Maya Devi (D) By Lrs vs Raj Kumari Batra (D) By Lrs. & Ors

1. This appeal by special leave arises out of an order passed by a Division Bench of the High Court of Punjab and Haryana whereby Letters Patent Appeal No.167 of 1989 filed 2 by the appellants has been dismissed with costs. The facts giving rise to the present appeal have been set out at length in the order impugned in this appeal hence call for no repetition except to the extent the same is absolutely necessary. What is striking about the case is that a decree passed in favour of the respondent as far back as on 25th October, 1976 remains to be executed even after the lapse of 34 years during which period the decree holder as also the judgment debtor have both passed away leaving behind the legacy of litigation to the next generation. The chequered history of a bitter fight which has brought the parties to this Court for the second time amply demonstrates that the real troubles of a plaintiff start only after he obtains a decree, thanks to the long winding legal procedure and the ingenuity of the lawyers who often exploit the same to the benefit of one party at the cost of the other.

2. A suit filed by Late Raj Kumari the plaintiff for recovery of a sum of Rs.60,000/- was decreed in her favour with costs by the Trial Court on 25th October, 1976 against Hans 3 Raj, defendant now deceased. In execution of the said decree SCF No.9, Sector 27-D, Chandigarh was attached and finally sold in a public auction on 17th April, 1978, for a sum of Rs.82,000/- in favour of the decree holder who was permitted by the Executing Court to participate in the auction. The judgment debtor filed his objections challenging the legality of the auction, but while the same were pending consideration, the parties put in a written compromise on 16th June, 1979 which, inter alia, provided that the decree holder would deposit a sum of Rs.35,000/- for payment to the judgment debtor, whereupon the latter shall handover to the decree holder the vacant possession of the property aforementioned that stood attached. The Executing Court recorded the statement of the parties in support of the compromise and adjourned the matter for passing final orders. But before any such order could be made the judgment debtor filed an application with a prayer for setting aside the compromise on the ground that the same was void ab-initio and had been brought about by fraud. Another 4 application filed by him prayed for setting aside of the sale for non-compliance with the provisions of Order XXI Rules 72 and 84 of the C.P.C. The decree holder also moved an application for passing final orders in terms of the compromise stating that he had deposited the bank drafts for a total sum of Rs.35,000/- as the judgment debtor had refused to accept the said amount.

3. The Executing Court finally made an order on 30th August 1979 whereby it confirmed the sale in favour of the decree holder in accordance with the compromise between the parties. Aggrieved, the judgment debtor filed FAO No.502 of 1979 before the High Court of Punjab and Haryana. The appeal failed and the contention urged before the High Court that the compromise entered into between the parties was vitiated by fraud was repelled. The High Court further held that the sale in favour of the decree holder was not in violation of the provisions of Order XXI, Rules 84 and 85 of CPC. A Letters Patent Appeal filed against the order passed by the learned Single Judge also 5 failed and was dismissed on 18th November, 1981. A Special Leave Petition against the said two orders was dismissed by this Court in limine on 5th January, 1982 thereby bringing finality to the question of legality of the sale of the property in favour of the decree holder on the basis of the compromise/adjustment arrived at between the parties.

5. The delivery of possession was for the third time resisted by the judgment debtor on the ground that there was no decree for possession. The Executing Court dealt with these objections in its order dated 5th October, 1987 and noted that the issues raised by the judgment debtor had already been decided against him by the earlier orders of the Executing Court dated 30th August, 1979 and 25th September, 1984 which orders had attained finality. It also held that application dated 22nd January, 1985 under Order XXI Rule 97 CPC having been filed by the decree holder within the stipulated period of 30 days from the date of resistance to the delivery of possession was maintainable. The above order was assailed by the judgment debtor in 7 Execution First Appeal which was dismissed by a learned Single Judge of the High Court on 26th September, 1988. A Letters Patent Appeal preferred against the said order also failed and was dismissed on 5th October, 2001. The present appeal assails the correctness of the said order as noticed earlier.

15. What then are the safeguards against an arbitrary exercise of power? The first and the most effective check against any such exercise is the well recognized legal principle that orders can be made only after due and proper application of mind. Application of mind brings 2 reasonableness not only to the exercise of power but to the ultimate conclusion also. Application of mind in turn is best demonstrated by disclosure of the mind. And disclosure is best demonstrated by recording reasons in support of the order or conclusion.

16. Recording of reasons in cases where the order is subject to further appeal is very important from yet another angle. An appellate Court or the authority ought to have the advantage of examining the reasons that prevailed with the Court or the authority making the order. Conversely, absence of reasons in an appealable order deprives the appellate Court or the authority of that advantage and casts an onerous responsibility upon it to examine and determine the question on its own. An appellate Court or authority may in a given case decline to undertake any such exercise and remit the matter back to the lower Court or authority for a fresh and reasoned order. That, however, is not an inflexible rule, for an appellate Court may notwithstanding the absence of reasons in support of the order under appeal 2 before it examine the matter on merits and finally decide the same at the appellate stage. Whether or not the appellate Court should remit the matter is discretionary with the appellate Court and would largely depend upon the nature of the dispute, the nature and the extent of evidence that may have to be appreciated, the complexity of the issues that arise for determination and whether remand is going to result in avoidable prolongation of the litigation between the parties. Remands are usually avoided if the appellate Court is of the view that it will prolong the litigation.

18. In the result this appeal fails and dismissed but in the circumstances without any order as to costs.