RAM NARAYAN BANSAL Vs. KEDAR NATH MITTAL

JUDGEMENT

(1.) THE Petitioner has preferred this revision against the order dated 17 -3 -1999, passed by the trial Court where by the application under Order 6 Rule 17 Code of Civil Procedure filed by the Plaintiff/Respondent has been allowed. The facts leading to filing this revision petition are that the non -Petitioner/Plaintiff Kedarnath Mittal filed the suit for eviction against the Defendant/applicant being Civil Suit No. 34A/75, before the Second Civil Judge, Class -II Gwalior, this was decreed on 20 -3 -1980 and the exparte judgment and decree was passed in favour of the Plaintiff. The Plaintiff filed an execution before the Executing Court on 3 -4 -1980. The Defendant also moved an application under Order 41 Rule 5 Code of Civil Procedure read with Section 151, dated 25 -3 -1980, submitting therein that he is filing an appeal against the said judgment and decree before the court of District Judge and one month's time may be given to him and till then the execution -proceedings may be ordered to be stayed. Copies of these applications were supplied from both the sides to each other. The case was fixed for hearing on 7 -4 -1980. On 7 -4 -1980, reply to the application for execution was filed by Defendant and the case was fixed on 22 -4 -80. On 22 -4 -1980, the arguments were heard on the application under order 41 Rule 5 Code of Civil Procedure and the same was rejected. The eviction warrants were directed to be issued and the case was fixed for the report on 28 -4 -1980. In the meanwhile, it is stated that on 24 -4 -80, another application under Order 41 Rule 5 Code of Civil Procedure was filed praying for stay of eviction -warrants so issued. The application was considered and eviction warrants were stayed till 2 -5 -80. On 2 -5 -1980 when the matter came up for heariing, the application under Order 9 Rule 3 Code of Civil Procedure was filed and the case was adjourned thereafter to 3 -5 -80. It was on 3 -5 -1980 that again warrants of eviction were directed to be issued and the case was directed to be listed for the report on 25 -6 -1980.

(2.) IT was pointed out that against the exparte judgment and decree passed by the trial Court dated 20 -3 -1980, the Defendant preferred an appeal bearing Civil Appeal No. 18A/1980 before the District Judge, Gwalior, and in the aforesaid appeal, on the application preferred by the Defendant for staying the execution proceedings, the learned District Judge passed an order and stayed the execution proceedings, before' the Executing Court and thus on the date, i.e. 3 -5 -80 the matter was again taken up, later on at 5 -10 p.m. and the order passed by the learned District Court regarding stay was presented before the Executing Court. Consequently, the proceedings were stayed by the Executing Court in pursuant to the said directions. It was contended that the appeal preferred by the Defendant against the judgment and decree dated 20 -3 -1980 was allowed by the learned District Judge vide impugned judgment dated 25 -2 -1981 and the matter was remanded back to the trial Court while setting aside the judgment and decree to decide afresh, after giving opportunity to the Defendant to lead necessary evidence. The learned trial Court thereafter by the impugned judgment and decree dated 17 -5 -1991 decided the matter afresh after going through the entire material, oral and documentary evidence on record and decreed the suit in favour of the Plaintiff. Against that the Defendant preferred an appeal before the first appellate Court bearing Civil Appeal No. 5A/91 which too was dismissed and the judgment and decree passed by the trial Court was confirmed, vide judgment and decree dated 9 -1 -1998.

(3.) IT is noted that the execution proceedings remained pending for quite a long time and it was on 20 -1 -1998 that the judgment -debtor filed an application under Order 41 Rule 5 Code of Civil Procedure read with Section 151 before the Executing Court with the prayer that he may be allowed one month's time to approach this Court for filing a second appeal against the impugned judgment and decree dated 9 -1 -1998, passed by the first appellate Court and till then the proceedings for execution may be stayed. This prayer was opposed by the otherside and ultimately the application was rejected. However, the second appeal 107/98 was filed before this Court on 23 -2 -1998 with an application for stay (I.A. No. 1575/98). The matter came up before this Court on 9 -3 -98 and on that date the order regarding status -quo was passed after hearing the counsel repesenting the Appellant -Defendant. The Defendant -Appellant accordingly filed the stay order dated 9 -3 -1998 of this Court before the Executing Court on 11 -3 -1998. This second appeal was also dimissed by this Court on 24 -11 -1998. Since the execution was pending, an application was moved on 16 -12 -1998 by the decree -holder for early hearing and some documents were also filed, this was allowed and the notices were directed to be issued against the Defendant with copy of the said application. On 22 -2 -1998, the notices were received back unserved, hence fresh process -fee was directed to be paid and fresh notices were directed to be issued against the Defendant. Thereafter, the case remained pending on one count or the other for the reply etc. It was on 17 -3 -1999 that the decree -holder/Plaintiff filed an application under Order 6 Rule 17 Code of Civil Procedure for the amendment in the issuance of decree. It was stated that the main decree was passed by the trial Court on 20 -3 -1980 and thereafter the matter went in appeal before the District Court vis -a -vis the first Appellant. The learned District Court allowed the appeal of the Defendant and set aside the judgment and decree passed by the trial court dated 20 -3 -80 and the case was remanded back. The matter was reexamined by the trial Court and the decision was taken, then the matter again went in appeal before the first appellate court and there from to this Court in Second Appeal, which was dismissed on 24 -11 -1998. It was contended that during these period, there were many changes made from time to time in this matter and thus the decree may be amended in view of the above situation. This application was opposed by the otherside. The learned trial Court after considering the application allowed the amendment by the impugned order dated 17 -3 -1999 against which this revision has arisen. Learned Counsel for the applicant submits that the trial Court has committed illegality in passing the impugned order whereby the application for amendment was allowed. Counsel for the Respondent, on the otherhand, supported the order and contended that there is no error at all committed by the court -below. A perusal of the record of the court -below shows that the execution was filed on 3 -4 -1980 before the Executing Court and the stay order passed by the first appellate court, i.e. the District Court was presented on 3 -5 -1980 consequent thereto the execution proceedings were syayed and it remained stayed since then. This is again on 11 -3 -1998 that the judgment -debtor filed an order of stay of this Court dated 9 -3 -1998 passed in Second Appeal No. 107/98, decided on 24 -11 -98. The execution remained pending and the decree could not be executed. From the narration of the facts it prima facie appears that the proceedings were dragged for a long time on one count or the other and the Defendant obstructed delivery of possession. The Hon'ble Apex Court in such circumstances, in the case of M/s Marshall Sons & Co. (I) Ltd. v. Sahl Oretrans (P) Ltd and Anr., reported in : AIR 1999 SC 882, where the decree for eviction infavour of the Appellant not executed for some or the other reason and the Respondent obstructed delivery of possession of property, held that for protecting interest of judment -creditor the Respondent is liable to pay mesne profits/compensation at the rate of 16/ -per sq. ft. from 1984 till today and at the rate of Rs. 20/ - from today till disposal of suit.