1 wp3451.07.sxw lsp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No. 3451 of 2007 1. Lalit Malick 2. Shyam Malick 3. Madhu Bhatti residing at Flat No. A/5, Ravidarshan C.H.S. Ltd., Carter Road, Bandra (West), Mumbai - 400 050 ... Petitioners Versus 1. Bajinder Singh through his Assignee Satnam Singh residing at 23/25, East Patel Nagar, New Delhi 2. Joginder Singh Sawhaney residing at C/12, Malviya Nagar, New Delhi 3. Bhupinder Singh s/o. Triloksingh residing at 23/25, East Patel Nagar, New Delhi ... Respondents Mr. G. S. Godbole i/b. A. Bharat & Co. for Petitioners. Mr. Kannan Kapur with Mr. Pankaj Shah i/b. Pankaj Shah for Respondent No. 2. Mr. V. K. Kapur, Sr. Advocate with Ms. Usha Rahi i/b. Mayur Narendra & Co. for Respondent No. 3. 2 wp3451.07.sxw CORAM:- B. R. GAVAI, J JUDGMENT RESERVED ON:- 20th April, 2011. JUDGMENT PRONOUNCED ON:- 6th June, 2011. JUDGMENT An interesting question, as to whether a decree holder and a judgment debtor can insist on auction of a flat under attachment, when the petitioners who are admittedly in possession of the said flat, are willing to satisfy the decree by paying the decretal amount, arises for consideration in the present petition. 2. The facts necessary for adjudication of the present petition are as under: 3. It is the contention of the petitioners that one Abdul Gafoor Khan was owner of a flat bearing no. A/5, Ravidarshan C.H.S. Ltd., Carter Road, Bandra (West), Mumbai 400 050. It is further contention of the petitioners that the father of the petitioners namely K.L. Malick entered into an agreement for purchase of the subject flat with the said Abdul Gafoor Khan Wazir Khan on 4th March, 1971. It is their contention that said agreement 3 wp3451.07.sxw was witnessed by respondent no. 2 Joginder Singh Sawhney. It is also their contention that in pursuance to the said agreement, Shri K.M. Malick was put in possession of the said flat. It is contended by the petitioners that by mistake the Society issued share certificate in respect of the said flat in the name of respondent no. 2, who according to them was close acquaintance and associate of their father. It is contended by the petitioners that in this premise, their father was required to get an agreement entered into between the respondent no. 2 herein, by which the respondent no. 2 agreed to sale the flat in the name of Mrs. Rajinder Malick, the wife of Shri K.L. Malick and mother of the petitioners. It is contended that accordingly an indemnity bond was also executed by the respondent no. 2 and that he also addressed a letter to the Society, to transfer the shares so also the flat in the name of Mrs. Rajinder. It is contended by them that since then the petitioners’ parents resided in the said flat till death and that the petitioners were also in possession of the said flat alongwith their parents and after the death of their parents, they continued to be in possession. 4. A commercial suit no. 332/1972 was filed by the respondent no. 1 against the respondent no. 2 at Delhi, for recovery of an amount of Rs. 10,000/-. The said suit was decreed on 26th February, 1975. The decree was 4 wp3451.07.sxw put in execution by the original decree holder. However, since the defendant claimed not to have any property in Delhi to satisfy the decree, the decree was transferred to the City Civil Court at Bombay for execution. Subsequently the said exparte decree was assigned in favour of the respondent no. 3, by the original decree-holder. 5. In the said execution proceedings, an order of attachment came to be passed in respect of the said flat. On noticing that the warrant of attachment was issued in respect of the said flat on 24th April, 1989, the mother of the petitioners vide Chamber Summons No. 857/1989 in Delhi Suit No. 332/1972, had prayed for lifting the attachment in respect of the said flat. The learned Judge of the City Civil Court, Mumbai vide order dated 20th February, 1991 dismissed the said chamber summons. Vide order dated 12th December, 1994 the learned Judge of the City Civil Court fixed the reserved price of Rs. 49,50,000/- and issued consequential directions regarding auction of the said flat. In the meanwhile, the mother of the petitioners had also filed a Short Cause Suit No. 73605/1994 before the City Civil Court, Mumbai. In the said suit a Notice of Motion No. 6137/1994 was also filed for the ad-interim orders against the respondents 1 and 2 herein restraining them from executing the decree passed in Delhi Suit No. 332/1972. After 5 wp3451.07.sxw considering the statement on behalf of the plaintiffs, that they are willing to deposit the decretal amount, the learned City Civil Court vide order dated 14th December, 1994 granted an ad-interim relief. However, since the said suit was not pursued, the notice of motion was rejected on 13th August, 1997 and suit was also dismissed for want of prosecution on 12th September, 1997. 6. Subsequently, an application on 19th November, 2006 purportedly under the provisions of Rule 1 and 55 of the Order 21 came to be filed before the learned City Civil Judge, Mumbai by the order impugned dated 20th February, 2007, the application is rejected. In the meanwhile, an application was also filed by the father of the petitioners before the Delhi Court under Section 151 of the Civil Procedure Code. After the demise of petitioner’s father, the petitioners were brought on record as legal heirs. The learned Commercial Civil Judge, Delhi vide order dated 30th March, 2007 observed that petitioners had no locus and apart from that the application for similar relief filed before the Executing Court at Mumbai was rejected on 20th February, 2007 and, therefore, it would have been appropriate for the applicants to approach the Appellate Court at Mumbai for setting aside the order dated 20th February, 2007 passed by Executing Court at Mumbai. 6 wp3451.07.sxw Being aggrieved by the order dated 20th February, 2007 passed by the City Civil Court, Mumbai, the present petition. 7. Initially, the petition had come up for hearing before the learned Single Judge of this Court (Oka, J) on 4th May, 2007. The learned Judge passed the order which reads thus:- “1. Heard Advocate appearing for the petitioners and the Advocate appearing for the third respondent. According to Advocate for the petitioners, the total amount due and payable under the decree as of today is Rs. 36,474/-. He states that the Appellants are ready and willing to deposit the said amount with the trial Court. The third Respondent is the assignee of the money decree passed in favour of the first Respondent. The learned Advocate for the third Respondent is unable to state the exact amount which is due and payable to the third Respondent under the decree. The flat allegedly in possession of the petitioners is put to the auction in execution and the auction was scheduled to be held today. 2. Place the petition for admission on 26th June, 2007. If the petitioners deposit a sum of Rs. 36,474/- with the Sheriff of Mumbai within a period of one week from today, there will be an ad-interim relief in terms of prayer clause (b) till the next date. The Advocate for the petitioners states that the petitioners have no objection if the said amount is paid over to the third respondent. Therefore, it will be open for the third respondent to apply to the Sheriff and on such Application being made, the Sheriff will pay the amount deposited by the petitioners to the third respondent. 3. If the petitioners fail to deposit the amount within the stipulated time, ad-interim relief will stand vacated. At 7 wp3451.07.sxw this stage, the learned Advocate appearing for the third Respondent prays for stay of operation of this order. The third respondent is interested in executing money decree. If the petitioners are ready and willing to pay entire amount due and payable under the decree, there is no prejudice to the third respondent. Therefore, the prayer for stay is rejected. 4. Parties and the concerned Court to act upon an authenticated copy of this order.” 8. Subsequently, the matter had come for hearing on 26th July, 2007 before the Learned Single Judge of this Court (A.P.Deshpande, J as he then was). This Court disposed of the petition, by the order which reads thus:- “1. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. 2. Heard the advocate appearing for the petitioners and the advocate appearing for the third respondent. According to the advocate for the petitioners, the total amount due and payable under the decree as of today is Rs. 36,474/-. Inviting my attention to an order passed by this court on 4th May 2007, it is stated that the petitioners have already deposited the said amount. The flat has been attached which is allegedly in possession of the petitioners and the petitioners claim an interest in the said flat. As the petitioners have claimed interest in the flat which is attached, and having deposited the decreetal amount with a view to satisfy the decree, hence the petitioner has prayed for withdrawal of the attachment. The respondent No. 3 is the assignee of the money decree passed in favour of the first respondent. In view of the deposit of the amount with the Sheriff of Mumbai in compliance of the order dated 4th May 2007, the petition need to succeed. The respondent No. 3 was permitted to withdraw the amount. In case the same is not so withdrawn, it shall be open for the 8 wp3451.07.sxw respondent No. 3 to withdraw the amount. In view of the payment of the decreetal amount, the writ petition is allowed. The impugned order is quashed and set aside. In view of the satisfaction of the decree, the attachment of the flat stands withdrawn. Rule made absolute in above terms.” 9. The Respondent No. 2 herein challenged the order passed by this Court by way of Civil Appeal No. 881/2010. Noticing that the order passed by this Court allowing the writ petition was passed without hearing judgment debtor, who was the appellant before it, the Apex Court passed the order on 11th January, 2010 which is as under:- “Leave granted. Although, the appellant has challenged the impugned order on several grounds, we do not consider it necessary to deal with the same because, in our view, the impugned order is liable to be set aside only on the ground that the appellant was neither given any notice nor an opportunity of hearing. Learned counsel for respondent Nos. 1 to 3 very fairly stated that notice of the writ petition filed by his client was not issued to the appellant. In view of the above, the appeal is allowed. The impugned order is set aside and the writ petition is remitted to the High Court for fresh disposal in accordance with law. Since some of the parties are senior citizens, we request the High Court to make an endeavour to dispose of the writ petition at an early date as per the policy of giving priority to the cases of senior citizens.” 10. After the matter was remanded back by the Hon’ble Supreme Court, 9 wp3451.07.sxw the learned Single Judge of this Court vide order dated 16th April, 2010 again issued notices to the respondents. The matter had come for hearing before me on 25th March, 2011. On the said day a statement on behalf of respondents 2 and 3 as under was recorded and the following order was passed:- “ Learned counsel appearing on behalf of respondent Nos. 2 and 3 submit that original respondent No. 1 as well as Bajinder Singh so also Satnam Singh have already expired and their legal heirs are already on record and as such it is not necessary for the petitioner to take steps to bring legal heirs of respondent No. 1 on record. Learned counsel submit that they would file pursis to that effect during the course of the date. Since learned counsel for respondent Nos. 2 and 3 are coming from Delhi, the matter is fixed peremptorily on 11.04.2011 at 3.00 p.m.” Thereafter, on various dates I have extensively heard the learned Counsel for the parties. The respondents have also filed their written submissions. 11. Shri Godbole, the learned Counsel appearing on behalf of the petitioners submits that, the learned trial Judge has grossly erred in holding that the earlier order dated 20th February, 1991 in the Chamber Summons filed by the petitioners operates as resjudicata. The learned Counsel submits that under the provisions of sub-rule 1(a) of rule 1 of order 21, it is not provided that payment has to be made only by the judgment debtor. He 10 wp3451.07.sxw submits that since the petitioners are in possession of the suit property, they are very much entitled to make the payment and on the payment being made the decree stands satisfied and as a consequence thereof, in view of provisions of Order 21 Rule 55(a) the attachment has to be withdrawn. The learned Counsel in this respect relies on the judgment of the A.P. High Court in the case of K.S. Hussain Peeran v/s. Kadapala Venkata Ramana Rededy (AIR 1989 A.P. 62) and Allahabad High Court in the case of Thomas Skinner V. Ram Rachpal (AIR 1938 All 141) and on the Privy Council in the case of Mohd. Rahimutulla Haji Joosab v/s. Esmail Allarakhia (AIR 1924 Privy Council 133). The learned Counsel also relies on the Judgment of the Apex Court in the case of Manoharlal Chopra vs. Raibhahadur Rao Raja Seth Hiralal (AIR 1962 SC 527) in support of the submission, that alternatively it be held that the application made by the petitioner deserves to be allowed by taking recourse to Section 151 of the CPC. The learned Counsel relies on the Judgment of Apex Court in the case of Jai Jai Ram Manohar Lal v/s. National Building Material Supply, Gurgaon (1969 (1) Supreme Court Cases 869) in support of the submission that the procedural laws are hand made of justice and that they cannot be permitted to come in the way of substantive justice. 11 wp3451.07.sxw 12. Shri Godbole further contends that the suit between the respondent no. 2 and the original plaintiff was collusive. He submits that suit in fact was filed, so as to overcome the fact that rights in the flat were transferred by the respondent no. 2 in favour of the petitioner’s mother and to get the said flat auctioned and realise huge amount. 13. As against this Shri Kannan Kapur, the learned Counsel appearing on behalf of the respondent no. 2 submits that petitioners have failed to approach this Court with clean hands. He submits that there are various material suppressions in the petition and on this ground alone the petition is liable to be dismissed. The learned Counsel in this respect relies on the following judgments:- K.D. Sharma v/s. Steel Authority of India {(2008) 1 SCC 481} Dalip Singh v/s. State of U.P. {(2010) 2 SCC 114} Behari Kunj Sohakari Avas Samiti vs. State of U.P. {(2008) 12 SCC 306} S.P. Chengalvaraya Naidu vs. Jagannath (dead) by LR’s {(1994) I SCC 1}. 14. The learned Counsel further submits that the jurisdiction of this Court under Article 226 and 227 of judicial review is very limited and this Court 12 wp3451.07.sxw does not act as a Court of appeal and, therefore, the petition is liable to be rejected. In this respect reliance is placed on following judgments:- Shawshad Ahmad and others Vs. Tilak Raj Bajaj, (2008) 9 SCC 1 Jai Singh & Ors. Vs. Municipal Corp. of Delhi, (2010) 9 SCC 385 State of West Bengal Vs. Samar Kumar, (2009) 15 SCC 444 Murari Lal Vs. Surinder Singh, 2010 (119) DRJ 1 15. The learned Counsel further submits that in an earlier proceedings in the Chamber Summons filed by the petitioner’s mother under Order 21 Rule 58 the rights between the parties have been adjudicated. It is, therefore, submitted that the petitioners who claim through their mother could not have filed the present application, in view of provisions of Section 11 of CPC. The learned Counsel in this respect, relies on the following judgments:- M/s. Deepak Grit Udyog & Ors. Vs. State of Haryana, AIR 1996 P&H 176. Rasika w/o. Kishandas Tulsidas Vs. Mount Marry Vaikunta C.H.S. Ltd., Manu/MH/0857/2002. Bhagwan Dass D. Tandel Vs. S. N. Sinha, Dir. Gen. of Police, Manu/GJ/0320/1995 Workmen of Cochin Port Trust Vs. Board of Trustees of Cochin Port Trust & Anr., AIR 1978 SC 1283. Forward Construction Co. Vs. Prabhat Mandal (Regd.) Andheri & 13 wp3451.07.sxw Ors., AIR 1986 SC 391. Ashok Kumar Srivastav Vs. National Insurance Co. Ltd., (1998) 4 SCC 361. 16. The learned Counsel further submits that the provisions of Section 151 cannot be used to circumvent the other provisions of CPC. He relies on the Judgment of the Apex Court, in the case of Vinod Seth v/s. Devinder Bajaj & anr. 17. The learned Counsel further contends that both equity and law are in favour of the judgment debtor and, therefore, no interference is warranted. The learned Counsel in this respect, relies on the Judgment of the Apex Court. Raghunath Rai Bareja & anr. v/s. Punjab National Bank & ors. (2007) 2 SCC 230. Shiv Kumar Sharma vs. Santosh Kumari (2007) 8 SCC 600. Sushma Suhara Beevi vs. G. Alex & anr. (2004) 8 SCC 569. 18. The learned Counsel for the petitioner further contends that though the application is purportedly filed under Order 21 Rule 1(a) read with Rule 55, the application is infact under Order 21 Rule 58 and as such an appealable order and, therefore, the writ petition against the impugned order 14 wp3451.07.sxw would not be tenable. Learned Counsel further submits that for considering as to whether the application is in fact the one under Order 21 Rule 58 or under Order 21 Rule 1 and 5, it will be necessary to refer to the pleadings made in the application. Learned Counsel in this respect, relies on the following judgments:- Gurram Seetharam Reddy Vs. Gunti Yashoda & Anr., Manu/AP/0644/2004 Shishant Aggarwal Vs. Krishan Kumar Aggarwal, Manu/UP/0805/2005 Ghasi Sahu & Anr. Vs. Himachal Sahu & Anr., AIR 1986 Orissa 17. 19. Shri Y.K. Kapoor, the learned Counsel appearing on behalf of respondent no. 3 supports the submissions made on behalf of the respondent no. 2. 20. I will first deal with the contention raised on behalf of the respondents regarding tenability of the petition. The present petition is being heard after it is remanded back by the Apex Court. Initially, this Court had not only entertained the petition but had also allowed the same. Nodoubt that the learned Counsel is right in contending that jurisdiction of this Court under Article 226 and 227 is limited jurisdiction and that the Court cannot sit as a 15 wp3451.07.sxw Court of appeal, to correct the errors committed by the Lower Courts. However, this Court cannot be said to be without any powers, when the lower Courts exercise the jurisdiction with manifest error which can be termed as perversity. This Court as a Court of record would be bound to exercise jurisdiction vested in it under Article 226 or 227 to correct such a manifest error and do the justice between the parties. The law on this point is well settled and, therefore, I do not find it necessary to refer to the judgments referred in this regard by the learned Counsel for the respondent no. 2. 21. Insofar as the second contention regarding the suppression and misrepresentation is concerned, the learned Counsel basically relies on the fact that in the petition, the petitioners have not pleaded regarding the earlier order passed in the Chamber Summons filed by their mother. It is a settled law that the person who seeks equity must do equity. It is equally settled that the person who seeks equitable jurisdiction, must approach the Court with clean hands. The learned Counsel relies on the aforesaid judgments of the Apex Court to contend that a person would not be entitled to any equitable relief if he is guilty of material suppression of facts or withholding of relevant documents from the Court. In the present case it would have to 16 wp3451.07.sxw be seen as to whether the petitioners can be held guilty of suppression of material facts. In this respect, the basic grievance of the respondent no. 2 is that the petitioner has not pleaded in the memo of petition regarding rejection of Chamber Summons No. 857/1989 filed by their mother. However, it is to be noted that in the order impugned before this Court itself, the learned Judge has referred to the order passed in Chamber Summons No. 857/1989 and it is basically the rejection of this Chamber Summons, which has weighed with the learned City Civil Judge in rejecting the application of the petitioners. The impugned order is very well annexed to the petition. The petitioners have also in paragraph 7 of the petition, referred to the dismissal of the suit. It is thus clear that the petitioners were not to gain anything, by non-mentioning of the fact regarding the dismissal of the Chamber Summons filed by their mother. It appears to be a negligent act on the part of the lawyer, who has drafted the petition and has failed to make a averment which could have been noticed by him upon the bare perusal of the impugned order. I find that the petitioners cannot be non-suited on account of negligence by the Counsel, when the non-averment of the said fact in the petition could not have been of any benefit to the petitioner, as the said fact is evident from the order impugned in the petition. In that view of the matter, I am not inclined to non-suit the petitioners on the said 17 wp3451.07.sxw ground. 22. The next question that requires to be considered, is as to whether the application is question has to be termed as one under Order 21 Rule 58 and not the one under Order 21 Rule 1(a) read with Rule 55. By now it is a settled law, that for considering the jurisdiction, the averments in the plaint/application will have to be considered. The perusal of the application would clearly reveal that jurisdiction that is invoked by the petitioners is under Order 21 Rule 1(a), wherein they have specifically contended that they are willing to make the payment of the decretal amount and satisfy the decree. In the application they have no way raised any objection to the decree. In that view of the matter, I am also not inclined to accept the contention in that regard and as such reference to the various judgments made by the learned Counsel would not be necessary. 23. That leaves to the next question as to whether the application filed by the petitioners would be hit by Section 11 of the Code of Civil Procedure. It is the contention on behalf of respondent that the application as filed by the petitioners, was hit by principles of resjudicata and as such not tenable. The learned Counsel in this respect presses into 18 wp3451.07.sxw service Section 11 of the CPC and explanation IV thereof. The Apex Court in the case of Sheodan Singh vs. Daryao Kunwar Singh (AIR 1966 SC 1332) while considering the scope of Section 11 has observed thus:- “(9) A plain reading of S. 11 shows that to constitute a matter res judicata, the following conditions must be satisfied, namely- (I) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue in the former suit; (II) The former suit must have been a suit