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2025 DAILYLAW 3632 (HP)

Bharat Petroleum Corporation Ltd. v. Swarn Garg

2025-11-07

Ajay Mohan Goel

body2025
JUDGMENT : AJAY MOHAN GOEL, J. 1. By way of this petition filed by Article 227 of the Constitution of India, the petitioners have prayed for setting aside of order dated 13.06.2019, in terms whereof, an application preferred by the judgment debtor/objector under Order 21, Rule 29 of the Code of Civil Procedure, praying for stay of the execution proceedings, i.e. Execution Petition No. 12-10 of 2008, titled as Swarn Garg vs. Bharat Petroleum Corporation Limited has been rejected. 2. Brief facts necessary for the adjudication of this petition are that a suit for recovery of an amount of Rs.65,000/- was filed by the respondent herein against the present petitioners and this civil suit bearing No. 31/1 of 2006, in which present petitioners were proceeded against ex parte, was decreed by the Court of learned Civil Judge (Junior Division) Solan, for an amount of Rs. 65,000/- with interest @ 12% per annum with further direction to the respondent to hand over the possession of the suit land on 16.01.2006. The petitioners filed an application under Order 9, Rule 13 of the Code of Civil Procedure read with Section 151 thereof, alongwith an application under Section 5 of the Limitation Act for condonation of delay on 23.02.2008. They also filed an appeal against the ex parte decree before the learned Appellate Court. The appeal was accompanied by an application filed under Order 41, Rule 3-A of the Code of Civil Procedure. This appeal as well as application for condonation of delay were dismissed in default by learned Appellate Court on 17.04.2009 and the application filed for restoration of the appeal and application was withdrawn by the petitioners on 20.10.2009. Thereafter, an application was filed under Order 9, Rule 13 of the Code of Civil Procedure by the petitioner before the learned Trial Court and vide order dated 10.05.2010, learned Trial Court dismissed the same as not maintainable. The appeal filed against this order by the petitioners was dismissed by the learned Appellate Court on 23.10.2010. Judgment dated 23.10.2010 was challenged by the petitioners by way of CMPMO No. 430 of 2010 before this Court. The same was allowed by this Court in terms of Annexure P-3, dated 14.06.2011 and the matter was remanded to the learned lower Appellate Court to decide the same after hearing the parties. Learned Appellate Court vide judgment dated 16.01.2012 again dismissed the appeal. The same was allowed by this Court in terms of Annexure P-3, dated 14.06.2011 and the matter was remanded to the learned lower Appellate Court to decide the same after hearing the parties. Learned Appellate Court vide judgment dated 16.01.2012 again dismissed the appeal. This order is on record as Annexure P-4. The petitioners challenged this order before this Court by way of CMPMO No. 126 of 2012. This Court in terms of judgment dated 18.09.2012 (Annexure P-5) disposed of the said petition in the following terms:- “27. In these circumstances, the petition is disposed of with the following directions:- (a) This petition does not determine the rights of the parties on all the submissions as made in this petition or before the learned Courts below for the reasons that the point of purported misrepresentation, fraud etc. if committed, as alleged, have been left open for adjudication by the learned executing Court. (b) In view of the judgment passed in S.P. Chengalvaraya Naidu’s case (supra) since the plea of fraud can be set up in any proceedings, it will be open to the petitioners herein to institute objection(s) in execution pending before the learned executing Court. (c) It will be open to the petitioners herein to object to the execution of the decree on the ground that its 24 execution is barred by the provisions of H.P. Urban Rent Control Act, 1987. (d) The learned executing Court shall grant an opportunity to both the parties to lead evidence on their respective pleas set up by them and then render its decision. For this purpose both the parties shall be granted adequate opportunity to lead evidence oral/documentary. 28. Petition disposed of. As noticed by me, the petitioners have been running from Court to Court, suffered dismissal in default of its petition(s) proceedings before the learned appellate Court, withdrew its application for restoration, again have approached this Court twice claiming improper adjudication before the appellate Court, it would be in the fitness of things if costs of Rs.25,000/- are imposed on the petitioners to be paid to the respondent. The decree in execution shall remain stayed till adjudication of the objections, if any, preferred by the petitioners.” 3. Thereafter, the petitioners have filed a suit for declaration to the effect that the judgment and decree dated 16.01.2007 passed ex parte, was a result of fraud, misrepresentation and deceit etc. The decree in execution shall remain stayed till adjudication of the objections, if any, preferred by the petitioners.” 3. Thereafter, the petitioners have filed a suit for declaration to the effect that the judgment and decree dated 16.01.2007 passed ex parte, was a result of fraud, misrepresentation and deceit etc. This civil suit has been filed in the year 2019. Much before that, the decree holder had filed an execution petition for execution of the decree dated 16.01.2007. In these proceedings, an application was filed under Order 21, Rule 29 of the Code of Civil Procedure by the present petitioners, praying for the stay of the execution petition pending adjudication of the subsequent civil suit filed by the petitioners. Learned Executing Court in terms of the impugned order dismissed the application by returning the following findings:- “It is also settled law that even if all the conditions of Order 21. Rule 29, CPC are complied with, it does not follow As detailed supra the applicants/JDs had filed appeal against the and the same will have to be ordered with due care and caution that a stay has to be granted. The grant of stay is discretionary judgment and decree dated 16-1-2007 which was dismissed Their application under order 9 Rue 13 of CPC for setting aside said decree was also dismissed by this court and the order of this court has been upheld by the Hon'ble High Court of H.P Thereafter objections filed by the applicants/ JDs on the ground of misrepresentation was also dismissed and the revision filed by the applicants have been dismissed as Withdrawn by the Hon'ble High court of H.P. The findings of this Court that judgment and decree dated 16-1-2007 is without any fraud or misrepresentation has become final. Therefore, in the opinion of this court applicants/ JDs cannot be allowed to agitate the matter again after lapse of 11 years by filing another civil suit and be allowed to take benefit of the pendency of said suit as it would amount to mockery justice. The JD/ respondent must be allowed to enjoy the fruits of the decree granted in his favour by this Court after due consideration. 9. Therefore, judged in the light of aforesaid detailed discussion and findings on the foregoing issues, this court holds that application filed by the applicants/ JDs is not maintainable and is dismissed. The JD/ respondent must be allowed to enjoy the fruits of the decree granted in his favour by this Court after due consideration. 9. Therefore, judged in the light of aforesaid detailed discussion and findings on the foregoing issues, this court holds that application filed by the applicants/ JDs is not maintainable and is dismissed. Be tagged with main file for record.” 4. Feeling aggrieved, the petitioner has approached this Court by way of this petition. 5. Having heard learned Senior Counsel for the petitioners as well as learned Counsel for the respondent, this Court is of the considered view that there is no infirmity in the impugned order passed by the learned Executing Court. It is a matter of record that the decree, execution of which has been sought by the decree holder, was passed in the year 2007 and execution proceedings for the execution of the same are pending since the year 2008. On the other hand, the civil suit for declaration that the said decree is a result of fraud etc. has been filed in the year 2019. Record demonstrates that the petitioners preferred an appeal against the ex parte decree alongwith an application praying for condonation of delay, which were dismissed in default by the learned Appellate Court and an application filed for restoration of the appeal as well as application was withdrawn by the petitioners. It is in this background that the judgment passed by the learned Trial Court in the suit filed by the respondent herein has attained finality. I have hereinabove given a chronological narration of the things as they moved thereafter also with regard to the application onwards filed by the petitioners under Order 9, Rule 13 of the Code of Civil Procedure before the learned Trial Court for setting aside the ex parte decree. It was not disputed before the Court that when the application filed for restoration of the appeal filed against the ex parte decree alongwith an application for condonation of delay, was withdrawn by the petitioners before the learned Appellate Court, the same was not withdrawn with any liberty to prefer any application under Order 9, Rule 13 of the Code of Civil Procedure before the learned Trial Court. Be that as it may, the dismissal of the said application filed by the petitioners before the learned Trial Court by the learned Trial Court has also attained finality as this Court has not disturbed the findings arrived at in this regard either by the learned Trial Court or the learned Appellate Court while observing that the petitioners having alleged fraud may avail such remedy as they deem fit. The contention of learned Senior Counsel for the petitioners that this judgment bears the findings that the decree is a result of fraud are completely misconceived. I have carefully gone through the judgment that was passed by this Court in CMPOMO No. 126 of 2012, decided on 18.09.2012 and a perusal thereof demonstrates that there is no observation made by this Court to the effect that the decree obtained by the respondent herein in the year 2007 was a result of fraud. The contentions that were taken note by this Court in this regard made by the petitioners before it were being tried to be passed on as the observations of the Court which is not so. Simply because this Court has taken note of the contentions of the petitioners in this regard, does not mean that this Court has returned the findings that said judgment was a result of fraud. Be that as it may, the reasons which have been assigned by the learned Executing Court while dismissing the application filed by the petitioners under Order 21, Rule 29 of the Code of Civil Procedure have already been mentioned by me hereinabove. Order 21, Rule 29 of the Code of Civil Procedure provides that where a suit is pending in any Court on the part of a person against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided. 6. In the present case, the suit in issue was decided in the year 2007 in favour of the respondent herein, execution whereof was preferred in the year 2008. As at the time when the execution proceedings were filed, no suit was pending in any Court against the holder of the decree and the suit was only filed in the year 2019, i.e. after a decade of the passing of the judgment. As at the time when the execution proceedings were filed, no suit was pending in any Court against the holder of the decree and the suit was only filed in the year 2019, i.e. after a decade of the passing of the judgment. Otherwise also, in terms of the provisions of Order 21, Rule 29 of the Code of Civil Procedure, a discretion is vested upon the Executing Court to stay the execution proceedings and it is not as if in such a situation, the execution proceedings mandatorily have to be stayed. The reasons which have been assigned in the order by the learned Executing Court are duly borne out from the record of the case, which have been referred to by me in the above part of this judgment. During the course of hearing of this petition, it could not be demonstrated that the findings returned by the learned Executing Court were either perverse or contrary to the record. If the submission on behalf of the petitioners that filing of subsequent Civil Suits entail mandatory stay of the execution proceedings is accepted, the same shall entail a situation where in order to avoid the execution of a decree, the Judgment Debtor, after filing of the execution proceedings, may file a suit just to throttle the execution of the decree. 7. In exercise of its power of superintendence under Article 227 of the Constitution of India, otherwise also, this Court is not to sit as an appellate Court over the order of the learned Court below and the scope of interference is only if there is perversity in the order. In the present case, this Court does not find any perversity in the order passed by the learned Executing Court. It has correctly dismissed the application filed by the petitioners after passing a reasoned order which does not call for any interference. Therefore, in light of above discussion, as this Court does not find any merit in the present petition, the same is dismissed. At this stage, as prayed by learned Senior Counsel for the petitioners, time is granted upto 31.01.2026 to the present petitioners to vacate the suit land and hand over possession of the same to the respondent herein. Pending miscellaneous application(s), if any, also stand disposed of accordingly.