OM PRAKASH NAVANI Vs. HERBERT JOSEPH PEREIRA

JUDGEMENT

(1.) THIS Notice is issued under Order XXI, rule 22 of the Code of Civil Procedure, 1908 in respect of Execution Application No. 5 of 1994 taken out by the defendants in Suit No. 1538 of 1983. The property in question is known as 'joyden' which is a trust property, comprising of land and building situated at Apollo Reclamation Estate at Bombay Port Trust. Ms. Mary Pereira (settler) and the trustees entered into an Agreement for Sale dated 30/10/1981 in respect of this property with the plaintiffs Mr. Omprakash Navani (hereinafter referred to as 'navanis') for consideration of Rs. 16,00,000/-, as trustees of rishi Gagan Trust. At the time of execution of this Agreement, deposit of rs. 2,00,000/- was made with the vendors Advocates. Later on, Suit for specific performance being Suit No. 1538 of 1983 was filed by Navanis for specific performance of Agreement dated 30/10/1981. That Suit was disposed of on 18/10/1984 on the basis of Consent Terms filed by the parties. As per the Consent Terms, it was agreed that the balance sum of Rs. 14,00,000/- was payable by the plaintiffs under the said Agreement for Sale dated 30/10/1981. Out of which amount, rs. 1,00,000/- was to be paid to M/s Husseini Doctor and Company towards legal fees payable by defendants 2 to 5 to them in respect of and relating to the Agreement for Sale and matter connected therewith. Further, the plaintiffs shall pay sum of Rs. 3,25,000/- to each of the defendants 2 to 5 as per the terms stated in the Consent Terms. As per clause 15 of the Consent Terms, the plaintiffs were obliged to pay the balance price of Rs. 14,00,000/- in the manner mentioned in Clause 6 of the Consent terms, and interest thereon as mentioned in Clause 16 of the Consent terms on or before the expiry of 15 months from the date of passing of the decree. Time for payment was made essence of that Agreement. In other words, 15 months period for payment of balance amount was to expire on 18/01/1986. It is not necessary to burden this Judgment with other details, for the same would not be relevant for deciding the issue that arises for my consideration. in this proceeding. Since according to the defendants, the plaintiffs failed to comply with the obligation of payment of balance sum of Rs. 14,00,000/-, as per the terms of the Agreement, the consequence as per Clause 23 of the Consent Terms was that the earnest money of Rs. 2,00,000/- and interest accrued thereon was to stand forfeited and the Consent Decree passed in accordance with the consent Terms was to stand automatically cancelled and the Power of attorney issued in favour of the plaintiffs to stand revoked and the Suit to stand dismissed with no order as to costs. Clause 23 of the Consent terms further provided that the plaintiffs who were put in possession of the property on execution of the Consent Terms, undertook to this Hon'ble court to redeliver the possession of the said immovable property to defendants 2 to 5. According to the defendants, since the plaintiffs committed default, the Consent Decree stood cancelled, and that, the Power of attorney was also revoked in due course of time. The defendants contend that as per Clause 23 of the Consent Terms, the plaintiffs were obliged to redeliver possession of the immovable property to the defendants 2 to 5 and since that was not done, the defendants filed Execution Application under Order XXI, Rule 11 (2) of the Code fo Civil Procedure, 1908 on 10/11/1993, which was later on numbered as Execution Application No. 5 of 1994. In Clause J of this Application, the defendants have prayed for execution by issuing warrant of possession under Order XXI, rule 35 and 36 of Code of Civil Procedure. ,in respect of the immovable property as detailed in the Schedule. As this Execution Application was filed after expiry of two years from the date of the decree. Notice under order XXI, Rule 22 of the Code of Civil Procedure was taken out being notice No. 38 of 1994 on 14/01/1994. That Notice was duly served on the plaintiffs. However, the said Notice came to be dismissed on llth september, 1995. From the order-sheet, as produced along with affidavit filed by the plaintiffs, it appears that defendants and their advocates were absent and the Court passed the following order : "notice dismissed with no order as to costs". In other words, this Notice was dismissed for default for non-appearance of the defendants and their advocates. Later on, the defendants took out fresh Notice under Order XXI, Rule 22 of the Code of Civil procedure, which is the present Notice numbered as Notice No. 824 of 2002, sometime on 10th July, 2002. This Notice has been duly served on the plaintiffs. In response to this Notice, plaintiffs have filed reply affidavit before this Court, essentially contending that the second Notice was not maintainable and that, in any case, the Execution Application itself cannot proceed against the plaintiffs for the reasons stated in the reply affidavit. Amongst others, it is contended that the Execution Application is barred by limitation, the same has not been filed by the authorised persons and the Advocates who have filed the said Application had no valid authority and the relevant Power of Attorney has not been pro- duced. It is also urged that there is no order for possession passed by this Court, and therefore, the Consent Decree as passed, was in executable against the plaintiffs. It is contended that in Clause 23, the plaintiffs gave undertaking to redeliver the possession and that cannot be said to be an order. It is further contended that assuming that undertaking given by the plaintiffs is in the nature of order of injunction against the plaintiffs, recourse to procedure under Order XXI, Rule 35 and 36, as invoked by the defendants, was impermissible in law. On the above contentions, the notice as well as the Execution Application as taken out by the defendants, has been resisted by the plaintiffs.

(2.) ON the other hand, according to the defendants, Execution Application is filed within limitation and by proper persons. It is contended that even if there is any technical flaw in the Execution Application or the notice taken out by the defendants, the executing Court shall allow the defendants to remedy the defects and permit the defendants to pursue the Execution Application filed on record. In support of this contention, f reliance has been placed on the decision in M/s T. A. Darbar and Com-pany v. Union Bank of India, T. A. Darbar and Co. v. Union Bank, S. K. Sahgal vs. Kishore Khanna, and V. Uthirapathi v. Ashrab Ali, Besides, defendants contend that there is no express provision w,hich would prohibit taking out second Notice under Order XXI, Rule 22 such as the provision for instituting Suit in the nature of Order IX, Rule ?. It is therefore contended that the present Notice which is a step in execution proceedings, is valid and permissible in law. Besides, it is contended that dismissal of earlier Notice was on the ground of the default as is evident from the proceedings recorded by this Court on llth September, 1995 and in such a case, there would be no question of non-suiting the defendants by invoking the principles of res-judicata and principles analogous to res-judicata. Reliance is placed on the decision of the Apex Court in s. P. Shah v. B. N. Singh and the decision of the Division Bench of this court in Lakshmibai v. Ravji. 6

(3.) LEARNED Counsel for the defendants further contends that assuming that there is no order of Court directing the plaintiffs to redeliver possession, but undertaking given by the plaintiffs to the Court as recorded in Clause 23 of the Consent Terms, that is in the nature of order of injunction and even order of injunction can be put in execution in terms of section 36 read with provisions of Order XXI of the Code. In the circumstances, learned Counsel for the defendants contends that the Notice as well as the Execution Application are appropriate, and the Notice be made absolute and the objections taken on behalf of the plaintiffs be rejected.