High Court of Kerala
Case Law Search
THAZHAPATTATHILLATH KRISHNAN NAMBOODIRI v. T. DAMODARAN NAMBOODIRI - CRP No. 1975 of 2000  RD-KL 16 (24 February 2005)
IN THE HIGH COURT OF KERALA AT ERNAKULAMCRP No. 1975 of 2000
1. THAZHAPATTATHILLATH KRISHNAN NAMBOODIRI
1. T.DAMODARAN NAMBOODIRI
For Petitioner :SRI.K.JAGADEESCHANDRAN NAIR
For Respondent :SRI.V.V.ASOKAN
The Hon'ble MR. Justice K.T.SANKARAN
Dated : 24/02/2005
O R D E R
K.T. SANKARAN, J.j j C.R.P.NO. 1975 of 2000 & j C.R.P.NO. 1336 OF 2001 j j j
Dated this the 24th day of February, 2005.j j
O R D E Rj .SP 2 ((HDR 0 C.R.P.NOS.1975/2000 & 1336/2001 :: # :: j )) .HE 1 The questions of law arising for consideration in these revisions are: (1) Whether the Court can invoke Section 151 of the Code of Civil Procedure to enforce the decree for injunction and to pass an order directing delivery of the property to the decree holder from the judgment debtor who forcibly evicted the decree holder violating the decree; and (2) When a suit is withdrawn with liberty to file a fresh suit on the same cause of action, whether an order passed under Rule 29 of Order XXI staying the execution of the decree, would revive on filing the fresh suit?
2. The facts necessary for disposal of these revisions are the following: O.S.No.853 of 1968, on the file of the Court of the Munsiff of Kozhikode was filed by A.P.Damodaran Namboodiri against his brother Krishnan Namboodiri and the wife and children of Krishnan Namboodiri, for a declaration that the properties purchased as per Ext.A2 document dated 31.3.1933 in the name of Krishnan Namboodiri were acquired benami for the plaintiff Damodaran Namboodiri. There was also a prayer for consequential injunction restraining the defendants from entering into the plaint schedule properties. The suit was decreed on 23.12.1971. The defendants challenged that judgment and decree in A.S.No.44 of 1972, before the District Court, Kozhikode, but the appeal was dismissed on 4.12.1976.
3. E.P.No.250 of 1981 was filed by the decree holder in O.S.No.853 of 1968 under Order XXI Rule 32 for taking action against the judgment debtors for violation of injunction. That Execution Petition was dismissed on the ground that the first judgment debtor had obtained purchase certificate in his favour, issued by the Land Tribunal in O.A.No.84 of 1980. The order in E.P.No.250 of 1981 was set aside by this Court in C.R.P.No.2391 of 1983 and the matter was remanded to the executing court. Pending C.R.P.No.2391 of 1983, the decree holder died and his son was impleaded as the legal representative. The executing court, after remand, dismissed the Execution Petition on the ground that the Benami Transactions (Prohibition) Act came into force after the decree and the decree holder is not entitled to the reliefs in the Execution Petition in view of the subsequent legislation. Again, the decree holder had to approach this Court in C.R.P.No.1594 of 1989 challenging the order dismissing the Execution Petition.
4. Meanwhile, proceedings before the Land Tribunal were going on, after the decree in O.S.No.853 of 1968. O.A.No.83 of 1980 was filed by the plaintiff and O.A.No.84 of 1980 was filed by the first defendant judgment debtor, for purchase of the property in question under Section 72 B of the Kerala Land Reforms Act. The Land Tribunal allowed the application filed by the judgment debtor (O.A.No.84 of 1980) and dismissed the application filed by the decree holder (O.A.No.83 of 1980). Challenging those orders of the Land Tribunal, A.A.Nos.182 of 1983 and 183 of 1983 were filed before the Land Reforms Appellate Authority. The Appellate Authority dismissed both the appeals. Two Civil Revision Petitions were filed before this Court under Section 103 of the Kerala Land Reforms Act as C.R.P.Nos.1043 of 1988 and 1044 of 1988.
5. The Civil Revision Petition filed by the decree holder challenging the order in the Execution Petition, viz., C.R.P.No.1594 of 1989 and the two revisions arising out of the proceedings under the Land Reforms Act, viz., C.R.P.Nos.1043 of 1988 and 1044 of 1988, were disposed of by this Court by a common order dated 18.10.1994. All the three revisions were allowed. The judgments of the Appellate Authority and orders of the Land Tribunal were set aside and the cases were remanded to the Land Tribunal. The order of the executing court which was impugned in C.R.P.No.1594 of 1989 was also set aside and the case was remanded to the executing court for fresh disposal. This Court held in C.R.P.No.1594 of 1989 that the Benami Transactions Prohibition Act does not apply to the case at all and therefore, the prayer of the decree holder could not be rejected on that ground. This Court held thus: "In the nature of the execution petition in this case where there is no prayer for recovery of possession as the decree holder is held already in possession of the property, it cannot be contended that the execution petition is a `claim or action' to recover property held benami against the person in whose name the property is held. .... As the civil court had already found possession in favour of the decree holder, it is open to the decree holder to seek action against judgment debtors for violation of the decree without being affected by the provisions of the Benami Transactions (Prohibition) Act, 1988." Though the judgment debtor challenged the order passed by this Court before the Supreme Court in S.L.P.No.612 of 1995, the Supreme Court dismissed the Special Leave Petition by the order dated 25.3.1996.
6. After remand as per the aforesaid three Civil Revision Petitions, the executing court passed an order dated 7.12.1996 and found that the judgment debtors have violated the decree in O.S.No.853 of 1968. Accordingly, the executing court passed an order for the arrest of the judgment debtors, Krishnan Namboodiri and his two sons Unnikrishnan Nair and Vasudevan Nair (defendants 1, 3 and 4), and for their detention in civil prison for a period of fifteen days. The executing court also ordered attachment of the property belonging to the judgment debtors.
7. Challenging the order dated 7.12.1996, the
judgment debtors filed C.R.P.No.2692 of 1996 before this
Court, which was dismissed by the order dated 30.1.1997.
This Court held in C.R.P.No.2692 of 1996 that the stand
taken by the judgment debtors would amount to wilful
disobedience of the decree. It was also noticed
though sufficient opportunity was given to the judgment
debtors to obey the decree, they did not do so.
Court held thus:
"... They also cannot be heard to say that despite the decree, they are in possession. The stand taken by them will amount to wilful disobedience of the decree of the court below. Sufficient opportunity was given to them to obey the decree but they did not do. Even their present stand is disobeying the decree. With utter disregard to the decree, they cannot be heard to say that they have a right to continue in possession. ..." .SP 2
8. Thereafter, Krishnan Namboodiri, his wife and children filed O.S.No.803 of 1997, on the file of the Court of the Munsiff of Kozhikode against the son of the decree holder in O.S.No.853 of 1968 for a declaration that the judgment and decree in O.S.No.853 of 1968 is a collusive decree between the plaintiff/ decree holder therein and the counsel for the defendants therein and to set aside the decree on the ground that it is not valid and binding on the plaintiffs. There is also a prayer for consequential injunction restraining the defendants from enforcing the decree in O.S.No.853 of 1968 against the plaintiffs and the plaint schedule property. The first plaintiff in O.S.No.803 of 1997 is Krishnan Namboodiri, plaintiffs 2 and 3, Unnikrishnan Nair and Vasudevan Nair, are his children and the fourth plaintiff is the wife of the first plaintiff.
9. After O.S.No.803 of 1997 was filed, the
judgment debtors filed E.A.No.332 of 1997 in O.S.No.853
of 1968 for stay of the proceedings in execution till the
disposal of O.S.No.803 of 1997. The executing court
dismissed E.A.No.332 of 1997 by order dated 17.3.1998.
The judgment debtors challenged that order
C.R.P.No.930 of 1998 before this Court, which was
disposed of by order dated 21.7.1998 (the
reported in 1998 (2) KLT 380). This Court considered the
scope and ambit of Rule 29 of Order XXI and
held that the
rule is not an imperative one and that the Court has a
discretion either to grant or refuse the
same. An order
under Rule 29 is to be granted on the basis of the facts
and circumstances of each case. This
Court further held
"... On a perusal of the order of
the Court below, I do not find, the Court has considered all these facts. Probably, the petitioners have not placed before Court the entire materials on the basis of which they want a stay. I think, in the circumstances of the case when the petitioners are directed to be sent to jail, a serious attention to the petition filed by the petitioners is necessary. Hence, I set aside the impugned order and direct the court below to consider the matter again. The parties can produce materials before the Court below. The Court can also call for the records in O.S.No.853 of 1968 to satisfy itself as to whether a stay has to be granted. Till the matter is decided afresh, there will be a stay of executing the decree in O.S.No.853 of 1968." .SP 2
10. Thereafter, by the order dated 15.10.1998, the executing court dismissed E.A.No.332 of 1997. Again, the judgment debtors filed C.R.P.No.2265 of 1998 before this Court which was disposed of as per the order dated 12.2.1999. It was held that there was no scope for interference by the Revisional Court. However, this Court issued a direction to dispose of O.S.No.803 of 1997 within a period of four months and the proceedings under Order XXI Rule 32 were directed to be continued, but this Court directed that the order passed thereon shall not be implemented till the disposal of the suit, viz., O.S.No.803 of 1997.
11. At the time when C.R.P.No.2265 of 1998 was disposed of, O.S.No.803 of 1997 was not really pending since it was dismissed for default. Later, that suit was restored to file. However, I.A.No.4682 of 1999 was filed by the plaintiffs in O.S. No.803 of 1997 for permission to withdraw the suit with liberty to file a fresh suit on the same cause of action. The trial court allowed that prayer by the order dated 24.9.1999. Later, the plaintiffs in O.S.No.803 of 1997 instituted a fresh suit which was numbered as O.S.No.958 of 1999, which is pending now. The reliefs prayed for in O.S.No.958 of 1999 are the same as those prayed for in O.S.No.803 of 1997.
12. Meanwhile, the decree holder had filed E.A.No.140 of 1997 in E.P.No.250 of 1981 in O.S.No.853 of 1968 praying for an order to deliver the shed in the decree schedule property which was unauthorisedly and illegally occupied by the judgment debtors in violation of the decree. The court below dismissed E.A.No.140 of 1997 by the order dated 4.9.2000 holding that a decree for prohibitory injunction cannot be executed by ordering delivery of the decree schedule property or any part thereof and that Order XXI Rule 32 of the Code of Civil Procedure does not apply at all to the case on hand. It was also held by the executing court that the decree holder is not entitled to take shelter under the order passed by this Court in O.P.No.3347 of 1997 for getting the relief in E.A.No.140 of 1997. It is apposite to note here that the decree holder had filed O.P.No.3347 of 1997 for police protection to enable the decree holder to take usufructs from the decree schedule property. This Court
in the judgment dated 21.3.1997 held thus:.SP 1
"... In such circumstances the petitioner is entitled to protection for enjoyment of the property in question. He can take usufructs from the property. Respondents 5 to 8 or their associates or any of the police men shall not obstruct the petitioner from taking usufructs from the property in question or the respondents 5 to 8 shall not commit waste to the property. Respondents 3 and 4 shall render adequate police protection to the petitioner to take usufructs from the property and also to abate any waste committed in the property by respondents 5 to 8 or at their instance. But the petitioner shall not forcefully evict respondents 5 to 8 if they are residing in the house in the property on the basis of this direction for police protection. For that he has to get Ext.P5 implemented through the execution court, to get the residential building in possession." .SP 2 The executing court referred to the judgment of this Court and said that in spite of the observation in the judgment of this Court the decree holders are not entitled to pursue their remedy as prayed for in E.A.No.140 of 1997. Before considering the questions involved in these cases, I must say that this approach made by the court below is not at all justified. The executing court cannot sit in judgment over any direction or even observation of this Court in a judgment rendered by it. C.R.P.No.1336 of 2001 is filed by the decree holder challenging the order of the executing court in E.A.No.140 of 1997.
13. Subsequent to the order in C.R.P.No.2265 of 1998, the executing court passed another order dated 8.2.2000 holding that the earlier order dated 7.12.1996 passed by the executing court to detain the judgment debtors in civil prison has to be implemented. Against that order dated 8.2.2000, the judgment debtors have filed C.R.P.No.1975 of 2000.
14. Point No.1: Sri.K.Jagadisachandran Nair, learned counsel for the petitioners in C.R.P.No.1975 of 2000 (judgment debtors) contended that the executing court has no jurisdiction to pass an order for recovery of possession of the property when the decree does not provide for such a relief. He contends that when the judgment debtors disobey a decree for permanent prohibitory injunction passed by the Court, the only remedy available to the decree holder is to file a suit for recovery of possession and to regain possession. According to him, the other remedy available to the decree holder is only under Order XXI Rule 32 to take action against the judgment debtors as provided therein. According to the counsel, any relief under Order XXI Rule 32 does not include an order for delivery of possession of the property. In support of his arguments Sri.Jagadisachandran Nair cited the decisions in Nanu v. Ammalukutty Amma (1962 KLT 223); Kuldip Singh v. Charan Singh and others (AIR 1986 Delhi 297); Sundar Das v. Mulakh Raj and others (AIR 1981 Delhi 85) and in Arjun Singh v. Mohindra Kumar and others (AIR 1964 SC 993).
15. Sri.K.I.Mayankutty Mather, learned counsel
for the decree holders, on the other hand, contended that
the executing court has ample power and jurisdiction to
pass any order to see that the decree is enforced
implemented and also obeyed by the judgment debtors. He
contended that even if the decree is only for a
prohibitory injunction, if the judgment debtors therein
gain possession of the decree schedule
violating the decree, they are liable to be expelled by
the order of the executing court under
Order XXI Rule 32
or by invoking the inherent power of the Court under
Section 151 of the Code of Civil Procedure.
that a decree passed by the Court is liable to be obeyed
and not violated and that the Court cannot
any technical arguments, which would have the result of
defeating the decree passed by it.
He cited the
decisions in Ram Charan Sikdar v. Sm. Jogamaya Basu and
(AIR 1978 Calcutta 193); Hari Nandan Agrawal and
another v. S.N.Pandita and others
(AIR 1975 Allahabad
48); Magna and another v. Rustam and another (AIR 1963
Rajasthan 3); Sujit Pal v. Prabir Kumar Sun and others
(AIR 1986 Calcutta 220); Delhi
Development Authority v.
Skipper Construction Co. (P) Ltd. and another ((1996) 4
SCC 622); Ajayakumar v. Damayanthi (2004 (2) KLT 48);
Century Flour Mills
Ltd. v. S.Suppiah and others (AIR
1975 Madras 270); Parukutty Amma v. Thankamma Amma (1988
(1) KLT 883); State of Orissa v. Sudhansu Sekhar Misra
and others (AIR 1968 SC 647); Thukalan Poulo Avira v.
Gheevarghese and another (AIR 1954 TRA.CO.
117); Krishnan v. Joseph Desouza (1985 KLT 1010);
Mohammad v. Mohammed Haji (1986 KLT 134); Manohar Lal
v. Raj Bahadur Rao Raja Seth Hiralal (AIR 1962 SC
527 and Hamsa v. George (1995 (2) KLT 326). The Supreme
Court in the decision in (1996) 4 SCC 622 (supra) relied
on the decisions in Mohd. Idris
v. Rustam Jehangir
Bahuji ((1984) 4 SCC 216; Century Flour Mills Ltd. v.
S.Suppiah (AIR 1975 Madras 270) and in Surjit Pal v.
Prabir Kumar Sun (AIR 1986 Cal. 220) wherein it was held
that where the defendant
forcibly dispossessed the
plaintiff in violation of the order of injunction and
took possession of the
property, the Court has ample
jurisdiction to prevent the decree being flouted and to
do justice to the parties
by putting back the plaintiff
in possession of the property. It was held that:
".. There is no doubt that this
salutary rule has to be applied and given effect to by this Court, if necessary, by overruling any procedural or other technical objections." .SP 2 In (1984) 4 SCC 216 (supra) an undertaking made by a party before the High Court was violated and the Supreme Court held that the High Court was justified in issuing appropriate directions to remedy the breach of undertaking in addition to the action taken for contempt of the order passed by the Court. In AIR 1975 Madras 270 (FB), the Full Bench of the Madras High Court held that Order 39 of the Code of Civil Procedure should not be considered as placing any limit on the scope of the inherent power under Section 151 which are wide and not subject to any limitation. Where in violation of an order of stay or injunction against a party, something has been done in disobedience, it will be the duty of the Court, as a policy, to set the wrong right and not allow the perpetuation of the wrong doing. The inherent power of the court will not only be available in such a case, but it is bound to be exercised in the interest of justice. The same view was taken in the decision in AIR 1986 Cal. 220. In AIR 1975 Allahabad 48, the Allahabad High Court was dealing with a case where an order of temporary injunction was violated. It was held that if a prohibitory injunction order is violated and party is dispossessed by wilful disobedience of the injunction order, the Court has inherent power to pass such orders as are necessary to do justice to the parties and to undo the wrong. In AIR 1986 Calcutta 220, the case dealt with therein was one where an interim prohibitory injunction was granted and it was held that the inherent power of the Court under Section 151 can be invoked to remedy injustice caused by disobedience of the order passed by the Court. The Rajasthan High Court also took the same view in AIR 1963 Raj. 3. This Court in the decision reported in 2004 (2) KLT 48 held that under Order XXI Rule 32 a decree for prohibitory injunction can be enforced as in the case of a mandatory injunction. This Court took note of the new explanation added to Order XXI Rule 32 CPC and held that the expression "act required to be done" appearing in sub-rule (5) of Rule 32 shall cover prohibitory injunction as well. It was held that the introduction of the explanation to sub-rule (5) of Rule 32 reveals the anxiety of the Parliament to ensure that the executing court is able to enforce obedience not only for decrees for mandatory injunction, but also decrees for prohibitory injunctions. In that decision, reference is made to the decisions in Joseph alias Kochu v. Makkaru Pillai (AIR 1960 Ker. 127) ; Evuru Venkata Subbayya v. Srishti Veerayya (AIR 1969 A.P. 92) and Y.Lakshmaiah v. Esso Eastern Inc. (AIR 1974 A.P. 32) where a different view was taken and held that those decisions no longer hold good in view of the introduction of the explanation to Order XXI Rule 32.
16. The decision in 1962 KLT 223 (supra) was not brought to the notice of this Court while rendering the decision reported in 2004 (2) KLT 48. In 1962 KLT 223, this Court took the view that sub-rule (5) of Rule 32 of Order XXI does not apply to prohibitory injunction and it applies only to cases where an act is required to be done by the decree. For the very same reasoning stated by this Court in the decision reported in 2004 (2) KLT 48 in respect of the decision in AIR 1960 Kerala 127, it is to be held that 1962 KLT 223 is also no longer good law.
17. There were conflicting views expressed in various decisions of different High Courts as to the applicability of Order XXI Rule 32 in respect of decrees for prohibitory injunction. Some of the High Courts took the view that sub-rule (5) of Rule 32 of Order XXI cannot be invoked to enforce a decree for prohibitory injunction, while some other High Courts took the view that as in the case of decree for mandatory injunction, sub-rule (5) of Rule 32 of Order XXI can be invoked for enforcing prohibitory decrees as well. The statement of objects and reasons to the Code of Civil Procedure (Amendment) Act, 2002 makes the position clear that the Explanation to Rule 32 was added on the basis of the report of Law Commission and that this amendment is only clarificatory in nature. Therefore, there can be no doubt that sub-rule (5) of Rule 32 of Order XXI can be applied and used to enforce and implement even a decree for prohibitory injunction. With respect, I do not agree with the view taken by the Delhi High Court in AIR 1986 Delhi 297 and in AIR 1981 Delhi 85.
18. The Travancore Cochin High Court had taken the view that Section 151 can be invoked for enforcing a decree for perpetual injunction, in the decision reported in AIR 1954 TRA.CO.117 (supra).
19. The decision relied on by the counsel for
the judgment debtors in AIR 1964 SC 993 does not apply
the facts and circumstances of this case. In that
decision, the Supreme Court had taken the view that
there is a specific provision in the Code of Civil
Procedure, the jurisdiction under Section 151
invoked by the Court. There is no dispute that when
there is a specific provision, recourse to
cannot be had. When a specific provision is lacking to
meet a particular contingency to enforce
a decree or
order of the Court, it is only just and proper to invoke
the inherent power of the Court under
Section 151 CPC.
In 1988 (1) KLT 883 (supra), this Court took the view
that Section 151 can be invoked to
strike off the defence
of a party who did not obey the orders passed by the
Court in making herself available
for giving thumb
impressions for comparison by an expert. In 1985 KLT
1010, it was held that if a Court
comes to a conclusion
that a party by disobeying an order of a Court has done
something for his own advantage
to the prejudice of the
other party, it is open to the Court under its inherent
jurisdiction to bring back
the parties to a position
where they originally stood as if the order passed by the
Court has not been contravened.
It was also held in 1985
KLT 1010, thus:
"Any action by which the process of the court is attempted to be thwarted has to be viewed seriously. If an order of injunction is violated, that violation has to be dealt with sternly and seriously, for, otherwise, it will undermine the very basis of the Rules of Law. There is no difference whether the violation pertains to an order, or to an undertaking made before a court of law, which too will have as much effect as an interim injunction in such circumstances." .SP 2 In 1986 KLT 134 (supra), this Court took the view that an order for police protection can be granted by the Subordinate Courts to enforce an order of injunction, by invoking the inherent power of the Court under Section 151 CPC.
20. From the principles of law mentioned above and the facts and circumstances of this case, there can be no doubt that the executing court was not justified at all in denying the relief for delivery of possession on a technical ground that a decree for prohibitory injunction cannot be enforced in the manner prayed for by the decree holder. The decision of the executing court is patently illegal and without jurisdiction which requires to be corrected by this Court in the exercise of jurisdiction under Section 115 of the Code of Civil Procedure.
21. A decree, an order or direction passed or issued by a Court is intended to be obeyed. There is no justification for raising any technical argument against the implementation of the same. If decrees and orders passed by the Courts are violated or disobeyed without impunity by the parties to the suit or proceedings, the result would be lawlessness. To protect the rule of law and to see that the decrees and orders passed by the Courts are obeyed and implemented, ample provisions have been made in the Code of Civil Procedure. All the contingencies cannot be foreseen by the law makers. In appropriate cases, when there is nothing which prohibits a particular course of action being taken, it cannot be said that the Court lacks its inherent power to implement its own decision or to prevent disobedience of its decree or order or to restore the parties to the original position which they occupied before the disobedience or violation of the decree or order. If the Courts do not have the said inherent power, the litigants would have no faith in Courts and they may resort to other shortcuts than approaching the civil courts. Judicial notice can be taken that the number of writ petitions being filed before this Court for police assistance for implementing the orders passed by the Civil Courts are on its increase. The reason may be that the machinery of the Subordinate Courts in implementing their decrees and orders is ineffective or inadequate in the point of view of the litigants. It is also to be noted that the number of writ petitions being filed before this Court complaining of police interference in civil disputes is also on the increase in recent years. One of the main reasons for such complaints is the illegal interference by the police in civil disputes. One of the parties may resort to such practices since he hopes to get a speedy, though illegal and unjust, remedy. This points out to the need for having a pragmatic approach to the question in the matter of effective implementation and execution of the decrees and orders passed by the civil courts. The executing courts are not expected to deny relief to the decree holders on hypertechnical grounds, which would tend to help the persons who suffered the decree or order in disobeying or violating such decrees or orders.
21. Point No.2: The counsel for the judgment debtors contended that the decision in C.R.P.No.2265 of 1998 keeping in abeyance the proceedings under Order XXI Rule 32 till the disposal of O.S.No.803 of 1997 is still available to the judgment debtors, since they have filed another suit, viz., O.S.No.958 of 1999 on the same cause of action as in O.S.No.803 of 1997 and that too after getting permission of the Court for withdrawing the suit with liberty to file a fresh suit. In short, the contention is that the direction issued by this Court in C.R.P.No.2265 of 1998 to dispose of the suit, O.S.No.803 of 1997, within a period of four months from the date of the order, viz., 12.2.1999, may not have much significance and that thrust is to be given to the direction to keep in abeyance the proceedings under Order XXI Rule 32 till the disposal of the suit to set aside the decree in O.S.No.853 of 1968. I do not agree with this contention at all. This Court has shown an indulgence in the peculiar facts and circumstances of the case. The first judgment debtor was aged 95 at the time of disposal of C.R.P.No.2265 of 1998. The direction to keep in abeyance the proceedings in execution is to be taken along with the direction to dispose of O.S.No.803 of 1997 within a period of four months. The judgment debtors should have co-operated with the Court in the disposal of the suit within the stipulated period of four months. Instead, they sought permission to withdraw the case with liberty to file a fresh suit, thereby effectively defeated the direction issued by this court in C.R.P.No.2265 of 1998. If the arguments advanced by the judgment debtors are to be accepted, it will lead to an unpleasant result. A direction was issued by this Court to dispose of the suit within four months. If permission is granted to withdraw that suit with liberty to file a fresh suit on the same cause of action, the plaintiff therein could very well institute a fresh suit within the period of limitation prescribed for the same. In some cases, the period of limitation may be three years or in some other cases twelve years. If it is to be held that the direction issued in the revision to keep in abeyance the execution proceedings is to be stretched even till the expiry of the period of limitation for filing a fresh suit on the same cause of action, it would have the result of making the direction issued by this Court to dispose of the suit within four months otiose. That is not what is intended while disposing of C.R.P.No.2265 of 1998. The judgment debtors having withdrawn the suit and instituted a fresh suit much after the expiry of four months from the date of disposal of C.R.P.No.2265 of 1998, they are not entitled to get the execution proceedings to be kept pending till the disposal of the fresh suit.
22. When the plaintiff is granted permission to withdraw from the suit with liberty to institute a fresh suit in respect of the subject matter of such suit, the court granting such permission under sub-rule (3) of Rule 1 of Order XXIII of the Code of Civil Procedure has no jurisdiction to keep alive any interim order passed in the suit. Seeking permission under sub-rule (3) of Rule 1 of Order XXIII C.P.C. is to institute a fresh suit. The suit from which the plaintiff is permitted to withdraw comes to an end on the passing of an order under sub-rule (3) of Rule 1 of Order XXIII C.P.C.. A fresh suit instituted after getting permission under sub-rule (3) of Rule 1 of Order XXIII C.P.C. is not a continuation of the suit originally filed; it is a fresh suit. Rule 2 of Order XXIII C.P.C. provides that in any fresh suit instituted on permission granted under Rule 3, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted. This, of course, is subject to subsection (3) of Section 14 of the Limitation Act. Exclusion of the period of limitation as provided in Section 14(3) of the Limitation Act has no relevance on the consequences of an order passed under sub-rule (3) of Rule 1 of Order XXIII of the Code of Civil Procedure. It has relevance only on the computation of the period of limitation for filing the fresh suit. The only order that could be passed under sub-rule (3) of Rule 1 of Order XXIII C.P.C. is to grant permission to the plaintiff to withdraw from the suit with liberty to institute a fresh suit, if the court is satisfied about the existence of the grounds mentioned in that sub-rule. Of course, the court has jurisdiction to impose "such terms as it thinks fit" while granting such permission. The expression "on such terms as it thinks fit" in sub-rule (3) of Rule 1 of Order XXIII C.P.C. does not enable the court to pass an order keeping alive any interim order passed in the suit. The "terms" referred to therein are those to be imposed on the plaintiff as a condition for granting permission to withdraw from the suit with liberty to institute fresh suit. Such "terms" do not include an order in favour of the plaintiff and against the defendant. On the other hand, the terms to be imposed are in favour of the defendant. If no interim order would survive in the suit which is permitted to be withdrawn, it can safely be concluded that an order of stay granted by the executing court under Rule 29 of Order XXI of the Code of Civil Procedure staying the execution of the decree sought to be set aside in such suit would also not survive on the withdrawal of such suit. I, therefore, hold that on withdrawal of O.S.No.803 of 1997, the direction issued by this Court in C.R.P.No.2265 of 1998 not to implement any order in execution till the disposal of O.S.No.803 of 1997 would cease to exist and it would not revive on the institution of a fresh suit.
23. Therefore, it is to be held that C.R.P.No.1975 of 2000 is without any merit and it is dismissed, but without any order as to costs. C.R.P.No.1336 of 2001 is allowed and the order impugned is set aside. The executing court shall deliver possession of the decree schedule property and the shed/ building/house therein to the decree holder after removing any obstruction caused by the judgment debtors, their agents or servants. The judgment debtors are granted three months' time to surrender possession of the shed/building/house and the property to the decree holders. There will be no order as to costs in C.R.P.No.1336 of 2001. It is made clear that the observations and findings contained in this order are made only for the purpose of the proceedings in execution of the decree in O.S.No.853 of 1968 as well as for dealing with the application filed by the judgment debtors under Order XXI Rule 29 and they shall have no bearing or relevance while disposing of O.S.No.958 of 1999, except in respect of the matters mentioned above. .SP 1 .JN (K.T. SANKARAN) Judge ahz/ .PA ((HDR 0 )) .HE 2 .JN .SP 2
K.T.SANKARAN, J.C.R.P. NO. 1975 OF 2000 and C.R.P. NO. 1336 OF 2001.
O R D E R24th February, 2005 ...............................................
Double Click on any word for its dictionary meaning or to get reference material on it.