Final Order 1

Order Details: Copy of Judgment
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CNR No.: MHSCA3 0000502022
Presented on
Registered on
Decided on
:
:
:
11.09.2022
27.01.2022
26.08.2022
Period required for the disposal
00 Years 00 Months 16 Days
IN THE COURT OF SMALL CAUSES, AT MUMBAI
(BANDRA BRANCH)
Revision Application No.05 of 2022
In
Order below Exh.1
In
Execution Application No.3 of 2020
In
L.E & C Suit no.214/236 of 2014
1. M/s.New Age Hospitality Services,
a Partnership Firm, carrying on business,
and having its Office at 107, Kedia Chambers,
S.V.Road, Malad (West),Mumbai 400 064.
2. Mr.Dilip Damodar Mudaliar
adult, Indian Inhabitant of Mumbai,
age : about 35 years, Occ.Business,
Partner of M/s.Age Hospitality Services
having his address at at 107, Ke-dia Chambers,
S.V.Road, Malad (West),Mumbai 400 064.
3. Mr.Nilesh Damodar Mudaliar
adult, Indian Inhabitant of Mumbai,
age: about 33 years, Occ.Business
Partner of M/s.Age Hospitality Services,
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having his address at 107, at 107,
Kadia Chambers,S.V.Road, Malad (West), ...Applicants
Mumbai 400 064. (Orig.Defendants)
Versus
Joseph Jaganathan Mudaliar
An adult, Indian Inhabitant of Mumbai,
age about 58 years, Occ.Business ,
residing at Flat No.12, Crystal Palace
Co.Operative Housing Society Ltd, … Respondent
Link Road, Malad (West), Mumbai 400 064. (Orig.Plaintiff)
Appearance :-
Shri.M.A.Chandan,
Advocate for Applicants.
Shri.Krishna Dev Pandey,
Advocate for
Respondent
Coram:- Mohammad Nasir M. Saleem
Addl. Chief Judge
And
Kashinath B.Kamgauda, Judge
C.R.No.31,
Date :-26.08.2022
JUDGMENT :- (Per Mohammad Nasir M. Saleem, Addl.Chief Judge)
The instant Revision Application is filed invoking the Order
21 Rule 35 of the Civil Procedure Code and thereby, challenged the order
passed by the executing Court below Exh.1 in Execution Application No.03
of 2020 in L.E.& C Suit No.214/236 of 2014
2. The Operative Order of the executing court is reproduced for
quick perusal :
1. Under, Order XXI Rule 30, issue warrant in form of
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No.8 of Appendix “E” for attachment of movable
Properties of Judgment Debtors No.1 to 3 that is
M/s.Age Hospitality Services, Mr.Dilip Damodar
Mudaliar, and Mr.Nilesh Damodar Madaliar for the
recover yf of Rs.69,70,010/-
2. Under, “Order XXI Rule 37, issue notice in form
No.12 of Appendix “E” to Judgment Debtors No.2 and
3 as a partners of Judgment Debtor No.1 to show cause
as to why warrant of arrest shall not be issued against
them.
3. Under, “Order XXI Rule 35”, issue warrant in form
of No.11 of Appendix “E” for the possession of the suit
premises that is Gala Nos.01.02. And 03 on the
Ground floor, aggregately admeasuring 1560 square
feet carpet area, and Gala Nos.11, 12 and 13 on the
Upper Floor, Aggregately also admeasuring 1560
square feet carpet area in the structure known as
“Ganga Niwas” situate at Link Road, Malad (West),
Mumbai 400 064 on the plot of land bearing Survey
No.1446/4(Part), corresponding to CTS No.1058-A,
admeasuring 659.60 square meters out of larger land
admeasuring 812.60 square meters of village Malad
(South), Taluka Borivali and Gala Nos.14,15 and 16 also
on the Upper Floor, aggregately also admeasuring 1651
square feet carpet area in the said structure known as
“Ganga Niwas”, situate at Link Road, Malad (West),
Mumbai 400 064 on the plot of land bearing Survey
No.446/4(Part), corresponding to CTS No.1058-A,
admeasuring 659.60 square meters out of larger land
admeasuring 812.60 square meters of village Malad
(South), Taluka Borivali.
4. Bailiff P.M.Bagwe, is hereby directed to execute the
above warrants and submit report to this Court.
3. Applicants/defendants/judgment debtor are the licensee of
the suit premises. Respondent/ original plaintiff/decree holder is the
licensor. Plaintiff filed L.E & C Suit No.214/326 of 2014 for recovery of
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possession of the suit premises and for recovery of compensation/mesne
profits on the ground that the leave and licence agreement dated
18.11.2010 was terminated. In the said suit, defendants/applicants caused
their appearance. They contested the suit and also filed their counter
claim. Subsequently, the matter was compromised between the parties
and they entered into the Consent Terms, which was submitted before the
Court on 26.09.2016 and in terms of consent, suit was disposed of by
compromise decree.
4. Plaintiff/respondent filed execution proceeding alleging that
defendants have not acted as per the terms of compromise and they have
committed three consecutive defaults in payment of licence fees. In the
execution application, plaintiff has prayed for warrant of possession of the
suit premises and enforcement of order as to licence fees/compensation
agreed under the consent terms and further prayed for mandate to compel
defendants to act as per the compromise decree.
After considering the rival contentions, the learned trial
Judge was pleased to enforce the consent decree by passing the impugned
order, which is reproduced herein above.
5. The question before this Court is whether the Consent Term
can be enforced in the execution and if it can be enforced, the order
impugned is in accordance with law.
6. It is settled law in the case of Kanwar Singh Saini V/s.High
Court of Delhi 2012(4) SCC 307 that terms of consent terms can be
enforced by way of execution proceeding and not by way of application
under Order 39 Rule 2A of the Civil Procedure Code unless the
disobedience is intentional and contemptuous. It is not the case of
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defendants that the consent terms or consent decree was obtained either
by fraud or it is unlawful. On the contrary, defendants also firmed on the
point that the consent terms were reduced into writing as per the
agreement between the parties. As a result thereof, the consent decree
was passed by the learned trial Court. The consent decree includes the
modes of its enforcement. Therefore, the consent decree in question can
be easily enforced by way of execution proceeding.
7. The consent terms itself speaks about the payment of
compensation as agreed between the parties. There is specific clause in the
consent terms qualifying enforcement of it in case of consecutive three
defaults of licence fees/compensation by defendants. Since there was
default in payment of licence fees/compensation, plaintiff has rightly
applied for the execution of the consent decree. The consent decree is
composite decree in respect of recovery of licence fees and recovery of
possession of the suit premises. The consent decree partly has to be
enforced as a money decree by modes like, attachment of property or
sending the defendants in Civil prison. Therefore, the learned trial Judge
has rightly passed the order issuing the warrant under order XXI Rule 30
in Form of No.8 of Appendix “E” for attachment of movable properties of
judgment debtors nos.1 to 3 i.e M/s.Age Hospitality Services, Mr.Dilip
Damodar Mudaliar and Mr.Nilesh Damodar Mudaliar for the recovery of
Rs.69,70,010/-. Besides this, under Order XXI Rule 37 issued notice in
form No.12 of the Appendix “E” calling upon defendants to show cause as
to why warrant of arrest shall not be passed against them. The issuance of
warrant for attachment of the movable properties and issuance of notice
directing the defendants as to why they should not be arrested for the
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recovery of licence fees are not the final orders. On the contrary, an
opportunity was given to defendants to get applied for restitution and
discharge the movable properties by depositing the decreetal amount and
show cause as to why they should not be sentenced to Civil imprisonment
Against these orders, the Revision Application is not maintainable.
8. So far as the issuance of possession warrant in form of No.11
of Appendix “E” for the possession of the suit premises, is concerned, it is
in accordance with law. The terms of the consent decree itself empowers
the executing Court to issue the possession warrant under Order XXI Rule
35 of the C.P.C. Since defendants are bound by the consent decree, the
learned trial Judge has rightly exercised the power under Order XXI Rule
35 of the C.P.C, which deals with the delivery of immovable property in
possession of a person bound by the decree. The consent decree has
attained the finality. It has not been challenged nor has been set aside by
the appellate forum. Once the consent decree has attained the finality,
staying its execution by allowing this revision would amount the stay of
execution and operation of the decree attained finality. There is no
question of affecting the substantive right of defendants. They have
voluntarily arrived at the settlement and it is their duty to act as per the
terms of the consent decree. Since they failed to act as per the terms of the
compromise decree by committing three consecutive defaults in payment
of licence fees, plaintiffs have rightly invoked the jurisdiction of the
executing Court. Thus, the order under Order XXI Rule 35 issuing warrant
for possession of the suit premises is legal and valid. This order cannot be
termed as a revisable order affecting rights of defendants.
9. The learned advocate for defendants has relied upon the
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decision of the Hon'ble Karnataka High Court in the case of Sri
M.M.Jamadhar and etc. V/s.Smt.Amirbi and etc. AIR 1985
Karnataka 91. On the basis of this judgment, he argued that the revision
against the order for the delivery of possession of the suit premises, is
maintainable. The facts of the cited case are that an order for delivery of
possession was passed against the tenant of the disputed premises on the
basis of decree passed in a suit instituted for partition and possession. The
decree was not passed in rent suit against the tenant. In the said case, the
provisions of Karnataka Rent Control Act were pressed into service and on
that basis, it was laid down that no tenant could be dispossessed except by
an order of the court, passed under the provisions of Rent Control Act.
Here, in the instant case, plaintiff is not seeking to get executed the decree
passed in another suit. But, it is a consent decree sought to be enforced.
10. It is settled legal position when the property is in possession
of a tenant and person not bound by the decree, the decree holder receives
only constructive possession. This being a position, the above cited case is
not applicable to the facts of the case in hand.
11. One more citation is relied upon by the learned advocate for
defendants rendered by the Hon'ble Delhi High Court in the case of
Kuldip Singh V/s.Charan Singh and ors. AIR 1986 Delhi 297. The
ratio laid down in the case is that if the order of executing Court issuing
warrant for delivery of actual possession of the suit premises is illegal,
then, it can be revisable even at the instance of third party to execution
proceeding. With respect, we make it clear that defendants cannot take
recourse of above said citation in the present matter.
12. The success and failure of the civil justice depends on success
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in executing decrees of the Civil Court. If, the execution of the decree is
stayed, unnecessarily, people will lose their faith in the system of Civil
justice.
13. The defendant cannot take the recourse of Order 21 Rule 35 of
the Civil Procedure Code for challenging the impugned order by way of
revision. On this count also, the Revision Application is not maintainable.
14. For the aforementioned reasons, we are of the considered
view that the impugned order passed by the executing Court for the
enforcement of the consent decree, is legal and proper and does not
require interference at the instance of this Court. In the result, we pass
following order.
ORDER
1. Revision Application is dismissed.
2. The Order dated 30.03.2021 passed by the learned trial
Judge (Court Room No.40) below Exh.1 in Execution
Application No.03 of 2020 in L.E & C Suit No.214/236 of
2014, is confirmed.
3. Costs in cause.
I agree,
(K.B.Kamgauda) (Mohammad Nasir M.Saleem)
Judge Addl.Chief Judge
Court Room No.31 Court Room No.31
Date :-26.08.2022 Date :-26.08.2022
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