Gopalan Vijayan vs Raveendran and Another

L. Manoharan, J.—Revision petitioner is the assignee of the decree holder. First respondent is the judgment debtor and second respondent is the decree holder. Decree holder instituted a suit for recovery of shop rooms with arrears of rent. The suit was decreed. An E.P. was filed and it was posted for hearing to 1-11-1975 and for delivery to 3-11-1975. According to the revision petitioner without filing objection to the E.P. in response to the notice 1st respondent preferred A.S. No. 289 of 1975 against the decree and obtained interim stay of execution. The laid appeal was dismissed on 15-3-1976 giving two months'' time to surrender the shop rooms. But the 1st respondent did not surrender the rooms within the said time. The E.P. stood posted to 4-9-1976. Second respondent produced copy of the decree in A.S. No. 289 of 1975. The E.P. was adjourned for stay report to 4-12-1976. Second respondent filed a petition on 6-10-1976 for advancing the posting of the E.P. contending that the stay is no longer inforce. Copy of the petition was directed to be served on the first respondent. The posting of the E.P. was advanced to 18-10-1976 for objection, if any, and for delivery to 19-10-1976. Since on 18-10-1976 the first respondent judgment debtor did not appear, delivery was ordered on 19-10-1976 and accordingly delivery was effected on 19-10-1976. First respondent thereupon filed E.A. No. 828 of 1976 for redelivery and other reliefs wherein he impleaded the revision petitioner, the assignee of the 1st respondent as additional decree holder. He questioned the delivery on the ground that the posting of E.P. was, advanced without notice to him; that the delivery was taken behind his back, and that the movables and valuables were removed on account which he sustained loss and injury.

Trial court dismissed the said petition. First respondent preferred C.R.P. No. 3016 of 1982 against the order dismissing the B.A. for redelivery. This court by order dated 3-10-1988 set aside the order of the lower court and remitted the matter for fresh disposal. Thereafter, the execution court passed the impugned order whereby the execution court directed redelivery of the decree schedule shop rooms to the first respondent by way of restitution without prejudice to the right of the decree holder to obtain delivery of the decree schedule building "in the presence of the judgment debtor through this court". It was also directed in the said order that the question regarding the realisation of the arrears of rent and other connected matters would be considered later. This order is under challenge.

Learned counsel for the revision petitioner contended that in as much as the decree has not either been varied or reversed the first respondent is not entitled to restitution and that the reversal of the order directing delivery cannot confer any right of restitution. Reliance was made by the learned counsel on the decision in Madhavan v. Basheer Ahamad (1989 (2) KLT 240). It was also contended'' that so long as the first respondent has no case that he is not liable under the decree, he is not entitled to the restitution. On the other hand, learned counsel for the first respondent contended that the order reversing the order of delivery will attract Section 144 C.P.C. and that even assuming that Section 144 of C.P.C. may not apply, in the circumstance restitution could be allowed by Invoking the inherent power u/s 151 C.P.C.

One of the important aspects 16 be noted is that the E.P. which stood posted to 4-12-1976 for report of stay was advanced as per an order on the petition filed by the second respondent of which no notice was given to the first respondent. On advancing the E.P. the same was posted to 18-10-1976 for objection, and for delivery to 19-10-1976. Since no objection was filed delivery was ordered on 19-10-1976. It was contended by the learned counsel for the 1st respondent as delivery was ordered on advancing the posting without notice to him that by itself is a ground for vacating the order of delivery, and it was further contended that upon such vacating the order of delivery it is only incidental and consequential that redelivery should follow. While E.P. was pending for objection of the 1st respondent, execution was stayed and thereafter the E.P. was posted for stay report. It was then that the posting was advanced without notice to the 1st respondent. What then followed was delivery on a date which according to the 1st respondent was holiday for the shop. As noticed according to the 1st respondent since the delivery was stealthily effected apart from the fact that he lost opportunity to file objection, he suffered loss as textiles, movables and valuables kept in the shop were removed.

In Madhavan''s case (1989 (2) KLT 240) it was observed that the words ''or an order'' in Section 144 of C.P.C. would take colour from the word ''decree'' in the Section and therefore the order which is varied or reversed must be an executable order. The correctness of the decision was questioned by the learned counsel for the first respondent. Alternatively it was contended by the learned counsel on the basis of the decision in Garuda Singh Majhi Vs. Dhana Bai and Others, that even if re-delivery cannot be ordered u/s 144, the same can be ordered invoking the inherent power u/s 151 C.P.C.

The contention of the learned counsel for 1st respondent that the order setting aside the order of delivery would enable exercise of the jurisdiction u/s 144 C.P.C. gains force in view of the mention of or an order'' in Section 144. It was also his contention that "an order" mentioned in Section 144 does not admit of a restricted meaning of executable order as is stated in Madhavar''s case (1989 (2) KLT 240), he relied on the decision in Smt Dayawati v. Champa Ram and another (AIR 2977 NOC 117 (All) - Page 51). But in the circumstance of the case since the 1st respondent''s prayer for re-delivery has to be allowed invoking the power u/s 151 C.P.C., it is not necessary to finally express on the said question. Madhavan''s case 1989 (2) KLT 240) did not consider the question whether re-delivery could be allowed invoking inherent power u/s 151 C.P.C. where re-delivery is not possible u/s 144 C.P.C. That was not a case where delivery was effected after advancing the posting of the E.P. without notice to the judgment debtor. The question since relates to execution, discharge and satisfaction of the decree certainly falls u/s 47 of C.P.C. As is observed in. Garuda Singh Majhi Vs. Dhana Bai and Others, inherent power of the court can be exercised where a party is injured by the act of Court. The maxim ''actus curie neminem gravabit'' applies in such circumstance. As has already noticed, the advancing of the posting of the E.P. since was without notice to the 1st respondent, he could not be imputed with notice of the posting of the E.P. for his objection or delivery. As a matter of fact this court in the order in C.R.P. No. 3016 of 1982 - C observed : "Since it was passed without notice to the petitioner, is one passed in violation of the principles of natural justice and for that reason alone the same is liable to be set aside". This court also noticed that delivery was effected without notice to the petitioner. He was denied the opportunity to be heard. Since the posting date was advanced without notice and delivery was ordered, and since the said order caused injury to the 1st respondent, he is entitled to re-delivery, and in the circumstance the court is justified in the interest of justice to invoke the inherent power u/s 151 C.P.C. for ordering re-delivery. In that view the order under challenge is only to be confirmed.

In the result, the revision fails and the same is dismissed. There will be no order as to costs.