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Judgment
1.This Execution First Appeal is preferred against the order passed by the IV Addl. City Civil and Sessions Judge, Bengaluru, in Ex. No.25203/2013
dated 16.8.2018 dismissing IA No.1/2013 filed by the Judgment Debtors (the appellants herein) u/s.47 read with Order XXI Rules 97, 99 and 101 of
CPC. The said order is challenged before this court on various grounds which I am going to discuss little later.
The brief factual matrix of the case is relevant to be referred before adverting to the grounds urged by the appellants before this court which are
virtually undisputed facts.
The respondents 1 to 4 as plaintiffs had filed a suit in OS No.16168/1999 against the appellants (as defendants) and others for ejectment and for
delivery of vacant possession of the suit schedule property to the plaintiffs. The appellants and others had contested the said suit by filing their written
statement. After framing issues and providing opportunity to the parties to lead evidence and after considering in detail the case of the parties, the trial
Court i.e., IV Addl. City Civil and Sessions Judge, Mayo Hall, Bengaluru decreed the suit vide judgment dated 7.12.2008. Being aggrieved by the
same, the appellants and others who are the defendants in the Original Suit had preferred an appeal before this court in RFA No.86/2009 and after
due contest, the said appeal came to be dismissed vide order dated 6.9.2011.
The appellants and others in fact being aggrieved by the judgment in RFA No.86/2009, had also preferred an SLP before the Hon'ble Apex Court in
SLP (Civil) No.2694/2012. The said SLP was also summarily dismissed by the Hon'ble Apex Court on 3.2.2012. The appellants and others have also
filed a suit in OS No.8669/2012 seeking for relief of declaration that the judgment and decree in OS No.16168/1999 is null and void and presently, the
said suit is pending before the City Civil Court.
In the mean time, after the disposal of the SLP, the respondents 1 to 4 have sued out execution against the appellants and others in
Ex.No.25023/2013. Being not satisfied with the above said and other proceedings, the appellants and others had also filed IA No.1/2013 u/s.47 read
with Order XXI Rules 97, 99 and 101 of CPC, in the said Execution Petition. The said application also came to be dismissed by the trial Court which is
impugned before this court.
The impugned order is challenged before this court mainly on three counts.
(1) The respondents have played fraud on the court at the first instance i.e., in OS No.16168/1999 in not producing the re-constitution deed of the
Partnership Firm of the plaintiffs which created great injustice and prejudice to the appellants, as the appellants had taken up specific plea that they
were not at all tenants under plaintiffs Nos.1 to 4 but and plaintiff No.5. Therefore, fraud has vitiated the entire proceedings including the original
judgment and decree and the subsequent decrees in favour of the respondent Nos.1 to 4.
(2) The trial Court has not given any opportunity to the appellants to lead evidence and mark various documents produced by them and thereby
violated the principles of natural justice and thereby the appellants have suffered great injustice, prejudice and inconvenience.
(3) The trial Court has not given any finding with regard to the claim of the appellants while disposing of the application which is vitiated by serious
procedural irregularities.
The learned counsel for the appellants, in support of the above said contentions, has seriously contended that the respondents have not produced the
re-constitution deed of Partnership Firm before the trial Court or anywhere. The appellants have taken up the plea that they are not the tenants under
plaintiff Nos.1 to 4 in the said suit and they are the tenants under the Partnership Firm i.e., plaintiff No.5. No decree has been passed in favour of the
Partnership Firm and the same has been passed in favour of the partners of the Firm only, which is illegal.
It is further contended that, originally the property belonged to one Deenadayalnaidu and the same was thrown to the hotchpot of the Partnership
Firm constituted by him including himself along with plaintiff Nos.1 to 4 as partners. The said Deenadayal Naidu died long back and after his death, it
is the case of the plaintiffs that, they have re-constituted the Partnership Firm, but they claim the property as the legal representatives of the
Deenadayal Naidu, but not as the property of Partnership Firm. These are all the materials available in the re-constitution deed itself which is later
ascertained by the appellants and thereafter, they filed the application before the executing court requesting the executing court to deal with the said
matter and to hold that the plaintiffs as partners had no right to recover possession of the property from the appellants who claim to be not the tenants
of the partners of the firm but they claim that they are the tenants under the Partnership Firm. Therefore, the trial Court has committed serious error
in this regard.
Secondly, he contended that atleast an opportunity should have been given to the appellants by leading evidence and by producing necessary
documents before the executing court so as to establish their claim. Under Section 47 of the Civil Procedure Code, the whole dispute between the
parties have to be decided in the Execution Petition itself, but that has not been done by the trial Court, which has caused great injustice to the
appellants. Therefore, he claims that the matter has to be remanded with a specific direction to the executing court to reconsider the said application
or else, this court itself can consider the said documents produced before the executing court which are also produced before this court by the
appellants. Therefore, the learned counsel for the appellants in support of the above said contentions prayed for allowing of the appeal.
Per contra, the learned counsel for the respondents 1 to 4 have submitted before this court that it is a chequered litigation taking place right from
filing of the suit in OS No.16168/1999. Since 1999, the appellants have been causing great inconvenience and injustice to the respondents in executing
the valid decree obtained by them, though the said decree had been logically concluded, matter having gone upto the Hon'ble Supreme Court. By one
way or the other by filing various applications before the Executing court and filing Miscellaneous applications, the appellants are stalling the execution
proceedings which is an un- healthy attitude of the appellants. The learned counsel submitted that they have in detail explained the various proceedings
taken place between the parties in their objection statement. Further, the various proceedings including the contempt proceedings initiated against the
appellants amply disclose their unscrupulous nature and their intention to stall the validly taken decree passed by the court in a legal manner. The valid
decree should not be frustrated for any reason. The appellants have also filed a suit before the court of law challenging the said decree and other
things, no interim order has been granted in the said suit. Therefore, they have been making hectic attempts to prevent the decree holders from
executing the decree by hook or crook. Such attitude requires to be kept in mind by the court. Therefore, they prayed for dismissal of the appeal.
Having heard the arguments of the learned counsel, the points that would arise for consideration of this court are:
(1) Whether the appellants have made out any reasonable or substantial ground to interfere with the order passed by the executing Court?
(2) Whether the attitude of the appellants is un-healthy and the same is to be treated with an appropriate order?
Though I have stated briefly the factual matrix of the case in the preamble, but it is just and necessary to go in detail with regard to the transaction
that has taken place between the parties throughout in order to consider the claim of both the parties and answer the grounds urged in this case and
the points formulated above.
It is seen from the records that the respondents 1 to 4 herein along with their mother filed a suit in OS No.16168/1999 for ejectment stating the
appellants and others are the tenants of the plaintiffs therein. The said suit was decreed on 17.11.2008. It is worth to mention, that in the said suit, in
their written statement, the defendants had taken up a contention that they were the tenants of the Partnership Firm i.e., the 5th plaintiff in the said suit
and they had also taken up various contentions stating that they were not liable to be evicted. However, they had admitted their possession as tenants
under the 5th defendant through Deena Enterprises for which the respondent Nos.1 to 4 are the partners of the said firm.
The trial Court in fact framed the relevant issue with reference to the relationship between the parties i.e., issue No.1 which reads thus:
“Issue No.1 â€" Whether the plaintiffs prove the relationship of landlord and tenants between plaintiffs 1 to 4 and the defendants and the heirs of
the deceased Sri M.G. Ramachandran in respect of the schedule premises?â€
In fact, both the parties had led evidence on this issue. Plaintiff examined one D. Venkatesh as PW-1 and defendant examined two witnesses as
DWs.1 & 2 Sri M.G. Rajan and R.Laxminarayan. Five documents had been marked on the side of the plaintiffs as Exhibits P-1 to P-5 and 39
documents were marked on the part of the defendants, as Exhibits D-1 to D-39, which are the rent receipts. After considering the oral and
documentary evidence, the court gave its finding on the above said issue, which is relevant for the purpose of this case in the ‘Affirmative’ and
held that there existed the relationship between the parties, as landlord and tenants.
Being aggrieved by the said judgment and decree, the appellants had preferred an appeal in RFA No.86/2009. In that case also, the appellants had
not pressed into service any other ground except the finding given on the second issue with regard to the valid termination of the tenancy of the
defendants by the plaintiffs. This court after considering the issues framed by the trial Court and the findings given therein confirmed the judgment and
decree passed by the trial Court. Therefore, it goes without saying that the relationship between the parties has been reaffirmed by the appellate court
also.
The appellants being not satisfied with the same, also preferred SLP in SLP (Civil) No.2694/2012 and the same was summarily dismissed refusing
to grant SLP vide order dated 3.2.2012. Therefore, it goes without saying that the relationship between the parties has logically concluded matters
having gone upto Hon'ble Supreme Court.
The appellants after having gone upto Supreme Court and failed, in order to stall the execution of the validly taken decree by the plaintiffs, have
also filled a suit in OS No.8669/2012 before the City Civil Judge, Bengaluru City, seeking the relief of declaration that, the judgment and decree passed
in OS No.16168/1999, as affirmed in RFA No.86/2009 as null and void and nonest in the eye of law. The said suit is pending. Therefore, the conduct
of the appellants clearly goes to show that one way or the other, they would like to stall the execution proceedings.
The respondents being fed up with this unscrupulous attitude of the appellants had filed contempt proceedings in CCC No.48/2013 before this
court wherein the petition was dismissed and the contempt court observed that â€
“We notice that the proceedings had its origin in the ejectment suit which is a civil matter. It is therefore, that we are very reluctant to exercise
contempt jurisdiction in all such matters, we reserve liberty to the complainant to not only to execute the decree unless there is any impediment for it
and as of now, we do not see any other reasons.â€
[“Making such observation, the Contempt Petition was dismissed. So the contempt court had an occasion to look into the proceedings between the
parties and came to the conclusion that the said decree is executable one and there was no legal impediment.â€]
(Emphasis supplied)
It is worth to mention here that the appellants had also filed IA No.4 in the Execution Petition under Section 151 of CPC seeking permission to
lead evidence on IA No.1/2013 by producing various documents which are virtually sought to be considered in this appeal also alleging that those
documents produced along with IA No.1/2013 have not been considered by the trial Court and no opportunity has been given to them.
In fact, after filing of objections to the said IA No.IV, the Executing Court dismissed the said IA No.IV vide order dated 25.11.2014. It is pertinent
to note here that the documents which are relied upon before this court have been produced before the Executing Court and the Executing Court at
the initial stages itself refused to permit the appellants to lead evidence and mark those documents. Being aggrieved by the order of the Executing
Court dated 25.11.2011 on IA No.IV, the appellants had also preferred Writ Petition No.56572/2014. The same was also dismissed on 2.2.2015 by
this court.
It is pertinent to note here that while disposing of the said Writ Petition, this court has observed that the appellants wanted to mark some
documents in the execution proceedings. It is also observed that, even though the Partnership Firm was re-constituted, the judgment debtors continued
to be as tenants and considering all those factors, the jural relationship has been decided by the court. It is also observed that the trial Court after
considering the matter in detail rightly rejected the application. The Writ Court also came to the conclusion that as the decree was confirmed in the
first appeal, as and the SLP was dismissed by the Hon'ble Apex Court, there is no reason for the appellants to file IA No.IV seeking direction to lead
evidence and to produce the documents. The court also observed that even tough the firm was re-constituted, the jural relationship of landlord and
tenant has been continued. Therefore, the Writ Court has dismissed the said application.
In view of the above said facts and circumstances of the case, in my view, the opinion already expressed by this court in writ proceedings cannot
be overturned by holding that the trial Court ought to have given opportunity to the appellants to produce those documents and to lead evidence and
also the executing court should have looked into those documents before passing the impugned order. Such contention taken up by the appellants’
counsel in my opinion, is not tenable before this court. Even the said Writ Petition order passed in Writ Petition No.56567/2014 dated 2.2.2015 was
also called in question before the Hon'ble Supreme Court in SLP No.11742/2015 and the said SLP was dismissed in limine on 9.7.2015.
Being not satisfied with the above said second round of litigation upto Hon'ble Supreme Court, the appellants have also filed a Misc. Petition
No.25170/2015 on 3.11.2015 before the same court i.e., the trial Court under Order IX Rules 13 & 14 of CPC seeking a declaration that the judgment
and decree in OS No.16168/1999 is null and void and the same is tainted with fraud. After filing of the said Misc. Petition, the respondents being
frustrated with the attitude of the appellants, have again filed one more contempt petition in CCC No.1468/2017(Civil). This court in the said contempt
petition has observed that, the trial Courts are handling the various litigation between the parties with respect to the subject matter of the dispute and
the court should expedite the disposal of all the proceedings and conclude the same within three months. Making such observation, the CCC came to
be dismissed, and thereafter, the MISC. No.25170/2015 was also dismissed by the trial Court on 18.7.2018. Again, being aggrieved by the said order
in MISC. No.25170/2015, an MFA was filed before this court in MFA No.6150/2018 and the same was also dismissed by this court on 14.8.2018.
Therefore, it is clear from the above said circumstance, that the appellants one way or the other want to dodge the execution proceedings and to
defeat the rights of the respondents if possible, by adopting delay tactics which has to be seriously rebuked and curbed.
Be that as it may, the documents which are relied upon by the appellants are the re-constitution deed and the original partnership deed entered into
between the parties. Of course, in the original partnership deed, which is entered into between V.P. Deenadayalu (deceased) and his wife and other
members of the family (plaintiffs 1 to 4) on 1.6.1994, the capital of the said Partnership Firm was the property bearing No.185, Brigade Road,
Bengaluru, and the same has been treated as capital of the firm. Therefore, it is clear that the said property belonged to the Partnership Firm which
includes the respondents 1 to 4 as its partners.
The learned counsel also relied upon the reconstituted partnership deed which is dated 29.1.1998 wherein the wife and children of Deenadayalu
Naidu are styled as partners of the said Partnership Firm. Therefore, the Partnership Firm continued and the property which was earlier treated as
capital of the Partnership Firm has been continued to be the property of the Partnership Firm.
Looking to the above said facts and circumstances of the case, even the re-constitution deed of Partnership Firm ensures to the benefit of the
partners of the firm. It goes without saying that there cannot be any Partnership Firm, without there being any partners and there cannot be any
partners without a Partnership Firm and they go together inseparably with each other. In OS No.16168/1999, it is seen that the 5th plaintiff is the
Partnership Firm and the plaintiffs 1 to 4 are the partners. Therefore, it was well within the knowledge of the appellants that the said Deenadayalu
Naidu died and thereafter, the plaintiffs 1 to 4 claimed themselves as partners of the 5th plaintiff Partnership Firm and also legal heirs of the deceased.
Therefore, it was well within the knowledge of the appellants that the said partnership deed was re-constituted and in spite of that, they did not make
any effort to call upon the plaintiffs to produce the document i.e. re-constitution deed before the court nor, they made any efforts during the pendency
of the suit or in the first appeal or before the Hon'ble Supreme Court. Therefore, though, they had opportunity to do that, they had not done for the
reasons best known to them. Now, they cannot turn back and say that because of the re-constitution deed, there is no relationship between them and
the re-constituted Partnership Firm. Further, it goes without saying that the Partnership Firm, when it is a party, the Partnership Firm itself cannot act
as a person having legal entity. It is the partners who have to act on behalf of the Partnership Firm. All the physical acts of a corporate body like
Partnership Firm require to be done by the partners only. Therefore, the decree granted in favour of the plaintiffs 1 to 4 which is deemed to be granted
in favour of the Firm can be executed by the partners of the firm for evicting the appellants.
In the above said backdrop, now, the court has to look into the decisions cited by the learned counsel for the appellants and see whether they are
helpful in any manner to them or not.
In a decision reported in AIR 1972 SC 1371 between Bhavan Vaja and Others Vs. Solanki Hanuji Khodaji Mansang and another, the Hon'ble
Supreme Court has observed that â€
“The Executing Court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that
decree. For construing a decree it can and in appropriate cases it ought to take into consideration the pleadings as well as the proceedings leading upto
the decree. In order to find out the meaning of the words employed in a decree, the court often has to ascertain the circumstances under which these
words came to be used. That is the plain duty of the executing court and if that court fails to discharge that duty it would be deemed to have failed to
exercise the jurisdiction vested in it.â€
But, in this particular case, in my opinion, the above said principle is not applicable for the simple reason that the court is expected to find out what
exactly the effect of the decree passed and how it should be executed. In this particular case, the executing Court has understood what the decree is
for. After the parties logically exhausted all the remedies available upto the Hon'ble Supreme Court the only remaining act is execution of the decree
by recovering possession from judgment debtors and handing over the same to the decree holders.
In another Ruling reported in AIR 1994 SC 853 in the case of S.P. Chengalvaraya Naidu (dead) by LRs. Vs. Jagannath (dead) by LRs. & Others,
the Hon'ble Apex Court has made an observation thus â€
“Proceeding in Court â€" Fraud by litigant â€" withholding of vital document relevant to litigation â€" It is fraud on Court â€" Guilty party is liable to
be thrown out at any stage â€" Litigant obtaining preliminary decree for partition of property â€" Not mentioning at trial as to his having executed
before filing of suit release deed in respect of property in favour of his employer â€" Decree is vitiated by fraud.â€
The fraud alleged in this particular case is non production of the re-constituted partition deed. But as I have already noticed that Deenadayalu
Naidu is no more on record as plaintiff. It is specifically stated in the plaint that after the death of Deenadayalu Naidu, the plaintiffs have continued the
said Partnership Firm as remaining partners. Therefore, it goes without saying that the Partnership Firm has been reconstituted and the plaintiffs have
continued as partners.
The parties have proceeded with such pleadings and understanding their respective cases. There is no specific averment in the written statement
that the plaintiffs are not partners of the said Partnership Firm and that they have no right to recover possession from the property. Therefore, the trial
Court considering the said aspect declared the jural relationship between the parties. Therefore, there is absolutely no fraud played by the plaintiffs in
this regard. Hence, the said contention of the appellants is not tenable before this court or before the executing Court and the above said ruling is also
not applicable to the facts and circumstances of this case.
In another ruling reported in AIR 1996 SC 1300, in the case of Addanki Narayanappa and another Vs. Bhaskara Krishnappa (dead) and
thereafter his heirs and Others, the Hon'ble Supreme Court has observed thus â€
“In a Partnership Firm, during the subsistence of the partnership, however, no partner can deal with any portion of the property as his own. Nor
can he assign his interest in a specific item of the partnership property to anyone. His right is to obtain such profits if any, as fall to his share from time
to time and upon the dissolution of the firm to a share in the assets of the firm which remain after satisfying the liabilities etc.,â€
The learned counsel for the appellants submits that the partners alone cannot recover possession of the property unless the Partnership Firm is
entrusted with that power. As I have already narrated, none of the individual partners have filed a suit for recovery of possession. It is including the
Partnership Firm, the suit has been filed and all the partners joining together constituted the Partnership Firm. Therefore, they have got right to recover
the possession as rightly observed by the trial Court. Hence, this decision is also not applicable to the appellants.
Therefore, under the above said circumstances, in my opinion, no opportunity need to be given once again to the appellants to re-drive the parties
to their original position as if they are before the original court in the original proceedings, when particularly, the jural relationship between the parties
has been completely decided and logically concluded by the Hon'ble Supreme Court.
It is virtually nothing but harassing the respondents by the appellants by filing such proceedings in various courts and also filing application after
application before the Executing Court. Such attitude has to curbed with iron hand by the courts.
In this context, it is worth to refer here to a decision of the Hon'ble Supreme Court reported in (2018) 12 SCC 750 in the case of Lekh Raj (Dead)
through LRs. & Others Vs. Ranjit Singh and Others, wherein the Hon'ble Apex Court has observed at paragraph 8 that Executing Court cannot go
behind the decree. At paragraph 25, the court has observed that the Executing Court cannot go behind the decree unless there is a lapse of jurisdiction
to the original court to grant a decree, but nowhere such defence has been taken by the defendants (appellants) before the courts below.
In the same ruling, the Hon'ble Apex Court has also observed at paragraph 8 that â€
“The suit land being in joint ownership of several parties so long as it was not partitioned amongst all the co-owners, the decree holders had no right
to claim any right in the suit land. That was the claim made by the judgment debtors before the Executing Court but the court has observed that if
once the decree is passed in favour of the rightful owners, it is none of the business of the judgment debtors to claim any right over the property when
they have no right, title, interest over the property.â€
Therefore, when once the decree is given in favour of the partners on behalf of the Partnership Firm, whether it is reconstituted or not, the tenants
cannot claim any relief as their stand that they are tenants under the Partnership Firm is not changed. They are stopped from contending anything
contrary to their stand already taken in the suit. Therefore, for the above said reasons, I do not find any strong reasons to interfere with the orders
passed by the executing Court though it has not in detail considered the above said aspects.
It is also relevant to consider under what circumstances, Section 47 of Code of Civil Procedure can be invoked by the parties in execution
proceedings. Section 47 says that â€
“All questions arising between the parties to the suit in which the decree was passed or their representatives relating to the execution, discharge or
satisfaction of decree has to be determined by the court executing the decree and not by a separate suit.â€
Therefore, the powers of the court u/s.47 of CPC are quite different and much narrower than its powers of appeal, revision or review. The executing
court cannot sit as an appellate court, revisional court or a review court to re-consider the entire case of the parties.
Therefore, the exercise of the powers u/s.47 of the CPC is microscopic and lies in a very narrow inspection hole.
Thus, it is plain that the Executing Court cannot allow objection u/s.47 of CPC to the executability of the decree, unless the court finds that the decree
itself is void ab initio and null, and it cannot be executed at all.
Therefore, under Section 47, the executing court can embark upon a dispute between the parties with regard to discharge, execution or satisfaction of
the decree, but cannot with regard to a dispute which had already been raised earlier in the suit or in the appeal or prior to the execution proceedings
or when the parties had opportunity to raise the same, but they did not.
It is a general impression prevailing amongst the litigant public that the difficulties of a litigant are by no means over on his getting a decree for
immovable property in his favour. Indeed, all difficulties in reality and practical sense, arise only after getting the decree and executing the same.
Presumably, to tackle such a situation and to ally the apprehension in the minds of litigant public that it takes years and years for the decree holder to
enjoy fruits of the decree, the legislature made drastic amendments under the provisions in the aforementioned Rules and Section particularly, the
provision in Rule 101 of CPC, which has to be very carefully and sensibly examined by the courts while dealing with Sections 47 or under Order XXI
Rules 97 to 101 of CPC.
If a judgment debtor who might and ought to have raised a defence at an appropriate stage, has failed to do so, in my opinion, he should be
precluded from urging it, at any stage of proceedings. Therefore, the court should not interfere with a valid decree obtained by a particular person and
he should normally be allowed to enjoy the fruits of the decree unless the court finds, it is a rare circumstance where the court can come to the
conclusion that the decree itself is void ab initio and it is not executable
Before concluding, it is just and necessary to say here that the rights which are culminated by means of the adjudication by the courts of law,
always be respected and the rights which are concluded by the proceedings upto Hon'ble Supreme Court. Particularly the judgment debtors with all
promptness and honour to the judgments of the courts should have vacated and handed over the premises to the respondents, irrespective of their
claim made in any other proceedings or in the suit property. A person who is bound by the decree if he obstructs the decree holder from taking the
fruits of the decree unnecessarily, such person should be handled with iron hand. The courts of law are meant for imparting justice between the
parties. I am constrained to say that more often, the processes of the courts are being abused and the persons who are interested in continuing in
possession of the property and unscrupulous persons would find ways and means under the procedural laws to conveniently abuse the court process to
retain the illegal gains indefinitely. Therefore, such attitude should not be encouraged by the courts. Therefore, in my opinion, in this particular case
having failed in all the stages as noted above, the appellants still want to abuse the process of law and court, if possible to defeat the rights of the
appellants or atleast to drag on the proceedings as far as possible. This attitude in my opinion calls for saddling the appellants with heavy costs.
Therefore, while dismissing the appeal, I am of the opinion that heavy costs have to be imposed on the appellants. Hence, I do not find any reasons to
interfere with the orders passed by the trial Court. Hence, the following:
ORDER
The appeal is dismissed with cost of Rs.10,000/-(Ten thousand) only, on each of the appellants and they have to pay the costs to the respondents
before the Executing Court itself; otherwise the said amount also becomes recoverable in the same execution proceedings as if it is a decree granted
in their favour for recovery of the said amount.