No Acts & Articles mentioned in this case
903-SA-621-22 (F).DOC
Suchitra
IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO.621/2022 (F)
VASUDHA VASANT DABHOLKAR,
Wife of Vasant Dabholkar aged 76 years,
Indian National, residing at 202 A wing,
Pratik Building, Near Kabutar Khana,
Bhavani Shankar X Road, Dadar (West),
Mumbai 400028. … APPELLANT
Versus
1. SUDESH GOVEKAR, son of late
Vassudev Govekar, (since dec.) and his
wife,
2.SMT. SUSHILA SUDESH GOVEKAR,
Housewife, residing at House No. 123/ C,
c/o. Mr. Vasant Naik, Deulmol Housing
Board, Margao, Goa.
3. SMT. ARTI GOVEKAR, major,
daughter of late Vassudev Govekar, major
in age, occupation business, and her
husband,
4.SHRI SANJEEV SINAI USGAONKAR,
s/o. Mr. Sachidanand Usgaonkar, major in
age, occupation unemployed, residing at
Dr. Almeida Complex, C-F-01, 4" Floor,
Ponda, Goa
(Res No. 4 deceased through his legal heir)
4(a) SHRI NILESH SINAI
USGAONKAR, Age 22 years, bachelor,
resident of Dr. Almeida Complex, C-F-1,
4" Floor, Ponda, Goa.
… RESPONDENTS
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5. SHRI RAMDAS GAONKAR, s/o late
Govind Gaonkar, residing at Tirumala
Housing Society, Flat No.C-8,
Padmanagar, Gogol, Margao, Goa.
6. SHRI VISHRAM ALIAS PRASAD
GOVEKAR, s/o. late Jagannath Govekar,
major in age, occupation service.
7. SMT. SUNITA GOVEKAR, wife of Shri
Vishram alias Prasad Govekar, major in age,
occupation housewife.
8.SMT. LILAVATI GOVEKAR
(Deceased) wife of Jagannath Govekar,
9. SHRI. HARSHAD GOVEKAR,
s/o. Mr. Vishram alias Prasad Govekar,
major in age,
Respondent Nos. 6, 7 and 9 are residents of
House No. 1653, Chivar, Devalvadi,
Anjuna, Bardez, Goa .
Mr. Pranav Desai with Mr. Vibhav Amonkar, Advocates for the
Appellant.
Mr. S. D. Lotlikar, Senior Advocate with Ms. S. Kenny,
Advocate for Respondents No.1 to 5.
CORAM: M. S. SONAK, J.
Reserved on:
Pronounced on:
14
th
October 2022
15
th
October 2022
ORDER :
1.Heard Mr Pranav Desai for the Appellant and Mr S. D.
Lotlikar, learned Senior Advocate, who appears along with Ms. S.
Kenny for respondents no.1 to 5.
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2. This appeal challenges orders dated 14.12.2021 and
05.03.2022 dismissing the Appellant's Application under Order
21, Rule 97 r/w 101 of the Civil Procedure Code (CPC). Such
orders are deemed to be decrees. Hence this Second Appeal.
3.The records bear out that respondents no.1 to 5 had
instituted a Regular Civil Suit No.226/2006/E for an injunction
and consequential reliefs concerning the suit property. This suit
was dismissed by Judgment and Decree dated 30.03.2012. The
First Appellate Court, in Regular Civil Appeal No.86/2012,
reversed the Trial Court and decreed the suit on 24.07.2012.
Second Appeal No.138/2012 was dismissed by this Court on
29.11.2013.
4.The defendants in the above Regular Civil Suit
No.226/2006/E, who are incidentally the brother/sisters-in-law of
the present Appellant, carried the matters to the Hon'ble
Supreme Court in Civil Appeal Nos.12068 to 12070 of 2016. By
Judgment and Order dated 14.12.2016, the appeal was dismissed
with costs after finding the same to be without any merits.
However, the following direction was issued under Article 142 of
the Constitution of India to do complete justice in the matter and
to see that the defendants also do not suffer and the structure they
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put up was not wasted. The relevant para in this regard reads as
follows:-
"
22. However, before we part with, we have to take into
consideration one more development. As noted above, the
defendants have made new construction on the property of
the plaintiffs. Demolition of the said construction is not
going to help any party. It would result in wastage of the
expenditure incurred on the construction. No doubt, the
structure is constructed illegally by the defendants.
Nevertheless, plaintiffs can make use thereof. Therefore,
equities can be balanced if the plaintiffs take possession of
the house in question without its demolition, but, at the
same time, compensate the defendants by paying the cost
of construction. In these circumstances, in the execution
petition which is filed, or ought to be filed by the plaintiffs,
the executing Court shall appoint a Surveyor/Valuer who
would fix the cost of construction that would be
reimbursed by the plaintiffs to the defendants.
23. We are giving these directions in exercise of our powers
under Article 142 of the Constitution of India in order to
do complete justice in the matter and to see that the
defendants also do not suffer and the structure put up by
them is not wasted. …......"
5.Respondents no.1 to 5, i.e. the decree holders in the above
suit, had already instituted execution proceedings in 2014.
However, even after the Hon'ble Supreme Court disposed of the
appeal, for some reason, the execution did not proceed at the
desired pace. Therefore, the decree holders instituted proceedings
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before this Court which were disposed of by Order dated
20.06.2022. Accordingly, this Court directed the Executing
Court to dispose of the pending execution proceedings as
expeditiously as possible and, in any case, within three months.
6.At this stage, the Appellant, who is the sister/sister-in-law of
the judgment debtors in Regular Civil Suit No.226/2006/E, filed
Obstructionist Proceedings invoking the provisions of Order 21,
Rule 97 r/w 101 of the CPC. By Order dated 14.12.2021, the
Executing Court dismissed the Application. The First Appellate
Court dismissed the appeal on 05.03.2022. Hence the present
Second Appeal.
7.Mr Pranav Desai, the learned counsel for the Appellant,
submitted that the parties to the suit played a fraud on the
Hon'ble Supreme Court by representing the late Jagannath
Govekar was survived by only two sons, namely Vasudev and
Vishram. He submits that the factual and undisputed position is
that Jagannath was survived by two sons and three daughters,
including the present Appellant. He offers that if the correct
family tree were presented to the Hon'ble Supreme Court,
perhaps, no orders would have been made affecting the right of
the Appellant.
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8.Mr Desai submitted that the finding recorded by the
Hon'ble Supreme Court about Jagannath Govekar's claim being
barred under the provisions of Section 4(2) of the Benami
Transactions (Prohibition) Act, 1988, would not bind the present
Appellant, who was not a party to the above suit and
consequently to the appeal before the Hon'ble Supreme Court.
He submits that the amendment to this Act which entered force
on 01.11.2016, would apply to the Appellant's case because the
plea about Jagannath being the actual owner of the suit property
was raised by the Appellant much after 01.11.2016. Mr Desai,
therefore, submits that the appeal court was not justified in non-
suiting the Appellant based upon the findings/observations of the
Hon'ble Supreme Court on the issue of the Benami Transaction.
9.Mr Desai submits that reliance on Dolai Maliko v/s.
Krushna Chandra Patnaik & Ors. - AIR 1967 SC 49 by the
two Courts was misplaced. First, he presents that
Dolai Maliko
(supra)
clarifies that the principle therein will apply in the absence
of any fraud or collusion. He submits that in this case, the
Appellant alleged fraud, if not collusion, and therefore, the
principle in
Dolai Maliko (supra) would not apply. Second, he
submits that the observations in
Dolai Maliko (supra) were in the
context of abatement and sufficient representation of the estate,
which is not the issue in the present case. Thirdly, he submits that
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the Appellant had raised a claim that was independent of her
brother or mother, which was not the position in
Dolai Maliko
(supra)
. Finally, he submits that the two Courts did not consider
all these distinguishing features.
10. Mr Desai submits that the provisions of Order 21, Rule 97
r/w 101 of the CPC contemplates a full-fledged trial after issues
are framed. He offers that in this case, the Appellant's claim was
independent of the claim raised by her brother or mother in
Regular Civil Suit No.226/2006/E. He submits that in such
circumstances, the Appellant's Application could not have been
dismissed summarily without the Appellant being granted a full
and adequate opportunity of leading evidence. Mr Desai
submitted that in the plea raised by the Appellant, mixed
questions of law and fact were involved, and the same could never
have been dealt with in the absence of the opportunity to lead
evidence.
11.Mr Desai relied on
Sameer Dattatraya Deshpande &
Anr. V/s. Kishor Shamrao Jadhav – Second Appeal
No.195/2022 decided on 20.06.2022 and Sardar Hasanbhai
Attar v/s. Usman Papamiya Attar Shaikh & Ors. - 2008 (1)
Mh.L.J. 340 in support of the above contention.
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12.Based on the above contentions, Mr Desai urged
consideration of the following questions, which according to
him, constituted substantial questions of law:
(A) The finding of the Learned District Court accepting the
contention of Respondent Nos. 2, 3, 4(a) and 5 that the
interest of the Appellant in the subject matter property was
represented by the other legal heirs, relying on the
Judgment of the Hon'ble Supreme Court in the case of
Dolai Maliko (supra) is perverse in view of the fact that
the said Judgment makes a categorical exception as to the
cases of fraud and collusion between the parties on record -
the Respondents in the present case. A bare perusal of the
Judgment of the Hon'ble Supreme Court would
demonstrate the fraud and collusion, which was specifically
urged by the Appellant and has not been considered by the
Learned District Court?
(B) Considering the scheme of Order XXI Rule 97, 101
and 103 CPC, it was incumbent on the Learned District
Court to permit the Appellant to lead evidence thereby
directing holding of an enquiry. However the Learned
District Court has totally ignored that the Learned Civil
Judge, Junior Division has summarily, in an arbitrary
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manner and without following basic canons of natural
justice, dismissed the said Application without giving an
opportunity to the Appellant to lead evidence in order to
prove her title or right to the said property. Such an
approach is not only perverse but also violates the principles
of natural justice?
(C) Whether the finding in respect of Benami Transaction
which has been confirmed by the Hon'ble Supreme Court
is binding on the Appellant who was admittedly not a party
to the proceedings and specially when the Supreme Court
has concluded its finding based on the fact that the
Defendants in the said Suit (Respondent Nos. 6, 7 and 9
herein) have not produced any material to prove the real
ownership of Late Jagganath Govekar and additionally in
view of the change in the legal position?
(D) Whether the Application under Order 21 Rule 97 read
with Rule 101 of the Code of Civil Procedure can be
decided in a summary manner without affording an
opportunity to the Appellant to lead evidence on the issues
of possession, ownership and limitation, which fall for
determination for the first time before any Court in
execution under Order 21 Rule 97 r/w 101 CPC, more
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specifically when the issues of ownership and possession are
raised by the Appellant independently and not through the
Judgment Debtors or Decree Holders?
13.Mr Lotlikar learned Senior Advocate for respondents no.1
to 5 (original plaintiffs) submitted that none of the proposed
questions are questions of law. Further, he submitted that in any
case, such questions are neither substantial nor do they arise in
the present appeal.
14.Mr Lotlikar submitted that in the entire Obstructionist
Application, there are no allegations of fraud. Therefore there is
no question of going into the issue of any fraud allegedly played
on the Hon'ble Supreme Court. He submitted that the suit was
for injunction simpliciter. Under Article 142 of the Constitution
of India, the Order required the plaintiffs to pay for the
construction illegally put up by the defendants in the suit.
However, the First Appellate Court, this Court and finally, the
Hon'ble Supreme Court confirmed the injunction decree after
holding that the plaintiffs were in possession of the suit property.
Therefore the Application under Order 21 Rule 97 r/w 101 of the
CPC was not maintainable.
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15.Mr Lotlikar finally submitted that the Apex Court had
conclusively held that Jagannath, i.e. the father of the Appellant,
had no rights or interest in the suit property. Therefore, the claim
was barred under the Benami Transactions Act. This finding has
attained finality, and it is no longer open to the Appellant to urge
otherwise. He submitted that there is no difference between the
claim of the present Appellant and the claim of her brothers/
sisters-in-law in the suit. He submits that it is in this context that
reliance was placed on
Dolai Maliko (supra).
16.Mr Lotlikar submits that unless questions legally arise
between the parties, there is no obligation upon the Executing
Court, in every case, to hold a full-fledged trial while deciding an
application under Order 21 Rule 97 r/w 101 of the CPC. He
submits that the pleas raised by the Appellant were frivolous and
only intended to delay the execution. He submits that the
Appellant was completely aware of the suit and, after admitting
this position, had merely pleaded that she was not bothered about
its outcome because she was not a party to the suit. He relies on
Silverline Forum Pvt. Ltd. v/s. Rajiv Trust & Anr. – (1998) 3
SCC 723 and Satyawati v/s. Rajinder Singh & Anr. - (2013)
9 SCC 491 to submit that the execution proceedings should not
be permitted to be delayed in this manner.
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17.For all the above reasons, Mr Lotlikar submits that this
appeal may be dismissed with costs.
18.The rival contentions now fall for my determination.
19.The first contention about fraud being practised on the
Hon'ble Supreme Court does not appear well taken. Firstly, there
are no pleadings in the Application under Order 21, Rule 97 r/w
101 of the CPC on this aspect. For a serious plea of fraud,
pleadings of material particulars are necessary. Mr Dessai says that
evidence could always be led on this aspect. However, it is well
settled that pleadings are a must before any evidence can be let in
or considered. This is more so where fraud is alleged.
20. Secondly, in para 2 of its Judgment and Order dated
14.12.2016, the Hon'ble Supreme Court had merely transcribed
the sketch of the family tree which
described the parties. The
Appellant, therefore, did not plead fraud but insisted on arguing
it without pleadings. Thus, the purpose of the family tree was to
describe the parties and not to create an impression that there
were no other representatives.
21.Thirdly, even the Appellant's brothers, who were the
appellants before the Hon'ble Supreme Court, did not deem it
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necessary to refer to the present Appellant or the other two sisters,
possibly because the case of the sisters was no different than their
case. Finally, even the present Appellant, like her brothers, claims
through her father, Jagannath.
22.In para 18 of the Judgment and Order dated 14.12.2016,
the Hon'ble Supreme Court has held that Jagannath had no right
or title in the suit property because such a plea was barred by
Section 4(2) of the Benami Transactions Act. The relevant
observations in para 18 read as follows:-
“
18. In this context, the question of benami ownership
also surfaced. There is no dispute that in the revenue
records property stood in the name of Vassudev Govekar
and not Jagannath Govekar. The first appellate court
rightly held that the plea with regard to the real owner of
the property being Jagannath Govekar could not be gone
into as it was barred by the provisions of Section 4(2) of the
Benami Act. Though we do not find any merit in the
arguments of the appellants that the Benami Act is not
applicable, in any case there is hardly any material
produced by the defendants to support that real owner was
Jagannath Govekar. This claim is made only on the ground
that it is Jagannath Govekar who had got the suit property
acquired in the name of his son Vassudev Govekar. That
by itself would not make Jagannath Govekar as the owner
of the suit property.”
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23.Since Jagannath had no rights in the suit property, there is
no question of the present Appellant, who is Jagannath's
daughter, asserting that she has some rights to the suit property.
Based upon such an assertion, in respect of which not even any
prima facie case is disclosed in the Obstructionist Application, the
Appellant was not justified in insisting upon a full-fledged trial.
Such insistence appears only to frustrate or delay the execution of
the decree in Regular Civil Suit No.226/2006/E, which has
attained finality up to the level of the Hon'ble Supreme Court.
24.The contention based upon the amendment of the Benami
Transactions Act that entered force on 01.11.2016 is also
misconceived. The Appellant, in this case, has admitted that she
was aware of the institution of Regular Civil Suit No.226/2006/E
filed sometime in the year 2006 and to which the Appellant's
mother and brothers were parties. The Appellant has, however,
pleaded that she did not bother to do anything about this suit
simply because she was not a party to the said suit. Thus, the
Appellant chose to remain in the wings and take her chance until
the First Appellate Court, this Court, and the Hon'ble Supreme
Court decreed the said suit.
25.The execution, in this case, was delayed. Therefore, the
Learned Single Judge of this Court, by Order dated 20.06.2022,
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directed the conclusion of execution proceedings within three
months. It is only at this stage that the Appellant filed the
Obstructionist Application before the Executing Court in a bid to
frustrate or delay the execution proceedings. Therefore, the
Appellant is not justified in contending that the 2016
amendment allowed her to lead evidence that the actual owner of
the suit property was Jagannath and not Vasudev Govekar, the
records notwithstanding. As observed by the Hon'ble Supreme
Court in para 18, there is no dispute that in the revenue records,
the suit property stood in the name of Vasudev Govekar and not
Jagannath Govekar.
26.The Courts properly relied on
Dolai Maliko (supra)
because, in this case, there is no appreciable distinction between
the belated plea of the Appellant and the plea raised and
contested by her brothers and mother by filing a joint written
statement in a Regular Civil Suit No.226/2006/E. The Appellant,
her mother and her brothers also ultimately claim through
Jagannath Govekar. Accordingly, the claim was barred under the
provisions of the Benami Transactions Act.
27.Merely because there is a reference to the brothers
producing hardly any material in support of the plea that the real
owner was Jagannath, the Appellant cannot insist upon a second
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innings in this regard. If this were to be permitted, then the
execution of the decree would be frustrated or, in any case,
undoubtedly delayed. Besides, such a course of action would run
counter to the clear finding recorded by the Hon'ble Supreme
Court in para 18 referred to above.
28.Though the abatement issue is not involved in this case, the
observations about the estate being sufficiently represented apply.
This principle of sufficient estate representation will not apply
where fraud or collusion is alleged. However, as noted earlier,
there are no pleadings of fraud or collusion. Merely because this
point was urged before the First Appellate Court without backing
any pleadings is not sufficient to distinguish
Dolai Maliko
(supra)
.
29.Mr Desai did urge that the Appellant's claim was
independent of the claim of her brothers or even her mother.
However, but for such an assertion, he was not able to
demonstrate how or why such a claim was independent,
particularly when the Appellant and her brothers claim through
their father, Jagannath. As noted earlier, in clear terms, the
Hon'ble Supreme Court has held that there is no merit in the
claim that Jagannath was the real owner of the suit property. Such
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a plea was barred by law, and further, no material was produced in
support of such a plea. Both these findings have attained finality.
30.Considering the close relationship between the Appellant
and her brothers and the circumstance of the Appellant waiting in
the wings all along and filing the obstructionist application only
after the execution proceedings were ordered to be expedited, the
unsubstantiated plea of the independent claim could not be a
valid ground to delay or obstruct the execution any further.
31.In
Sameer Deshpande (supra), the learned Single Judge of
this Court found that the obstructionists claimed independent
right, title and interest to the suit property as coparcenary
property. Based on this distinguishing feature, the Court observed
that the Executing Court should have adjudicated upon all the
issues, including the issue of fraud that was squarely raised in the
matter. Therefore, the facts and circumstances in
Sameer
Deshpande (supra)
differ from the facts in the present case.
32.
Sardar Hasanbhai Attar (supra) may be an authority for the
proposition that under Rule 97 of Order 21, it is not as if only
the party in possession of the suit property can object to the
execution. Even a third-party objector can seek adjudication of his
claim to avoid multiple proceedings. In the present case, this is
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not the basis on which the Appellant has been declined relief.
Therefore, even this decision does not assist the case of the
Appellant.
33.The suit, which was decreed by the First Appellate Court,
this Court and the Hon'ble Supreme Court, was a suit for
injunction. The three Courts have concurrently held that the
decree holders were entitled to a decree of injunction, which
presupposes the possession of the decree holders. Therefore, there
can be no dispute about possession of the property surrounding
the suit structure in the suit property. Even about the structure,
the three Courts have adjudicated such structure to be an illegal
structure put up by the judgment debtors. Not even an argument
was urged about the legality of the structure before me.
34.The First Appellate Court and this Court had ordered the
demolition of such an illegal structure. The Hon'ble Supreme
Court confirmed the finding of illegality. However, in exercising
its powers under Article 142 of the Constitution of India, the
decree holders were directed to pay for such a structure rather
than demolish the same.
35.In the above circumstances, therefore, it is doubtful
whether the Application under Order 21, Rule 97 r/w 101 of the
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CPC was maintainable. However, this appeal was heard and
decided based on the premise that such an application was
maintainable. Upon consideration, however, the conclusions
drawn by the two Courts, on merits, warrant no interference.
36.On the aspect of a full-fledged trial, it is not as if a full-
fledged trial is a must no sooner the obstructionist approaches the
Executing Court with an application under Order 21, Rule 97
r/w 101 of the CPC. However, at least a
prima facie case raising
some serious issue to be tried must be made out. The questions
raised should have legally arisen between the parties to the
proceedings. Further, they must be relevant to the adjudication.
The Hon'ble Supreme Court so holds this in
Silverline Forum
Pvt. Ltd. (supra)
. Merely asserting that the plea raised was
independent of the plea raised by the judgment debtors is
insufficient. The independence has to be demonstrated at least
prima facie. No parties have a vested interest in drawing mileage
from the unfortunate delays in the legal process.
37.Mr Lotlikar, the learned Senior Advocate for the decree
holders, pointed out that while the present Appellant's sister was
pressing the Application under Order 21, Rule 97 r/w 101 of the
CPC, the other sister had instituted a separate suit, again to
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frustrate the execution of the decree that had attained finality up
to the level of the Hon'ble Supreme Court.
38.In this appeal, the Appellant pressed for interim relief,
which was rejected by a speaking order by Brother S. K. Shinde, J.
on 20.06.2022. Soon after that, the Appellant instituted a Review
Petition which was heard for a considerable period and dismissed
by my Order dated 13.10.2022. The learned counsel for the
Appellant then requested that the Second Appeal be taken up for
admission on 14.10.2022. Accordingly, the matter was taken up
for admission, and the learned counsel for the parties were heard
for a considerable time.
39.In
Satyawati v/s. Rajinder Singh (supra), the Hon'ble Su-
preme Court, began its Judgment by referring to the decision of
the Privy Council in
General Manager of the Raj Durbhunga
v/s. Coomar Ramaput Sing, (1871-72) – 14 MIA 605. In this
1872 case, the Privy Council observed that the difficulties of a
litigant in India begin when he has obtained a decree. The Court
observed that even in 2013, the position has not improved, and
still, the decree-holder faces the same problem encountered in the
past.
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40.The Court referred to the 1925 Judgment of the Privy
Council in Kuer Jang Bahadur v/s. Bank of Upper India Ltd.
– AIR 1925 Oudh 448 (PC) that the Courts in India have to be
careful to see that Judgment-debtors do not abuse the process of
the Court and the law of procedure in such a way as to make
courts of law instrumental in defrauding creditors, who have ob-
tained decrees in accordance with their rights.
41.In Babu Lal v/s. Hazari Lal Kishori Lal – (1982) 1 SCC
525, the Hon'ble Supreme Court held that procedure is meant to
advance the cause of justice and not to retard it. The difficulty of
the decree-holder starts in getting possession in pursuance of the
decree he obtained. The judgment debtor tries to thwart the
execution by all possible objections.
42.In Marshall Sons & Co. (I) Ltd. v/s. Sahi Oretrans (P)
Ltd., the Hon'ble Supreme Court held that proceedings are
dragged for a long time on one count or the other and, on
occasion, become highly technical accompanied by unending
prolixity at every stage providing a legal trap to the unwary.
Because of the delay, unscrupulous parties to the proceedings take
undue advantage. A person in wrongful possession draws delight
in delay in disposal of the cases by taking undue advantage of
procedural complications. It is also known that its execution takes
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903-SA-621-22 (F).DOC
a long time after obtaining a decree for possession of the
immovable property.
43.Finally, after considering the above decisions, the Hon'ble
Supreme Court in Satyawati v/s. Rajinder Singh (supra) held that
it strongly felt that there should not be an unreasonable delay in
the execution of a decree because if the decree-holder cannot
enjoy the fruits of his success by getting the decree executed, the
entire effort of the successful litigant would be in vain.
44.For all the above reasons, this appeal is dismissed because
none of the questions proposed arise in this appeal. In any case,
the contentions raised in support of the above questions cannot
be accepted in the facts and circumstances of the present case.
45.Accordingly, this appeal is dismissed. Interim orders, if any,
are vacated. The miscellaneous applications, if any, do not survive
the dismissal of this appeal. Accordingly, even such miscellaneous
applications, if any, are hereby dismissed.
46.However, there shall be no order for costs.
M. S. SONAK, J.
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SUCHITRA
NANDAN
SINGBAL
Digitally signed by
SUCHITRA NANDAN
SINGBAL
Date: 2022.10.15
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