Vyasacharya Madhavacharya Vs. Daji Baba - Court Judgment

Excerpt:
decree-execution-(decree imposing perpetual liability-declaratory decree-duty of executing commit-res judicata-civil procedure code (act v of 190s), section 11.; a landlord obtained a decree against his tenants which directed : ' the defendants do pay the plaintiff an enhanced rent of rs. 3,04 per annum in respect of the said property from the date of suit.' the decree was successfully executed thrice. when it was sought to be executed for the fourth time, it was contended that the decree was merely a declaratory decree and was therefore incapable of execution :-;(1) that the decree directed the defendants to pay rs. 304 every year and did not merely declare their liability to pay that amount;;(2) that while it was not proper that a perpetual decree like the present should be passed, once it was passed, rightly or wrongly, the executing court was bound to execute it and could not question the propriety of the decree;;(3) that as the decree was already executed on three occasions, the defendants were bound by res judicata and were not at liberty to rule ?-open the question whether it was a mere declaratory decree :;bibi vaid kuar v. balkhhan das mehra (1932) i.l.r. 14 lah. 409 followed. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by supreme court in para 36 of judgment in the case of state v millind reported in 2001 91) mah. lj sc 1 is not the law declared by supreme court under article 141 of the constitution of india. said observations/directions are issued in exercise of powers under article 142 of the constitution and also have no application to the cases relating to appointments and are restricted to the cases relating to admissions. the protection, if any, to be granted in the fact and circumstances of case would depend upon exercise of discretion by supreme court under article 142 of the constitution. said powers under article 142 of constitution is not available to the high court. hence no protection can be granted by high court even in cases relating to admissions. lokur, j.1. this appeal arises out of a darkhast in which the decree-holders claimed to recover rs. 1,717-13-0 as the balance out of the rent due to them for ten years 1926-27 to 1936-37. the decree .sought to be executed was passed in suit no. 277 of 1926 filed by the appellants to recover possession of their land from their tenants the respondents, or in the alternative for enhancement of the rent. it was held in that suit that the defendants were permanent tenants, but the rent was enhancedand they were ordered to pay rs. 304 every year as enhanced rent. the appellants, therefore, sought to recover iq execution of the decree ten years' rent at that rate. nine of the respondents put in various contentions, but they were all disallowed by the execution court and the darkhast was ordered to proceed. but in appeal the learned district judge raised a new point as to whether the decree was executable. he held that the decree was merely a declaratory decree declaring that thedecree-holders, were entitled in future to get rs. 304 as rent per year and that the decree didi not give them any right to claim the amount as it became due year after year in execution of the decree. on that ground he allowed /the appeal and dismissed the darkhast.2. it is now contended in this second appeal that the decree is not a merely declaratory decree, but it directs the defendants to pay rs. 304 every year, and moreover as the decree was executed three times before, it is not open to the judgment-debtors to contend that the decree is not executable. the relevant clause in the decree runs as follows :-the defendants do pay the plaintiff an enhanced rent of rs. 304 per annum! in respect of the suit property from the date of suit.3. this shows that the decree directed the defendants to pay rs. 304 every year and did not merely declare their liability to pay that amount. the executing court cannot go behind the decree and it was not open in execution proceedings to contend that the decree should have been merely a declaratory decree. as pointed out by the learned district judge, if such a decree for the payment of rent every year for ever be passed, the decree-holders will get a perpetual decree without having to pay any court-fee stamp for the recovery of their annual dues. it is not proper that such a perpetual decree should be passed in favour of the plaintiffs. but once it is passed, rightly or wrongly, the executing court is bound to execute it and cannot question the propriety of that decree. on the face of it, the order in the decree directs the defendants to pay rs. 304 every year to the plaintiffs. it is thus a decree capable of execution and the executing court is bound to execute it as it stands. moreover, on three previous occasions the decree was treated as a decree capable of execution and was executed without any objection on the part of the judgment-debtors. hence the question as to whether it is a mere declaratory decree cannot be re-opened and is barred as res judicata. that is not a pure question of law, but it is a question of the construction of the decree and it was construed in previous darkhasts as a decree capable of execution. in bibi void kuar v. balkishan das mehra i.l.r. (1932) 14 lah. 409 the wife had obtained a declaratory decree for maintenance at the rate of rs. 45 per month against her husband and the decree was executed by the wife several times through the court without objection. but when subsequently she again sought to recover arrears of maintenance for two and a half years, the husband for the first time raised the objection that the decree, being declaratory, was not executable, and it was held that the decree having been allowed to be executed in previous proceedings without any objection, the objection that the decree was incapable of execution could not be raised in subsequent proceedings. in the same way the execution of the decree in question cannot be refused on the ground that it is merely declaratory and not capable of execution.4. the appeal is, therefore, allowed and the order passed by the executing court restored. the appellants shall get their costs from the respondents throughout.