State of U.P. Through District Magistrate, Kanpur Nagar Vs. Ivth Addl. District Judge, Kanpur Nagar and Others - Court Judgment

S.R. Singh, J.

1. This petition originates from execution Case No. 179 of 1980. Krishna Gopal Chawla v. U. P. Jal Nigam, and the gravamen of the petitioner is riveted on two orders, firstly the order dated 12.5.1995 passed by the then Civil Judge (Jr. Division), Kanpur Nagar thereby rejecting the objections filed by the Judgment Debtor, i.e.. U. P. Jal Nigam and the State of U. P, through the District Magistrate, Kanpur Nagar under Section 47 of the C.P.C. and secondly, the order dated 12.8.1997 passed by the IVth Addl. District Judge Kanpur Nagar thereby dismissing the revision preferred against the order dated 12.9.1995.

2. The facts of the case draped in brevity are that Krishna Kumar Chawla and others, to begin with, instituted a civil suit (original Civil Suit No. 1714 of 1963) in the Court of Munsif City, Kanpur for recovery of arrears of rent amounting to Rs. 914.03 from 1.7.1962 to 11.8.1963, ejectment and damages for use and occupation from 12.8-1963 till the date of delivery of possession against the State of U. P. Indisputably, the suit pertained to premises No. 7/86 built, on Nazul plot No. 12 situate in Block No. 7 of Tilak Nagar. Kanpur. Concededly, Nazul Plot No. 12 belonged to the State of U. P. but it was leased in favour of one Khan Bahadur Hafiz Mohammad Alirn vide deed of lease executed by the Secretary of Estate for India on 19.2.1907 for a span of 40 years renewable at every 30 years. The period of lease commenced from 4th December, 1904. The lessee was granted right of enjoyment of the demised property by raising construction over it. Acting upon the lease, the lessee constructed a dwelling house which came to be numbered as premises No. 7/86 Tilak Nagar, Kanpur and which was let out to the State of U. P. on 3rd May 1937. The lease was in the meantime renewed on 22.3.1935 in favour of Haji Mohammad Sadiq son of the original lessee. Khan Bahadur Hafiz Mohd. Alim for a period of 30 years, i.e., upto and inclusive of December 4,1964 by reason of the fact that the original lessee had died during the subsistence of the original lease. The lessee in whose favour lease was renewed and/or his heirs, migrated to Pakistan as a result of which the property was declared as Evacuee property vide notification dated 3rd October, 1952 and it was put to auction by the Manager, Custodian of Evacuee Property. Cyan Chand and others purchased the leasehold rights which had vested in the Custodian, Evacuee Property on 1.6.1952. Later on, Gyan Chand and others sold off the property in question to the petitioner--Krishna Gopal Chawla and others through registered sale deeds dated 16.7.1957, 28.7.1959 and 11.8.1959 and 20.8.1959. The suit for ejectment and mesne profits instituted by Krishna Gopal Chawla and others ended up in dismissal in the trial court. It was. however, decreed for arrears of rent amounting to Rs. 445.63 p. The decree passed by the trial court was lent affirmance by the First Appellate Court. On a second appeal preferred by Krishna Gopal Chawla and others, the High Court allowed the appeal and decreed the suit for ejectment as well as for damages for use and occupation at the rate of Rs. 115.00 per month from the date of suit vide judgment and decree dated 20th September, 1979. The Civil Appeal No. 1366 of 1980 preferred against the said judgment came to be dismissed by the Supreme Court on 1.3.1994. The execution Case No. 179 of 1990 was in the meantime, instituted by the plaintiff-decree-holder in the Court of Munsif (City) Kanpur as a sequel to the decree passed by the High Court. In appeal by special leave preferred in the Supreme Court by the defendants against the decree dated 20th September, 1979, the Supreme Court made an order staying execution proceedings pending disposal of theappeal. However, the Civil Appeal preferred in the Supreme Court met the fate dismissal uide judgment and decree dated March 1,1994 as stated supra. The U. P. Jal Nigarn which was impleaded in place of Slate of U. P. was, however, allowed to remain in possession of the disputed premises for a period of one year from the date of judgment on filing an undertaking in terms of the order passed by the Apex Court within four weeks from the date of judgment dated March 1.1994. The U. P. Jal Nigam moved an application before the Apex Court on 28lh March. 1994 stating therein that the possession of the disputed premises had been delivered to the State of U. P. on October 28,1995. The decree-holders, however, moved an application in the Court of Munsif (City), Kanpur [Now designated as Civil Judge (Junior Division)] to proceed further in the execution Case No. 179 of 1992 for execution of the decree passed by the High Court. Separate objections under Sections 47. 37. 38, 39 and 151, C.P.C. were filed on behalf of U. P. Jal Nigam and State of U. P. demurring to the execution proceedings alleging, inter alia, that the decree passed by the High Court had merged in the decree passed by the Supreme Court and hence, the application for execution of decree passed by the High Court was liable to be rejecled : that the Court of Civil Judge (Junior Division) was shorn of jurisdiction to execute the decree as it was not a Court by which the suit was initially adjudicated upon ; that the Court of 1st instance, namely, the 4th Additional Civil Judge who had decided the suit, ceased lo exist and since the suit for recovery of arrears of rent, ejectment and damages would now be cognizable by Judge. Small Causes Court, Kanpur Nagar. the decree could be executed only by the Judge, Small Causes Court, and the lease hold interest which vested in the custodian and which was transferred to the predecessor-in-interest of the decree holders at the auction sale, stood extinguished with the termination of lease by efflux of time and the property now vested in the State of U. P. and, therefore, the decree-holder lost their right to execute the decree. The objections culminated in being rejected by the Civil Judge (Junior Division) Kanpur Nagar uide order dated 12.9.1995 which order came to be affirmed in revision by IVth Addl. District Judge. Kanpur Nagar uide judgment and order dated 12.8.1997. It is these orders which are subject-matter of impugnment in the instant petition.

3. I have heard Sri Vinod Misra, Addl. Senior Standing Counsel appearing for the petitioners and Sri Pankaj Bhatia appearing for respondent Nos. 3 to 7.

4. The first question that emerges for consideration is whether the decree passed by the High Court in the Second Appeal was capable of execution even after it merged in the decree passed by the Supreme Court in an appeal preferred by special leave against the decree passed by the High Court. The Courts below have held the view that for the purposes of execution, the decree passed by the High Court would not be reckoned to have merged in the decree passed by the Supreme Court. To lend cogency to this view, reliance has been placed on a decision of this Court in the case of Mithai Lal v. Thana and others. : AIR1964All337 .

5. In State of Uttar Pradesh v. Mohd. Nooh AIR 1958 SC 86, the doctrine of merger of a decree passed by the Court of 1st instance, in the decree passed in appeal therefrom, was considered by the Supreme Court as under ;

'In the next case, while it is true that a decree of a Court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed in Revision it does so only for certain purposes, namely, for the purposes of computing the period of limitation for execution of the decree as in Baluk Nath v. Munni Dei, 41 Ind App 104 : AIR 1914 PC 65, or for computing the period of limitation for an application for final decree in a mortgage suit as in Jowad Hussain v. Gendan Singh. 63 Ind Appl 197: AIR 1926 PC 93. But as pointed out by SirLawrence Jenkins in delivering the judgment of the Privy Council in Juscurn Boid v. Pirthichand Lal, 46 Ind App 52 : AIR 1918 PC 151, whatever be the theory under other system of law, under the Indian law and procedure an original decree is not suspended by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal. There is nothing in the Indian law to warrant the suggestion that the decree or order of the Court or tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision. The filing of the appeal or revision may put the decree or order in Jeopardy but until it is reversed or modified it remains effective.'

6. Mohd. Noon's case came up for consideration before the Constitution Bench of the Supreme Court in Madan Gopal Rungta v. Secretary to the Government oJOrissa : AIR1962SC1513 , holding that the principles of Mohd. Nooh's case would not be attracted for application to the facts of Madan Gopal Rungta's case, what the Constitution Bench held is excerpted below :

'We are of opinion that the principle of Mohd. Nooh's case cannot apply in the circumstances of the present case. The question there was whether the High Court could issue a writ under Art. 226 in respect of a dismissal which was effective from 1948, simply because the revision against the order of dismissal was dismissed by the State Government in April. 1950 after the Constitution came into force. It was in these circumstances that this Court held that the dismissal having taken place in 1948 could not be subject-matter of an application under Art. 226 of the Constitution for what would be given retrospective effect to that Article. The argument that the order of dismissal merged in the order passed in appeal therefrom and in the final order of revision was repelled by this Court on two grounds. It was held, firstly, that the principle of merger applicable to decrees of Courts would not apply to orders of departmental tribunals, and, secondly, that the original order of dismissal would be operative on its own strength and did not gain greater efficacy by the subsequent order of dismissal of the appeal or revision, and therefore the order of dismissal having been passed before the Constitution would not be open to attack under Art. 226 of the Constitution. We are of opinion that the facts in Mohd. Nooh's case were of a special kind and the reasoning in that case would not apply to the facts of the present case.'

7. The next Constitution Bench decision of the Apex Court on the point is that of Collector of Customs, Calcutta v. East India Commercial Co. Ltd. : [1963]2SCR563 , wherein it was observed by the Apex Court as under :

'The question, therefore, turns on whether the order of the original authority becomes merged in the order of the appellate authority even where the appellate authority merely dismisses the appeal without any modification of the order of the original authority. It is obvious that when an appeal is made, the appellate authority can do one of three things, namely, (i) it may reverse the order under appeal, (ii) it may modify that order, and (iii) it may merely dismiss the appeal and thus confirm the order without any modification. It is not disputed that in the first two cases where the order of the original authority is either reversed or modified it is the order of the appellate authority which is the operative order and if the High Court has no Jurisdiction to issue a writ to the appellate authority it cannot issue a writ to the original authority. The question therefore is whether there is any difference between these two cases and the third case where the appellate authority dismisses the appeal and thus confirms the order of the original authority. It seems to us that on principle it is difficult to draw a distinction between the first two kinds of orders passed by the appellate authority and the third kind oforder passed by it. In all these three cases after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it. In law, the appellate order of confirmation is quite as efficacious as an operative order an appellate order of reversal or modification.'

8. In Somnath Sahu v. State of Orissa : (1969)3SCC384 . a three Judge Bench of the Supreme Court held, in the case of a service dispute, that the original order merged in the appellate Order of the State Government and it is the appellate decision which subsisted and became operative in law and was capable of enforcement. The aforesaid decision came up for consideration in a Seven Judge Constitution Bench of the Apex Court in the case of S. S. Rathore v. State of M. P.. : 1989(43)ELT790(SC) . wherein it was held as under :

'The distinction adopted in Mohammad Noon's case. AIR 1958 SC 86. between a Court and a tribunal being the appellate or the revisional authority is one without any legal justification. Powers of adjudication ordinarily vested in Courts are being exercised under the law by tribunals and other constituted authorities. In fact, in respect of many disputes the jurisdiction of the Court is now barred and there is a vesting of jurisdiction in tribunals and authorities. That being the position, we see no justification for the distinction between Courts and tribunals in regard to the principle of merger. On the authority of the precedents indicated. It . must be held that the order of dismissal made by the Collector did merge into the order of the Divisional Commissioner when the appellant's appeal was dismissed on 31.8.1966.'

9. On a conspectus of the decision aforestated. I am persuaded to the view that the decree passed by the High Court in Second Appeal merged in the decree passed by the Apex Court in appeal preferred therefrom and it is the decree passed by the Apex Court which subsisted as an operative decree capable of enforcement in law. The view taken by the Courts below on this count, by reason of reliance on a decision of Allahabad High Court in the case of Mithai Lal : AIR1964All337 . does not commend itself for acceptance. It is worthy of being observed that the appeal was dismissed by the Apex Court in terms of certain directions capable of execution and on that count also, decree capable of execution would be the decree passed by the Apex Court the text of which is excerpted below.

'Substitution allowed.

Delay condoned.

We have heard both the learned counsel at length.

We are unable to accept the arguments advanced on behalf of the appellant, U. P. Jal Nigam that merely because there is five days in making the deposit under Section 7C of the U. P. (Temporary) Control of Rent and Eviction Act of 1947, the appellant is liable to be evicted. The law requires that deposit be made within 30 days from the date of the receipt of the notice. The appellant cannot wait till the expiry of 30 days. That is not the strict compliance under Section 7C of the Act. The Courts below are correct. No. Interference is called for. The appeal is dismissed. However, as agreed by both the learned counsel, one year's time from today is granted to the appellant to hand over vacant possession. This shall be subject to the filing of the usual undertaking within four weeks from today.'

10. The formal order prepared pursuant to the aforesaid judgment passed by the Apex Court reads as under :

'The appeal above mentioned being called on for hearing before this Court on the Ist day of March 1994. upon perusing the record and hearing counsel for the parties herein, this Court doth order :

1. That the appeal abovementtoned be and is hereby dismissed but by and with the consent of counsel for both the parties herein. The appellant herein be and is hereby allowed time to vacate the premises in dispute till Ist March, 1995, subject to his filing in this Court an undertaking within four weeks from this the 1st day of March, 1994, to the following effect ;

(i) That, the tenant/appellant herein shall not induct any other person in the suit premises and shall hand over vacant and peaceful possession of the said premises to the landlord-respondent herein on or before the 1st March. 1995 ;

(ii) That, the tenant/appellant herein shall pay to the landlord/ respondent herein arrears of rent, if any, within one month from this the 1st March, 1994 and shall pay to the landlord-respondent herein future compensation for the use and occupation of the suit premises month by month before the 10th of every month ;

2. That, in the event of the tenant/appellant herein failing to comply with any one or more of the conditions stated above or if the undertaking is not filed as required within the stipulated time the decree for eviction shall become executable forthwith ;

3. That there shall be no costs of this appeal in this Court.

4. That, stay granted by this Court's order dated the 30th July, 1980 passed in Civil Miscellaneous Petition No. 2028 of 1980 in this appeal be and is hereby vacated subject to the above order :

And this Court doth further order that this order be punctually observed and carried into execution by all concerned ;

Witness the Hon'ble Shri Manapalli Narayanarao Venkatachaliah,Chief Justice of India at the Supreme Court. New Delhi, dated this the Istday of March, 1994.'

11. It is evident from the formal order aforestated that it partakes of the character and nature of decree in which stood merged the decree passed by the High Court and, therefore, the operative decree that is capable of execution is the decree passed by the Supreme Court. The contrary view taken by the Courts below is, in my opinion, unsustainable.

12. The next question posed for consideration is whether the Civil Judge (Sr. Division) Kanpur Nagar, was competent to entertain the execution application. Concededly, the suit was instituted in the Court of Munsif [City] Kanpur but later on, transferred to IVth Civil Judge Kanpur Nagar who dismissed the suit vide judgment and decree dated April 19,1965. Section 38 of the C.P.C.. 1908 provides that the decree may be executed either by the Court which passed it or by the Court to which it is sent for execution. The expression 'Court which passed a decree' has been defined in Section 37 of the Code which reads as under ;

'37. Definition of Court which passed a decree.--The expression 'Court which passed a decree', or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include-

(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction the Court of first instance, and

(b) where the Court of first instance has ceased to exist or to have Jurisdiction to execute it. the Court which, if the suit wherein the decree was passed was Instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.

Explanation.--The Court of first instance does not cease to have jurisdiction to execute a decree merely on the ground that after theinstitution of the suit wherein the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of that Court to the jurisdiction of any other Courl ; but. In every such case, such other Court shall also have jurisdiction to execute the decree, if at the time of making the application for execution of the decree it would have jurisdiction to try the said suit.'

13. It is evident from Section 37 of the Code that where a decree to be executed, has been passed in exercise' of the appellate jurisdiction, the Court of first instance will be competent to execute the decree and in case where the Court of first Instance has ceased to exist or to have jurisdiction to execute it. the Court which if the suit wherein the decree was passed, was instituted at the time of making the application for the execution of the decree, could have jurisdiction to try such suit. The expression 'Court of first instance has not been defined in the Code. According to my own lights, the term means the parent court in which the suit was instituted and includes the additional court to which it is transferred for trial and by which it is finally disposed of. Concededly. the Court of first instance namely, the IVth Addl. Civil Judge, Kanpur Nagar which initially decided the suit, had ceased to exist at the date of filing of the application. But the parent court in which was instituted the suit has now ceased to exist. Only designation has been changed from 'Munsif to Civil Judge (Junior Division). The suit was for recovery of arrears of rent and ejectment and damages for use and occupation of the suit premises. By U. P. Civil Laws (Amendment) Act XXXVII of 1972. a new Article 14 was inserted in the Provincial Small Causes Court Act conferring Jurisdiction on Judge. Small Causes Court to try the suits for ejectment and recovery of arrears of rent and damages for use and occupation of the premises. On the date of filing the execution application, the suit was cognizable by Judge. Small Causes Court. But in view of the meaning assigned to the expression 'Court of first instance', the submission that according to Section 37 of the Code, the Judge Small Causes Court. Kanpur Nagar would be the Court of first instance, competent to entertain the execution application, cannot be countenanced. In my opinion, the Courts below have rightly held that the Court of Civil Judge (Junior Division) Kanpur Nagar. will be the Court of first instance competent to execute the decree in question. The view that where an additional court has ceased to exist, the parent court will have the jurisdiction to execute the decree passed by the additional court, taken by the Courts below does not suffer from any illegality albeit the view that a decree passed by regular Court can in no circumstance, be executed by the Small Causes Court, cannot be accepted, for it would be contrary to the plain language employed by the Parliament in Section 37(b) of the Code.

14. The third question that emerges for consideration is as to whether the decree-holder ceased to have any interest in the decree owing to termination of lease by efflux of time. The question could not be comprehended by the executing court in a correct perspective/backdrop. Relying on Sections 12 and 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, the executing court erroneously held that the predecessor-in-interest of the decree-holder acquired absolute right in the property. The executing court eschewed from notice the provisions contained in Section 18 and other related provisions of Administration of Evacuee Property Act. 1950 which go to show that what vested in the custodian was the leaseholds rights of the evacuee and, therefore, there cannot be any manner of doubt that what was declared as evacuee property under Section 7 of the Administration of Evacuee Property Act. 1950 and what vested in the Central Government free from all encumbrances under Section 12 of the Displaced Persons (Compensation and Rehabilitations) Act, 1954 was the leasehold right of the evacuee. The revisional court did not delve into the question as to whether the State Government is the owner of the property or the decree-holders are the owners, for it was of the view that the question did not relate to execution, discharge and satisfaction of the decree. Therevisional court held that the decree-holders did not cease to be landlords of the disputed property after expiration of the lease on 4.12.1994 and if the State Government claimed to be the owner of the property in question. It could 'recover possession of the same only through the process of law not otherwise than by due process of law'. But at the same time. It held that the 'objection with regard to the ownership of the disputed property through Section 47, C.P.C. is barred by res judicata in view of the provisions of the Explanation to Section 11. C.P.C.' The question, in my opinion, has not been correctly grasped even by the revisional court but I forbear from expressing any firm opinion on the question for it may be decided by the Courts below afresh as and when an applicalion for execution of the decree passed by the Supreme court is filed subject to law of limitation. The suit and the appeals were decided on the basis of the rights of the parties as on the date of suit. The executing court can traverse upon the question, whether the decree-holders have lost their Interest in the suit property during the pendency of suit for such question relates to executibllity of the decree.

15. As a result of the foregoing discussion, the petition succeeds and is allowed. The impugned orders are quashed. Parties are, however directed to bear their respective costs.