Shri Denis Lopes and Another vs Fabrico of Church of the Church of St. Andrews

S.C. Dharmadhikari, J.—The petitioners are aggrieved by rejection of their application by the Executing Court for stay of the proceedings. The prayer in the application filed on 17/11/2007 reads thus:

(a) Pending the Mundkarial issue of the Judgment Debtor before the competent authority i.e. Mamlatdar''s Court, the execution proceedings be stayed to meet ends of justice.

The respondent/decree holder has instituted Regular Civil Suit No. 14/1984. He has decree in his favour which is delivered on 27/1/2000. The premises are an immovable property and, therefore, necessary application for enforcement and execution of the decree was filed by the decree holder.

The present petitioners are the judgment debtors and it is their grievance that the application for stay made by them to the Executing Court for staying the execution proceedings is based upon the status that they are claiming in respect of the suit premises. It is their claim that they are mundkars in respect of the suit premises and their application for declaration, as such, is pending before the Mamlatdar of Mormugao Taluka.

Thus, the subject application for stay of the execution proceedings was filed highlighting this aspect. The decree holder was given an opportunity to contest the same. The Executing Court heard both sides and by the impugned order dismissed the application of the present petitioners with costs quantified at Rs. 1,000/

The observation of the Executing Court is that this is the third application of its kind. It is hopelessly barred by principles of res judicata. The petitioners are trying to reopen the decree by such methods which is impermissible, is the conclusion. The Executing Court has concluded that the attempt is to re-agitate same point which is nothing but an abuse of the process of the law. They are trying to delay the enforcement and execution of a decree for possession of immovable property.

The only contention raised before me by the learned Counsel appearing for the petitioners is that the application for declaration for mundkar moved by the petitioners/judgment debtors before the Joint Mamlatdar, Mormugao is still not disposed of. The respondent/decree holder does not dispute this fact. However, the apprehension of the decree holder is that the petitioners, if given any further chance or opportunity, would delay and defeat the decree of possession and ultimately frustrate it. Such an approach by an unsuccessful litigant cannot be approved by this Court, more so, when its present jurisdiction is invoked on equitable and discretionary grounds.

There is some substance in this apprehension of the decree holder. The petitioners cannot be allowed to indefinitely postpone the execution and enforcement of the subject decree. After hearing both sides at some length, I am of the view that interest of justice would be subserved if the execution is allowed to proceed, but the petitioners/judgment debtors are protected for sometime. In other words, they would not be physically dispossessed, till such time, as their application before the Joint Mamlatdar, Mormugao is pending.

The other apprehension has also some force in as much as the petitioners are taking advantage of pendency of that application pending before the Joint Mamlatdar, Mormugao. In such circumstances, interest of justice would be further served by directing Joint Mamlatdar, Mormugao to dispose of the pending proceedings as expeditiously as possible and within a period of three months from the date of production of a copy of this order. For a period of three months from today, the petitioners shall not be evicted and dispossessed. However, if they do not prosecute their Appeal before the Joint Mamlatdar for any reason, or the said Appeal is disposed of against them, it will be open for the decree holder, to enforce and execute the decree in accordance with law. Needless to state that if the law permits dispossessing the present petitioners by using such force as provided therein, then the Executing Court to render that assistance to the decree holder. This order is passed after the learned Advocate appearing for the petitioners states that they are in possession of the suit premises and that they have not inducted anybody therein nor they have parted possession by creating any interest therein, in any manner. For a period of three months from today, they are being protected and, therefore, they shall not alienate, encumber, part with possession or create third party rights in favour of anybody in respect of the suit premises. The petition disposed of in the above terms. Needless to state that if the petitioners do not abide by this order/direction then in addition to enforcement and executing the decree in accordance with law, the respondent/decree holder can initiate proceedings for breach and violation of this Court''s order and directions issued as above.