notice any further order passed in CWP No. 1121 of 2007. The petitioners have miserably failed to point out any legal defect in the impugned order whereby the executing court has rejected their objections. 10. No other point was urged. 11. As a result of the above discussion, the revision petition is dismissed with costs quantified at Rs.5,000/-. The parties through their counsel are directed to appear before the Executing Court on 30.12.2008. The Registry is directed to send the record of the Executing Court well before the date fixed. December 5, 2008. ( Kuldip Singh ), (Hem) Judge.