1 wp-10015.2011.sxw lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 10015 OF 2011 Shri Shrikrishna Arjunrao Raut : Petitioner versus Shri Nandkumar Shivyogi Hiremath : Respondent. Mr. S R Ganbavale for the Petitioner Mr. Chetan G Patil for the Respondent. CORAM : R M SAVANT, J. DATE : 22nd December 2011 P.C. 1 This is a most unfortunate case where a decree passed as long back as in the year 1982 in Regular Civil Suit No.849 of 1979 is waiting for its execution as it has been stalled by the Judgment Debtor for one reason or the other since the last so many years. The order challenged is the one dated 16/09/2011 passed on Exhibit­88, Exhibit­82 and Exhibit 89 passed by the Executing Court being the Learned Joint Civil Judge, Junior Division, Kolhapur 2 The facts in brief can be stated thus :­ The Respondent was the tenant of the Petitoner in respect of a shop admeasuring 20x10 sq.ft. in Kolhapur. On the Petitioner requesting the Respondent to vacate the said shop so as to construct a new building, the Respondent acceded to the said request and vacated the said shop and 2 wp-10015.2011.sxw permitted the construction being put up on the site in question. The construction of the said new building was completed and in the said building on the ground floor four shops were constructed. On the refusal of the Petitioner herein to hand over the possession of one of the shops in spite of repeated requests made by the Respondent, the Respondent was constrained to file a suit being Regular Civil Suit No.849 of 1979 for a decree that a shop admeasuring 20x10 sq.ft. in the newly constructed building be handed over to him. It is required to be noted that the parties led evidence and ultimately the trial Court decreed the said suit in the following terms :­ “The suit of the plaintiff is decreed. 2.The defendant is hereby directed to allot a shop to the plaintiff in the newly constructed building in the capacity of tenant. 3.Parties to bear their own costs.” The said decree was challenged by the Petitioner by filing Regular Civil Appeal No.355 of 1982, in the District Court, Kolhapur which Appeal came to be dismissed by the District Court. Thereafter a Petition being Writ Petition No. 780 of 1984 came to be filed by the Petitioner which Writ Petition was admitted by this Court and ultimately came to be dismissed on 19/4/1997 thereby the decree in question came to be confirmed. 3 The Respondent thereafter applied for execution of the said decree by filing Regular Darkhast No.301 of 2004. The subject matter of the said 3 wp-10015.2011.sxw Regular Darkhast was handing over the possession of the shop admeasuring 20x10 sq.ft. which finds a mention in the cause clause of the said Regular Darkhast. In the said Darkhast the Respondent applied for possession warrant under Order XXI Rule 35 of the Code of Civil Procedure, and the Respondent mentioned that the shop admeasuring 11x8 sq.ft. in the newly constructed building should be the subject matter of the said possession warrant. The said application of the Respondent was considered by the Executing Court and by the order dated 28/1/2011 passed below Exhibit­1 the Executing Court directed to issue possession warrant in the said terms. The bailiff went to execute the possession warrant, however, in view of the fact that when the actual possession warrant was issued there was a discrepancy, as the area of the shop mentioned was 20X10 sq.ft., the possession warrant could not be executed. This resulted in the bailiff submitting his report wherein he mentioned that no such premises are available in the building in question. This resulted in the Respondent once again filing an application Exhibit­88 for re­ issuance of possession warrant making it clear that the possession warrant should be in respect of the shop admeasuring 10x8 sq.ft. wherein a laundry by name Shree Krishna Laundry was being run by the Respondent. The Petitioner filed an Application being Exhibit 82 under Section 47 of the Code of Civil Procedure filed by the Petitioner objecting to the executability of the said decree on the ground that the shop premises of the description mentioned in the suit were not at the site and therefore the decree was unexecutable. 4 wp-10015.2011.sxw 4 Prior to the said Application under Section 47, it is required to be noted that the Petitioner herein had filed an application in the said Regular Darkhast No.301 of 2004 for framing of an issue as regards the legality and validity of the decree on the ground that the decree suffers from suppression of facts by the Plaintiff inasmuch as the Plaintiff did not disclose the acquisition of the property by the Kolhapur Municipal Corporation for widening of the road in which road widening the shop of the Plaintiff was demolished. The issue came to be framed by the Executing Court as regards legality and validity of the decree. However, on the application of the Respondent for setting aside the said issue that the Executing Court cannot go behind and beyond the decree, the said application came to be allowed and the issue in question came to be deleted by order dated 22/1/2007 passed by the Executing Court. Thereafter another application was filed by the Petitioner on the same lines as the earlier application. The said Application was Exhibit 45 and was based on the same set of facts viz. suppression of facts by the plaintiff. The said Application also came to be rejected by the Executing Court by order dated 7/2/2008. The aforesaid orders have not been challenged by the Petitioner. The papers in respect of the aforesaid applications were tendered by way of a compilation by the learned counsel for the Respondent in the course of the hearing of the above Petition. The aforesaid facts are being narrated to demonstrate the conduct of the Judgment Debtor who has a decree against him passed as long back as 5 wp-10015.2011.sxw in the year 1982. The said facts are also a pointer to the fact that attempt is being made at every stage to stall the execution of the decree and the Decree Holder from enjoying its fruits. 5 After the decree being confirmed right up to this Court and in the teeth of the Applications filed by the Judgment Debtor as mentioned above being rejected by the Executing Court, a new device was innovated by the judgment debtor to stall the execution of the decree, which as indicated above was by filing an application Exhibit 82 under Section 47 of the Code of Civil Procedure, the reasons for the same are not far to seek. The Judgment Debtor also filed an Application Exhibit 89 for framing of appropriate issues in the said Application Exhibit 82. 6 The Executing Court considered the said Application Exhibit­88 filed by the Decree Holder under Order 21 Rule 35 of the Code of Civil Procedure and by the impugned order dated 16.9.2011 has allowed the same. The Executing Court directed the issuance of possession warrant in the following terms :­ “1 Application is allowed. 2 Issue possession warrant under Order XXI rule 35 of Code of Civil Procedure. 3 The bailiff is directed to hand over the possession to D.H. of a shop admeasuring 11x8’ named as “Shrikrishna Laundry situated at C.T.S.No.2453 , B Ward, Mangalwar Peth, Kolhapur.” 6 wp-10015.2011.sxw The Executing Court by adverting to the scope of the application under Section 47 of the Code of Civil Procedure has thereafter taken into consideration the background of the litigation and the attempts made by the judgment debtor to stall the execution of the decree from time to time and has accordingly found it fit to issue the possession warrant. The Application Exhibit 82 under Section 47 of the Code of Civil Procedure has been rejected in view of the order passed on the Application Exhibit­88 filed by the Respondent, the Application Exhibit 89 therefore did not survive. 7 The Executing Court has dealt with the contention of the Judgment Debtor that the decree in question is unexecutable as there is no shop premises admeasuring 20x10 sq.ft. in the newly constructed building and in view of the ambiguity, the same is unexecutable. The Executing Court has observed that when the decree was passed it was not clear as to the exact dimension of the shops that would be constructed in the new building and in the said context the trial Court had decreed the suit to the extent of directing the Defendants therein i.e. the Judgment Debtors to hand over the possession of a new shop in the newly constructed building. The Executing Court also observed that the order directing possession warrant being issued in respect of the shop admeasuring 11x8 sq.ft wherein Shree Krishna Laundry is in existence has been passed as long back as on 28/1/2011 which order has not been taken exception to by the Petitioner. The conduct of the Petitioner has been adversely 7 wp-10015.2011.sxw commented upon by the Executing Court. 8 The learned counsel for the Petitioner would contend that in view of the ambiguous decree, the Petitioner herein would have to suffer. In my view, such a submission cannot be countenanced in the writ jurisdiction of this Court and that too in the background of the conspectus of facts as narrated herein above. A decree which has been confirmed up to this Court cannot be allowed to be stalled in this manner. It was for the Judgment Debtor in all fairness to hand over one of the shop premises which he has constructed out of the four shops admeasuring 11x8 sq.ft. to the Respondent in terms of the decree. However for obvious reasons this has not been done. In that view of the matter no case for interference in the writ jurisdiction of this court is made out. The above Writ Petition is accordingly dismissed. In the facts and circumstances of the case, this Court deems it appropriate to impose costs of Rs.10,000/­ on the Petitioner. The costs to be paid by the Petitioner to the Respondent within a period of four weeks from date. If the costs are not paid, the Collector, Kolhapur is directed to adopt appropriate proceedings under Maharashtra Land Revenue Code for recovery of the said Costs. [R.M.SAVANT, J]