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PETITIONER: LAJWANTI

       Vs.

RESPONDENT: LAL CHAND AND ORS.

DATE OF JUDGMENT: 22/03/1968

BENCH: MITTER, G.K. BENCH: MITTER, G.K. SHAH, J.C. RAMASWAMI, V.

CITATION:  1969 AIR   27            1969 SCR  (3) 506

ACT: East Punjab Factories (Control of Dismantling) Act 1948,  S. 3-Whether bars execution of delivery of possession. Execution   of  Decree-No  appeal  from  earlier   execution application Fresh application, if barred by res  judicata-S. 3 of East Punjab Factories (Control of Dismantling) Act,  if bars.

HEADNOTE: The   eviction  of  the  Respondent  ’from  the   appellants premises,  which  was  used as a factory,  was  decreed  and application  for  execution of an order for  possession  was made.   The respondents resisted the execution on  the  plea that the machinery installed in the factory could not be re- moved  without  the prior permission of chief  Inspector  of Factories as provided by the East Punjab Factories  (Control of  Dismantling)  Act.   The  premises  was  allowed.   Both parties appealed.  The appellate Court took of the machinery was stayed, but the Possession of the  part the premises was allowed.   Both parties appealed.  The appellate Court  took the  view  that  the machinery and spare  parts  were  lying practically in all the rooms, and the locking and sealing of the  factory  would  result in its closure  which  would  be against  the provisions of the Act, and  therefore  directed -the   appellant  to  pursue  the  matter  with  the   State Government.   The  order  dated  April  22,  1953  was   not challenged  by any appeal.  But the appellant restarted  the execution  proceedings in which it was held that  the  State Government  had  refused permission for  demolition  of  the factory,  so  the file was ordered to be  consigned  to  the record  room.   ’Me  appellant filed an  appeal,  which  was dismissed,  but  in further revision the High Court  by  its order dated July 13, 1955 observed that on the record it was not  possible to decide whether the execution of the  decree would  defeat the provisions of s. 3 of the Act, so  it  set aside  the  order and directed the executing court  to  give decision  on points that arose under s. 3 of the  Act.   ’Me executing court found that the provisions of the Art did not prohibit  the  execution and as such  the  respondents  were liable  to  ejectment but since the application  had  become over  a  year  old it would be ’struck  off  the  file  with

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liberty  to  make  a  fresh  application.   The  respondents appealed.   The  District Judge held that the  Act  did  not apply  to involuntary dismantling of factories and that  the issue  raised  by the executing court did not arise  but  in fact  it had been decided against the appellant by the  High Court in revision.  The appellant’s appeal to High Court was dismissed  by  a  Single Judge, and in  the  Letters  Patent Appeal, it was held that the delivery of possession was  not barred in execution of decree by the Act, but the matter had become  res judicata in consequence of the decisions in  the first  execution  application and the decision of  the  High Court  dated July 13 1955 in the second  execution  applica- tion.  Allowing the appeal, HELD  : The Act does not bar the delivery of  possession  in execution, of a decree.  It makes no reference to any decree for Possession against the owner of a factory.  By  ordering delivery of possession of the premises, the executing  court does  not  make  an order for dismantling a  factory  and  a bailiff charged with execution of a warrant for  possession, does  not  infringe  the  provision  of  law  by   rendering possession of the property to the decree-holder. [510 C-D] 507 There  was no final order about the inexecutability  of  the decree on the first application for execution.  Further  the High Court by its order dated July 13, 1955, did Dot  decide the  question as to whether the decree for possession  would be  inexecutable  in view of the Act.  It  stated  expressly that  it  was  not possible for it  to  decide  whether  the execution  of the decree would defeat the provisions of  the Act, and being unable to come to a decision on the record it remanded the matter to the court of execution. It   found itself  unable  to  interpret the section  on  the  evidence beforeit. The proceedings subsequent to the remand order culminated in theorder  of the Division Bench from  which the  present appeal arose.The order dated July 13, 1955  was not a final order which put a seal on the proceedings.  [510 F-H]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 687 of 1965. Appeal  by special leave from the judgment and decree  dated October  3, 1961 of the Punjab High Court in Letters  Patent Appeal No. 405 of 1958. C. B. Agarwala and K. P. Gupta, for the appellant. S. N. Anand, for respondent No. 1. The Judgment of the Court was delivered by Mitter,  J.  This  is  an appeal by  special  leave  from  a judgment  and  order  of the Punjab High  Court  in  Letters Patent Appeal No. 405 of 1956. The matter arises out of an application for execution of  an order  for  possession passed on a  compermise  between  the parties.   The Division Bench of the Punjab High Court  felt itself  unable  to  help the  decree-holder  because  of  an earlier decision in the execution proceedings which was held to  constitute res judicata against her.  The main  question for consideration is, whether it was right in doing so. The  relevant  facts are as follows.  As far back  as  April 1950.  Harbans Lal, the late husband of the appellant before us, obtained an order for eviction from the Rent  Controller against  Lal  Chand and Ram Rattan Dass Jain in  respect  of certain, premises which were being used as a factory.   This decree  was  upheld in appeal and in July 1951  the  decree- holder  applied  for execution.  The court  bailiff  made  a

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report  dated the 14th July 1951 that on his going to  give- delivery of possession resistance was offered by a number of persons  and being apprehensive of breach of peace he  could not  effect  delivery of possession.  The  judgment  debtors appear to have -approached the Department of Industries  and informed  them  of  the attempt at their  eviction  by  the, decree-holder.   The  copy  of  a  letter  from  the  Extra- Assistant  Director of Industries to the Chief Inspector  of Factories  dated July 18, 1951 exhibited at the instance  of the  judgment-debtors,  goes  to  show  that  the  machinery installed in the factory could not be removed without 7 Sup. C.I./68-8 508 the  prior permission of the Chief Inspector  of  Factories. Obviously the judgment-debtors wanted to thwart the  decree- holder from getting possession through court by invoking the aid  of the East Punjab Factories (Control  of  Dismantling) Act  XX  of 1948, hereinafter referred to as the  Act.   The judgment-debtors applied for stay of execution of the decree on  August 23, 1951.  The Subordinate Judge  issued  notices but  did  not  grant stay.  On  appeal  the  District  Judge accepted  the appeal noting that the Subordinate  Judge  had not  given any finding about the applicability of  the  Act. He had before him the report of the bailiff that  possession of  the  premises  could not be given  over  as  there  were machinery  stored therein.  By order dated October 11,  1951 he  directed the Subordinate Judge to decide the  objections under the Act. The  Subordinate Judge framed a number of  issues  including one which read : ’whether the judgment-debtors could not  be dispossessed  of  the  factory and machinery  could  not  be dismantled  without permission of the Government  ?"  Taking evidence  of  the  parties and noting the  contents  of  the letter  of the Industries Department, he observed  that  the judgment-debtors had not secured permission but the  decree- holder might follow up the matter through court.  He  stayed execution  of  the  decree  in so far  as  it  involved  the dismantling or removal of the machinery but allowed the same for securing possession of the part of the premises where no machinery was stored.  This was on 7th February, 1953. Both  parties  filed  appeals from  this  order  which  were dismissed.  The  appellate  court  was  of  the  view   that machinery and spare parts were lying practically in all  the rooms  of  the building and the locking and sealing  of  the factory  would result in its closure which would go  against the  provisions  of the above-mentioned  Act.   The  decree- holder was therefore directed to pursue the matter with  the State  Government.  Incidentally, the court noted  that  the decree-holder  had not challenged -the proposition that  the court  could  not order delivery of possession  without  the requisite sanction for the dismantling of the factory.  This order dated 22nd April 1953 was not challenged by any appeal to the High Court.  It appears that the court consigned  the execution proceedings to the record room on July 25, 1953. On  August 18, 1953 the decree-holder applied for  execution proceedings  being  restarted.  On November  7,  195  3  the executing  court  observed  that  a  reply  from  the  State Government  had been received to the effect that  permission for  demolition  of the factory could not  be  given.   The. execution file was therefore ordered to be consigned to  the record  room  once  more.  From this order.  an  appeal  was preferred  by the ’decree-holder.  The  Additional  District Judge  held  that in view of.the  imperative  provisions  of section 3 of the Act the decree-holder could not be  granted posses-

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509 sion in execution of the decree and dismissed the appeal  by order  dated January 8, 1954.  On further appeal, a  learned Judge  of  the  High  Court by order  dated  July  13,  1955 observed  that in the execution proceedings no evidence  had been  adduced on the points arising under Punjab Act  XX  of 1948.  He therefore said as follows :               "On the present record it is not possible  for               me  to  decide whether the  execution  of  the               decree would defeat the provisions of  section               3  of the Punjab Act XX of 1948.   That  being               the position of matters, I set wide the  order               passed  by the Subordinate courts  and  direct               the court of execution to give fresh  decision               on  the points that arise under section  3  of               Punjab Act XX of 1948.               In proceedings pursuant to this order  parties               will  be given opportunity to examine  hearing               on  the points that arise under section  3  of               Punjab Act XX of 1948." On  remand  the Subordinate Judge by order  dated  30th  De- cember,  1955  hold that the Act was not intended  to  cover involuntary dismantling in execution of orders of  competent courts : further the Rent Restriction Act, 1949 passed after Act  XX of 1948 did not take any notice of  the  prohibition contained  in the said Act’ In the result he found that  the respondent  was  liable to be ejected in  execution  of  the decree for eviction but as the application had become over a year  old  it would be struck off the file and  the  decree- holder be at liberty to take out execution of the decree  by a fresh application. The  judgment-debtors went up in appeal to the court of  the District Judge.  The District Judge by order dated  December 31,  1956  hold that the Act did not  apply  to  involuntary dismantling  of factories and that the issue raised  by  the Subordinate  Judge in this connection did not arise  but  in fact  it had been decided against the landlord by  the  High Court in Revision.  According to him, the order of the  High Court  Went  to  show that s. 3 of Act XX  of  1948  covered delivery of possession even in execution of the order of the Rent  Controller-  or  otherwise  the  revision  application would,  have  been  accepted by him  straightaway.   In  the result he dismissed the execution petition. The appellant went up in Second Appeal to the High Court  at Chandigarh.   A  single Judge of that  Court  dismissed  the appeal.   The decree-holder filed a Letters  Patent  Appeal. Although  of  the view that delivery of possession  was  not barred  in  execution of the decree by Act XX of  1948,  the Division  Bench concluded that so far as the parties  before it  were  concerned, the matter had-  become,  res  judicata inconsequence  of the decisions of the executing  court  and the first appellate court on the 510 first  execution  application and the decision of  a  single Judge  in  revision on the previous occasion in  the  second execution application. Section 3 sub-s. (1) of East Punjab Act XX of 1948  provides as follows :               "No   person   shall,  without   the   written               permission  of the State Government or  of  an               officer authorised in this behalf by the State               Government,  dismantle any factory  or  remove               from  a  factory  any  spare  parts  kept  for               maintaining  the machinery of the  factory  in               order."

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The  Act  which  contains  only  eight  sections  makes   no reference to any decree for possession against the owner  of a  factory.   By  ordering delivery  of  possession  of  the premises  the  executing court does not make  an  order  for dismantling  a factory and a bailiff charged with  execution of  a  warrant for possession does not  infringe  the  above provision of law by rendering possession of the property  to the decree-holder.  So far as the judgment-debtor’ the owner of  the factory, is concerned, it would be his look  out  to take the matter up with. the State Government, if  necessary and  we have no doubt that in a ’case like this where  there is no collusion between the decree-holder and the  judgment- debtors  the  State  Government  would  not  prosecute   the judgment-debtors  or  refuse  to  accord  sanction  to   the judgment-debtors  for  removal  of the  machinery  from  the premises  of  which  they could  not  lawfully  continue  in possession. it  appears that the Subordinate Judge, the  District  Judge and the Judges of the Punjab High Court were all of the view that  the  Act  did not bar the delivery  of  possession  in execution of a decree. In our opinion there was no final order about the  inexecut- ability of the decree on the first application for execution which  was consigned-to the record room by order dated  July 25, 1953.  Further, the judgment of the learned single Judge of the Punjab High Court dated July 13, 1955 did not  decide the question as fin whether the decree for possession  would be  inexecutable  in  view  of Act XX  of  1948.  He  stated expressly  that  It  was  not possible  for  him  to  decide whether,  the  execution  of the  decree  would  defeat  the provisions of s. 3 of Punjab Act XX of 1948 and being unable to  come to a decision on the record he remanded the  matter to  the  court  of execution.  He found  himself  unable  to interpret  the  section  on the evidence  before  him.   The proceedings subsequent to the remand order culminated in the order  of the Division Bench from which the  present  appeal arises.  The order dated July 13, 1955 was not a final order which put a seal on the proceedings. The  course  of  litigation  subsequent  to  the  order  for eviction in 1950 is truly amazing.  For 17 years the decree- holder has 511 been  unable  to  reap the fruits  of  the  decree  although practically  all the courts felt that the Act of 1948  could not  be  called  in aid by the  judgment-debtors  to  resist execution by delivery of possession.  We cannot but  condemn in  very strong terms the attitude ,of the  judgment-debtors who,  to say the least, are persons who have  little  regard for sanctity of their own solemn promise made before a court of law.  On June 29, 1,950 in Miscellaneous Civil Appeal No. 39  of  1950 they stated on oath that they  had  reached  an agreement  with the landlord that they would "remain on  the premises  only  up till 31st March 1951 when they  would  of their  own accord vacate the premises" and on their  failure to  do  so  the  landlord would  be  entitled  to  take  out execution against them.  Even -before the time to vacate the premises came, one of the judgment-debtors filed a suit  for a  perpetual injunction to restrain the  decree-holder  from obtaining  possession in terms of the consent order of  29th June  1950.  The suit was dismissed on July 11,  1951.   The judjement-debtors  also lost the appeal filed  against  that dismissal.   At every step and turn for nearly  two  decades they  have successfully resisted delivery of  possession  by raising an illusory plea. Learned counsel for the respondents argued that even now his

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clients can urge the plea that the decree was not executable because of the provisions of Act XX of 1 1948.  According to him,  the  agreement was in contravention of a  statute  and ’the  respondents  could not be estopped  from  pleading  or proving facts which -would render the agreement void.   His, case was that Act XX of 1948 being in force on June 29, 1950 any   agreement   arrived   at  between   the   parties   in contravention of its provisions would not be binding on  the parties.  No exception can be taken to the broad proposition of  law but no question of estoppel ever arose in this  case because  Act  XX  of 1948 did not operate as a  bar  to  the delivery of possession of premises in execution of a decree. In  the result, the appeal is allowed with costs  throughout from  the 18th August 1953 irrespective of any order in that behalf  made at any time thereafter.  It is unfortunate  the decree  holder has been kept out of possession so long;  but she  is  partly  responsible for it  herself.   If  she  had preferred  an  appeal from the order of the  District  Judge passed  on 22nd April, 1953 to the High Court. probably  her troubles would have ended long ago. Y.P.                Appeal allowed. 512