TaxTMI 
TaxTMI 
2023 (5) TMI 1484
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....culties of litigants in India indeed begin when they have obtained a decree. A reference to the above observation is also found in the decision of the Oudh Judicial Commissioner's Court in Kuer Jang Bahadur vs. Bank of Upper India Ltd. Lucknow [AIR 1925 Oudh 448]. It was ruled there that the Courts had to be careful to ensure that the process of the Court and the laws of procedure were not abused by judgment-debtors in such a way as to make the courts of law instrumental in defrauding creditors, who had obtained decrees in accordance with their rights. 3. Notwithstanding the enormous lapse of time, we are left awestruck at the observation of the Privy Council which seems to have proved prophetic. The observation still holds true in present times and this case is no different from cases of decree-holders' woes commencing while they are in pursuit of enforcing valid and binding decrees passed by civil courts of competent jurisdiction. The situation is indeed disquieting, viewed from the perspective of the decreeholders, but the law, as it stands, has to be given effect whether the court likes the result or not. In Martin Burn Ltd. vs. Corporation of Calcutta [AIR 1966 SC 529],....
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....erian contended that Mr. Mathew, the caretaker of the Suit Property, had intended to purchase the same from her deceased husband, that the sale had not been completed as balance consideration was still to be paid, and that in the interim the Defendants had made constructions on the Suit Property. The Defendants contended that they were tenants in respect of the Suit Property through an oral lease agreement with Mrs. Cherian's deceased husband and his brothers and were entitled to fixity of tenure under the provisions of the Kerala Land Reform Act, 1963 (for brevity "KLR Act", hereafter). c. In course of trial of the Suit, the question of tenancy was referred by the trial court to the Land Tribunal under Section 125(3) of the KLR Act. In R.C. No. 84/1988, the Land Tribunal found that Mr. Mathew was a cultivating tenant entitled to protection under the KLR Act. Based on the observation of the Land Tribunal, the Suit was dismissed by the trial court on 16th November 1989. Challenging the dismissal of the Suit, Mrs. Cherian filed A.S. No. 27/1991 before the High Court. d. Mr. Mathew passed away on 18th January 1998, and the proceedings before the High Court continued ....
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.... intervening between institution of the Suit and much before the same was decreed on 21st October 2000. 9. The following subsequent events are of further importance to the instant case: a. The Executing Court on 27th May 2017, in E.P. No. 379/2012, accepted the Appellants' prayers for delivery of the decretal property, appointed an Advocate Commissioner, and issued directions to deliver possession of the decretal property within 10 days of the order, with the help of the relevant SubInspector of Police. b. The Commissioner, on 23rd June 2017, submitted a report to the effect that the Respondents objected to the delivery of possession to the Appellants. c. Subsequently, certain Respondents as objectors filed multiple objections in the main execution proceedings objecting to the execution of the Decree and refusing to give possession to the Appellants. They inter alia contended that they were not aware of the proceedings in the Suit and became aware of the same only when the Commissioner attempted to take delivery of possession as per the order of the Executing Court on 27th May 2017. d. The Appellants then filed a petition before the High Court....
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.... Diwan cited the following decisions of this Court in support of his contentions: a. Usha Sinha vs. Dina Ram [(2008) 7 SCC 144], where this Court, inter alia, held that a pendente lite purchaser had no right to offer resistance or cause obstruction as the purchaser's rights had not been crystallised in a decree. b. Board of Trustees vs. Nikhil Gupta [(2015) 10 SCC 1339], where this Court issued directions to the obstructionists to handover possession to the petitioner therein in a case where a decree of eviction was obtained after three decades of litigation. c. Sriram Housing Finance and Investments India Ltd. vs. Omesh Mishra Memorial Charitable Trust [(2022) SCC OnLine SC 794], where this Court expounded that Order XXI Rule 97 empowers a decree-holder to make an application complaining about any resistance or obstruction in possession of immovable property and that Rule 102 also clarified that Rules 98 and 100 would not apply in cases where resistance or obstruction in execution was offered by a transferee pendente lite, where the property was transferred by a judgment debtor to such a person after the institution of a suit in which the decree sought t....
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..... M. Subramanian & Ors [(2007) 8 SCC 751] has held that if any judgment or order was obtained by fraud, then the same is a nullity; and since the judgment in A.S. No. 27/1991 was obtained without impleading all the legal representatives of Mr. Mathew, for this reason, the proceedings are vitiated by fraud and a nullity due to suppression veri. g. In ITI Ltd. v. Siemens Public Communications Network Ltd [(2002) 5 SCC 510], this Court had noted that despite the vast powers it had to directly entertain an appeal, litigants should not be encouraged to bypass other available remedies in the potential hope of a more efficacious remedy. h. The Appellants' conduct in directly approaching this Court under Article 136 of the Constitution of India without invoking the revisional or appellate jurisdiction of the appropriate forum is open to criticism based on the decision in Columbia Sportswear Company v. Director of Income Tax, Bangalore [(2012) 11 SCC 224], where this Court opined that the scope of discretion under Article 136 of the Constitution of India while granting special leave was such that only a substantial question of general importance or one already pending befo....
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....ranger to the decree put to execution. 18. In Bhanwar Lal vs. Satyanarain [(1995) 1 SCC 6], this Court held that when any person, whether claiming derivative title from the judgment-debtor or sets up his own right, title or interest de hors the judgment debtor, the executing court whilst executing the decree, in addition to the power under Rule 35(3), is empowered to conduct an enquiry whether the obstruction by that person is legal or not. 19. This Court in Noorduddin v. Dr. K.L. Anand [(1995) 1 SCC 242] reiterated that the executing court was bound to adjudicate the claim of an obstructionist and to record a finding allowing or rejecting the claim which was laid before the executing court, the person being neither a party to the earlier proceedings nor the decree being passed against him. 20. Yet again, in Babulal v. Raj Kumar & Ors. [(1996) 3 SCC 154], this Court after setting aside the order impugned held that a determination is required to be conducted under Order XXI Rule 98 before removal of the obstruction caused by the objector and a finding is required to be recorded in that regard. It was also held that the executing court was required to determine the question ....
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....l narrative, it appears that the Suit instituted by Mrs. Cherian in 1987 was initially dismissed on 16th November 1989 and upon an appeal being preferred in 1991, the Suit was restored to the file of the trial court by the order of the High Court dated 18th December 1998. If, indeed, there have been transfers post dismissal of the Suit during the time when there was no pending lis, it would be most appropriate for the Executing Court to determine the question as to whether any of the transfers made by Mr. Mathew to the Respondents would attract Rule 102. This would indeed involve an exercise of leading of evidence by the parties and merely because the Suit was ultimately decreed on 21st October 2000 and ultimately was upheld by this Court with a minor modification of the amount of compensation, that would not be sufficient justification to throw out the objections raised by the Respondents as being devoid of merit. 26. That apart, the effect of the Purchase Certificate obtained by Mr. Mathew in proceedings before the Land Tribunal where Mrs. Cherian was noticed on the transfers made in favour of the Respondents, would also have to be examined by the Executing Court. Notably, it ....
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....e matter for evidence to be led by the parties. We are sure that upon determination of the questions referred to in Rule 101, the Executing Court would proceed in the manner mandated by Rule 98. 29. Further, Mr. Chitambaresh is right when he submits that this Court should not entertain the aforesaid appeals against the order of the Executing Court without such order having been subjected to any challenge by the Appellants before the High Court. In the decision cited by Mr. Chitambaresh, viz., ITI Ltd. (supra), it was observed that litigants should not be indulged to hop, skip and jump to reach the Supreme Court for no better reason than the remedy is quick and more efficacious. As a matter of practice, the Supreme Court in its discretion does entertain special leave petitions directly from orders of tribunals/courts without the High Court having been approached only in matters where substantial questions of general importance are involved or where a similar issue is pending for its (the Supreme Court's) consideration. The decision in Columbia Sportswear Company (supra) is to that effect. However, these are cases which are few and far between. The power to grant leave under Artic....