Om Parkash vs Amar Singh .

2. The appellant­Om Parkash is the decree holder aggrieved by the order of the High court holding that the delivery of the suit Digitally signed by property to him in the execution proceedings by use of police SANJAY KUMAR Date: 2019.10.21 16:30:45 IST Reason: force, was vitiated in law as no orders had been obtained from 1 the Court for such police assistance. Judgment debtor Amar Singh has been directed to be put back in possession through the bailiff. The execution proceedings closed on 11.10.2013 after delivery of possession, has been revived. The entitlement to possession has been left to be decided afresh in the revived execution proceedings. The parties shall hereinafter be referred to as decree holder and judgment debtor respectively for convenience.

4. Learned counsel for the decree holder Shri Gagan Gupta submitted that the High Court has erred in holding that the decree holder had resorted to unlawful and illegal methods for execution of the decree for possession. The decree holder had never made any request for deployment of police force for execution. The Tehsildar himself being apprehensive of law and order problems during delivery of possession to the decree holder, had suo moto sought police assistance from the District 2 Magistrate and in pursuance of which the Commissioner of Police had directed the deployment. The Deputy Commissioner had instructed the Tehsildar to send compliance report to the court directly. In consequence, possession was delivered on 11.10.2013. The executing court accepted the report regarding delivery of possession and closed the execution proceedings. The decree holder had purchased the suit lands in a court auction sale dated 27.03.1990. Sale certificate was issued in his favour on 27.04.1998 and registration completed on 30.04.1998. After a protracted battle at the instance of the judgment debtor Amar Singh, delivery of possession had been effected. The decree holder has remained in possession by virtue of the order of status quo passed by this court on 05.02.2014.

7. The judgment debtor claimed to be a purchaser of the suit property by a sale deed dated 13.02.1973. His writ petition challenging the acquisition proceedings under Section 4 of the 4 Land Acquisition Act, 1894 dated 10.12.1973, after publication of the award, was dismissed on 10.04.1989. The acquired lands became the subject of recovery proceedings with regard to a claim for compensation by another whose lands were also acquired but compensation was not paid. The decree holder was the successful bidder in a court auction held on 27.03.1990. The auction sale was confirmed on 17.03.1997, sale certificate was issued in his favour and the sale deed registered on 30.04.1998. The decree holder then applied for delivery of possession in an execution proceeding dated 19.09.1998. At this stage, judgment debtor filed Civil Suit No.236 of 1998 seeking permanent injunction against dispossession from the suit lands. Objections were also filed by judgment debtor under Order 21, Rules 97 & 99 of the Code of Civil Procedure (hereinafter called “the CPC”) in the execution proceedings instituted by the decree holder. On 20.10.1999, the execution proceedings were dismissed as being barred by time with liberty to file a substantive civil suit for possession. The decree holder then filed a fresh suit for possession on 11.01.2000. The judgment debtor had filed a Miscellaneous Application in the execution proceedings to restrain his dispossession from the suit lands. The decree holder 5 had preferred Civil Revision No. 4348 of 2006 against the same before the High Court which culminated in a Civil Appeal No. 1637 of 2011 before this Court by judgment debtor. On 14.02.2011, the Civil Appeal was disposed of granting status quo till disposal of the proceedings pending before the High Court. A contempt petition has also been filed arising from the same. In view of the fact that the proceedings before the High Court had itself been disposed of, in our opinion nothing survives in the contempt petition.

8. The Civil Suit filed by the decree holder for possession and the suit filed by the judgment debtor for injunction, were heard together. The suit by the decree holder was decreed and the suit by the judgment debtor was dismissed. The first appeal preferred by the judgment debtor was dismissed on 10.04.1989. Thereafter, he preferred a regular second appeal only in the year 2019 and which is stated to be pending before the High court.

10. At this stage, it may only be noticed that after dismissal of his writ petition on 10.04.1989 challenging the land acquisition proceedings, judgment debtor had filed an application under Order 7 Rule 11 CPC for rejection of the suit for possession filed by the decree holder. The application was rejected. Civil Revision No. 4522 of 2009 preferred by judgment debtor was also dismissed by the High Court holding that the lands had already vested in the State pursuant to acquisition and that judgment debtor had no subsisting right, title or interest in the suit lands. The order of status quo in Civil Appeal No.1637 of 2011 arose from the execution proceedings levied on 27.03.1990 by another claimant who had not been paid compensation for acquired lands and for which reason the suit lands were attached as ownership stood vested in the State by virtue of acquisition. Once the suit property was auction sold in the said execution proceedings and it came to an end, the order of status quo loses much of its significance. In any event the appellant instituted fresh execution proceedings on 26.05.2012. It will, thus, be seen that notwithstanding the decree in his favour, the decree holder has 7 since long been prevented and stalled by the judgment debtor from obtaining possession in execution proceedings.

11. Warrant for possession was issued on 13.03.2013, which could not be executed. Fresh warrants for possession were issued on 10.05.2013 which also could not be executed. Consequently, fresh warrants were again issued for 19.07.2013 which were followed by fresh warrants returnable on 27.08.2013. In the meantime, the Tehsildar on 09.05.2013 wrote to the District Magistrate requesting for police help as he apprehended trouble at the time of delivery of possession. There is no material to conclude that it was done at the behest of the decree holder. The delivery warrants issued on 27.08.2013 was made returnable on 05.10.2013. The authorities were nonetheless proceeding on basis of the earlier delivery warrants. The request for police help by the Tehsildar was then routed through the Sub­Divisional Magistrate, the District Magistrate, the Deputy Commissioner and the Commissioner of Police. Possession was delivered in presence of the police on 11.10.2013. The delivery of possession proceedings records that there had been some obstruction during the process which was also video graphed but ultimately in view of the police presence matters were pacified. The warrants 8 recording delivery of possession were returned back to the court leading to the closing of execution proceedings on 11.10.2013.

14. We, therefore, set aside that part of the order of the High Court by which possession has been directed to be redelivered to judgment debtor, and the execution proceedings have been revived for fresh delivery of possession to the decree holder. With that modification of the impugned order, the appeals and contempt petition stand disposed of.

(B.R. Gavai) New Delhi, October 21, 2019 11