Holding

A pending execution application may be continued and, if necessary, amended under Order XXI Rule 11(2)(d) when the appellate court confirms the decree without alteration; a fresh execution petition is not required.

Summary

The appellants, claiming landlord rights, obtained a decree for eviction, arrears of rent and damages against the State of U.P. and its agency U.P. Jal Nigam. After the decree was confirmed by the Supreme Court without alteration, the appellants sought to continue the pending execution proceedings. The respondents contended that the decree of the High Court had merged in the Supreme Court decree, rendering the earlier execution petition non‑maintainable and requiring a fresh petition, and also raised objections concerning ownership and the expiry of the lease. The executing court rejected these objections and ordered possession; the respondents’ revision petitions were dismissed. The High Court, on a writ petition, quashed the execution orders, holding that a fresh execution petition was necessary. The Supreme Court held that where an appellate court confirms a decree without modification, the pending execution application may be continued and can be amended under Order XXI Rule 11(2)(d); no fresh execution petition is required. Consequently, the High Court’s order was set aside.

Issues considered

Whether a decree merged in a higher appellate decree can be executed on the pending execution application without filing a fresh execution petition.
Whether the Civil Judge (Junior Division) has jurisdiction to entertain the execution application after the decree has merged.
Whether the decree‑holder ceased to have any interest in the property due to the expiry of the lease.

Legislation cited

Code of Civil Procedure, 1908s. Order XXI Rule 10, s. Order XXI Rule 11(2)(d), s. Section 151, s. Section 37, s. Section 38, s. Section 39, s. Section 47

Subjects

execution of decreedecree mergerOrder XXIamendment of execution petitioneviction suitlease expirycivil procedurejurisdictionfresh execution petition

Judgment

A KRISHNA GOPAL CHAWLA AND ORS.
v.
STATE OF U.P.. AND ANR:

j. 't
OCTOBER 11, 2001 ..
B [D.P. MOHAPATRA AND SHIVARAJ V. PATIL, JJ.]

Code of Civil procedure, 1908 : Order XXJ Rules JO and 11(2)(d).

Execution-Application for-Maintainability of-Merging of decree in
C appellate court-Fresh application-Necessity of-Eviction suit decreed in
second appeal-Decree holder moved execution application-However, on
appeal Supreme Court stayed execution proceedings-Ultimately appeal
dismissed without any modification or alteration of decree-Decree-holder
continued execution proceedings-But High Court held that the execution
D application was not maintainable as the decree merged in the decree passed
by Supreme Court and that a fresh application for execution had to be flled-
Correctness of~Held : In a pending execution case an amendment can be
sought, if needed, under R.11(2)(d) after dismissal of appeal-There is no need
to file afresh application for execution after a decree is passed by the appellate
court more so when the decree is neither modified nor altered-The pending
E execution proceedings can be continued-Hence, High Court's order setaside.

The appellants fded a suit for eviction of the respondents from the
suit property. The suit was decreed by the High Court in second appeal.
Thereafter, the appellants filed an execution application under Order XXI
p Rule 10 of the Code of Civil Procedure, 1908. In the meanwhile, the
respondents filed an appeal before this Court and this Court stayed the
execution proceedings pending in the executing court. Ultimately, the
~ppeal was dismissed by this Court without any alteration or modification
of the decree passed by the High Court.

G The appellants, after dismissal of the appeal by this Court, continued
the execution proceedings. The respondents filed various objections before
the executing court including the objection with regard to the ownership
of the suit property. The executing court allowed the application
for execution. The civil revision petition filed by the respondents was
H dismissed.
62
K.G. CHAWLA v. STATE 63
Thereafter, the respondents filed a writ petition before the High A
Court which was allowed on the ground that the decree passed by the High
Court, in second appeal, was not capable of execution since it merged, in
the decree passed by this Court and that the appellants were required to
file a fresh application for execution. Hence this appeal.

Allowing the appeal, the Court B

HELD : 1.1. After the disposal of the appeal by this Court, there
was no impediment or bar to continue the execu_tion proceedings on tJie
application moved by the appellants to proceed with the execution. The
High Court erred in holding that a fresh execution petition should be filed C
after the dismissal of the appeal by this Court as the decree passed by the
High Court had merged with the decree of this Court and the execution
petition filed earlier which was pending was not maintainable. [69-A; E]

. 1.2. This Court, in appeal, only confirmed the decree passed by t.fie
High Court without any alteration or modification. Even otherwise, in a D
pending execution case, amendment could be sought, if it was needed, after
dismissal of ~he appeal by this Court. Under Order XXi Rule 11(2)(d) of
.... the Code of Civil Procedure, 1908, in the execution application the
particular as to whether any appeal has been preferred from the decree
is to be mentioned. If an appeal has been preferred from a decree and E
after disposal of the appeal, necessary information can be given by fili~g
an application, if need be seeking an amendment. It is one thing to say
·that the earlier decree passed gets merged in the decree passed by the
appellate court, yet it is a different thing to say that an execution petiti~n
filed earlier is not maintainable and that there is a need to file a fresh
application for execution after a decree is passed by the appellate court, F
particularly in the present case, when this Court had stayed the execution
proceedings filed earlier. It was obvious that the execution proceedings
could be continued after dismissal of the appeal by this Court affirming
the decree passed by this Court without any alteration. [69-F-H; 70-A]
G
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7104 of 2001.

~rom tlJe Judgment and Order dated 17.11.98 of the Allahabad High
Court m C.M.W.P. No. 34383 of 1997.

Gopal Subramanium, C. Mukand, Bijoy Kumar Jain, AK. Jain, Rakesh H
64 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.
A Jairi and Deepak Jain for the Appellants.

:S. Markandeya1 Ms. Chitra Markandeya and Ms. Feroza Bano for the
Respondents.

The Judgment Of the Court was delivered by
B
SHIVARAJ V. PATIL, J. Leave granted .
.,
The appellants are before this .C~mrt, aggrievt;d . by the order dated
17.11.1~98 passed by the Allahabad High Court in Civil Misc. Writ Petition
No .. 34383/97. In brief, the relevant and necessary facts for disposing of this
c appeal are the following:
. ' .·. \ . ' . ' •,
The property in'dispute is premises No. 7/86 along with the l;md, which
..
fo'nns part of Nazul 'plot No. 12 situated in Block-7, Tilak Nagar, K~pur: This
prop~rty wa:s leased for .. a maximum period of 90 years in December, 1904 ...
D by Secret\11}' of St~te in favour of one Kha~ Bahadur Hafij .Mo4d. I:Ialimj th.~
iease ~as to be renewed after 30 years from. the date_ of its commenc<?_ment
with increase of 50% in rent; the le,ase .also permitted construction of building
over the land; the lessee accordingly constructed a dwelling house on the leased
lan~;,._he let out the cqnstructed premises to the State of U.P. on 3.5.1937.
By that time the lessee had alre~dy got renewed.the lease on 2.3.1~35 in fav_our
-
E of.~faji Mohd. Sadiq, the son of the original lessee for a further perio~ of 30
years.upto 4.12.1964. Thereafter, !egal representatjves of the,original lessee
migrated to Pakistan. Consequently, the said; property was. declared evacuee
property by the Notification dated 3.10.1952. Later, it was put to auction by
the Manager, Custodian of Evacuee Property. One Gian Chand ~d. others
F purchased the said property i.e. the land and building through auction sale.
Th~y in tur~ sold the same to Krishna Gopal Cha;wla and other~ (appellants
herein). through registered sale deeds in. 1959 .

.· Krishna Gopai Chawla and .others, claiming themselves to be - the
l~~dlords of the property, filed original· civil' suit No. 1714/1963 for arrears
G of rent, ejectment and for damages for use and occupation against the State
of U.P. in the court of Munsif City, Kanpur. The said suit was later transferred
to Nth Additional Civil Judge, Kanpur,. who dismissed the said suit on
-19.4.1965. The appellants preferred First Civil Appeal No. 30511965 before
the District Judge, Kanpur, which was also dismissed on 21.3 .1969. Aggrieved
H by the same, the appeilants filed Second Appeal No. 2565/1969" before the
K.G. CHAWLA v. STATE [PATIL, J.] 65
High Court. During the pendency of the second appeal, U.P. Jal Nigam was A
substituted in place of State of U.P. as the disputed property was in possession
of Jal Nigam as tenant on behalf of State. The High Court allowed the appeal.
decreed the suit of the appellants on 20.9.1979 for arrears of rent, ejeccment
as well as for damages for use and occupation. On the basis of the said decree
passed by the High Court, the appellants filed Execution Case No. 179/1980
in the court of Munsif City, Kanpur, for execution c)f the decree against U.P.
B
Jal Nigam.

The respondents approached this Court in Civil Appeal No. 1365/1980,
aggrieved by the decree passed by the High Court in the second appeal. This
Court stayed the execution of the decree passed by the High Court till the c
disposal of the appeal and dismissed the appeal on 1.3.1994, confirming the
judgment and decree passed by the High Court. However, with the consent
of the parties, U.P. Jal Nigam was allowed to remain in possession of the ,
disputed premises for one year from the date of judgment on filing undertaking
on usual terms. U.P. Jal Nigam filed undertaking before this Court on
D
28.3.1994.

The appellants, after the dismissal of the appeal by this Court,. moved
an application in the court of Munsif City. Kanpur (now Civil Judge, Junior
Division, Kanpur Nagar) to proceed wiih the execution of the decree. IJ.P.
Jal Nigam and State of U.P. filed separate but similar objections under Sections
47, 37, 38, 39 and 151 CPC resisting execution. The objections were that .
the decree passed by the High Court merged in final judgment passed by this
Court; hence the decree of this Court dated 1.3.1994 alone could be executed
and not that of the High Court; the court of Civil Judge, Junior Division,
Kanpur Nagar, h!ls got no jurisdiction to execute the decree; the court of Civil
'F
Judge, Junior Division, Kanpur Nagar, is not court of first instance. Further,
it was contended that original lessee, Khan Bahadur Hafij Mohd. Halim, was
a lessee of the disputed property; his legal representatives had only leasehold
rights; hence only leasehold rights were purchased by Gian Chand and others
in auction; since the original lessee was not the owner of the disputed property,
it could not become evacuee property; the maximum lease period of 90 years G
expired on 4.12.1994 and as such the decree-holders had no interest·in the
property and they have ceased to be landlord of the disputed property. It was
contended that as per the undertaking given to this Court on 28.3.1994, U.P.
Jal Nigam handed over possession of the disputed premises to the State of U.P.,
the real owner of the property after expiry of the.lease period; thus the de-::ree H
66 SUPREME; COURT REPORTS [2001) SUPP. 4 S.C.R.
A of this Court stood satisfied in terms of the undertaking.

The executing court (court of Civil Judge, Junior Division, Kanpur) after
hearing, by a detailed order dated 5.9.95, rejected all the objections raised by
the U.P. Jal N"igam and. State of U.P. and directed for delivery of possession.
The U;P. Jal Nigam ·as well as State of U.P., aggrieved by the said order of
-B the executing court, fi~ed civil revision petitions in the court of IVth Additio~al
"District Judge, Kilnpur. After hearing the parties and having considered al_l
objections including additional objections raised in the revision petitions, the
learned D~strict Judge dismiss~d them by a well considered order dated
_l.2.8.1997 .
c .,.
I '" .. . ' . . .
· · It is thereafter that the State of U.P. filed Civil Misc. Writ Petition No.
34383191' for quashing the orders of executing court dated 5.9.1995 and the
o~de~ of th~ AddL District Co~rt dated 12.8.1997 pa::..>ed in revision. The said·
wrlt;petition WM ailowed by the High c;::ourt and the. impugned orders were
quashed:.· th~ High Court ·raised following three questions for consideration
D
:, ! in th~ writ" petiiion (1) whether the decree passed by the High Court in the
second appeal was capable of execution even if it merged in the decree passed
by this Court in an appeal preferred against the decree passed by . the High
Court; (2) whether Civil Judge (Senior Division) Kanpur Nagar, was competent
to entertain the execution application and (3) whether the decree-holder ceased;
E to have ·any interest in the decree owing to termination of lease by efflux ·of
time. The first question was answered in the negative. The sc.:ond question,
~as answered in ~ffirma_tive and the third question ·was left open to be decided·
0

. i_J) a fresh;e?,1-ecution petition if filed by the decree-holder seeking execution
of the. decree passed by this Court. Hence, this appeal.
F
. Mr. Gopal Subramaniam, learned senior counsel for the appellants
strongiy co~tend~d that this is a case, which shows how the appellants are not
able, to execute the decree obtained in 1979 in spite of an undertaking given
in this Court by .the rcspondents;.tlie respondents never raised question of title
in the original suit or in further appeals and, as stated, it was not open to rais~
G in the execution proceedings or before the High Court in the writ petition; .....
admittedly the d~cree was passed in favour of the appellants as landlords
against the r~;,pondents for their eviction, payment of arrears of rent and
darn,ages for use and occupation of the premises; executing court. cannot gq
bey~nd th~ decree; hence ~he objections filed by the respo~dents were rejected.
H and the ?rder passed by the executing court was confirmed in the revisi~n
KG. CHAWLA v. STATE [PATIL, J.] 67
before the District Court; the High Court committed a serious error .in holding A
that the execution petition filed earlier by the appellants was not maintainable
as the decree passed by the High Court merged in the dec;ree passed by this
Court when the. appeal was dismissed and that the appellants had to file a fresh
application for execution subject to law of limitation; the High Court was also
not right in saying that the question of title could be decided afresh in the event
of fresh execution petition is filed as stated above.
B

OQ the other hand, Mr. S. Markcndaya, learned senior counsel for the
respondents made submissions supporting the impugned order of the High
Court.
c
We have carefully considered the submissions made by the learned
i;;ounsel for the parties. This is yet another case, which confirms a general
feeling that the real trouble starts after obtaining a decree and when it is put
to execution. In this case the suit was filed in 1963 and the decree was passed
in favour of the appellants in 1979. The execution petition was filed in 1980.
Almost 21 years have passed after filing the execution petition. Still the D
appellants are not able to get benefit of the.decree. Admittedly the suit was
filed by the appellants as the landlords seeking eviction of the respondents from
the disputed property in addition to claiming for arrears of rent and damages
for the use and occupation of the property. The suit was decreed. by the High
Court in second appeal. Thereafter, execution petition No. 179/80 was filed. E
In the meanwhile tne respondents approached this Court by filing the appeal
and in the appeal order was passed staying the execution proceedings pending
in the executing court. Ultimately, the appeal was dismissed by this Court
on 1.3.1994 in the following terms: -
F
"The courts below are correct. No interference is t1llled for. The
appeal is dismissed. However, as agreed by both the learned counsel
one years time from today is granted to the appellant to hand over
vacant possession. This shall be subject to the filing of the usual
undertaking within four weeks from today."
G
Formal order prepared pursuant to the said judgment passed by this
Court is reproduced in the impugned judgment passed by the High Court. From
its reading it is clear that the appeal was dismissed without altering the decree
in any way passed by the High Court. The respondents were allo.wed time
to vacate the premises with the consent of the parties till 1.3.1995 subject to H
68 SUPREME COURT REPORTS [2001) SUPP. 4 S.C.R.
A filing of undertaking to the effect that the respondents shall not induct any
other person in the suit premises and shall hand over vacation and peaceful
possession of the said premises to the appellants on or before 1.3.1995, etc.
Further in para 2 it is stated that on the respondents failing .to comply with
the undertaking, decree for eviction shall become executable forthwith. '
B Although the respondents filed an undertaking on 28.3.1994 but not consistent
with the terms aforementioned. It appears that the respondents at the time of
giving undertaking itself had a definite design to defeat or frustrate· the
execution of the decree itself. The relevant portion of the undertaking to
demonstrate the same is extracted below: -

c (A) The U.P. Jal Nigam sbll hand over on or before 28.2.1995, the
vacant and peaceful possession of the disputed premises to
either the respondents or their vendees or the State Govt. of U.P.
in the event it is found that the lease in favour of the respondents
had already stood extinguished with effect from 4.12.1964.
D (B)

(C) The U.P. Jal Nigam shall not induct anyone else into the disputed
premises.

E Underlined portion in :c1ause
. (A) exu·acted above indicates that from
beg~nning the intention of the respondents was not bona fide.
.
. the

When the order of this Court was clear in directing that the disputed
premises was .to be handed over to the appellants and undertaking was to be
given a.ccordingly the respondents choose to give an undertaking incorporating
F different terms-.to suit their purpose to defeat or frustrate the execution of the
decree. Neither the State oflJ.P. nor U.P. Jal Nigam ever successfully raised
in the suit and .appeals what is sought to be made out in the undertaking. It
appears even review petition filed seeking review of the judgment of this Court
was also rejected. In our view, the twist given in the 11ndertaking by the
G respondents appears to even overreach the order of this Court.

This Court on 26.4.1990 passed the following order: -

"This appeal is directed against the decree of ejectment passed against
the appellant on ~he ground of arrears of rent. After the appeal was
H argued for some time, the learned counsel for the appellant, Mr.
K.G. CHAWLA v. STATE [PATIL, J.] 69
Subodh Markandaya, for the U.P. Jal Nigarn made an offer to the A
effect that the U.P. Jal Nigarn is prepared to purchase the property
in question at the rate specified by the Kanpur Development Authority
or at the price to be determined by a vr.!uer appointed by the parties
and failing that by the Court. The learned counsel for the respondents
seeks time to consider this offer. Let the matter come up on 4th May,
1990."
B ,

We see in the records placed before us a letter No. 7565/M-Bl-l/57 dated
26.12.1957 from the Superintendent Engineer, III Circle, L.S.G.E.D., Lucknow
to Gian Chand, i.e., the vendor of the appellants offering to purchase this very
property for the reasonable amount. If the State of U.P. had become or was C
the owner of the property, there was no need to write such a letter treating
Gian Chand as the owner of the property and similarly there was no necessity
to make an offer for purchasing the property by the U.P. Jal Nigam as recorded
in the aforesaid order of this Court.

As is evident from the facts narrated above, the execution petition No. D
179~80 filed in the executing court to execute the decree passed by the High
Court, was pending. This Court had stayed the said execution proceedings
pending disposal of the Civil Appeal No. 1365/80. After the disposal of the
appeal, there was no impediment or bar to continue the execution proceedings
on the application moved by the appellants to proceed with the execution. The E
High Court committed a manifest error in taking a view that a fresh execution
petition should be filed after the dismissal of the appeal by this Court as the
decree passed by the High Court had merged with the decree of this Court
and the execution petition filed earlier which was pending, was not maintainable.
As already noticed above, this Court in appeal only confirmed the decree
passed by the High Court without any alteration or modification. Even
F
. otherwise, in a pending execution case, amendment could be sought if it was
needed after dismissal of the appeal by this Court. Under Order XXI Rule
11 (2)(d) CPC, in the execution application the particular as to whether any
appeal has been preferred from the decree is to be mentioned. If an appeal
has been preferred from a decree and after disposal of the appeaJ, necessary G
information can be given by filing an application, if need be seeking an
amendment. It is one thing to say that the earlier decree passed gets merged
in the decree passed by the appellate court, yet it is different thing to say that
an execution petition filed earlier is not maintainable and that there is a need
to file a fresh application for execution after a decree is passed by the appellate H

l
70 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.
A Court, particularly in the present case, when this Court had stayed the execution
proceedings filed earlier, it was obvious that the execution proceedings could
be continued after dismissal of the· appeal by this Court affirming the decree
passed by this Court without any alteration.

The learned Addi. District Judge in his revisional order noticed that the
B disputed property was declared as evacuee property and it vested in the Central
Government, free of allencumbrances; the said property was sold in public
auction and a sale certificate was issued by the Custodian, Evacuee Property,·
as free-hold property as early as 1959. The learned Addi. District Judge has
further stated in his order as to whether the State Government is the owner
c of the disputed property or the decree-holders are the owners of it, was· not
at all called for consideration in the execution proceedings; the question was
whether the decree-holders have ceased to be landlord of the disputed property
after the expiration of lease on 4.12.1994. It was further noticed that the
respondents did not take the plea before first appellate court or the High Court
D in the second appeal or before this Court in appeal that the appellants had
ceased to be landlords of the disputed property .. Even otherwise, the interest
of the appellants on the disputed property did not become unauthorized;
admittedly the constructions in the suit property belong to the decree-holders.
in this view, the learned Addi. District Judge held that the objection with regard
to the ownership of the disputed property could not be raised under Section
E 47 CPC. However, he observed that the question ofownershi.p was not in.
dispute before him and, therefore, he did not go into that question as to which
p'arty is the i:iwner of the disputed property. Ultimately holding the appellants
as landlords, eviction dec;ree was passed against the respondents but the High
Court in the impugned judgment found fault with this part of the order stating
F that the executing court as weli as the District Court did not correctly decide
the question ~s to the ownership of the property and the same could be decide~
by the courts in a case fresh execution petition is filed by the appellants on
the basis of the decree passed by this Court in Civil Appeal No. 1365/80. We
find it difficult to accept the finding of the High Court in this regard .

.G It is unfortunate that the High Court failed to see the conduct of the
respondents, facts and circumstances of the case and the correct legal position
before quashing the concurrent findings recorded by the executing court as
well as the revisional court. The High Court while exercising writ jurisdiction
has acted as a court of appeal in allowing the writ petition filed by the
H respondent No. 1, that too taking a technical view. Interest of justice in the
K.G. CHAWLA v. STATE [PATIL, J.] 71
fact-situation warranted dismissal of writ petition. A
Thus, in view of what is stated above, we have no hesitation in holding
that the impugned order of the High Court suffers from irreparable infirmity
and it is patently unsustainable. Consequently, we set aside the same. The
appeal is allowed accordingly with cost of Rs.10,000/- to be paid to the
appellants by the respondents. B

v.s.s. Appeal allowed.