Mohan vs Matadin

U.C. Maheshwari, J.—Heard on the question of admission. The applicant/defendant/judgment-debtor has filed this Revision u/s 115 of CPC against the order dated 10.7.2012 passed in Misc. Civil Appeal No. 27/12 by the Additional District Judge, Amarpatan, District Satna dismissing his appeal as not maintainable, filed against the order dated 16.1.2012 passed by the Civil Judge class-I, Amarpatan in Misc. Civil Case No. 22/11, whereby allowing the application of the respondent filed under Order 21 Rule 32 r/w Section 151 of CPC on account of violation of ex-parte decree of perpetual injunction passed in COS No. 58-A/04 the applicant has been directed to send Civil Jail for one month.

It is noted that earlier to instant revision the aforesaid order of the appellate court dated 10.7.2012 was challenged by the petitioner before this Court under Article 227 of Constitution of India by way of W.P. No. 12265/12 but on consideration by affirming the order of the appellate Court holding the Misc. Appeal is not entertainable, such W.P. was dismissed. However, liberty was extended to the petitioner to approach the appropriate forum with appropriate proceeding permissible under the law against the order dated 16.1.2012 passed by Civil Judge, Class-I in Misc. Civil Case No. 22/11 and it appears that the applicant has preferred this revision under such liberty. But it is apparent from the cause title of the revision memo that instead to challenge the order dated 16.1.2012 the applicant has again challenge the aforesaid order dated 10.7.2012 passed by the Additional District Judge, Amarpatan in Misc. Appeal No. 27/12 while such order has already been upheld in the aforesaid earlier writ petition because the same was passed in appeal holding that the appeal is not entertainable by the district Court. So firstly, on this count only this revision petition deserves to be dismissed. Inspite the aforesaid, I have heard the applicant's counsel at length.

Keeping in view the arguments of the applicant's counsel, I have carefully gone through the papers placed on record along with the impugned order of the appellate court.

It is apparent fact on record that with respect of the disputed property the respondent herein has filed the COS No. 58-A/04, against the applicant and inspite service of notice when he did not appear in the court then same was proceeded ex-parte and ultimately such suit was decreed ex-parte for declaration and perpetual injunction vide dated 3.4.2006 by the trial Court. It also appears from the record that by such ex-parte judgment the document on which the applicant is claiming the title over the disputed property has been declared to be ab-initio void. Subsequent to such ex-parte decree the applicant herein filed an application under Order 9 Rule 13 of CPC before the trial Court for setting aside the aforesaid ex-parte decree but on consideration vide order dated 25.8.2010 such application was dismissed by the trial court.

I am apprised by the applicant's counsel that against such order dated 25.8.2010 the applicant has filed Misc. Appeal filed, the same is still pending before the appellate Court. I am also informed that till today no application for grant of stay against the impugned ex-parte judgment and decree has been filed in such appeal before the appellate Court.

It is also apparent from the record that subsequent to passing the aforesaid ex-parte decree when the applicant has stared some construction work over the disputed land contrary to such decree of perpetual injunction then on the strength of such decree the respondent has filed the impugned application under Order 21 Rule 32 r/w Section 151 of CPC with a prayer to send the applicant to Civil Jail to comply the terms of the decree of perpetual injunction and on consideration the executing court by allowing such application vide order dated 16.1.2012 had directed to send the applicant to civil jail for one month to comply the decree of perpetual injunction. Subsequently such order of the executing Court was challenged by the applicant before the ADJ by way of aforesaid M.A. No. 27/12, on consideration such appeal was dismissed as not maintainable. On filing the writ petition, on consideration by affirming such order of the District Court writ petition was also dismissed by extending a liberty to the applicant to approach the appropriate forum with appropriate proceeding permissible under the law against the aforesaid order of Executing Court dated 16.1.2012. It is also apparent from the record that subsequent to aforesaid order of the writ petition the petitioner did not approach to the appellate Court in his pending M.A. filed against dismissal of his application of Order 9 Rule 13 of CPC by the trial Court with an application for grant of stay against ex-parte decree of perpetual injunction and has come again to this court with this revision u/s 115 of CPC.

Although the petitioner counsel argued that impliedly the instant revision has been filed against the order of Execution Court dated 16.1.2012 also. So, the same is maintainable before this court or in any case in the available circumstances till disposal of Misc. Appeal filed by the petitioner against dismissal of his application of Order 9 Rule 13 of CPC the Executing Court could not have passed the impugned order to send him in civil jail. But I am of the considered view that the law is well settled on the question that the Execution Court or its revisional authority could not go behind the decree and such Court is bound to execute the decree or comply the terms of decree as stated by the trial Court in original decree unless the operation and execution of such decree is stay in appropriate proceeding by the trial court itself or the appellate Court or revisional Court and it is undisputed fact in the matter that such ex-parte decree of perpetual injunction passed in favour of the respondent has not been stayed by the appellate Court in the aforesaid appeal filed by the applicant against dismissal of his application of Order 9 Rule 13 of CPC. So, in such premises the petitioner has only remedy to approach with the stay application to the appellate Court in the aforesaid MA arising out of the proceeding of Order 9 Rule 13 of CPC and subject to order of such Court on the stay application, on arising the occasion he may approach to this Court or on allowing such appeal and setting aside the impugned ex-parte decree the impugned order could be recalled by the executing Court or the same will come to an end automatically.

In the aforesaid premises, if in compliance of terms of the impugned ex-parte decree, in the lack of any stay against the same the execution court has passed the order dated 16.1.2012 to send the applicant to civil jail then in view of the principle that execution Court can not go behind the decree has not committed any error in passing the order dated 16.1.2012. Consequently, I am of the considered view that the impugned order of the execution Court dated 16.1.2012 could not be interfered either u/s 115 of CPC or in any case under Article 227 of the Constitution of India. Hence the revision being devoid of any merits deserves to be and is hereby dismissed at the stage of motion hearing.

Pursuant to it, the interim order passed earlier staying the operation of the impugned order of the execution court has also come to an end. However, it is observed that the findings or observation made by this court in the present order, or in the order passed in the aforesaid writ petition shall not come in the way of the applicant to approach the appellate Court with the stay application in the aforesaid Misc. Appeal arising out of proceeding of Order 9 Rule 13 of CPC for grant of stay against the ex-parte decree and pursuant to it, the appellate Court is also directed that on filing such application the same shall be considered on its own merits without influencing from any observation or finding given by the appellant court in earlier order passed in Misc. Appeal No. 27/12, or by this court in the present order or order passed in aforesaid W.P.

The appellate Court shall comply the aforesaid direction only if such application has not been filed by the petitioner and considered the same on merits by such court on earlier occasion and if such application has already been entertained and decided on earlier occasion then in that circumstances the applicant shall be at liberty to challenge such interlocutory order of dismissing the stay application by the appellant court before the appropriate forum with appropriate proceedings permissible under the law. There shall be no order as to costs. C. C. as per rules.