Case Note & Summary
The petitioner, Rajendra Ramakant Vedpathak, filed a writ petition under Article 227 of the Constitution of India challenging orders dated 17 November 2018 made on applications at Exhibit Nos.114, 116, and 118 in execution proceedings arising from a decree in Civil Suit No.71 of 2008. The petitioner contended that he or his predecessor-in-title were deliberately not made parties to the suit, and therefore the decree was not binding on him. He had also instituted a substantive suit seeking a declaration that the decree was not binding and for restraint from dispossession. The petitioner's counsel argued that the father of respondent No.1 had earlier filed Regular Civil Suit No.253 of 1987 for possession against both the parties in the 2008 suit and the petitioner's predecessor, which was dismissed, and that the suit premises were the only premises where the petitioner carried on business. The High Court, after considering the submissions and perusing the record, observed that the petition was a gross abuse of the process of the court. The decree in Civil Suit No.71 of 2008 had repeatedly attained finality up to the Supreme Court. The petitioner, by way of a second round of litigation, was attempting to re-agitate issues that had already been concluded. The court noted that the petitioner was not a party to the suit and could not be bound by the decree, but his remedy was to file a substantive suit, which he had already done. The execution court had not committed any error in proceeding with the execution. The High Court dismissed the petition with exemplary costs of Rs.25,000 to be paid to the Bombay High Court Advocates' Association Library Fund.
Headnote
A) Civil Procedure - Execution of Decree - Finality of Decree - Abuse of Process - The decree for eviction in Civil Suit No.71 of 2008 had attained finality up to the Hon'ble Apex Court. The petitioner, who was not a party to the suit, filed a writ petition challenging the execution proceedings. The High Court held that the petition was a gross abuse of the process of the Court and dismissed it with exemplary costs, as the decree had become final and the petitioner's remedy, if any, was to file a substantive suit for declaration. (Paras 5-7)
Issue of Consideration
Whether the impugned orders made in execution proceedings warrant interference by the High Court under Article 227 of the Constitution of India.
Final Decision
The writ petition is dismissed with exemplary costs of Rs.25,000 to be paid to the Bombay High Court Advocates' Association Library Fund.
Law Points
- abuse of process of court
- finality of decree
- res judicata
- execution of decree
- binding nature of decree on non-parties
- exemplary costs
Case Details
2018 LawText (BOM) (11) 26
WRIT PETITION NO. 13499 OF 2018
Mr.Saurabh M.Railkar (for Petitioner)
Rajendra Ramakant Vedpathak
Tarvidersingh Harbansingh Popali, Smt.Suman Arvind Mahamuni, Madhukar Dattatray Vedpathak, Amol Dattatray Vedpathak, Smt.Kalavati Dattatray Vedpathak
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Nature of Litigation
Writ petition under Article 227 of the Constitution of India challenging orders made in execution proceedings of a civil decree.
Remedy Sought
The petitioner sought interference with the impugned orders dated 17 November 2018 made on applications at Exhibit Nos.114, 116, and 118 in execution proceedings.
Filing Reason
The petitioner claimed that he was not a party to Civil Suit No.71 of 2008 and that the decree was not binding on him, and that the execution proceedings would cause grave and irreparable prejudice.
Previous Decisions
The decree in Civil Suit No.71 of 2008 had attained finality up to the Hon'ble Apex Court. Earlier, Regular Civil Suit No.253 of 1987 filed by the father of respondent No.1 was dismissed.
Issues
Whether the impugned orders in execution proceedings warrant interference under Article 227 of the Constitution of India.
Submissions/Arguments
The petitioner or his predecessor-in-title were deliberately not made parties in Civil Suit No.71 of 2008, so the decree is not binding on the petitioner.
The petitioner has instituted a substantive suit seeking declaration that the decree is not binding and for restraint from dispossession.
Regular Civil Suit No.253 of 1987 filed by the father of respondent No.1 against both parties was dismissed, which is a strong ground against execution.
The suit premises are the only premises where the petitioner carries on business, and eviction would cause grave and irreparable prejudice.
Ratio Decidendi
A decree that has attained finality up to the Supreme Court cannot be challenged collaterally by a non-party through a writ petition under Article 227, especially when the non-party has already filed a substantive suit for declaration. Such a petition is an abuse of process and warrants dismissal with exemplary costs.
Judgment Excerpts
this petition is a gross abuse of the process of the Court and warrants dismissal by imposing of exemplary costs.
The decree for eviction in Civil Suit No.71 of 2008 has repeatedly attained finality right up to the Hon'ble Apex Court.
By way of a second round of litigation, Petitioner is attempting to re-agitate issues which have already been concluded.
Procedural History
Civil Suit No.71 of 2008 was decreed for eviction. The decree attained finality up to the Supreme Court. Execution proceedings were initiated. The petitioner, not a party to the suit, filed applications (Exhibit Nos.114, 116, 118) in the execution proceedings, which were rejected by orders dated 17 November 2018. The petitioner then filed the present writ petition challenging those orders.
Acts & Sections
- Constitution of India: Article 227
