M.T. Lingaiah vs Madivalara R. Janaki

S. Sujatha, J.—Heard the learned counsel for the petitioner.

This petition is filed against the order passed on I.A. 14 in Execution No. 32/12 on the file of the Principal Civil Judge & JMFC, Madikeri.

The facts in brief are that:

- O.S. 138/2001 filed by Madivalara R. Janaki was decreed against the petitioner and a judgment and decree was passed for vacant possession of an area of 0-18 acres in Sy. No. 183/6 situated in Kiggalu Village of Madikeri Taluk, Kodagu District. The execution petition No. 32/12 was filed by the respondent as GPA Holder of the decree holder. During the course of proceedings, the Executing Court had directed delivery of suit property and the Court Nazar had reported that without identification of the property, delivery warrant cannot be executed. The Executing Court considering this, directed execution with the help of the Surveyor and the order has reached finality before this Court.

The judgment debtor again filed I.A. No. 7 seeking to direct the Court authority, that while executing the delivery warrant, to identify where the petition schedule property is situated, this application was contested by the decree holder. The Trial Court after hearing the parties, rejected the application filed by the judgment debtor. However, it has observed that looking to the facts and circumstances of the case, the Process Nazaar is directed to take the assistance of the qualified surveyor and furnish the survey report with sketch and measurement of the petition schedule property before the Court. Being aggrieved by the said order passed on I.A. No. 7 dated 5.1.2015, respondent who is the son of the decree holder filed a review petition in I.A. No. 14 seeking for review of the said order. The trial Court after considering the arguments advanced by both the parties, allowed this I.A. No. 14 filed by the respondent herein. Being aggrieved by the same, the petitioner is before this Court.

Learned counsel appearing for the petitioner contended that though the respondent is the GPA holder of the decree holder and the said I.A. No. 14 was filed by the respondent in the capacity of a GPA Holder of the decree holder, the decree holder having expired on 27.12.2014, an application filed on 14.1.2015 accompanying with the affidavit of the respondent stating that he is the GPA Holder of the decree holder is totally against the facts of the case and is a false affidavit sworn by the respondent contrary to the actual facts i.e., suppressing the death of the decree holder on 27.12.2014. It is also contended that on the death of the power of attorney holder, the power of attorney executed by the power of attorney holder comes to an end and as such the respondent had no locus standi to file the application seeking for review of the order passed by the trial Court on 5.1.2015. Further, it is contended by the learned counsel that the trial Court in conformity with the order passed by this Court in W.P. No. 18800/14 dated 11.11.2014, rejected I.A.7 filed by the judgment debtor for the identification of the property, directed that the Process Nazar shall take the assistance of a qualified surveyor and furnish the survey report with sketch and measurement of the petition schedule property before the executing court. The executing court merely on the application filed by the son of the decree holder/respondent herein without any valid reasons, reviewed the order dated 5.1.2015. There was no mistake apparent on the face of the record to seek the review of the order dated 5.1.2015. Reviewing the order would be allowing an appeal in disguise i.e. re-opening of the entire matter which was not called for more particularly, in view of the earlier order passed by the Executing Court on 9.4.2014 and having confirmed by this Court in W.P. No. 18800/2014. Reviewing of the order would result in nullifying the judgment of this Court in W.P. No. 18800/14. Accordingly, seeks for setting-aside the order passed on I.A. 14.

On the other hand, learned counsel appearing for the respondents contended that the petitioner is in the habit of filing series of petitions before this Court to obstruct the execution of the decree. Nearly four writ petitions are filed by the petitioner after the decree is granted by the trial Court being confirmed by this Court in Regular Second Appeal. It is contended that the success in the suit after obtaining the decree would be meaningful only if the fruits of the decree are enjoyed by the decree holder. The judgment debtor interfering with the execution proceedings by filing repeated applications to obstruct the execution proceedings thus prolonging the proceedings, would ultimately result in miscarriage of justice causing delay in enjoying the fruits of the decree by the decree holder. In support of this contention, learned counsel places reliance on the Judgment of the Apex Court reported in Satyawati Vs. Rajinder Singh and Another, wherein the Apex Court has held that:

"In the present system, when preliminary decree for partition is passed, there is no guarantee that the plaintiff will see the fruits of the decree. The proverbial observation

By the Privy Council is that the difficulties of a litigant begin when he obtains a decree. It is necessary to remember that success in a suit means nothing to a party unless he gets the relief. Therefore, to be really meaningful and efficient, the scheme of the Code should enable a party not only to get a decree quickly, but also to get the relief quickly. This requires a conceptual change regarding civil litigation, so that the emphasis is not only on disposal of suits, but also on securing relief to the litigant".

It is further argued that in the earlier proceedings in Writ Petition No. 297/2014, the very same arguments were advanced by the learned counsel appearing for the judgment debtor - petitioner herein, i.e., the respondent being the son of the decree holder and the general power of attorney holder had no right to contest the matter before the executing court. This Court has categorically held that the decree holder has gifted the decreetal property in favour of her son who is the power of attorney holder and is already on record. Substituting him being only a formality, is entitled to continue in the execution proceedings. Such being the case, the petitioner again raising the very same arguments, already considered by this Court would be an abuse of Court misusing the public time, with an intention to cause hardship and harassment to the decree holder. It is also further contended that the order passed by the executing court on 9.4.2014 was only to assist the Process Nazar by the Surveyor to ensure that the warrant is executed as per the decree which has been elaborately considered by this Court in W.P. No. 18800/14 and being confirmed, there was no occasion for the petitioner to file another application seeking for identification of the decreetal property. In such circumstances, the executing court not noticing the veracity of the orders passed by the executing court on 9.4.2014 and the same being confirmed by this Court, though rejected the application, directed the Process Nazar to take the assistance of the qualified Surveyor and to furnish the survey report with sketch and measurement of the petition schedule property which amounts to redoing the survey process, contrary to the Judgment of this Court, re-opening the entire issue. In such circumstances, the respondent was constrained to file an application - I.A. No. 14 seeking for review of the order dated 5.1.2015, considering the facts and circumstances of the case, the trial Court rightly allowed the said applications reviewing the order dated 5.1.2015 which cannot be found fault with. Accordingly, seeks for dismissal of the writ petition.

After hearing rival submissions of the learned counsel appearing for the parties and perusing the records, it is noticed that the petitioner has approached this Court in W.P. No. 18800/14 challenging the order passed by the Executing Court dated 9.4.2014 wherein the Executing Court has directed the Process Nazar to take the assistance of the Surveyor to execute the warrant as per the decree. This Court having held that "the executing court being of the opinion that identification of the property has already been made, was further of the opinion that the assistance of the Surveyor would be necessary only to see that warrant is executed and the property is delivered to the decree holder". Having held so, it is further observed that "the executing court has concluded for issue of fresh delivery warrant by taking assistance of Surveyor only to ensure that warrant is executed as per the decree is unexceptionable". In the light of the Judgment passed by this Court, there was no necessity for the judgment debtor again to move an application - I.A. No. 7 seeking for identification of the property. The same being rightly rejected, further directing to take the assistance of the qualified Surveyor and furnish the survey report with sketch would be re-opening the settled issue which is not permissible. As such, on the review application filed by the decree holder, the executing court has examined the issue extensively and has held that there is no necessity of ordering for resurvey as the executing court has to execute the decree only and not go beyond the decree. The said order impugned herein is in the realm of scope of review as contemplated under the provisions of the Code of Civil Procedure and cannot be found fault with more particularly, when the order dated 5.1.2015 is in utter disregard to the order passed by this Court in W.P. No. 18800/2014. The conduct of the petitioner in filing I.A. No. 7 seeking for identification of the decreetal property by the surveyor, depicts the intention of the petitioner, to delay the execution proceedings. The decree-holder has to be allowed to enjoy the fruits of the decree as per the Apex Court Judgment of Satyawati (supra).

In the circumstances, no exception can be found with the order passed by the executing court. Accordingly, writ petition stands rejected. It is needless to say that the order passed by this Court in W.P. 18800/2014 dated 11.11.2014 remains intact.