Civil Rev. Appln. No. 427 of 1993

17th August, 2000

Petitioner Counsel: Mr. S. P. DESHMUKH, Mr. P. R. DESHMUKH
Respondent Counsel: Mr. KULKARNI, Mr. R. M. BORDE

Cases Cited:
Harbachan Singh Vs. Sita Ram, AIR 1960 Punjab 362 [Para 12]
Durga Prasad Vs. Gauri Shankar, AIR 1966 Raj. 258 [Para 12]

JUDGMENT

Judgment :- This civil revision is directed against the order in appeal dated 7-2-1990, passed by the learned Additional District Judge, Ahmednagar by which the learned Judge has dismissed the appeal preferred by the decree holder against the order of the executing Court dismissing his application for execution.

2. The facts, in brief, are that the present petitioner-decree holder filed a suit for removal of encroachment and possession of land admeasuring 8 gunthas on the Western side and 4 gunthas on the Southern side of gat No. 32. This suit was decreed on 15-11-1975. An appeal preferred against that decree was dismissed.

3. Thereafter, the petitioner-decree holder levied execution by way of Regular Darkhast No. 25 of 1978. The warrant of possession under Order XXI Rule 35 of the Code of Civil Procedure was issued. However, the executing Court on 1-10-1982 dismissed the darkhast on the ground that it was at variance with the decree.

4. It has been pointed out to this Court that the decree was passed in the suit in respect of land admeasuring 8 acres and 4 acres. The execution was levied in respect of land admeasuring 8 acres and 4 acres. It is not disputed before me that the error was in the decree and not in the description of the property in the regular darkhast i.e. in execution. A certified copy of the amended decree has been placed on record and it shows that in fact the decree has been amended so as to read as 8 acres and 4 acres.

5. Against the order dismissing the darkhast on the ground that it was not in accordance with the decree, the decree holder preferred an appeal. This Appeal No.281 of 1982 was withdrawn by the decree holder on 5-12-1985.

6. Thereafter, the present execution proceedings were started by way of Regular Darkhast No. 10 of 1986. The executing Court also dismissed this darkhast on the ground that the fresh darkhast has been filed by concealing "all the material facts from the Court". Mr. Deshmukh, learned counsel for the petitioner has pointed out that the only thing that was not referred to in the fresh darkhast was the result of the earlier darkhast, as required by Order XXI Rule 11(2)(f) of the C.P.C. Sub-rule (2)(f) of Rule 11 Order XXI reads as follows :

"11(2) Save as otherwise provided by sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars, namely :-

(f) Whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results:"

By this time, it is an admitted position, that the decree had been correctly amended to read "ares" instead of "acres", as stated above. However, this execution petition was dismissed on 20-8-1987 on the ground that the earlier execution proceedings were decided on merit and they were dismissed. It may be noted that the earlier execution proceedings were dismissed merely on the ground that the description of the property in the darkhast was not in accordance with the decree.

7. An appeal was, therefore, preferred against the dismissal of the present darkhast. This appeal being R. C. Appeal No. 287 of 1989 has been dismissed on 7-2-1990, again on the same ground, namely, that the earlier darkhast was dismissed on merit. The Appellate Court has thus upheld the order of the executing Court dismissing the fresh darkhast.

8. Having heard learned counsel for both sides and having perused the decree of the Civil Court in R.C. Suit no. 87 of 1971, I am satisfied that the execution has been levied in respect of the same property in respect of which the decree has been passed. Learned Counsel for the respondents do not dispute this position any more.

9. Both the Courts below have been clearly in error in holding that the earlier proceedings being Regular Darkhast No. 25 of 1978 were dismissed on merit. It is clear that the adjudication was not on merit but it culminated in the withdrawal of the appeal.

10. As regards the other objection that a decree holder is required to mention the result of the earlier darkhast in accordance with Order XXI Rule 11(2)(f) of the C.P.C., there can be no dispute that provision must be complied with. The defect, if any, is curable. In other words, I am of the view that where there is an omission to mention the result of the earlier darkhast, the party who has omitted to do so may apply to the Court for curing this irregularity upon an objection being raised. I am of the view that this omission to state the result of the earlier darkhast is a mere irregularity, which can be remedied.

11. In this regard, it is pertinent to note that these proceedings are almost never ex parte and cannot be sustained unless a notice is given to the judgment-debtor. Where such notice is therefore given, the judgment-debtor would normally appear and point out that the execution had been levied earlier and also its result. Therefore, the chances of a decree holder getting away by mala fide suppressing the result of the earlier proceedings are rare and remote. This is not to say that it is not necessary to mention the fact of the earlier execution proceedings and, if any, the result thereof, but to point out that this provision is introduced as a safeguard and its non-compliance may be remedied by giving the particulars required by Order XXI Rule 11(2)(f).

12. Mr. Deshmukh, learned counsel for the petitioner cited a decision in the case of Harbachan Singh Vs. Sita Ram (AIR 1960 Punjab 362) where the Punjab High Court has taken the view that omission to mention the date of the previous execution application does not make the execution application incompetent. Though this decision is not about omission to mention the result of the earlier execution application, I would consider the ratio of this decision applicable also to an omission to mention the result of the earlier application. Learned counsel for the petitioner has also placed reliance on a decision in the case of Durga Prasad Vs. Gauri Shankar (AIR 1966 Rajasthan 258). In this case, the Rajasthan High Court directly considered the failure to mention the result of the previous application, in the subsequent application. The Rajasthan High Court held that it is not a material defect so as to per se vitiate the execution application. I find myself in agreement with the two decisions cited (supra).

13. In the result, I am of the view that the Courts below have committed an error in dismissing the fresh execution levied by the decree holder by way of Regular Darkhast No. 10 of 1986 on the ground that there is suppression, the suppression being the non-mention of the result of the earlier application. Learned counsel for the respondent has accepted the position that the only omission on the part of the decree holder is the omission to mention the result of the earlier execution application. The Courts below are, therefore, clearly in error in looking upon this omission as a suppression, which results in the dismissal of the execution application itself. Moreover, it is also clear that the earlier decision was not on merit and in fact the decree holder on realising the discrepancy withdrew the appeal. The Courts below were, therefore, clearly in error in dismissing the present Regular Darkhast No. 10 of 1986 on the ground that the earlier decision was on merits. As observed earlier, the variance between the application for execution and the decree was the result of an erroneous description in the decree and not in the execution application.

14. In these circumstances, I find that the present civil revision application deserves to be allowed and the same is hereby allowed. The order dated 7-2-1990 passed by the learned Additional District Judge, Ahmednagar is set aside. The matter is remitted to the executing Court for deciding Regular Darkhast No. 10 of 1986 in accordance with law. There shall, however, be no order as to costs.

Revision allowed.