SHYAM SHANKAR SAHAI Vs. HARI SHANKAR SAHAI

JUDGEMENT

(1.) THE order dated 11.10.1999 passed by Sub Judge I, Bhagalpur in Title Execution Case No. 1/1983 has been challenged in this revision petition. By the said order the petitioner -judgment debt or has been asked to pay the opposite party degree holder a sum of Rs. 11,827.72 price and also another sum of Rs. 14,91,774.89 price to wards encumbrance allegedly created by the petitioner over the cinema hall.

(2.) THE above -mentioned execution case has been filed on the basis of the degree dated 15.10.1982 passed in Title Suit no. 84 of 1975. The dispute amongst the family members over the properties had culminated in to the above -mentioned suit where in arbitrator was appointed and the degree was passed on the basis of the arbitration award and a subsequent award dated 24.8.1979. As per that subsequent award the cinema hall in the name and style of 'Picture Palace ' situated at Bhagalpur came under the proprietorship of the degree holder opposite party and it was awarded that the on going cinema hall shall be taken over possession by the opposite party degree holder from the judgment be to petitioner without any obstruction or hindrance and if such obstruction is created then the degree -older shall be entitled to recover from the petitioner as a compensation to the tune of Rs. 1,000/ - per day till the possession of the cinema hall. The degree was drawn up in terms of the award in the above -mentioned suit on 16.11.1982 and against that degree Misc. Appeal No. 294 of 1982 was preferred by the petitioner before this Court which was dismissed on 17.8.1985. Against that appellate order the petitioner went to Apex Court in Civil Appeal no. 3806 of 1986 but the award was confirmed by the Apex Court also only with an alteration to the effect that the payment of compensation at the rate of Rs. 1,000/ - per day be converted to Rs. 50,000/ - per year with effect from 1.1.1983. For the delay in implementation of the award, there was also direction by the Apex Court for delivery of possession of the cinema hall to the opposite party within four weeks free from all encumbrances. As the execution case was already filed, the same was notified as per the alteration made in the award by the Apex Court. It appears that after such modification was made in the degree then on on initiation from the side of the opposite party for determination of the liabilities of the cinema hall an advocate commissioner was appointed. The cinema hall during the pendency of the suit was under the receivership of the petitioner. On the basis of the writ issued the advocate commissioner submitted his report on 2.6.1987 mentioning the existing liability on the cinema hall to the tune of Rs. 14,91,774.89 price. The report was accepted by the original court on 6.6.1987 as there was no objection from the side of the petitioner. It does not appear that any objection was called for from the side of the petitioner rather within four days of submission of the commissioner 's report, the same was accepted by the original court. When the cinema hall could not be taken into possession by the opposite party, he moved before the Hon'ble Supreme Court again and by order dated 9.8.1996 the District Judge, Bhagalpur, was asked to deliver the possession of the cinema hall to the opposite party forth with so that the degree can be executed immediately. On 13.10.1996 the cinema hall was taken over possession by the opposite party and an interlocutory petition was filed by the petitioner before the Supreme Court and one Ratnesh Narayan Singh also filed an application for intervention but wide order dated 22.4.1997 the application filed by Ratnesh Narayan Singh was rejected and on the interlocutory petition filed by the petitioner the Apex Court held that the cinema hall had already been handed over to the opposite party -degree holder but regarding the delivery possession of the cinema theatre free from encumbrance the Apex Court clarified that regarding such encumbrance the executing court shall probe into the matter and then and then only the satisfaction of the decree shall be recorded at appropriate time. On this the opposite party filed a petition by amending the execution petition to grant compensation to the tune of Rs. 11,000/ -and odd as already mentioned above and also towards the encumbrance i.e. liability on the cinema theatre on the basis of the advocate commissioner 's report to the tune of Rs. 14 lacs and odd as mentioned above. Objection was raised but the learned court below by the part of the impugned order allowed the claim of the decree -holder -opposite party and hence the present revision petition has been filed. By the second part of the order the intervention petition filed by Ratnesh Narayan Singh under Order 21 Rule 99 of the Code of Civil Procedure has been rejected as in the men time, Ratnesh Narayan Singh has already filed another Title Suit claiming Title and possession over the cinema theatre.

(3.) ON the above discussion I arrive at the finding that the learned executing court has not properly probed regarding the encumbrance as ordered by the Apex Court. The executing court ought to have taken up the claims/liabilities item wise mentioned by the advocate commissioner in his report and then consider whether those can be construed as encumbrance on the cinema hall itself. In that view of the matter, this revision petition is partly allowed and the order of payment of Rs. 14 lacs and odd against the petitioner is hereby set aside. The matter is sent back to the court below for proper adjudication/probe into the claims of the opposite party by way of encumbrance as ordered by the Apex Court after giving proper opportunity to both the parties to produce documents and oral evidence, if necessary, for the purpose. The advocate commissioner 's report may be taken as basis to start with the irregularity regarding its acceptance may not stand in the way as already mentioned in the for going paragraph.