IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 167 of 2006 Reserved on : 3.6.2008 Date of decision: 18.6.2008 Dalip Chand and others Petitioners. Versus Prem Chand and another. Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. For the petitioners: Mr. Sanjeev Kuthiala, Advocate. For the respondents: Mr. G.R.Palsra, Advocate. Deepak Gupta, J. This litigation has a long chequered history. This litigation also demonstrates how a litigant can misuse the provisions of law to delay the inevitable. One Himavati filed a suit for permanent prohibitory injunction for restraining Dalip Chand his wife Gopi and one Dasu son of Devi Sehai from causing any interference upon her land comprised in Khasra No.772, 875, 895, 916, 925, 926, 944, 944/1, total measuring 23 bighas 10 biswas and 11 biswansis, situate at Mohal Kanchari of illaqa Rajgarh, Tehsil Sadar, District Mandi. 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. During pendency of the suit she filed an application for amendment and stated that Dalip Chand has forcibly dispossessed her of the land and therefore, a decree for possession be passed in her favour. Himavati in her plaint alleged that she was the widow of one Ram Saran. According to her, Ram Saran had executed a Will dated 19.7.1980 Bikrami in favour of Dalip Chand. According to her one of the conditions of the Will was that as long as she i.e. Himavati was alive she would be owner of the suit land and only after her death the defendant No.1 would become owner of the land. According to Himavati, her husband Ram Saran died in the month of Magh 1937 B.K. Thereafter, she continued to be in possession of the suit land. According to her, in November/December, 1983 Dalip Chand alongwith other co-defendants forcibly tried to take possession of the house of the plaintiff and remove the grass from the suit land whereby she was forced to file the suit. According to the plaintiff on 16.5.1985 during the pendency of the suit she was dispossessed of the suit land by the defendants and thereafter she prayed for a decree for possession. The defendants filed written statement and alleged that in fact they were always coming in possession of the suit land on the basis of the Will and according to the defendants Himavati was not the wife of Ram Saran nor was she married to him. The suit was contested. The learned trial Court, on the basis of the evidence led before it, came to the conclusion that Himavati is the widow of Ram Saran and that she is entitled to the suit land under the impugned Will. He, however, held that the right of the plaintiff Himavati was only a right of life estate and after her death the suit property would devolve upon defendant. The suit was partly decreed on 30th April, 1987. An appeal was filed by Himavati before the learned District Judge, Mandi, who vide his judgement dated 21st December, 1990 held that in the Will itself deceased Ram Saran had accepted that Himavati is his wife and during their life time both he and his wife would be owners of the property. The learned District Judge set-aside the finding of the learned trial Court that plaintiff Himavati had only a limited life interest in the property. He also held that she had a right to alienate the property bequeathed to her by Ram Saran. A review petition was filed, which was dismissed on 2nd April, 1994. Dalip Chand and the co-defendants filed an appeal in this Court, which was numbered as RSA No. 246 of 1994. Himavati was arrayed as the sole respondent in the appeal. Notices were ordered to be issued to her. On the notice issued to Himavati the process server reported that she was dead. This Court recorded this fact in its order dated 3.11.1995. The counsel for the appellants-defendants was given three weeks time to take steps. Thereafter, at the request of counsel for the appellants adjournments were granted on 14.12.1995 and 14.3.1996. On 14.3.1996 final opportunity of three weeks to take steps was granted. It was further made clear that in case steps are not taken within this period, the appeal shall stand automatically abated without reference to the Court. The matter lay there for more than 7 long years. On 2.9.2003, an application was filed by the appellants-defendants for bringing on record the legal representatives of Himavati. According to them, they were under the impression that the appeal was being pursued by their counsel. Further they alleged that Prem Chand and Rajesh Kumar are the legal representatives of deceased Himavati, since, they had purchased the property from Himavati in her life time. Notice of this application was sent to Prem Chand and Rajesh Kumar. They did not deny the fact that they are the legal heirs of Himavati. However, they contested the application for bringing on record legal representatives as well as application filed for condonation of delay in support thereof on various grounds including the ground that appellant Dalip Chand was not only aware of the death of Himavati but had been contesting the mutation proceedings whereby the property in question had been mutated in favour of Prem Chand and Rajesh Kumar after Himavati had executed the sale in their favour. On the pleadings, the following issues were framed on the application:- 1. Whether there are sufficient grounds for the condonation of delay in making the application under Order 22 Rules 4,5 and 9 read with Order 1 Rule 10 and Section 151 of the Code of Civil Procedure? OPP. 2. If issue No.1 is proved in affirmative, whether there are sufficient grounds for setting aside the abatement? OPP. 3. Relief. Evidence was led by the parties and the matter was listed for argument on 29.8.2005, on which date the following order was passed:- “Arguments have almost concluded. However, during the course of arguments it was submitted before me by the learned counsel for the applicants- appellants that on a part of the suit property, Dalip Chand, applicant-appellant had constructed a house and that a short date may be given to enable the applicants- appellants to have a dialogue with the present LRs of the respondent in respect of the constructed portion. In the interest of justice, the case is adjourned to 29th September, 2005 for remaining arguments. It is made clear that no further date shall be given.” The matter was then taken up on 29.9.2005, wherein another date was asked for. The order reads as follows:- “On the last date of hearing the case was adjourned to enable the appellants to have a dialogue with the legal heirs of the respondent in respect of the constructed portion. Today the learned counsel appearing for the applicants- appellants has submitted that the talks of compromise are going on between the parties and that the case may be adjourned for a month to enable the parties to conclude the talk of compromise. In the interest of justice, the case is adjourned to 26.10.2005.” Thereafter on 26.10.2005, Shri Sanjeev Kuthiala, learned counsel for the appellants submitted that the parties are arriving at a compromise and he has instructions to withdraw the appeal and also the suit filed by the plaintiffs-appellants. Accordingly, suit as well as the appeal were dismissed as withdrawn. Thereafter, a joint application was filed by both the parties. It was stated that in fact the suit had been filed by Himavati and not by Dalip Chand and therefore, there was an error in the statement made by the counsel on 26.10.2005. It was prayed that the order be modified and the defendants- appellants be allowed to withdraw the Regular Second Appeal and not the suit filed by the plaintiffs. The main appeal bearing No. 246 of 1994 was dismissed as withdrawn vide order dated 23.12.2005. After the appeal was withdrawn, Dalip Chand filed another civil suit against Prem Chand and Rajesh Kumar in respect of the same land. In this suit it was prayed that a decree of declaration declaring Dalip Chand to be sole owner in possession of the suit land be passed and the defendants be restrained by a decree of permanent prohibitory injunction from causing any interference in the ownership or possession of the plaintiff. This suit was filed on 9th November, 2005. Reference to the earlier litigation had been made and it has been averred that the decree passed in the earlier suit cannot be executed since the same is a fraud in the eyes of the law and has become unexecutable as time barred. However, there is no prayer for setting aside the decree. Meanwhile, Prem Chand and Rajesh Kumar had filed execution petition on 21.12.2002. It was only after Dalip Chand and the other defendants received the notices of this petition they filed the application for bringing on the record legal representatives in RSA No. 246 of 1994. After the RSA was dismissed as withdrawn, the matter was adjourned time and again for consideration and finally vide order dated 22.5.2006 the Court issued warrants of possession of the suit land. Thereafter, on 24.6.2006 the JDs filed an application for recalling the notices and on the said application the learned Executing Court ordered that warrant of possession be not issued and be recalled unexecuted. In the meantime the defendants also filed CMP No. 942 of 2006 in RSA No.246 of 1994 praying that the order dated 26.10.2005 and 23.12.2005 may be ordered to be recalled and RSA No. 246 of 1994 be restored to its original number alongwith miscellaneous applications and be heard on merits. Defendants also filed CMPMO No. 167 of 2006 praying that the execution petition had been filed by strangers to the decree and as such should be dismissed and in the alternative they prayed that the executing Court be directed to keep the execution proceedings in abeyance pending the decision of the civil suit filed by Dalip Chand against Prem Chand in the Court of Civil Judge, Senior Division, Mandi. Records were called for on 30.6.2006 and on the same day this Court directed that further proceedings in the execution shall stay in the meanwhile. The plaintiff has also filed another application under Order 39 Rule 2-A being CMP No. 693 of 2006 praying that action be taken against the respondents for disobeying the orders of this Court dated 30.6.2006. In the light of the aforesaid factual situation, I proceed to decide the applications and petitions. CMP No. 942/06 in RSA No. 246 of 1994 This application is totally misconceived. A perusal of orders dated 29.8.2005 and 29.9.2005 quoted here-in-above clearly show that arguments were virtually complete. At this stage learned counsel for the applicants-appellants prayed that applicants may be given some time to have a dialogue with the legal representatives of respondent Himavati in respect of the portion of the land on which Dalip Chand had constructed a house. Similar request was made on 29.9.2005. Thereafter, counsel for the appellants withdrew the appeal as well as the suit. Since, the suit had not been filed by the appellants, a joint application was filed that the order be modified and the main appeal may be allowed to be withdrawn. Consequently, on 23rd December, 2005 this Court permitted RSA No. 246 of 1994 to be dismissed as withdrawn. Shri Sanjeev Kuthiala, has failed to point out anything from the record to show that the legal representatives Prem Chand and Rajesh Kumar had ever agreed to compromise the matter. In fact, there is nothing on record to show that Prem Chand and Rajesh Kumar had ever shown any inclination to settle the matter outside the Court. Only Dalip Chand’s counsel was making statements in this behalf. No ground is made out for recalling the earlier orders. This application being without any merit is dismissed. Consequently, RSA No. 246 of 1994 cannot be revived. CMP No. 693 of 2006 in CMPMO No.167/06 This application is also totally misconceived. The only order which was passed in CMPMO No. 167/06 was that further proceedings in the execution shall stay in the meanwhile. There is no order qua possession of the land. I have gone through the file of the executing Court and find that after the executing Court ordered the issuance of warrants of possession on 22.5.2006 the Bailiff made a report on 20.6.2006 that he could not execute the warrants since the judgement debtor was not present. Thereafter, on this report itself it is written “try again” and signed by some official of the Court. Thereafter, another report was made on 23.6.2006 wherein it is stated that warrants have been executed. However, it appears that this report is not signed by the Bailiff though a number of other witnesses have signed the report. A copy of the Daily Dairy Report of the Patwari has also been placed on record to prove that the possession was handed over to Prem Chand and Rajesh Kumar. It is strenuously contended by Shri Kuthiala that no reliance can be placed on the second report dated 23.6.2006 in view of the fact that the report of the Bailiff of the same date is unsigned. I am not in agreement with this contention. The report may not be signed by the Bailiff but is handwritten by him. It is signed by the decree holders and a number of witnesses and has been filed in the Court and the concerned official of the Court has added a remark that the warrant has been executed. Report of Patwari also supports this. Therefore, nothing has occurred after 30.6.2006 when order of stay was passed that too only staying the execution proceedings. This application is also dismissed. CMPMO No.167 of 2006 The main ground taken in the CMPMO is that Prem Chand and Rajesh Kumar are strangers to the decree and have no right to execute the same. In support of his contention Shri Sanjeev Kuthiala has relied upon the judgement of the apex Court in Jugalkishore Saraf vs. M/s Raw Cotton Co. Ltd., AIR 1955 S.C. 376 (Vol. 42, C.N.66). He also cited Hazari and others vs. Zila Singh and others, AIR 1970 Punjab and Haryana 215 (V 57 C32) and I.Basha Khan v. K.Selvaraj and others, AIR 1999 Madras 374. In my view none of these authorities has any application to the facts of the present case. In the present case an important fact which must be noted is that the Dalip Chand and his other co-defendants themselves moved an application in RSA No. 246 of 1994 praying that Prem Chand and Rajesh Kumar be brought on record as legal representatives of deceased Himavati. Proposed LRs did not deny the fact that they are legal representatives though they contested the applications on other grounds. Another very important fact to be noted is that both the parties moved a joint application and prayed that the original appeal may be permitted to be withdrawn. The appeal already stood abated. It could only stand withdrawn if the abatement is set-aside and LRs are brought on record. True it is that there is no formal order setting aside the abatement or bringing the legal representatives on record, but the conduct of the parties and the orders of the Court clearly show that the LRs were treated to be respondents in the original appeal which was permitted to be dismissed as withdrawn. The appeal was dismissed as withdrawn on the statement made on behalf of the appellants. The facts of the present case are totally different from the case relied upon by the counsel for the petitioner. In the present case, the petitioner themselves had filed an application for brining on record Prem Chand and Rajesh Kumar as legal representatives of Himavati. Thereafter they withdrew the appeal and therefore, they cannot urge that Prem Chand and Rajesh Kumar are strangers to the decree. In these circumstances Prem Chand and Rajesh Kumar are entitled to execute the decree in their own right. The last contention is that pending disposal of the suit filed by Dalip Chand in the year 2005, the execution be stayed. This contention is also without merit. The earlier decree has not been challenged in the latter suit. The executing Court is bound to execute the decree unless it is shown that the execution thereof has been stayed. Before parting with the case, I am constrained to observe that the judgement debtors have on one pretext or the other managed to stall the execution of the decree. It is the duty of every executing Court to ensure that a decree is executed in letter and spirit. The litigant public should not be left with an impression that even after they succeed in the case they can never enjoy the fruits of the decree. Keeping in view the aforesaid facts and circumstances, both the applications, CMP No. 942/06 in RSA No. 246 of 1994 and CMP No. 693 of 2006 as well as CMPMO No. 167 of 2006 are dismissed with costs, assessed at Rs.10,000/-. CMP No. 331 of 2006 in CMPMO No.167/06 In view of the final order passed in CMPMO No. 167 of 2006 this application has become infructuous. The learned executing Court is directed to ensure that the execution proceedings are taken to their logical conclusion at the earliest and not later than 31st December, 2008. The parties are directed to appear before the learned executing Court on 28th July, 2008. The Registry is directed to ensure that the record is sent back so as to reach the executing Court before the said date. 18th June, 2008 (Deepak Gupta), J. ™