Civil Revision No.6455 of 2010 -1- ******** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.6455 of 2010 Date of decision:15.10.2010 Haryana Urban Development Authority and another ...Petitioners Versus Phiraya Lal Khanduja and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Siddharth Batra, Advocate, for the petitioners. ***** RAKESH KUMAR JAIN, J. This revision petition has arisen out of an order dated 25.08.2010 passed by the Civil Judge (Senior Division), Kaithal [for short “Executing Court”] by which an application filed by the petitioners to adjourn the Execution Application No.36 of 2005 titled as 'Phiraya Lal Khanduja and others Vs. Haryana Urban Development Authority and others' sine die, has been dismissed and warrant of arrest has been issued against the Administrator, Haryana Urban Development Authority [for short “HUDA”] and the Estate Officer, HUDA, Kaithal for 16.10.2010. It is worthwhile to mention that this revision petition was adjourned on the first date of hearing to 07.10.2010 on the request of learned counsel for the petitioners as he wanted to place on record zimni orders passed by the learned Executing Court. On 12.10.2010, the zimni orders were placed on record through CM No.26432-CII of 2010. On the said date, learned counsel for the petitioners had informed the Court that the judgment and decree, which are being sought to be executed by the respondents/decree-holders, are already under challenge before this Court in RSA No.4537 of 2009. Hence, on 12.10.2010, Registry of this Court was directed to attach the record of RSA No.4537 of 2009. Civil Revision No.6455 of 2010 -2- ******** Shri Siddharth Batra, learned counsel appearing on behalf of the petitioners, has submitted that even if the judgment and decree of the Courts below have not been stayed by this Court in the RSA and the execution application is not adjourned sine die, learned Executing Court had no jurisdiction to order for issuance of warrant of arrest of the Administrator, HUDA and the Estate Officer, HUDA, Kaithal. In this regard, it is submitted that firstly the Administrator, HUDA is not a party to the lis and secondly the power of arrest should be exercised as a last resort. In this regard, he has relied upon an unreported judgment of this Court in Civil Revision No.807 of 2010 titled as 'Chief Administrator, HUDA Vs. Nafe Singh and others' decided on 05.02.2010 and a Single Bench judgment of the Andhra Pradesh High Court in the case of Koya Ranga Reddy and others Vs. Koya Narayana Reddy and others, 2007(5) RCR(Civil) 692. I have heard learned counsel for the petitioners and perused the record of RSA No.4537 of 2009 and the available record of this revision petition. In order to decide this revision petition, the facts emanating from the RSA No.4537 of 2009 have to be taken into consideration to find out as to what is the nature of the decree, why this Court had not granted stay in the RSA and also what actually has transpired in the said RSA. The plaintiffs (respondents herein) had filed Civil Suit No.158 of 2001 for mandatory injunction against the HUDA through its Chief Administrator, Estate Officer, HUDA, Kaithal and the State of Haryana through Collector, Kaithal, seeking direction to the defendants therein to allot a plot to the plaintiffs under the oustees quota as per the HUDA policy. The said suit was contested by the defendants (HUDA) and it was decreed by the learned Trial Court on 19.07.2005 to the following effect: - “It is ordered that the suit of the plaintiffs succeeds and decreed with costs. Defendants are given two months time to do the needful to allot the plots to plaintiffs as per HUDA policy in accordance with law.” Aggrieved against the judgment and decree of the learned Civil Revision No.6455 of 2010 -3- ******** Trial Court, the HUDA, through its Chief Administrator and the Estate Officer, HUDA, Kaithal, filed Civil Appeal No.20 of 2006 before the District Judge, Kaithal which was dismissed with costs vide its judgment and decree dated 12.01.2007. Against the judgment and decree of the learned First Appellate Court dated 12.01.2007, the petitioners (HUDA authorities) filed RSA No.4537 of 2009 before this Court on 19.12.2009 after 953 days of the expiry of period of limitation. The memo of appeal was filed along with an application under Order 41 Rule 5 read with Section 151 of the Code of Civil Procedure [for short “CPC”] for staying the operation of the impugned judgment and decree of the learned First Appellate Court, i.e. CM No.13607-C of 2009 and also an application under Section 5 of the Limitation Act, 1963 [for short “the Act”] read with Section 151 of the CPC (CM No.13606-C of 2009) for condonation of delay of 953 days in filing of the RSA. The Hon'ble Single Bench, who was seized of the RSA, issued notice in the application for condonation of delay at the first instance and also summoned the lower Court record. After service, the plaintiffs had appeared and filed their reply to the application for condonation of delay. Ultimately, on 05.10.2010, this Court had passed the following order in CM No.13606-C of 2009: - “On request, adjourned to 23.11.2010. In the meantime, let the Chief Administrator, HUDA, conduct an enquiry and fix the responsibility of the erring officials for causing inordinate delay in filing the present appeal and submit his report to the Court.” As a matter of fact, the enquiry has been ordered by this Court because of the reason that the judgment and decree was passed by the learned First Appellate Court on 12.01.2007. Certified copy of the said judgment and decree was applied by learned counsel for the HUDA on 13.01.2007. Certified copy was prepared on 20.01.2007 and was received on the same day and was submitted in the Estate Office, HUDA vide diary No.773 dated 25.01.2007 along with his opinion. According to the averments made in the application for condonation of delay, one Yadvinder Singh Dhillon, Advocate was engaged on 02.03.2007 for the Civil Revision No.6455 of 2010 -4- ******** purpose of filing of RSA before this Court for which the period of limitation prescribed is 90 days from the date of receipt of certified copy of the judgment, but till the limitation had expired nothing was done by the office of the Estate Officer, HUDA as a result of which delay of 953 days had occurred. This was the reason that the judgment and decree of the Courts below, which are sought to be executed by the plaintiffs, in which the impugned order in the revision petition has been passed, is not stayed by this Court in the RSA. Now adverting to the facts of the Civil Revision, as per the zimni orders made available by learned counsel for the petitioners, in the first instance, learned Executing Court had issued warrant of attachment of the property of the judgment debtor (HUDA) on 22.09.2007 because as per Order 21 Rule 32 of the CPC, in order to execute a decree of injunction, the Court can order for attachment of the property of the judgment debtor or order for his detention in civil prison, or both, but in the present case, at the first instance, the Court had ordered for attachment of the property of the judgment debtor. The property was, in fact, attached and vide order dated 26.08.2008, it was put to auction as per programme. However, it was recorded by the learned Executing Court on 07.10.2008 that there is no bidder to purchase the property of HUDA, consequently, warrant of sale was again issued. On 07.01.2009, warrant of sale was received back with the report that there was no bidder to give the bid at the spot. However, warrant of sale was again issued. On 21.03.2009, warrant of sale was again received back with the report that there was no bidder to purchase the property of HUDA, however, warrant of sale was again issued. On 13.06.2009, warrant of sale was received back without compliance as there was no bidder to give bid for the property of HUDA. At that stage, the plaintiffs had filed an application for sending the judgment debtors to civil prison for the non-compliance of the judgment and decree of the mandatory injunction. After various dates, warrant of arrest was executed upon the Estate Officer, HUDA, Kaithal as it is reflected from order dated 19.04.2010, which reads as under: - “Warrant of arrest issued to JD, Estate Officer, HUDA received back duly executed. An Civil Revision No.6455 of 2010 -5- ******** application for exemption from personal appearance of the applicant dated 19.04.2010 and for adjourning the matter has been filed by the JD. Heard. Now, to come up on 13.05.2010 for the presence of the parties.” On 13.05.2010, the following order was passed: - “An application for adjournment has been filed and has submitted that the matter is pending before the Hon'ble High Court for 25.05.2010. The Ld. counsel for the JD has stated that the Estate Officer shall appear on next date of hearing. Heard. The request is not opposed. On the request of the counsel for the parties, the case is adjourned to 04.06.2010 for presence of the Estate Officer and further proceedings.” On 04.06.2010, following order was passed: “The Estate Officer has not appeared. An application for exemption has been requested on the plea that the RSA is pending before the Hon'ble Punjab & Haryana High Court for 12.07.2010. There is likelihood of a settlement of dispute in those proceedings. The request is not opposed. In the interest of justice, to come up on 31.07.2010 for presence of the Estate Officer and further proceedings. It is made clear that no further adjournment shall be granted.” On 25.08.2010, the impugned order was passed because an application was filed by the judgment debtors/petitioners for adjourning the case sine die despite the fact that there was no stay granted by this Court in the RSA No.4537 of 2009. In these circumstances, there was no alternative left with the Executing Court but to issue warrant of arrest of the Administrator, HUDA and the Estate Officer, HUDA, Kaithal. From the resume of the aforesaid facts, one thing is apparent that the HUDA authorities have no respect for law inasmuch as the Estate Officer, HUDA, Kaithal, despite having been served with the notice of arrest, has been seeking exemption from his appearance and had the cheek to say that the execution proceedings be adjourned sine die to await the decision of the RSA though there is no stay in the said RSA which has been filed by the judgment debtors after a lapse of 953 days and in which Civil Revision No.6455 of 2010 -6- ******** Hon'ble the Single Bench has already ordered an enquiry to be conducted by the Chief Administator, HUDA to fix the responsibility of the erring officials/officers for causing the 953 days' delay. Insofar as the argument of learned counsel for the petitioners that the learned Court below has erred in issuing warrant of arrest against the Administrator, HUDA who is not a party to the lis is concerned, I find weight in his argument because there is no decree passed against him, rather the decree has been passed against the Chief Administrator, HUDA and the Estate Officer, HUDA, Kaithal. Thus, the impugned order of the learned Executing Court dated 25.08.2010, by which warrant of arrest has been issued against the Administrator, HUDA, is set aside only qua the Administrator, HUDA. Now the question arises as to whether the judgments relied upon by learned counsel for the petitioners are of any help. In this regard, Order 21 Rule 32 of the CPC provides that in case of an injunction decree, if a party had an opportunity to obey the decree and has been willfully failed to obey it, the said decree of injunction can be executed by the detention of the judgment debtor in the civil prison, or by the attachment of his property, or by both. In the present case, the learned Executing Court, at the first instance, has opted for the attachment of the property of the judgment debtors, but there was no buyer, then, as a last resort, order has been passed for the arrest of the judgment debtors, otherwise there is no provision for the enforcement of a decree of injunction which has been willfully disobeyed by the judgment debtors by not complying with it because there is no stay granted by this Court and the RSA has been filed after a delay of 953 days in which this Court had already ordered for an enquiry on 05.10.2010. Thus, to my mind, there is no error in the impugned order and insofar as the order of this court passed in Civil Revision No.807 of 2010 (supra) is concerned, that would not be applicable because it is distinguishable on its own facts. In that case, it was alleged by the petitioners that no opportunity was granted to file reply and warrant of arrest was issued, whereas in the present case, lot of efforts Civil Revision No.6455 of 2010 -7- ******** were already made by the learned Executing Court for the purpose of obedience of the judgment and decree but neither the petitioners were producing any order of stay by the High Court against the judgment and decree of the Courts below nor they were complying with it. Similarly, the decision in the case of Koya Ranga Reddy and others (supra) is also not applicable because the judgment debtors/petitioners had all the opportunities to obey the judgment and decree of the Courts below as has been observed here-in-above because repeated efforts were made by the learned Executing Court, firstly by attaching the property of the judgment debtors/petitioners and when it could not be put to sale, opportunity was given to the Estate Officer, HUDA, Kaithal, who inspite of complying with the judgment and decree of the Courts below, was seeking adjournments, one after the other, and had ultimately filed an application for adjourning the execution application sine die. Hence, in my view, there is no error in the impugned order of the learned Executing Court insofar as the warrant of arrest having been issued against the Estate Officer, HUDA, Kaithal is concerned and as such, the revision petition is dismissed qua him. Before parting with this judgment, it is made clear that since the Administrator, HUDA was not a party to the lis, therefore, warrant of arrest issued against him has to be withdrawn, but as the Chief Administrator, HUDA was a party, the learned Executing Court is at liberty to take steps against him in accordance with law. The attached record of RSA No.4537 of 2009 is ordered to be released. Copy dasti. October 15, 2010 (RAKESH KUMAR JAIN) vinod* JUDGE