Auduth Timblo vs Sita Shripad Narvekar

A. P. Lavande, J.—By both these petitions under Article 227 of the Constitution of India, the petitioner challenges the common order dated 30th August, 2010 passed by the IIIrd Additional Civil Judge, Senior Division, Margao in Special Execution Application no.18/2002/III and Special Execution Application No.23/2002/III. Briefly, the facts leading to filing of these

petitions are as under :

The respondents herein filed the above execution applications to execute the consent decree dated 20th April, 2000. In terms of the consent decree, the petitioner was to make certain payment to the decree holders. According to decree holders, payments were not made by the petitioner/ judgment debtor and as such, the above execution applications were filed by the decree holders. The petitioner initially contended that he was not the judgment debtor which objection was negatived by the executing Court against which the petitioner filed Writ Petition Nos.629 and 630 of 2003, which were disposed of by the learned Single Judge of this Court by order dated 15th January, 2004 holding that the petitioner was raising dishonest contentions and that he was the judgment debtor. Thereafter, in the execution applications, on behalf of the decree holders, the evidence of five witnesses was led. The judgment debtor stepped in the box on 17th March, 2007 and his evidence concluded on 14th January, 2010. On 4th March, 2010, the judgment debtor filed two separate applications in the execution applications seeking to amend the reply/ objection dated 31st January, 2003 filed by him on the ground that by the proposed amendments, he wanted to bring on record certain subsequent events. The applications were opposed by the decree holders and by common order dated 30th August, 2010, the executing Court dismissed both these applications on the ground that there was unexplained delay on the part of the judgment debtor and also on the ground that the proposed amendments would change the nature of the execution applications and would cause prejudice to the decree holders as the decree holders have closed their evidence.

Mr. Coelho Pereira, learned Senior Counsel by the executing Court for rejecting the applications for amendments are patently unsustainable in law. He further urged that the proposed amendments are necessitated on account of subsequent events and, therefore, the executing Court has clearly erred in dismissing the applications on the grounds stated in the impugned order. According to learned Counsel, the proposed amendments would not change the nature of the execution applications as held by the executing Court nor would cause prejudice to the decree holders. According to Mr. Pereira, without prejudice to rights and contentions of the petitioner, the petitioner is entitled to adjust the amount of Rs.1,28,94,100/- against the amount due to the decree holders in the event it is held that the decree holders are liable to pay the amounts in terms of the consent decree dated 20th April, 2000. Mr. Pereira further submitted that mere delay in filing the applications would not be fatal to the applications for amendments. Learned Counsel further submitted that if the impugned order is not set aside, serious prejudice would be caused to the petitioner and he would be deprived of a valuable right to lead evidence in support of his objections to the execution applications filed by the decree holders. In support of his submissions, Mr. Pereira, relied upon the following judgments :

(i) North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (D) by Lrs., .

(ii) Rajesh Kumar Aggarwal and Others Vs. K.K. Modi and Others, .

Per contra, Mr. Nadkarni, learned Counsel appearing for respondent nos.1, 8 to 12 in Writ Petition No.745/2010 submitted that the reasons given by the executing Court for rejecting the amendment applications, cannot be faulted. According to Mr. Nadkarni, serious prejudice would be caused to the decree holders if the proposed amendments are allowed in as much as the decree holders have closed their evidence long back and the judgment debtor who entered the box on 17th March, 2007 chose not to file an application till his evidence was concluded on 14th January, 2010 and as such, the executing Court cannot be faulted in rejecting the amendment applications. Mr. Nadkarni further submitted that the applications for amendments are nothing but an attempt to delay the execution applications and to deprive the decree holders of the legitimate amounts due in terms of the consent decree. He further submitted that the ratio of the judgments relied upon by Mr. Pereira, is not applicable and as such, the said judgments do not advance the case of the petitioner. According to learned Counsel, the objections taken in the proposed amendments were very much available to the petitioner even when he was being examined and as such, the delay in filing the applications has been rightly held against the petitioner. Learned Counsel further submitted that serious prejudice would be caused to the respondents/ decree holders in the event the proposed amendments are allowed in as much as they have closed their evidence and even the judgment debtor has examined himself in support of his objections.

Mr. Sonak, learned Counsel appearing for the respondents in Writ Petition Nos.746/2010 adopted the arguments advanced by Mr. Nadkarni and submitted that the petitioner had even contended that he was not the judgment debtor, which contention was negatived by the executing Court and upheld by this Court in Writ Petition Nos.629 and 630 of 2003 in which this Court has held that the petitioner was raising dishonest contentions when the execution proceedings have started. According to Mr. Sonak, Advocate notice dated 28th February, 2002 upon which reliance has been placed in the application for amendment does not advance the case of the petitioner.

I have carefully considered the rival submissions and perused the record.

The executing Court has disallowed the applications for amendments primarily on the ground that if they are allowed, the same would change the nature of the execution applications and would cause prejudice to the decree holders as the decree holders have closed their evidence.

As stated above, the objections/ replies to the execution applications were filed by the judgment debtor in January, 2003. Thereafter, the evidence of decree holders was completed and the judgment debtor stepped in the box and his evidence was recorded from March, 2007 till 14th January, 2010. In this factual background, the finding given by the executing Court that serious prejudice would be caused to the decree holders in the event the proposed amendments are allowed cannot be faulted.

In the case of Rajeshkumar Agrawal (supra) relied upon by Mr. Coelho Pereira, the Apex Court dealing with the power of the Court to allow the amendment in terms of Order VI, Rule 17 of C.P.C. has held that the real controversy test is the basic or cardinal test. The Apex Court has further held that the Court should also take notice of subsequent events in order to shorten the litigation. These observations have been made by the Apex Court in the backdrop of the application for amendment filed by the plaintiffs seeking additional relief of reinvestment of trust property to their benefit in a pending suit.

In the case of North Eastern Railway Administration, Gorakhpur (supra) relied upon by Mr. Coelho Pereira, the Apex Court held that all amendments must be allowed subject to satisfying two conditions - namely (a) of not working injustice to other side and (b) of being necessary for the purpose of determining the real question of controversy between the parties.

In the present case, admittedly, the decree holders have closed their evidence and the evidence of the petitioner is also over. This being the position, in my considered opinion, the finding of the executing Court that serious prejudice would be caused to the decree holders if the proposed amendments are allowed, cannot be faulted. Moreover, the judgment debtor chose to file applications for amendments after his evidence was over. According to the judgment debtor himself, the cause of action for filing the applications arose in the year 2008 as such, there is unexplained delay on the part of the judgment debtor to file applications seeking amendments. In my considered opinion, these are not fit cases in which this Court should exercise super visionary jurisdiction under Article 227 of the Constitution of India.

In the recent decision in the case of Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, , the Apex Court has held that jurisdiction under Article 227 is discretionary and must be exercised on equitable principles and in exercise of power of superintendence, the High Court cannot interfere to correct mere error of law or the fact. The Apex Court has further held that the High Court can interfere when there are patent jurisdictional errors in the orders of Tribunals and Courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted.

Having regard to the principles laid down in the aforesaid case, I am of the considered opinion that in the present cases, no interference is warranted in exercise of jurisdiction under Article 227 of the Constitution of India. Hence, the petitions are dismissed. The petitions stand disposed of accordingly. No order as to costs.