Leave granted.
Heard learned counsel for the parties.
The short issue involved in this case is whether the
High Court was right in remitting the matter back to the
Executing Court to decide whether the order passed by it
is in accordance with decree passed by the Civil Court or
not.
The undisputed facts are that the appellant was a
lessee under the respondents pursuant to a lease deed
dated 19.11.1952 commencing from 01.04.1953. The lease
was for a period of 30 years ending on 31.03.1983 and
contained a clause giving right of renewal of the lease
ARJUN BISHT for another period of 30 years commencing from 01.04.1983
to 31.03.2013.
The appellant exercised his right to extend the
lease but the respondents refused to extend the lease for
a period of 30 years. Therefore, the appellant filed a
suit for specific performance of the condition permitting
him to extend the lease deed for 30 years. This suit was
decreed and the relevant portion of the decree reads as
follows:
"2. That the costs of this suit be awarded
from the defendants to the plaintiff.
This suit coming on this 10th day of
June 1991, for final disposal before Sri.
Rudragouda S. patill B.A.LL.B (Spl) Principal
Munsiff, Bagalkot in the present of Sri. G.G.
Dharawadkar, Advocate for the plaintiff and
Sri. K.S. Deshapande, Advocate for Defendants,
it is hereby ordered and decreed as under:-
The plaintiff entitled for a decree for
specific performance of contract of getting
executed a registered lease deed from the
defendants for a period of 30 years commencing
from 1.4.1983 to 31.3.2013 on a yearly rent of
Rs.700/- in respect of the suit-lands bearing
R.S. Nos.169, 171, 180, 181 and 182 situated
at Bagalkot.
The plaintiff is also entitled for costs
of the suit.
And it is further ordered and decreed
that the defendants to pay the sum of Rs.201/-
to the plaintiff being the costs of this suit.
Given under my hand and seal of this
court this 10th day of June 1991.
(Rudragouda S. Patil)
Principal Munsiff, Bagalkot"
The appellant filed petition for execution of the
decree and the respondents were proceeded ex parte. An
Advocate Commissioner was appointed to execute the lease
deed on behalf of the absent respondents. It appears that
lot of interim orders were passed asking for report from
the administrative side of the Court for preparation of
the draft lease deed. Finally, the draft lease deed was
prepared and in the draft lease deed there was again a
clause granting a right for one more extension from
01.04.2013 onwards. The lease deed was drafted in the
same manner as the earlier lease deed. The Executing
Court on the administrative side virtually retyped the
lease deed as the earlier lease deed of 1952 including
the renewal clause. Thereafter, this draft deed was
finally registered on 17.08.2010. The plaintiff got his
execution petition dismissed as having been satisfied on
20.08.2010.
The appellant then filed a fresh suit for specific
performance for renewal of the lease deed w.e.f.
01.04.2013 and when notice of this suit was served upon
the respondents they filed a writ petition presumably
under Article 227 of the Constitution of India praying
for setting aside the order dated 20.08.2010 but in the
petition it was urged that the Executing Court while
drafting the lease deed in terms of the decree had
travelled beyond the scope of the decree by again giving
an extension clause of 30 years w.e.f. 01.04.2013. This
writ petition was dismissed on the ground of not being
maintainable since the execution petiton itself was
disposed of on 20.08.2010. Thereafter the appellant filed
a petition under Section 115 of the Code of Civil
Procedure.
This petition was contested but the High Court vide
a detailed order has held as follows:
".....Therefore, this Court is of the
considered view that the Executing Court, even
in the peculiar facts and circumstances of the
present case, must examine the question
whether it was traversing beyond the judgment
and decree in OS No.20/1984 in approving the
draft as submitted by the respondent and
permitting execution and registration
thereof...."
Shri C.U. Singh, learned senior counsel appearing
for the appellant urges that the order dated 20.08.2010
cannot be challenged in proceedings under Section 115 of
the Code of Civil Procedure since this order only
disposes of the execution petition in terms of the
statement of the decree holder and in case the order is
set aside it will amount to revival of proceedings and
proceedings will not come to an end. The second
submission is that the remedy of the appellant is to file
application under Order XXI Rule 106 of the Code of Civil
Procedure and not to file a petition under Section 115 of
the Code of Civil Procedure. His last submission is that
the respondents have resorted to proceedings under
Section 115 of the Code of Civil Procedure since their
remedy to challenge the order proceeding against them ex
parte has become time barred in view of the limitation of
30 days mandated in order XXI Rule 106 of the Code of
Civil Procedure.
In reply, it is contended by Shri S.N. Bhat, learned
counsel for the respondents, that the respondents are not
challenging the order whereby they have been proceeded ex
parte. It is submitted that even accepting the position
that the respondents have rightly been proceeded ex
parte, then also the decree must be executed in terms of
the decree and the executing Court cannot give relief
more than that granted under the decree. The issue, that
arises is whether the Executing Court could have given
one more extension beyond 2013 or not.
Since, the matter has been remanded back in
proceedings under Section 115 of the Code of Civil
Procedure, we would not like to make any comments on this
issue and leave it open to the Executing Court to decide
whether the decree envisages the grant of extension
beyond 01.04.2013. We are only dealing with the issue as
to whether the High Court was right in exercising its
jurisdiction under Section 115 of the Code of Civil
Procedure.
As noted above, the petition, filed by respondents
against the order dated 04.08.2010, was dismissed by the
High Court in view of the order passed on 20.08.2010. It
was virtually held that nothing survives in the writ
petition and, therefore, the same is not maintainable. At
the same time, the appellant was given liberty to seek
relief in accordance with law.
The respondents have not taken recourse to Order XXI
Rule 106 and, therefore, they are estoppal from urging
that they were wrongly proceeded ex parte. That part of
the proceedings are final. That, however, cannot prevent
them from urging that the order passed by the Executing
Court is beyond the scope of the decree passed by the
Civil Court. No appeal lies against any such order and no
provision has been pointed out to us where an appeal can
lie against this aspect of the matter where the Executing
Court allegedly travelled beyond the scope of the decree.
No party can be left remedy-less. The High Court
dismissed the petition under Article 227 of the
Constitution of India holding that the challenge to order
dated 04.08.2010 was no longer alive in view of the
subsequent proceedings of 20.08.2010. We are also of the
view that merely because the execution petition will
revive is not a ground to hold that the order is not a
final order which will bring an end of the proceedings.
If the Executing Court accepts the contention of the
respondents that the lease could not have been extended
beyond 31.03.2013 then also it will bring matters to an
end. There will be no continuity of proceedings in that
sense. Therefore, the High Court was well within its
jurisdiction to entertain the matter. The order passed
calls for no interference and, therefore, the appeal is
dismissed.
We make it clear that the Executing Court will
decide the issue as to whether the decree limited the
renewal of the lease deed up to 31.03.2013 or the decree
permitted another extension thereafter. The Executing
Court shall remain uninfluenced by any observations made
by the High Court or by this Court.
New Delhi September 24, 2019
Petition(s) for Special Leave to Appeal (C) No(s).16682/2019
(Arising out of impugned final judgment and order dated 24-04-2019 in CRP No.1113/2013 passed by the High Court Of Karnataka, Dharwad Bench)
M/S BAGALKOT UDYOG LIMITED Appellant(s)
VERSUS
SHIVASHANKARGOUDA & ORS. Respondent(s)
Date : 24-09-2019 This petition was called on for hearing today.
CORAM :
For Appellant(s)
Mr. C.U. Singh, Sr. Adv.
Mr. Aayush Agarwala, Adv.
Ms. Ila Sheel, Adv.
Mr. Pramod B. Agarwala, AOR
For Respondent(s)
Mr. S. N. Bhat, AOR
Mr. Priyank Jain, Adv.
Mr. Nandish Patil, Adv.
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeal is dismissed in terms of the signed reportable
judgment.
Pending application(s), if any, stands disposed of.
(signed reportable judgment is placed on the file)