NIRMALA DEVI Vs. HIRA LAL SWARNKAR

JUDGEMENT

(1.) The instant petition has been filed by the petitioner under Articles 226 and 227 of the Constitution of India for quashing the order dtd. 5/7/2018 passed by the learned Munsif, Saharsa in Execution Case No. 2 of 2003 whereby and whereunder objection petition filed by the petitioner has been rejected by the learned executing court.

(2.) Briefly stated, the facts of the case are that one Ramkrishan Swarnkar, father of respondent nos. 1 and 2, executed a registered mortgage deed of conditional sale in favour of one Upendra Prasad Ambashth, husband of the petitioner on 11/8/1983. On 7/8/1986, the mortgagor Ramkrishan Swarnkar filed a petition under Sec. 83 of the Transfer of Property Act (hereinafter referred to as 'the TP Act') before the learned Munsif which was numbered as Misc. Case No. 08 of 1986. On 30/9/1986, the learned Munsif passed an order in Misc. Case No. 08/1986 that it was not possible to conduct hearing for eviction of mortgagee Upendra Prasad Ambashth. Thereafter, again on 1/10/1986, the mortgagor Ramkrishna Swarnkar filed a fresh petition under Sec. 83 of the TP Act against the mortgagee which was numbered as Misc. Case No.10/1986. In the said Misc. Case No.10/1986, vide order dtd. 30/6/1987, the learned Munsif passed an order directing the mortgagee to vacate and give possession of the disputed property to the mortgagor within one month from the date of order, failing which the mortgagor could obtain the possession of the property through the process of the court. Being aggrieved by the order dtd. 30/6/1987 passed in Misc. Case No. 10/1986, the mortgagee, the husband of the petitioner filed Civil Revision No. 956 of 1987 before this Court. Though in the said civil revision, no stay order was passed, but due to admission of the said civil revision, further proceeding of Misc. Case No. 10 of 1986 was stayed by the learned trial court. On 10/7/1991, the mortgagee withdrew the aforesaid Civil Revision No. 956/1987. Thereafter, on 8/1/1996, the learned Munsif dismissed Misc. Case No. 10 of 1986 in default. After dismissal of aforesaid Misc. Case No.10/1986, the mortgagor filed Misc. Case No.05 of 2002 for setting aside the order of dismissal for default dtd. 8/1/1996 and for restoration of Misc. Case No. 10/1986 along with the petition under Sec. 5 of the Limitation Act for condonation of delay. However, Misc. Case No. 05 of 2002 was rejected vide order dtd. 29/11/2002 by the learned Munsif. Thereafter, on 9/7/2003, the Execution Case No. 02 of 2003 was filed by the respondent nos. 1 and 2 for execution of order dtd. 30/6/1987 passed in Misc. Case No. 10 of 1986. But the learned Munsif, Saharsa dismissed the said execution case filed by the decree-holders vide order dtd. 12/11/2003 on the ground that earlier application for execution filed by the decree-holders has been dismissed and this fact was suppressed by the decree-holders. Being aggrieved and dissatisfied with the order dtd. 12/11/2003 passed in Execution Case No. 02 of 2003, the respondent no. 1 approached this Court by filing Civil Revision No. 206 of 2004 which was finally heard and disposed of by this Court vide order dtd. 13/12/2004 allowing the aforesaid civil revision petition. Thereafter, on 7/1/2005, the husband of the petitioner/judgment-debtor filed Civil Review No.04 of 2005 for review of order dtd. 13/12/2004 passed in Civil Revision No. 206 of 2004 which was finally heard and dismissed by this Court vide order dtd. 13/9/2005. Against the dismissal order dtd. 13/9/2005, the petitioner approached the Hon'ble Supreme Court by filing SLP (C) No. 20854 of 2006. Thereafter, on 30/9/2013, the aforesaid SLP (C) No.20854 of 2006 was dismissed as withdrawn with liberty to the petitioner to raise the question of maintainability of execution petition before the learned executing court. Pursuant thereto, the petitioner filed an objection petition regarding maintainability of execution case before the learned executing court which has been dismissed by the learned Munsif, Saharsa vide order dtd. 5/7/2018 and the said order has been challenged by the petitioner in the present civil miscellaneous petition.

(3.) The learned counsel appearing on behalf of the petitioner submitted that the learned executing court has overlooked certain material facts and failed to apply the law in proper manner and for this reason, it has committed illegality and error of jurisdiction. The learned trial court did not consider the fact that an order passed under Sec. 83 of the TP Act is a ministerial order and the same cannot be executed. Since it is not an executable order, under Sec. 83 of the TP Act, the court has no jurisdiction to adjudicate any lis pending between the parties. Only miscellaneous case under Sec. 83 of the TP Act was filed by the mortgagor and, as such, any order passed therein cannot be treated to be heard and finally decided. Admittedly, mortgagor did not file any petition under Ss. 60 and 91 of the TP Act wherein the lis could have been finally adjudicated. Mortgagor should have filed a suit for redemption under Ss. 60 and 91 of the TP Act, but he chose to file a miscellaneous case under Sec. 83 of the TP Act and for this reason, no decree was ever prepared by the learned trial court. In absence of any decree, the execution case is not maintainable. The learned counsel further submitted that it is an admitted fact that the mortgagor/decree holder/respondent nos. 1 and 2 filed their execution petition without any decree and affidavit. The learned counsel further submitted that the learned Munsif did not appreciate the law as laid down by the Hon'ble Supreme Court in the case of Bishwanth Prasad Singh vs. Rajendra Prasad Singh and others, reported in (2006) 4 SCC 432 wherein it has been held that the proceeding initiated under Sec. 83 of the TP Act is only ministerial in nature and it cannot be considered that the matter was heard and finally decided. It has also been observed that in the event of mortgagee refusing to accept the deposit, the mortgagor has no option but to institute a suit for redemption in terms of Sec. 91 of the TP Act. The learned counsel further pointed out that the mortgagor/decree holder did not file any petition supported with affidavit. Neither the petition filed under Sec. 83 of the TP Act was supported by affidavit nor the Execution Case No. 02 of 2003 was supported by an affidavit and such act clearly violates of Order 6 Rule 15 (4) of the Code of Civil Procedure (hereinafter referred to as 'the Code'). Further, the learned Munsif missed the point that the order dtd. 30/6/1987 passed in Misc. Case No. 10 of 1986 cannot be executed as order dtd. 30/6/1987 was not in force as on 8/1/1996. The Misc. Case No.10 of 1986 was dismissed for default and Misc. Case No. 05 of 2005, which was filed for restoration of Misc. Case No. 10 of 1986 and for setting aside the order of dismissal, was also dismissed on 29/11/2002 and, as such, the order of dismissal in default dtd. 8/1/1996 attained finality. The learned counsel further submitted that the learned Munsif did not appreciate the fact that the Execution Case No. 02 of 2003 was barred by law of limitation and doctrine of merger would not be applicable. The limitation of 12 years would not be counted from 10/7/1991, the date on which the civil revision petition filed by the petitioner's husband was dismissed as withdrawn, rather limitation would start from 30/6/1987 and the order dtd. 30/6/1987 cannot be merged with the order of dismissal as the same has not been decided on merits. The learned counsel further submitted that the learned Munsif did not appreciate the fact that the Hon'ble Supreme Court vide order dtd. 30/9/2013 passed in SLP (C) No. 20854 of 2006 has granted liberty to the petitioner to raise the question of maintainability of the execution proceeding before the learned executing court and, as such, the petitioner filed objection regarding maintainability of execution case, but the learned Munsif ignored the liberty granted by the Hon'ble Supreme Court and has rejected the petition of maintainability merely on the basis of order passed by the High Court. The learned counsel further submitted that the petitioner is the wife of mortgagee and she has been staying in the disputed property for which the execution is being sought and her contention was not taken into consideration by the learned executing court. Thus, learned counsel submitted that the impugned order is illegal, arbitrary and malafide and the same needs to be set aside.