(Prayer: This Writ Petition is filed Under Article 226 of the Constitution of India praying to set-aside the order at Annexure-J dated 25.6.2016 passed on I.A. dated 20.8.2015 in Ex No.459/2007 by City and Civil Session Judge Bengaluru City Ch-11.
This RFA is filed under Order XLI Rule 1 read with Section 96 of the CPC against the order dated 15.02.2017 passed on IA No.6 in Ex.No.459/2007 on the file of the VI Addl. City Civil and Sessions Judge, Bengaluru City, allowing the IA No.6 filed under Order XXI Rule 97 of CPC.)
1. About a century & a half ago, the Privy Council speaking through RIGHT HON. SIR JAMES COLVILE, in the case of THE GENERAL MANAGER OF THE RAJ DURBHANGA VS. MAHARAJAH COOMAR RAMAPUT SINGH (MOORE'S INDIAN APPEALS 1871-72, VOL.14, page 605) had observed as under:
"These proceedings certainly illustrate what was said by Mr. Doyne, and what has been often stated before, that the difficulties of a litigant in India begin when he has obtained a Decree...."
The above observations which prove truer today should set the tone for the hearing & disposal of a set of these cases which seek to lay a challenge to the execution proceedings.
2. All these cases i.e., the Writ Petitions and the Regular First Appeals arise from several orders/directions issued by the learned VI Addl. City Civil Judge, Bangalore in Execution No.458/2007 c/w Execution No.459/2007, filed by the respondent- DHrs. The brief facts leading to the institution of these cases are as under:
(a) The land in Municipal Corporation No.327, Mysore Road, Bangalore, in all approximately admeasuring 1 acre & 04 guntas i.e., 47,916 sq.ft was bought by one Smt.Narayanamma, the judgment debtor vide registered sale Deed 17.03.1960; however she claimed that the land measures more on ground, going by its description in terms of boundaries.
(b) Of the above land, Smt.Narayanamma sold 34,839 sq.ft vide two registered sale deeds evenly dated 13.05.1986 in favour of Respondent-DHrs; her & her son's suit in O.S.No.986/1987 for a decree of injunction, later amended into the one for declaration as to the said sale deeds being void, was clubbed with Decree Holders' two suits in O.S.No.9077/1996 & O.S.No.9078/1996 for possession.
(c) By a common judgment & decree dated 21.12.1996, Smt.Narayanamma's suit for declaration came to be dismissed, and DHrs' suits for possession came to be decreed; the challenge to the same by the JDrs in R.F.A.Nos.661-663/1997 came to be negatived by a Division Bench of this Court vide judgment dated 22.10.2009, and that the Special Leave Petition (Civil) Nos.16349-16351/2010 filed against the said RFA judgment too came to be rejected by the Apex Court vide Order dated 23.07.2010.
(d) During the pendency of the suits, Smt.Narayanamma got the entire land in Municipal Corporation No. 327 apportioned vide registered Partition Deed dated 25.03.1991 between herself, her husband Sri.Anjan Reddy and her son Sri.Ramachandra Reddy; the said son sold his share to the Appellant-Obstructers herein, during the period between 2001 and 2004 by several registered sale deeds; the DHrs filed Execution Petition Nos.458 & 459/2007 seeking delivery of possession of the suit property.
(e) The buyers of property from Sri.Ramachandra Reddy ie., the obstructors herein resisted the Execution on the basis of their sale deeds contending that what they have bought is not part of the decreetal property; therefore, the DHrs had filed application under Order XXI Rule 97 of CPC, 1908 for removing these obstructors, terming them as "buyers pendente lite"; the Executing Court vide order dated 23.04.2010 asked both the sides to lead evidence to substantiate their rival stand; it also stated that on the basis of the outcome of the said enquiry, a decision for appointment of a competent surveyor as Court Commissioner could be taken.
(f) In the enquiry, in terms of above Order dated 23.04.2010, the Respondent-DHrs got examined their attorney as PW-1 and in his deposition, the documents at Exhibits P-1 to P-39 came to be produced; similarly on behalf of Obstructors, three witnesses were examined as OWs-1 to 3, and in their deposition, the documents as per Exhibits R-1 to R-29 came to be marked; both the sides had mentioned about the writ petitions arising from collateral proceedings which ultimately boiled down to the requirement of identifying the decreetal property.
(g) In the meanwhile, the criminal proceedings in P.C.R.No.3053/2016 were launched by the JDrs which the DHrs challenged in Criminal Petition No.6281/2016 C/w Criminal Petition No.5916/2016 under section 482 of Criminal Procedure Code, 1973; a Co-ordinate Bench of this court vide interim order dated 28.10.2016 had appointed a Court Commissioner to identify and measure the decreetal property as comprised in the subject sale deeds with intent to place the DHrs in possession thereof; the Commissioner having accomplished the job, submitted his report, which was objected to by the JDrs; however, the obstructors were not parties to these petitions.
(h) The said Criminal Petitions later having been allowed vide judgment dated 16.03.2017, the subject criminal cases filed against the DHrs came to be quashed; the Co-ordinate Bench directed that the Commissioner's Report along with the Objections of the JDrs, be forwarded to the Executing Court for consideration; however a copy of the said Report was already filed in the Execution Petitions during the pendency of the Criminal Petitions before the Co-ordinate Bench; strangely none of the parties mentioned about the said Report having already acted upon by the Executing Court, delivery warrants were issued.
(i) In the meanwhile, the Executing Court after hearing both the sides and after perusing the evidentiary material placed on record during the enquiry, vide order dated 31.10.2014 appointed the Taluka Surveyor of BBMP as the Court Commissioner and directed him "to visit the spot and survey and fix the boundaries of decreetal property ........ in reference to the measurements and boundaries mentioned in decree taking into note that, 78' + 52' stated to be located at Eastern side of the schedule property as per exhibit P-4 is located at Southern side of Municipal No.327 abutting to Bangalore-Mysore Road, Bangalore in reference to exhibits P-25 & P-26 sketches and submit the report along with a comprehensive sketch", keeping DHrs application in I.A.No.6 filed u/o XXI Rule 97 of CPC pending for consideration till after the Commissioner would submit his report.
(j) Subsequently, the JDrs had filed Memos dated 29.10.2015 and 03.11.2015 along with an application u/s 47 r/w section 151 of the Code and also r/w section 44 of the Indian Evidence Act 1872 seeking recall of the above order dated 31.10.2014 whereby the Commissioner was sought to be appointed for identifying the suit property; they had also filed application under Order XXVI Rule 9 of the Code for referring the sale deeds of the DHrs and the sketches appended thereto for forensic examination by a Handwriting Expert on the ground that the signatures purporting to be of Smt.Narayanamma were forged; the Obstructors too had made similar applications; the Memos and the applications filed by the JDrs and the Obstructors having been dismissed, the Executing Court vide order dated 25.06.2016 reiterated the directions contained in its order dated 31.10.2014.
(k) Despite the above two orders dated 31.10.2014 and 25.06.2016, the appointment of Commissioner did not materialize whatever be the reasons therefor; however, in the light of the Report of the Court Commissioner appointed by the Coordinate Bench in the aforesaid Criminal Petitions and the evidence tendered by the parties in the enquiry, the Executing Court vide order dated 30.06.2017 declined to send the subject documents for forensic examination and also rejected Obstructors' resistance to execution, and further refused to recall the order dated 31.10.2014; it again directed issuance of Delivery Warrant reserving liberty to the DHrs to take police protection, if needed.
3. Aggrieved by the above orders, the JDrs and the Obstructors have preferred these Writ Petitions and Appeals, brief description of which is as under:
(i) the case in W.P.No.39382/2016 is filed by Obstructor No.3, Sri.Rahul S Shah for laying a challenge to the order dated 31.10.2014 whereby the Executing Court in Execution No.459/2007 having appointed the Court Commissioner, has directed him to identify & measure the subject property by treating Eastern boundary as being located at Southern side abutting Bangalore-Mysore Road;
(ii) the cases in W.P.No.28432/2019 and W.P.No.28433/2019 are filed by the JDrs Smt.Narayanamma and her son Sri.Ramachandra Reddy for laying a challenge to the order dated 31.10.2014 whereby the Executing Court in both the Execution Petitions having appointed the Court Commissioner, has directed him to identify and measure the subject property by treating its Eastern boundary to be the Southern boundary, abutting Bangalore-Mysore Road;
(iii) the case in W.P.No.39296/2016 is filed by the same Obstructor Rahul S. Shah for challenging the order dated 25.06.2016 whereby his application filed u/o XXVI Rule 10A r/w sections 47 & 151 of Code, having been rejected, the Executing Court refused to refer the sketches and sale deeds of the DHrs for forensic examination;
(iv) the cases in W.P.No.28434/2019 and W.P.No.23435/2019 also are filed by the JDrs Smt.Narayanamma and her son Sri.Ramachandra Reddy for laying a challenge to the order dated 25.06.2016 whereby the Executing Court in both the Execution Petitions having rejected their applications filed u/o XXVI Rule 9 of the Code, has refused to refer the sketches at Exhibits R-50 & R-51 to the subject sale deeds of the DHrs for forensic examination;
(v) the cases in R.F.A.Nos.441, 468 & 469/2017 are filed by the Obstructors for laying a challenge to the order dated 15.02.2017, whereby DHrs' application in I.A.No.VI filed u/o XXI Rule 97 of the Code having been favoured, the Executing Court has reiterated its earlier direction for issuance of Delivery Warrant; some of the writ petitions earlier filed came to be dismissed as withdrawn with liberty to lay the challenge in appeal since the impugned order is a deemed decree, under Order XXI Rule 103; and,
(vi) the cases in W.P.No.31405/2019 and W.P.No.31420/2019 also are filed by the JDrs Smt.Narayanamma and her son Sri.Ramachandra Reddy for laying a challenge to the order dated 30.06.2017 whereby the Executing Court has issued Delivery Warrant in favour of Respondent-DHrs reserving liberty to them for availing police assistance, if need arose.
4. I have heard the learned counsel for the parties at length; having perused the case papers and the written notes of the counsel. I have adverted to the relevant rulings cited at the Bar; I had also the benefit of seeing "wooden block demonstration" of the effect of sales in severalty, of the property, passionately given by the learned advocate appearing for the DHrs.
5. Challenge to the order of the Executing Court declining to refer the subject documents for forensic examination by a Handwriting Expert attached to State Forensic Laboratory, has to fail for the following reasons:
(a) the subject sale transactions of the DHrs were in challenge in JDrs' civil suit in O.S.No.986/1987 which was clubbed with DHrs' two suits for possession ie., O.S.No. 9077/1996 & O.S.No.9078/1996; the said challenge having been negatived by the trial Court, JDrs' suit came to be dismissed, and the suits of the DHrs came to be decreed by a common judgment & decree dated 21.12.2006; the JDrs' appeals in RFA Nos. 661, 662 & 663/2007 against the same also came to be dismissed by a Division Bench of this Court on 22.10.2009; their further challenge in SLPs against the same too came to be negatived by the Apex Court on 23.07.2010; thus, it is not open to the JDrs to seek reopening of the validity of the conveyances in the Execution Petitions since the matter is hit by res judicata, constructive, if not actual;
(b) the contention that the DHrs have played fraud on the JDrs in getting the sale deeds & the sketches attached to them, and that fraud vitiates everything and therefore the doctrine of res judicata is not invocable appears to be too farfetched an argument; the JDrs had taken up more or less a similar contention earlier and failed in the marathon legal battle that was fought up to the highest Court of the Country; in fact, such a contention was half-heartedly pressed into service by the JDrs in their suit itself, unsuccessfully; this apart, the material particulars of fraud are neither pleaded nor proved; "fraud vitiates everything" cannot be chanted like vedic mantra to invalidate the judgments & decrees entered after a full fledged trial especially when they have attained finality, the challenge thereto before the Division Bench of this court and in the Apex Court having miserably failed;
(c) the contention of the obstructors that the findings recorded in the subject suits as to the validity of conveyances do not operate as res judicata against them since they were not parties to the said suits, is true; this contention however does not advance their stand since no case is made out even otherwise, for referring the subject documents for forensic examination; they have not pleaded the minimum material particulars of fraud such as, who played fraud on whom, how & when; it has been a long settled position of law by a catena of decisions of the Apex Court, that the Courts would not readily entertain the allegation of fraud which is half-heartedly pleaded and much less proved; even whatever material they have placed on record not only does not substantiate the stand taken up by them, but does not make the contention consideration worthy;
(d) the deposition of the Sub-Registrar too does not advance the case of the obstructors and JDrs for referring the subject documents for forensic examination; there is absolutely no material to raise even a loose presumption that the sketches in question appended to the subject sale deeds were annexed subsequent to registration and fraudulently; normally, the enclosures/annexures to the sale deeds need to be mentioned in a particular Register, may be true of Rules of Registration; but the absence of such mentioning per se does not prove the contention of fraud or fabrication; a party to the deed has no control over the indoor management of the Sub-Registrar's Office and therefore, the arguable lapse on the part of said Office cannot be taken advantage of, by the others especially when the signature of Smt. Narayanamma appearing on the sale deeds & the sketches was not in dispute at all in the suit proceedings;
(e) the Obstructors & JDRs wanted to show that the sketches appended to the sale deeds are in variance with the description of the property in the suits of the DHrs; in fact, the description of subject property in the suits of the DHrs perfectly matches with that in the Counter Claim dated 18.04.1998 filed by the JDrs in the DHrs suits for possession; this apart, even the obstructors have bought the properties from the very same JDrs only and what they have bought are a part of the property bearing the very same Municipal Corporation Number ;
(f) the contention that the obstruction to execution requires to be treated as if it is a suit proceeding needs no substantiation, the position of law being very clear; but even in such a case, the subject documents cannot be referred for forensic examination by the Handwriting Experts merely on an askance; a substantial case has to be made out by the contenders for granting such a prayer especially when these documents were subject matter of scrutiny by the trial Court in the said suits, and challenge to the judgment & decrees made therein having been negatived even at the level of Apex Court as already mentioned above;
(g) the Obstructors, arguably, may or may not have some reason for seeking the forensic examination of the subject documents since they were not parties to the suit wherein these documents were scrutinized; as already observed above, the findings & observations in the suit proceedings do not per se bind those who are not parties eo nomine thereto; however, this is not to jump to a hasty conclusion that the obstructors happen to be or do not happen to be the buyers pendente lite; but, there is absolutely no justification whatsoever for the JDrs to seek the forensic examination of the subject documents; their stand in the suit, in the RFAs and in the SLPs is infected with unconscionability of high order and the same continues with more vigour even in Execution Petitions, their decades long drawn legal battle having miserably failed; therefore, this is a fit case for levying the exemplary costs on the JDrs, however sparing the obstructors.
6. Challenge to the issuance of delivery warrant needs to be favoured for the following reasons:
(i) admittedly the subject Sale Deeds of DHrs comprise only a portion of the property bearing Municipal Corporation Number 327 which in all measures 1 acre & 04 guntas i.e., 47,916 sq.ft. although the JDrs assert it to be about 54,000 sq.ft.; what is bought by the DHrs vide subject Sale Deeds dated 13.05.1986 is 17,172 sq.ft. plus 17,677 sq.ft. which in all works out to be 34,849 Sq.ft.; even the schedules in the said Sale Deeds also state that a part of the property in this Municipal Corporation Number is the subject matter of these two conveyances; the suits in question were founded on these Sale Deeds; therefore identifying the suit property is a pre-condition for the execution of the decree, as rightly contended by the counsel for the JDrs and the Obstructors;
(ii) the suits have been fought on the basis of pleadings of the DHrs and the JDrs, and that at no point of time there was any dispute as to the identity & extent of the suit property; there is some force in the vehement contention of the learned counsel for the DHrs that raising a dispute as to the existence of the suit property even after the decades long drawn legal battle attaining finality offends the sense of justice; but where a portion of the property is comprised in the Sale Deeds, the establishment of its identity becomes a sine qua non for the execution of the decree; a contention to the contrary may put other buyers of the residue of the property, to prejudice; therefore the requirement of establishing the identity of the subject property cannot be dispensed with;
(iii) there is also force in the submission of the counsel for the Obstructors that what is in execution is the decree and that the Executing Court has to find the decree as it is; there cannot be much dispute as to this well established proposition vide SHAFIQUR REHAMAN KHAN vs. SMT. MOHAMMED JAHAN BEGUM, (1982) 2 SCC 456; however, the Executing Court has to make all reasonable efforts to know what property the decree in question comprises of; where despite reasonable efforts, the property comprised in the decree does not become identifiable, such a decree may be treated as inexecutable vide Shafiqur Rehaman Khan Case, is also true; however, that is not the case here; at no point of time during the suit proceedings the JDrs had disputed the existence or extent of the suit property assuming such a dispute also will not yield anything to the advantage of the DHrs since no finding in support of their contention has been obtained;
(iv) there is some confusion as to the description and identity of the property in question, is admitted by the DHrs too in their deposition, is true; unless the decreetal property is identified, it is not possible to decide whether the Obstructors happen to be the buyers pendente lite and therefore they are liable to suffer the doctrine of lis pendens; it is more so, when DHrs application for impleading the Obstructors as being buyers pendente lite was rejected by the Executing Court on 23.04.2010; in fact, the Executing Court earlier had held that a thorough enquiry was warranted in this regard; the Court vide order dated 07.03.2013 again held that the question of issuing delivery warrant would arise after the completion of and subject to outcome of enquiry; that is the reason why it dismissed DHrs application in I.A.No.11 filed under XXI Rule 102 of the Code;
(v) the order of the Executing Court appointing a Court Commissioner did not materialize, and thus obviously there is no report by the said Commissioner; a Co-ordinate Bench of this Court in the aforesaid Criminal Petitions of the DHrs had appointed a member of the Bar namely, Mr. Venkatesh Dalwai as the Court Commissioner vide interim order dated 28.02.2016 and he had submitted the Report; the Obstructors were not notified, before the said Commissioner undertook the exercise, is not controverted; the records disclose that the said Commissioner was not examined as a witness in the Execution Proceedings regardless of arguable requirement thereof; the Obstructors did not have sufficient opportunity to have their say on the actionability of the report; the Executing Court made this report as the substantive basis for the issuance of delivery warrant, becomes obvious by a bare perusal of the record, albeit the other evidentiary material on record was also adverted to; thus there is a gross error of jurisdiction and procedural irregularity that have infected the impugned orders, whereby the issuance of delivery warrants are issued;
(vi) the contention that the report submitted by the Court Commissioner appointed in the aforesaid Criminal Petitions could not have been straightway accepted by the Executing Court is substantiated by the subsequent observations of the learned Co-ordinate Judge at para 9 of his judgment dated 16.03.2017 in the Criminal Petitions, which read as under:
"9. Before parting with the order, it is relevant to note that by order dated 28.10.2016, a Court Commissioner was appointed to identify and measure the property in terms of the schedule to the sale-deeds and to ensure that the petitioners are put in possession of the same. In compliance of the said order, the Commissioner has submitted a report. Learned counsel for the respondent has filed his objections to the said Commissioner's report. Having regard to the fact that the execution of the decree passed by the Civil Court is seized by the executing court and the records reveal that the executing court has also appointed a Commissioner for identification of the properties, in my view, it would be proper that the report prepared by the Commissioner along with the objections submitted by the respondent before this Court is forwarded to the executing court leaving it open for the executing court either to proceed further on the basis of the said report by calling for objections of the parties and to pass appropriate orders thereon in accordance with law and proceed with the execution of the decrees as expeditiously as possible."
(vii) even much before the judgment in the aforesaid Criminal Petitions was rendered, the Executing Court had acted upon the report of the said Commissioner without much deliberation thereon, that too in the face of the orders for holding of the enquiry with the participation of all the stake-holders; this apart, the DHrs applications in I.A.Nos. 9 & 10 filed under Order XVIII Rule 18 of the Code seeking inspection of the property by the learned Judge of the Executing Court were already rejected vide order dated 21.11.2012; similarly their application in I.A.No.11 filed under Order XXI Rule 102 for issuance of delivery warrant was also dismissed vide order dated 07.03.2013 and challenge thereto in R.F.A.No.489/2013 was negatived by a Co-ordinate Bench of this Court on 08.08.2016; all this, prima facie constitutes a ground for invalidation of delivery warrants issued in succession, and for the remand of the matter for consideration afresh;
(viii) no case is made out by the JDrs and the Obstructors to hold the decrees in question as being inexecutable and for relegating the DHrs to a fresh round of litigation that may eventually run for decades again, as has happened in these cases, inasmuch as whatever little discrepancy that exists in the description of the suit property can be erased out in the very execution proceedings with the evidentiary material on record coupled with the report that will be submitted by the Commissioner to be appointed afresh, pursuant to this judgment; the Executing Court has to find the decree as it is, is true; however, this proposition does not prevent it from making all reasonable efforts, as already mentioned above, for locating the subject property which is otherwise identifiable;
(ix) the suits of JDrs & DHrs have been fought for decades and this long drawn legal battle did not come to a halt even by the dismissal of JDrs' SLPs by the Apex Court vide Order dated 23.07.2010; the execution cases themselves are of 2007; a victorious party in a litigation which has been fought upto the level of the highest court of the country cannot be readily asked to launch one more litigation when the lacuna is addressable by the Executing Court itself; a contra argument strikes at the root of law, of reason and of justice; countenancing such an argument, would expose the judicial process to the risk of being ridiculed by the right thinking members of the society;
(x) the contention that the earlier orders made in the successive stages of the same litigation operate as res judicata does not need much elaboration vide decision of the Apex Court in Y.B. Patil And Ors vs. Y.L. Patil, AIR 1977 SC 392; the collective effect of all the impugned orders of the Executing Court does not render the decrees in question inexecutable; in fact, all they have an inner voice that the property comprised in these decrees does exist and is identifiable; there is no reason or rhyme for this court to run the race of opinions with the Court below in this regard; it hardly needs to be stated that no litigant can insist that the Executing Court while construing the decree should keep it's common sense in cold storage; it should make all reasonable efforts for ascertaining the executability of a decree, the strong presumption being in favour of its executability and the rebuttal thereof warranting a cogent substantiation;
(xi) the contention that the Executing Court cannot take cognizance of the report submitted by the Commissioner appointed by a Co-ordinate Bench of this Court in DHrs' quashment proceedings u/s.482 of Cr.P.C. since the Code does not authorize the Criminal Courts to undertake such an exercise, appears to be too farfetched an argument; rightly or wrongly, there was such an order appointing the Commissioner; this Court cannot sit in appeal over the order of a Co-ordinate Judge; unless the said order on an appropriate challenge is set at naught, the same continues to be valid in the absence of magistra dicta as to its invalidity, the same needs to be taken cognizance of; the Apex Court in the case of STATE OF PUNJAB vs. GURDEV SINGH & ANOTHER, AIR 1992 SC 111 at paras 7 & 8 observes as under:
"7. Apropos to this principle, Prof. Wade states: "the principle must be equally true even where the 'brand' of invalidity' is plainly visible; for there also the order can effectively be resisted in law only by obtaining the decision of the Court (See: Administrative Law 6th Ed. p.352). Prof. Wade sums up these principles:
"The truth of the matter is that the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is, in reality, valid..........."
8. It will be clear form these principles, the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for.";
(xi) after all, the report submitted by the Court Commissioner appointed in the aforesaid Criminal Petitions cannot be brushed aside; it would constitute a piece of evidence along with other material on record, for decision making in the light of the observation of the said learned Judge at para 9 of his judgment; this does not preclude the Executing Court appointing an expert as a Court Commissioner for accomplishing the identification and measurement of the decreetal property; and,
(xii) the last contention that the Executing Court could not have shifted the Eastern boundary to South at the first blush appears to be very attractive, but a deeper scrutiny robs off all its sheen; the decretal properties are not a square or trapezium like; their arms are not spread exactly East-West and North-South; nor are they perpendicular or parallel to each other; they are a bit slant going by three other boundaries; the shifting of Eastern boundary to the Southern side facilitates identification of property but does not change its location, since the 'Mysore Road' remains static as a polestar; therefore, by the so called shifting of the boundary, no error is committed by the Executing Court as rightly submitted by the counsel for DHrs; this is yet another reason for rejecting, the contention of the JDrs and Obstructors that, the DHrs should go for another suit for rectification of the sale deeds in question;
(xiii) there is some force in the contention of the DHrs that what is bought by the Obstructors is far in excess of what was left after DHrs had bought and therefore the conveyances overlap; this contention is founded on simple logic and arithmetics; once the JDrs had sold the property, they could not have conveyed the same later to others is true of maxim nemo dat quad non habet; however the fact remains that there remained some portion even after the DHrs bought the major portion of the property bearing MC No.327; there are as many as six sale deeds executed by JDrs subsequent to the sales made to DHrs; there is a certain fraudulent design attributable to JDrs, if not to some of the subsequent buyers; a vendor of the property having lost his case for setting aside the conveyance after fighting it upto the Apex Court cannot be heard to say in the execution proceedings that the said property is not in existence at all; such a stand of vendors is infected with enormous unconscionability, if it is not a fraud of first order; countenancing a contra argument militates against the foundational principle of Law of Contract namely, 'pacta sunt servanda' i.e., what is agreed upon must be performed;
7. Whether a case is made out by the DHrs for levying exemplary costs on the JDrs?
a) In the subject suits, as already mentioned above, the challenge to the DHrs' sale transactions failed before the trial Court in the suits, before a Division Bench of this Court in the RFAs and before the Apex Court in the SLPs; the contention that was half heartedly urged i.e., the alleged non-existence of the property of the DHrs, is re- agitated in the execution proceedings; having lost the suits at all levels the JDrs had absolutely no justification whatsoever for seeking forensic examination of the DHrs' sale deeds and sketches appended thereto; it was only an attempt to protract the execution proceedings to the detriment of DHrs; strangely throughout the long drawn legal battle of more than three decades, not even a whisper is made by the JDrs that they would refund the consideration amount with interest and compensate the DHrs for selling the so called "non-existent property";
b) apparently a part of the property comprised in the six Sale Deeds executed subsequently, over-lap the property already sold to the DHrs, albeit the same needs to be identified by the Executing Court; the conduct of JDrs in falsely implicating the DHrs in criminal cases which later came to be quashed by the Co-ordinate Bench, amounts to cruelly smearing salt to the injury, to say the least; there is a certain design to delay the execution of decrees, if not to defeat the same absolutely; all these circumstances eminently warrant levy of exemplary costs on the JDrs jointly, in a sum of five lakh rupees in each of the Execution Petitions and stipulating of a rider that they shall not be permitted to participate in the Executing proceedings till after the payment is made to the DHrs, collectively.
8. Whether Obstructors are liable to deposit the amount by way of interest to be reckoned from the date they received the compensation till the date of Division Bench order ie., 19.04.2013?
(a) there is yet another aspect which the learned counsel for the respondent - DHrs has passionately drawn the attention of the Court to. In DHrs' W.P.No.9337/2008 filed inter alia against the appellant - obstructors, a Co- ordinate Bench of this Court vide judgment dated 28.10.2009 at para 15 had said: "Hence, this writ petition is allowed in part. The KIADB and the Land Acquisition Officer are directed to ensure that the amount paid to respondents 2 to 11 is re-deposited by taking such steps as are permissible in law. ...."
(b) the aforesaid judgment was put in challenge by the appellant-obstructors in Writ Appeal No.4201/2009 & Writ Appeal Nos.294-302/2010 (LA-KIADB); a Division Bench of this Court by a common judgment dated 05.03.2010 dismissed the appeals observing at para 3 as under:
"3. After hearing the counsel for appellants, we find that appellants have acted in a bona fide manner. However, they are bound by the order of the learned single Judge. ...."
(c) since the Obstructors had not complied with the direction for re-depositing the compensation amount, the DHrs had filed CCC No.280/2011 (Civil) complaining violation of the writ; the Division Bench vide order dated 01.08.2012 dropped the contempt proceedings on the undertaking of the Obstructors to re-deposit the compensation amount with the KIADB if the DHrs were to succeed in the proceedings under Order XXI Rule 97 of CPC; thereafter on the memo of the DHrs, the Division Bench on 19.04.2013 had directed the Obstructors to deposit the compensation amount, with interest at 12% per annum before the trial Court within one month, the release whereof shall be subject to outcome of the Execution Petitions. The challenge by the appellant- obstructors to the same in SLP also came to be negatived by the Apex Court vide order dated 05.11.2014;
(d) the appellant-obstructors had filed application in I.A.Nos. 2, 3 4 & 5 of 2014 and in I.A.No.3 of 2015 inter alia seeking extension of the period for making the deposit; the Division Bench vide order dated 02.09.2016 observed as under:
"Order on I.A.Nos.2,3,4 and 5 of 2014 & I.A.No.3/2015
Considering the facts and circumstances, time to deposit the amount if not deposited shall stand extended for a period of three months. However, it is observed that thereafter, if there is any non- compliance or if there is any dispute in calculation, it would be open to the applicants in CCC No.280/2011 and CCC Nos.291-293/2011 to resort to appropriate proceedings in law. Accordingly, all the applications for extension of time shall stand disposed of."
(e) Subsequently the said Division Bench vide order dated 24.01.2017, at para 10 observed as under:
"10. As noticed above, the contempt petition was disposed of on 1.8.2012 On 19.4.2013, this Court directed accused Nos.3 to 12 to deposit the compensation amount received with interest at 12% p.a. before the trial Court within one month. However, on an application made by the accused, this Court on 2.9.2016 has observed that if there is any non-compliance or if there is any dispute in calculation, it would be open for the applicants in the contempt proceedings to resort to appropriate proceedings in law. This order has
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become final. If the complainants have any grievance in relation to non-compliance of the order dated 19.4.2013, they have to initiate appropriate proceedings in accordance with law. Therefore, no further orders are necessary in these proceedings." (f) pursuant to the above orders/directions, it is submitted on behalf of the Obstructors that since they have already made the deposit of the principal amount with interest at the rate of 12% per annum reckoned from 19.04.2013 ie., from the date of the order of the Division Bench, there is no need for depositing any more amount by way of interest; admittedly, they have not deposited the interest that has accrued due from the date they had taken the compensation; obviously the interest would accrue not from the date of the direction of the Court but from the date on which they had received the compensation amount; their contention to the contrary is nothing but a contravention of the direction of the Division Bench; (g) one of the Obstructors namely, Sri Gopilal Laddha has filed an affidavit dated 18.11.2019 inter alia to the effect that this Court should not non-suit the Obstructors for the alleged violation of Division Bench order when that is not the subject matter of these appeals & writ petitions; the stand of the Obstructors is unconscionable to say the least; those who violate the Court orders or the undertaking given by them need not be given access to the judicial process; the Obstructors are liable to deposit in the Court below the interest at the rate of 12% that has accrued due from the date they received the compensation till 19.04.2013 also within a period of one month, which shall be subject to outcome of the execution proceedings; the said amount on being remitted to the Court below shall be kept in an interest earning deposit scheme in a Nationalised Bank. If the remittance is not made accordingly, the concerned Obstructors would run the risk of being kept away from participation in the execution proceedings by the Court below in its discretion and wisdom. In the above circumstances, I make the following ORDER The challenge by the JDrs and the Obstructors to the rejection of their request for subjecting the documents in question to the forensic examination by a Handwriting Expert of the State Forensic Laboratory, is dismissed; (a) the other challenge by the JDrs and the Obstructors having been partly favoured, the impugned orders of the Executing Court directing issuance of Delivery Warrant, are set at naught, and the matter is remitted back for consideration afresh by appointing an expert person/official as the Court Commissioner for accomplishing the identification & measurement of the decreetal properties with the participation of all the stake- holders, in that exercise subject to all they bearing the costs & fees thereof, equally; (b) it is open to the Executing Court to take into consideration the entire evidentiary material on record hitherto including the Report already submitted by the Court Commissioner Shri Venkatesh Dalwai, (c) the amount already in deposit and the one to be deposited by the Obstructors in terms of orders of Co- ordinate Benches of this Court mentioned in paragraph 8 supra shall be released to the parties concerned, that emerge victorious in the Execution Petitions; (d) the JDrs shall jointly pay to the DHrs collectively an exemplary cost of Rs. 5,00,000/- (Rupees five lakh) only in each of the Execution Petitions within a period of eight weeks, regardless of the outcome of the said petitions; and, if, the same is not accordingly paid, they run the risk of being excluded from participation in the Execution Proceedings, in the discretion of the learned judge of the Court below; and, (e) the entire exercise including the disposal of the Execution Petitions shall be accomplished within an outer limit of six months, and the compliance of such accomplishment shall be reported to the Registrar General of this Court. No costs qua obstructors.