IN THE HIGj-LCOURT OF JUbICATURE AT BILASPUR^ WRIT PETITION fArt.227) N0. 4^^ of 2008 PETITIONER (Alleged Judgment- Debtor) RESPOND6NTS (Decree holder) ^.$^^ i><^' ^^~ li^-'"" lateeJ ^s^ Vs Nanhumal, son of Shri Chaitan &QS Sindhi, aged about 65 years, residentof Karbala Road, Bilaspur (CG) 1. Laxmi Prasad, Son of Ved Prasad, lunatic, through his wife Smt. Lata Pandey, Baikunthpur, Raigarh (CG). , 2. State of M.P. (os mentioned in the order impugned) Now, State of Chhattisgarh, through the Collector, Bitaspur. y ; 3. Mohanlal, son of Raihu Mal Sindhi, aged about 22 years. •^j 4. Arun Kumar, son of Ved Prasad Badai, aged about 30 years. („ 5. Phootchand, son of Sadai Ram v \^ Yadav, aged about 50 years. 6. Harnam Singh, son of Tarachandra, aged about 60 years. No.3 to 6 are residents of Karbala Road, Kumharpara, Bilaspur, (CG) ? /\ ^ WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA s HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'bte Shri Justice Prashant Kumar Mishra Wrlt Petitlon i227) No. 4970 of 2008 Nanhumal Versus L.axmi Prasad and others ORDER Postfor^-04-2010. Sd/- Prashant Kumar Mishra Judge f5- -04-2010 HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'bte Shrl Jystice Prashant Kymar Mishra Writ Petition (227) No.4970 / 2008 PETiTtONER Nanhumal Versus RESPQNDENTS Laxml Prasad and others. Shrl Prakash Tiwari and Shri Rajeev Shrlvasteva, counsei for the petitioner. Shri Hemant Kasharwanl, counsel for resporsdent No.1. Shri Vlnod Tekam, P.L. for the State/respondent No. 2. WRIT PETITION UNDER ARTICLE 227 OF THE GONSTITUTION OF INDIA ORDER (16- .04.2010) Chailenge in this wrlt pet'Etlon Is to the order dated ( -08-2008 (Annexure P/1) passed by the executlr^ Court, the !V Clvll Judge, Class-11, Bilaspur In executlon case No. 120-A/1996. By thls order the leamed executing Court has Issued the ^^arrant of agalnst the petitloner/jucigment debtor (in short 'JD') after rejectlng his objection and prayer for dismissmg the execution application on ths ground that the judgment arKl decree dated 01-08-1997 having already been satisfied by dellvering possession to the decree hoider on 11-01-1998, the present execution application Is not maintainable. (2) The facts of the case, in short Is that the decree holder, the respondent No.1 herein preferred Clvil Suft No. 120-A/^ vlde ptaint (Annexure P/5) for decteratlon that the lease deed dated (^-08-1984 \ gj^nted by the defendant No.1 / State In favour of defendants No. 2 tc \ 7 Is tllegat, and for recovery of possesslon and damages. Accordlng to I- tt "*"'l J ^^// ^^xy ^ -^- the piaintiff hls mother had purchased the property oo 30-06-1969 in his name during his mlnorlty arxi thersafter they have constpjcted the house over the piot and have let it out to the defendants No. 2 to 7, however taking benefEt of the tact that plalnttffs mother Is a wldow and the ptalntlff was innocent the defer^Eants obta^ned a of the sult Sand in thelr favour from the detenctant No.1 / State of Chhattisgarh though the plalntlff being the owner no such ooyki have been granted by the State of Chhattlsgarh in favour of defendants No. 2 to 7. His effort before the Tahsltdar arri S.D.O. for Invalktation of the lease deed yielded no resutt. Ptalntiffs name has been duly recorded in the Municlpal record and he Is paying tax however the defendants No. 2 to 7 have stopped paylng rent and are asserting thesr ownershlp therefore the present suit was preferred. Along with the ptasnt a map showing Khasra No. 243/3 and 258 over whteh the suit premlses are constructed has been annexed slxswin®boundarles of the piot. (3) The defendants HQ. 2 to 7 fiSed their wrftten statement ar^l the suit v^s eventualiy decreed vide judgment and decree dated 01-08-1997 vlde Annexure P/7. Tte trial court found that the deed dated 06-08-1984 Is illegal arxi that the defendante have not been able to prove that the sult premises have bsen sonstnjcted on government Sand. (4) In course of executlon of the decree the possesslon was purportedly handed over to the pialntlff on 11-01-1998 the contentlon of the petitloner sn this writ petitlon Is that having obtained the possession on 11-01-1998 the present applicatson for executlon for deilyering of possession is not malntainabSe and that If after obtalning '^1, J / •...^^? ^ ^' "s- ^^ possessron the decree holder ss agaln the property, hls remedy !les to fite a separate Civil Sult anri not to move an application for exeoution afresh. Thus to the petltioner ths Instant proceedlngs for executlon ofthe are not maintainable. (5) On the otherhand, leamed counsel for the respondent No.1 has argued that the petEtloner has rw>t approachect thls Court wlth hands and Is deliberately raislng of of the decree Insptte of the fact that possessfon was never deilvered to the decree hotder and that the instant execution applteatlon fe mamtainabSe. It Is also submltted by the counsel that the present wrft pet'rtion invGlves dlsputed question of fact which cannot be gQne Into in this petitiotn and that the pet'rtloner Is gultty of of it has submltted by the respondent No.1 In 8(b) of the retum that the executton proceedlng has never completed and of the sult house was i^ver dellvered by ths petttsoner v^ilch Is wlthln hls knowledge and the respondent No.1 has taken dlfferent on dlfferent occasion only wlth a vlew to fp^strate and cause de'ay sn executlon proceedings. $t ss tn the paragraph of the return that the leamed execution Court has a det^led and reasonect order after appreciatlon of the material availabte on whlch not call for any lnterferer.ee under 227 of the Constltutlon of as thte Court has of iRterferencs under Arttele 227 of the Constltutlon of indla. (6) Tte respon^ent No.1 has speclfKally In 2 to 5 of the add'rtional submlssiori of the return that the pet'rtioner fiSed an applicatjon under Order 9 Rute 13 of C.P.C. tor settlriig ths ^ -^- ex-parte decree before the executlng Coyrt and obtalned order on 16-01-1998 clearly statlng in his apptlcatlon under Sectlon 151 of C.P.C. that he is In possesston and execution proceeding Is not complete as such report regardsng satisfactlon of wairant of possession submttted on 19-01-1998 was m>t proper anci that taklng advantage of the stay order dated 16-01-1998 he has re-interred the house and as such the respondent No. 1 is entltled to pursue and conttnue execution proceedlngs. It Is further In the additionat submlssion that the petltioner lateron mischievousty wlthdrew the applteatlon under Order 9 Rute 13 of C.P.C. and thus the petitioner cannot be atlowed to agitate that the decree was fuSfy executed. According to the respondent No.1 the petitloner Is now raislng s new plea that the suit property is different and hl©possession fe on different premises and that raislng of dlffereRt plea shows Ws malafide; It is the ©pecificobjection of respondent No.1 that the petftioner Is playlng wAh legal system and raislng technicat grounds to deprive the respondent No.1 from enjoying his iegat r^ht flowiE^ from the decree by a competent Civll Court. It ss further contented by the respondent No.1 that plea based on lease deed dated 3(N)5-1989 wsth respect to Khasra No. 258 was In the record of the CsvlS Court and yet the Cl^t Court has recorded finclsng that the sult premises are not built on Khasra No. 258 on Govemment iand. (7) The leamed executir^ Court, In the Impugned order has observed that the executing Court had fixed the date on 27-01-1998 ior submission of report regarding executlon of warrant of however, even before the final report of the Process Server and '-^^ 1 JJ ft s— -5- statement of the decree hoider regardin®satisfactton of the decree coutd be recorded by the executing Court on 27-01-1998, the date fsxed for the said purpose, the petltloner / JD obtained an Interlm order on 16-01-1998 in proceeding under Order 9 Ruie 13 of C.P.C. making a statement that he Is in possession of the house ancf the decree has not been satisfied. It Is atso observed that 'm his statement recorded during MJ.C. proceedlngs (under Order 9 Rute 13 of C.P.C.) the petitioner has stated that he Is stlll In psssesslon of the sutt and the decree has not been executed and that later on the said application for settlng aslde ex-parte deeree was wllMrawn. Acoordlng to executlng Court having once made thls statement m the MJ.C. proceedlngs that decree has not been satlsfsed, the petltioner / J.D. Is now precluded from taklng a different stand and on application of the law estoppel It Is mentloned In the impugned order that havtng obtained an interim ordsr for stay of the execution of the decree for protecting his p^session by maklng submiss'ion that the decree has not been executed, the pet'rtioner eannot foe allowed to make oontrary submission and thus the executtng Court has foy.nd that the decrse has not been satisfied and warrant of possesslon to be issued. (8) 1 have heard leamect counsel tor the partles at length and have psrused the documents appended w'rth the wnt p^'Etlon and the retyrn. (9) From Annexure P/9 st appears that the Process Server has endorsed In the warrant of possesslon that poissession of the sult premises Is handed over to Arsusulya Bai on 11-01-1998. Annexure R-J/1 is an applicatlon preferreeE by the petltsoner yrscier Order 9 Rule 13 of G.P.C. on 16-01-1998 together v/lth an appllcation Sectlon .s-s^ -^y '^.^' — ^,— 151 of C.P.C. speclflcaUy mehtlorar^ in para 5 thereof that though Prwiess Server had come to the spot atong wth the warrant of possesston, he went back w'rthouk delsvery of to the ^alntjff decree holder. In his appliGatlon yncler Section 151 of C.P.C. for grant of stay he has pleaded in para 3 thereof that he Is stiSl In of the suit house. In para 4 of this applteatioo he has again that If executlon of the cfecree take place and he te during the pendency of appSicatlon uoder Order 9 Rule 13 of C.P.C., he shail suffer Irreparable loss. Sn hte deposEtlon before the MJ.C. Court ths petttioner has categQrlcally that the decree has never executed and that he was not In the statson on 11-01-19^ and when he came back on 15-01-1998 he opened the lock on the door and found that everythlng 'sn the house are In order. Though the respondent No.1 ciaims that he had obtained possession on 11-01-1998 yet it ss cons^tent stand of the petitioner the MJ.G. Court that he is sn possession of the suit house, the warrant wsis never executed and that he obta'sned interlm order from the MJ.C. court by raising thls that decree has not been executed. (10) There ss one more gtaring feature 'm the present whlch has been hsghlighted In the cross examlnation of respQnderst NQ.I In the ^4.J.C. proceeding that the decree Is Laxmi Prasad the possession was obtalp.ed by one Anususya Bal and that the warrant of possession was not s^ned sither by plalntlff Laxmi Prasad or by petitioner / decree hotder NanhumaS. Slnce the petltioner on wsthdrew hls appllcation under Order 9 Rule 13 of C.P.C. ths MJ.C. Court had no occasion to record a fincilng as to whether the decree ^rt.^^^^ ^^ ff^y' '"" "^. i'i :.fc) ^- ^^^ •7- was executed on 11-01-1998 or not ? Be that as it may, the text and tenor of the cross examlnatlon made by the petttioner duriiig the examination of Process Sep^er Mr. Bajrang Lal m MJ.C. proceedlng It is apparent that the petitioner has conslstently canvasslng that he was not present m the statlon on 11-01-1998 and he has not on the warrant of possesslon and therefore he has never deEivered possesslon to the decree hokjer. (11) The petltloner has on judgment rendered by Hon'ble Supreme Court 1996 (2) SCC 371 AND OWERS Vs. SARBJEET (DEAD) BY LRS AND OWERS. In the case the Hon'ble Supreme Court has that once a eSecres for possession has been executed but sufasequentiy the decree holder was again dispossesseci, another sult filed by the hoicSer to recover possession Is not barrsd Sectlop. 47 of C.P.C. The of the present case Is cleariy distlngulshabSe froin the judgment on by the petitioner. In the Instent te the executlon of deeree and It Is the petltloner's own In proceedlngs under Order 9 Rute 13 of C.P.C. that the executed. The law relied by the pet'rtloner Is thus (12) Even othep^vise In proceedlng Articte 227 of the Constltutlon of India, thls Court witS not Into the question of fact. The disoussion made herelnabove on the by the is not for recording any of but tor the purpose of ascertaining the merits of the grievance by the petitioner and %o sxamlne whether any case worth Interference Articte 227 of the Constltutlon of indla te made out or not ? -^- (13) The Sypreme Court In the of Ceima Coelfto Pereim snd Other Vs. Whas MahabaSeshwsr KhQi^s- sftcl otfters (2Qi0) 1 SCC 217 has held thus In paras 30,31,32 & 33 the Supreme Court has resterated the scope of Interfererx^e In a petltlon under Articte 227 of the Constitutlon of India whlch Is exlracted under:- "30. In Bathutmal Raichand Oswal v. laxm&af ,^. Tarfa, (1875) 1 SCC 85B thls CQUfthelfi: (SCC p. 865, para 7) "7. ... Tfte Hfgh Coyrt cannQt m of its jwsdlc^on und&rArttcls 227 conv&ft itsetf mto a court of when ths fe^fetefore ^as not conferred a nght of and the of ths subordinQte CQurt ortribunaf on facte." 31. ln State v. Navjof Sandhit, 6 SCC €41 : 2003 SCC (Cri) 1545 this CQurt exptemed the power of ^e Hlgh Court mderA^QfQ 227 thus: (SCC pp. 656-57, para 28) "28. Thus the tew fe that 227 of ihe ConsljtutiQn of fnd{Q the Court the power of siipenntendence over aH coiitts and tribunals thrQughQut ths terntQnes m ia which it exercfees jwsdtotlQn. Thls jiinsdict'sQn cannot bs limfted or fettered by Qny Act Qf ths State Leg'.siature. The supen/isop/ junsdfctiQH extends to keepng ttie subordlnate tribunats wlthin the Kmsts of their authQrity and to seeing that they obey th& iaw. Th@ pov/ers under Artide 227 are wide and can be to the ends of jus^ce. Tftey can be vsed to mterfere even w^ an InteriQcutoiy ofrfer- HQwev&r the power under Art?cfe 227 Is a ^iscrstionary power and it is diffiouft to attnbute to an Qrder of the H'sgh Court, such a source ofpower, whw the Hlgh Court its&if does not in terms purpQrt to exercfee any such F^er. ft Is settfe^ faw thst this power of judiciQl sup&nntBndence, underArt'iQie 227, mustbe exerased ^. ^ M' n. spQringty and only to keep suborclinate Qourts and tfibunals wlthin the bowds oftheir authonty and not to CQrrect mere erro/s. Further, wharQ th@ statute bans the exercise Qfrewsional powers It wouid r&qmf^ ver/ sxc&p^Qnal clrcumstances to WQrrant mte/ference under AFticfQ 227 ofihe Cons^tutiQH ofindla smce the pow&r Qf superintendence was not meant tc Qlrcumvent statutQry isw. ft is Isw that the junsdfs^on tind&r Artfcte 227 eould not be 'as the clQak ofan in dfegyfee'." 32. The afQresasd two d&ci^Qns and few sther decisons, namefy, Chandavarkar SH§ Ratna Rao v. Ashsiata S. Guram, (1986) 4 SCC 447, State of Maharashtra v. (2001) I SCC 4 : 2001 SCC {L&S) 117 and v. Ravi Prakssh, (20Q4) 3 SCC 682 cams to be considered by thls Court m Shamshad Ahma^ v. Tilak Rsj {2008) 9 SCC 1 and this CQurt hsld: Raj case, (2008) 9 SCC i, SCC pp. 10-11, para 38) U38. Though powers of a Hlgft Couft andQr Artssies 226 and 227 are wsde and extensive o*/er a!! CQurts and tnbunals thmughQut the m refatiQn to whsch It exerQises junsd'ictfQn, such powers must be exeroisecS wlthsn the iimits oflQW. Th@ power /s superwsory m natuFS. The Court nof acf as a court of sppeaf or a court of errof. lt can nslther revfew nor reappreciate, nor rewesgh the Qvidsnce upQH which determmation of a sufoordf?ate court or inferior tnbuna! purports to be or to correct errors of fact or sven offaw snd to subs^tute its own decfsion for that of fhe infenQr couft or tnbunai The powers are f^qwred IQ b@ exercfeed most sparingty and onfy m Qppropnate cases sn onrfer to the subQrdlnate courts and infenQr tnbunals wlthln the 'iimlts ofiaw" ^ ^^^3 & .^' -\0 33. In th& Hght of the aforesafd iegaf position cQncemlng junsdic^on of the High Court undsr Afijcte 227, whlch the Hlgh CQUft fasted to keep in mlnd, It must be heid that in ffre facts and csrcumstances of ihe and ths rscorded by the Aclditsona! Rent Confroffef as weff ss ^s Administratsve Tnbunaf, the High Couff notjustlfied m mterfering with the concyrnenf ordere of evfstion based on the ground of sub-tetting in exemfse of fts power ynder Artscle 227 ofthe ConstltutlQn ofindls." (14) in vlew of taw fa'rf down by the Hon'bte Supreme Court, thls Court does not fsnd any case for Interference In thte petition under Artide 227 of the Constltutlon of iRdia. Therefore, the Instant petltlon falls and Is hereby dismlssed. —-— Sd/- Prashant Kumar Mishra Judge \<-