This tag is associated with 9 posts

Service matter – after resignation from BDO he joined as Lecturer and retired as Asst. Professor – Govt. issued G.O. to count previous government service while fixing pension – but not done – writ – High court negatived – Apex court held that In view of the provisions of Rule 48 read with Government Resolution dated 11.3.1992, we hold that the appellant is entitled for counting the service earlier rendered between 21.06.1950 to 17.07.1960 for determination of pension. The High Court failed to notice the relevant provisions and wrongly held that the appellant is not entitled to get the benefits of his past services in view of Rule 46(1) of the Rules, 1982, which is not applicable in the case of the appellant. The High Court also erred in rejecting the claim on the ground of delay and failed to notice that the cause of action for grant of pension arises every month. In the present case what we find is that the appellant made representation at an appropriate stage and such request was accepted by respondent No.4, the Administrative Officer, Higher Education, Nagpur who recommended respondent No.5, the Senior Accounts Officer, Accountant General-II, Maharashtra to count the period and to take into consideration the fact that the appellant has rendered more than 33 years of service. Even the Joint Director – by his letter dated 30.12.2005 recommended to respondent No.2, Director, Higher and Technical Education, Pune to count the period from 21.06.1950 to 18.07.1960. Thereby, the appellant also explained the delay in moving the High Court.= MADHUKAR … APPELLANT VERSUS STATE OF MAHARASHTRA AND ORS. … RESPONDENTS = 2014 judis.nic.in/supremecourt/filename=41406

Service matter – after resignation  from BDO  he joined as Lecturer and retired as Asst. Professor – Govt. issued G.O. to count previous government service while fixing pension – but not done – writ – High court negatived – Apex court held that In  view  of  the  provisions  of  Rule  48  read  with  Government Resolution dated 11.3.1992, … Continue reading

Sections 302 and 120B read with Section 34 of IPC. -Anticipatory Bail – an absconder/proclaimed offender is not entitled for anticipatory bail – high court with out considering these facts granted anticipatory bail – set aside – appeal was allowed = State of Madhya Pradesh …. Appellant(s) Versus Pradeep Sharma …. Respondent(s) = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41048

Sections  302     and  120B  read  with  Section  34  of  IPC. –Anticipatory Bail – an absconder/proclaimed offender is not entitled for anticipatory bail – high court with out considering these facts granted anticipatory bail – set aside – appeal was allowed =        in Lavesh vs. State (NCT of Delhi), (2012) 8 … Continue reading

power to fix the final qualifying criteria = whether the University Grants Commission (for short “the UGC”) has got the power to fix the final qualifying criteria, for those who have obtained the minimum marks for all the papers, before the final declaration of the results of the National Eligibility Test (for short “NET”) for the year 2012.= We are of the considered opinion that all the steps taken by the UGC were strictly in accordance with clause 7 of the Notification for the NET Examination, 2012. Prescribing the qualifying criteria as per clause 7, in our view, does not amount to a change in the rule of the game as it was already pre-meditated in the notification. We are not inclined to say that the UGC has acted arbitrarily or whimsically against the candidates. The UGC in exercise of its statutory powers and the laid down criteria in the notification for NET June, 2012, has constituted a Moderation Committee consisting of experts for finalising the qualifying criteria for lectureship eligibility and JRF. UGC acted on the basis of the recommendations made by the Expert Committee. The recommendations made by them have already been explained in the earlier part of the judgment. Reason for making such recommendations has also been highlighted in the Report. We are of the considered view that the candidates were not misled in any manner. Much emphasis has been made on the words “clearing the National Eligibility Test”. “Clearing” means clearing the final results, not merely passing in Paper I, Paper II and Paper III, which is only the initial step, not final. To clear the NET Examination, as already indicated, the candidate should satisfy the final qualifying criteria laid down by the UGC before declaration of the results. We are of the view that, in academic matters, unless there is a clear violation of statutory provisions, the Regulations or the Notification issued, the Courts shall keep their hands off since those issues fall within the domain of the experts. This Court in University of Mysore vs. C.D. Govinda Rao, AIR 1965 SC 491, Tariq Islam vs. Aligarh Muslim University (2001) 8 SCC 546 and Rajbir Singh Dalal vs. Chaudhary Devi Lal University (2008) 9 SCC 284, has taken the view that the Court shall not generally sit in appeal over the opinion expressed by expert academic bodies and normally it is wise and safe for the Courts to leave the decision of academic experts who are more familiar with the problem they face, than the Courts generally are. UGC as an expert body has been entrusted with the duty to take steps as it may think fit for the determination and maintenance of standards of teaching, examination and research in the University. For attaining the said standards, it is open to the UGC to lay down any “qualifying criteria”, which has a rational nexus to the object to be achieved, that is for maintenance of standards of teaching, examination and research. Candidates declared eligible for lectureship may be considered for appointment as Assistant Professors in Universities and colleges and the standard of such a teaching faculty has a direct nexus with the maintenance of standards of education to be imparted to the students of the universities and colleges. UGC has only implemented the opinion of the Experts by laying down the qualifying criteria, which cannot be considered as arbitrary, illegal or discriminatory or violative of Article 14 of the Constitution of India. 30. The Appeals are accordingly allowed and the judgment of the High Court is set aside. The Applications for Impleadment and Intervention are dismissed. There shall be no order as to costs.

  published in   http://judis.nic.in/supremecourt/imgst.aspx?filename=40796  REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8355 OF 2013 [Arising out of SLP (Civil) No. 19933 of 2013] University Grants Commission & Anr. .. Appellants Versus Neha Anil Bobde (Gadekar) … Respondent WITH CIVIL APPEAL NO. 8356 OF 2013 [Arising out of SLP (Civil) … Continue reading

Consumer Act – purchase of building for commercial use does not come under consumer Act -“Whether, M/s. Nav Bharat Press (Raipur), is a ‘consumer’, in accordance with Section 2(1)(d)(i)?”.= how can a Partnership Firm, which is transacting the business of printing and publication of Newspapers, can be said to be a ‘Consumer’?” It is clear that the employees, representatives, correspondents, etc., would transact the commercial activity. – A bare perusal of this case, clearly goes to show that the Guest House is meant for ‘commercial purpose’. By no stretch of imagination, it can be said that the said premises will be used by a person, exclusively for the purpose of earning his livelihood, by means of self-employment. – The complainant is not a ‘consumer’. Therefore, we dismiss the complaint, but it can approach the appropriate forum for redressal of its grievances, as per lawWe, therefore, impose punitive costs in the sum of Rs.10,000/-, which be paid in Prime Minister’s Relief Fund, towards Uttarakhand Tragedy, within 60 days, otherwise, it would carry interest at the rate of 9% per annum, till realization. .

published in NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI   CONSUMER COMPLAINT NO.  193 OF  2013 M/s Nav Bharat Press (Raipur) 20/21, Bharat Chambers, Pragati Layout Rajeev Nagar, Wardha Road Somalwada, Nagpur Through its Partner, Sh.Sameer                                  ….. Complainant   Versus 1. M/s Sahara Prime City Ltd. Zonal Office, 2nd Floor Godrej Millennium Building 9th Koregaon Park Road Near Taj … Continue reading

Land Acquisition Act = Advance possession payment of compensation like rents as fixed by LAO – enhanced by District court under sec.18 reference = pending appeal interim orders to deposit half of the compensation is legal = whether the High Court of Bombay, Nagpur Bench was justified in directing the State to deposit the rental compensation with the Appellate Court at the rate of 8% per annum on the award value passed by the Reference Court for the period of occupation before formal acquisition, allowing the appellant to withdraw only 50% of such rental compensation during the pendency of the appeal. = It is not in dispute that in most of the cases the rental compensation has not been paid. If that factual position continues, it clearly is a case where the amount to which a person is entitled is withheld without any legitimate excuse. The learned counsel for the appellants strenuously urged that in most of the cases the proceedings have not yet attained finality and are pending either before the Reference Court or in appeal. That does not provide a legitimate excuse to the appellants to withhold payment of the rental compensation. The amount calculated on the basis of award by the Land Acquisition Officer cannot be below than the amount to be ultimately fixed. If in appeal or the reference proceeding, there is any variation, the same can be duly taken note of as provided in law. There is no difficulty and we find none as to why the compensation on the basis of value determined by the Land Acquisition Officer cannot be paid. If there is upward revision of the amount, the consequences will follow and if necessary, redetermination of the rental compensation can be made and after adjustment of the amount paid, if any, balance can be paid. If, however, the Land Acquisition Officer’s award is maintained then nothing further may be required to be done. In either event, payment of the rental compensation expeditiously would be an appropriate step. Looking at the problem from another perspective, one thing is clear that authorities have clearly ignored the sense of urgency highlighted in the various resolutions.”- For the reason aforesaid, if the High Court recalled the order dated 5th October, 2010 and directed the State Government to deposit rental compensation at the rate of 8% of the amount awarded by the Reference Court with the appellate Court, allowing the appellant to withdraw the half of the amount, no interference is called for. However, this order will not stand in the way of appellant to claim proportionate higher rental compensation, if the order of the Reference Court is upheld or further enhancement of compensation is made by the Appellate Court. 20. We find no merit in this appeal. It is, accordingly, dismissed with observations as made above. No costs.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40514 Page 1 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.    5084              OF 2013 (arising out of SLP(C)No.31318  of 2011) KAZI AKILODDIN SUJAODDIN           … APPELLANT Versus STATE OF MAHARASHTRA & ORS.          … RESPONDENTS J U D G M E N T SUDHANSU JYOTI MUKHOPADHAYA, J. Leave granted.  The appellant is aggrieved by impugned order   dated   15th  September,   2011   passed   by   the   Division Bench of the High Court of Bombay, Nagpur Bench, Nagpur in a   Review   Application,   MCA   No.774/2011.   By   the   impugned order the Division Bench reviewed and recalled the judgment and order dated 5th  October, 2010  passed in Writ Petition No.3883/2010(D)   … Continue reading

Supreme Court, Criminal Appellate jurisdiction of–Certif- icate of fitness, if can be granted by High Court on a question of fact Dying declaration evidiantry value of-If must be corroborated in order to sustain conviction-Consti- tution of India, Art. 134(1)(c)- Indian Evidence Act (.1 of 1872), s. 32(1).= HEADNOTE: The Supreme Court does not ordinarily function as a Court of criminal appeal, and it is not competent for a High Court under Art. 134(1)(c) of the Constitution to grant a certifi- cate of fitness for appeal to this Court on a ground which is essentially one of fact. Haripada Dey v. The -State of West Bengal” – (1956) S.C.R. 639, followed. There is no absolute rule of law, not even a rule of pru- dence that has- ripened -into a: rule of law- that a dying declaration in order-that it may sustain an order of convic- tion must be corroborated by, other independent evidence. The observations made by this Court in Madhoprasad v. The State of Madhya Pradesh are in the nature of obiter dicta and do not lay down the law. Madhoprasad v. The State of Madhya Pradesh, A.I.R. (1953) S.C. 420, considered. In re Guruswami Tevar, I.L.R. (1940) Mad. I58, approved. Case-law reviewed.The provision of s. 32(I) of the Indian Evidence Act ” which makes the statement in a dying declaration as to the cause of death and the circumstances that brought it about rele- vant, is an exception to the general rule of exclusion of hearsay evidence and evidence untested by cross-examination. The special sanctity which the Legislature attaches to such a declaration must be respected unless such declaration can be shown not to have been made in expectation of death or to be otherwise unreliable and any evidence adduced for this purpose can only detract from its value but not affect its admissibility. Although a dying declaration has to be very closely scruti-nised, and tested as any other piece of evidence, once the Court comes to the conclusion, in any particular case, that it is true, no question of corroboration arises. A dying declaration cannot be placed in the same category as the evidence of an accomplice or a confession. Consequently, in a case where the trial judge as also the High Court founded their orders of conviction of an accused person under S. 302 Of the Indian Penal Code mainly on three dying declarations made by the murdered person in quick succession one after the other, and the High Court, relying on a decision of this Court, sought for corroboration of such dying declarations in the fact that the accused person had absconded and was arrested in suspicious circumstances, but was in doubt as to the sufficiency of such evidence of corroboration and granted the certificate of fitness under= Held, that the certificate granted by the High Court was incompetent and as the case disclosed no grounds on which this Court could possibly grant special leave to appeal under Art. 136 of the Constitution, the appeal must be dismissed.

reported in/ published in judis.nic.in/supremecourt/filename=609 http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 12 PETITIONER: KUSHAL RAO Vs. RESPONDENT: THE STATE OF BOMBAY DATE OF JUDGMENT: 25/09/1957 BENCH: SINHA, BHUVNESHWAR P. BENCH: SINHA, BHUVNESHWAR P. MENON, P. GOVINDA KAPUR, J.L. CITATION: 1958 AIR 22 1958 SCR 552 ACT: Supreme Court, Criminal Appellate jurisdiction of–Certif- icate of … Continue reading

Specific Relief Act, 1963: s.6 – Suit filed by landlord under s.6 against trespasser when tenant in exclusive possession of suit property is dispossessed forcibly by a trespasser/third party – Maintainability of – Held: Maintainable – Non-impleadment of tenant is not fatal to the maintainability of such suit as tenant is not necessary party in such suit. Words and phrases: Word `dispossessed’ – Meaning of – In the context of s.6(1) of Specific Relief Act, 1963. The questions which arose for consideration in the present appeal were whether landlord can maintain suit under Section 6 of Specific Relief Act, 1963 against a trespasser for immediate possession where a tenant in exclusive possession was dispossessed forcibly by the trespasser and whether tenant is a necessary party in such suit.- Dismissing the appeal, the Court HELD: 1.1. The key words in Section 6(1) of Specific Relief Act, 1963 are “dispossessed” and “he or any person claiming through him”. A person is said to have been dispossessed when he has been deprived of his possession; such deprivation may be of actual possession or legal possession. Possession in law follows right to possession. The right to possession, though distinct from possession, is treated as equivalent to possession itself for certain purposes. A landlord by letting out the property to a tenant does not lose possession as he continues to retain the legal possession although actual possession, user and control of that property is with the tenant. By retaining legal possession or in any case constructive possession, the landlord also retains all his legal remedies. As a matter of law, the dispossession of tenant by a third party is dispossession of the landlord. The word “dispossessed” in Section 6(1) must be read in this context and not in light of the actual possession alone. If a tenant is thrown out forcibly from the tenanted premises by a trespasser, the landlord has implied right of entry in order to recover possession (for himself and his tenant). Similarly, the expression “any person claiming through him” would bring within its fold the landlord as he continues in legal possession over the tenanted property through his tenant. As a matter of fact, on plain reading of Section 6(1), it is clear that besides the person who has been dispossessed, any person claiming through him can also file a suit seeking recovery of possession. Obviously, a landlord who holds the possession through his tenant is competent to maintain suit under Section 6 and recover possession from a trespasser who has forcibly dispossessed his tenant. A landlord when he lets out his property to the tenant is not deprived of his possession in the property in law. What is altered is mode in which the landlord held his possession in the property inasmuch as the tenant comes into physical possession while the landlord retains possession through his tenant. [Paras 16 and 19] [1082-f-h; 1084-c- d] Veeraswami Mudali v. P.R. Venkatachala Mudali and others AIR 1926 Madras 18; Ramchandra v. Sambashiv AIR 1928 Nagpur 313; (Kanneganti) Ramamanemma v. (Kanneganti) Basavayya AIR 1934 Madras 558, overruled. Nobin Das v. Kailash Chandra Dey (1910) Vol. VII Indian Cases 924; Ramanadhan Chetti v. Pulikutti Servai and Mohideen avuther v. Jayarama Aiyar (1898) 21 Madras 288; Sailesh Kumar and ANOTHER v. Rama Devi AIR (1952) Patna 339; Gobind Ram Jamna Dass v. Mst. Mewa w/o Parbhati AIR (1953) Pepsu 188, approved. Ramanadhan Chetti v. Pulikutti Servai (1898) 21 Madras 288; Mohideen Ravuther v. Jayarama Aiyar (1921) 44 Madras 937, referred to. Halsbury’s Laws of England (Fourth Edition, page 617), referred to. 1.2. Section 6 of the Act provides that suit to recover possession under the said provision could be filed by the person who is dispossessed or any person claiming through him. The tenant having lost the possession though without his consent to a third party, may not be interested in recovery of possession. He may not be available. He may not like to involve himself in litigation. In such circumstances, if a landlord brings the suit to recover possession against trespasser under Section 6, it cannot be laid down as an absolute proposition that tenant must necessarily be impleaded as party to such suit. It may be desirable that a landlord in a suit under Section 6 of the Act against a trespasser for immediate possession when, at the date of dispossession, the house was in occupation of a tenant, impleads the tenant, but his non-impleadment is not fatal to the maintainability of such suit. [Para 20] [1085-c-g] Case Law Reference: AIR 1926 Madras 18 overruled Para 7 (1898) 21 Madrass 288 referred to Para 7 (1921) 44 Madras 937 referred to Para 7 AIR 1928 Nagpur 313 overruled Para 8 AIR 1934 Madras 558 overruled Para 9 (1910) Vol. VII Indian Cases 924 approved Para 11 (1898) 21 Madras 288 approved Para 12 AIR (1952) Patna 339 approved Para 13 AIR (1953) Pepsu 188 approved Para 14 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1930 of 2010. From the Judgment AND Order dated 28.3.2008 of the High Court of Judicature at Bombay in Civil Revision Application No. 1235 of 2001. Amol Chitale, Abhijat P. Medh for the Appellants. Sushil Karanjka, Vishal A. Patil, K.N. Rai for the Respondent.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1930 OF 2010 [Arising out of SLP [C] No. 10418 of 2008] Sadashiv Shyama Sawant [D] …. Appellants Through L.Rs., & Ors. Vs. Anita Anant Sawant ….Respondent JUDGEMENT R.M. LODHA,J. Leave granted. 2. The main question for consideration in this appeal by … Continue reading

Criminal Law : Criminal Procedure Code, 1973 : Sections 227, 228 and 219. Accused-Discharge of or framing of charges against-Tests to determine-Held : Court had to sift evidence on record only for the limited purpose of finding out whether a prima facie case was made out against the ac-cused-At that stage Court was not required to sift the evidence for arriving at the conclusion that it would not lead to conviction-In the circumstances of the case, the High Court erred in seeking independent corroboration to the version of the complainants in discharging the accused-Case remitted to trial court to proceed further in accordance with law-Trial Court was further directed to consider afresh whether the charge was required to be altered or amended so as to make it consistent with S. 219. Penal Code, 1860 : Section 376. Accused-Complaint against-For committing rape on 3 girls at different times-High Court discharged accused on grounds that he was a saintly old man who had thousands/millions of disciples all over India and that there was delay on the part of the rape victims in disclosing those illegal acts to their parents and police-Held : High Court erred in discharging the accused merely on such grounds-Rape victims, while making complaint to the police, were not required to give detailed explanations. Section 376-External injuries-Absence of-On the person of the prosecutrix- Held : Version of the prosecutrix could not be described as false on such a ground. The accused, a spiritual teacher, was charged under Section 376 of the Indian Penal Code, 1860 for committing rape on 3 girls at different times. The application for discharge of the accused was dismissed. But the High Court discharged the accused on the grounds that the accused was a saintly old man, who had renounced the world, who was engrossed in spiritual activities and who had thousands millions of disciples all over India and, therefore, was not likely to indulge in the illegal acts alleged against him. The High Court further held that a saintly old man would not commit sexual intercourse with the pracharak of his cult in the presence of his disciples; that the conduct of the victims and the delay in disclosing the illegal acts to their parents and the police showed that the girls had leveled false allegations against the accused; that there was no independent corroboration of the story of the victims and that the absence of external injuries on the person of the prosecutrix showed that her version was false. Hence this appeal. On behalf of the appellant-State it was contended that the High Court far exceeded the limits of consideration at the stage of Section 227 of the Criminal Procedure Code, 1973; and that the High Court committed error in sifting and weighing the material placed before the Court by applying the standard of test and proof which was to be applied finally for deciding whether the accused was guilty or not. =Allowing the appeal, this Court HELD: 1.1. At the stage of Sections 227 and 228 of the Criminal Procedure Code, 1973 the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the in-gredients constituting the alleged offence. The Court may, for this limited purpose, sift the evidence, as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. [939-D-G] 1.2. What the Court has to consider at the stage of framing of the charge is whether the version of the person complaining together with his/her explanation is prima facie believable or not. It was, therefore, not proper for the High Court to seek independent corroboration at that stage and to quash the charge and discharge the accused in absence thereof. The High Court was wholly wrong in discarding the material placed before the Court as false and discharging the accused on that ground. [943-C-F] Niranjan Singh Punjabi v. Jitendra Bijjaya, [1990] 4 SCC 76, relied on. State of Punjab v.Jagir Singh, AIR (1977) SC 2407, held inapplicable. Union of India v. Prafulla Kumar Samal & Anr., [1979] 2 SCR 229, referred to. 13. The Sessions Court is directed to proceed further with the trial in accordance with law and to consider afresh whether the charge is required to be altered or amended so as to make it consistent with Section 219 of the Code. 2.1. In the present case, the High Court was much influenced by the submission made on behalf of the defence that the accused is a saintly old man, who has renounced the world, who is engrossed in spiritual activity and who has thousands/millions of disciples all over India and, therefore, he was not likely to indulge in the illegal acts alleged against him. It failed to appreciate that it is not unusual to come across cases where the so-called spiritual heads exploit young girls and women who become their disciples and come under their spell. Moreover, the reasoning of the High Court that it also does not stand to reason that a saintly man who has thousands/millions of disciples all over India would commit sexual inter- course with the pracharak of his cult in the presence of his disciples stands vitiated because of the vice of misreading the statements. The three rape victims have nowhere stated in their statements that the accused had sexual intercourse with them in the presence of other disciples. The High Court gave too much importance to the conduct of the three victims and the delay in disclosing those illegal acts to their parents and the police. What the High Court has failed to appreciate is how a victim of such an offence will behave would depend upon the circumstances in which she is placed. It often happens that such victims do not complain against such illegal acts immediately because of factors like fear or shame or uncertain-ties about the reactions of their parents or husbands in case of married girls or women and the adverse consequences which, they apprehend, would follow because of disclosure of such acts. What the three girls had stated in their statements was not inherently improbable or unnatural. They have disclosed the reasons why they could not immediately complain about those illegal acts for such a long time. What the High Court has failed to appreciate is that while making a complaint to the police or giving their statements they were not required to give detailed explanations. 2.2. It was also improper on the part of the High Court to describe the version of the prosecutrix as false because no external injuries were noticed on her person while she was examined by a doctor. Modi: “Medical Jurisprudence and Toxicology”, referred to. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 263 of 1997.

PETITIONER: STATE OF MAHARASHTRA Vs. RESPONDENT: PRIYA SHARAN MAHARAJ & ORS. DATE OF JUDGMENT: 11/03/1997 BENCH: G.N. RAY, G.T. NANAVATI ACT: HEADNOTE:JUDGMENT: J U D G M E N T NANAVATI Leave granted. Heard the learned counsel. On 11.5.91, one Purushottam Wasudeo Deshpande lodged a complaint at the Dhantoli Police Station, Nagpur that his two … Continue reading

Limitation Act, 1963-Article 136-Decree-Execution of-Limitation for-Decree for possession in favour of respondents in second appeal-Review petition thereagainst dismissed-Supreme Court staying order in revision petition and directing trial court to ascertain mesne profits-Execution petition-Challenge to, by appellants on the ground that it was time barred-Courts below holding that the petition was within limitation as stay order to the order of High Court was operating-Sustainability of-Held: Not sustainable-SLP was filed only against review petition-Stay of operation of order in review petition was meaningless since the review petition was already dismissed-Decree passed by High Court was not a composite one-Proceeding for computation of mesne profit was to be instituted which did not come in the way of execution of decree-Also it cannot be said that the review petition having been dismissed, doctrine of merger was applicable-Code of Civil Procedure, 1908-O 20 r 12 and s. 114 r/w O 47 r 1. Predecessor-in-interest of the respondents filed suit for possession and the same was dismissed. Appeal was also dismissed. However, the second appeal was allowed and suit for possession was decreed. Predecessor-in-interest of appellants filed review application which was dismissed. Appellant filed SLP and leave was granted. This Court stayed the order of High Court in second appeal and directed the trial court to ascertain mesne profits to be deposited by appellants. Thereafter, appeal was dismissed being incompetent holding that no appeal was maintainable in terms of Order 47 Rule 7 CPC rejecting a review application. Meanwhile, respondent filed application for executing the decree. Appellant contended that the application was not maintainable since the same was time barred. Executing court held that the petition was within limitation as Order of stay to the order of High Court was operating. Appellant filed writ petition. Single Judge of High Court dismissed the writ petition upholding the order of the executing court. Hence the present appeal. Appellant contended that the Courts below acted illegally and without jurisdiction in passing the impugned judgment insofar as they failed to take into consideration that no order was passed by this Court staying execution of the proceedings or operation of the judgment and decree. Respondents contended that High Court passed composite decree and in view of the fact that this Court directed computation of mesne profit, the execution case was not barred by limitation; and that an Order passed in such proceedings would merge with the main judgment and decree. =Allowing the appeal, the Court HELD: 1.1. The decree passed by the High Court in the Second Appeal is in two parts. The Court granted a decree for possession. Respondent was also found to be entitled to an enquiry in terms of Order 20 Rule 12 CPC in regard to computation of mesne profit from the date of the institution of the suit, till the date of the actual delivery of possession. Therefore, it cannot be said that the decree was a composite one. The proceeding for computation of mesne profit required to be undertaken was subject to institution of a proceeding but, by reason thereof, execution of the decree in regard to the possession of land was not required to be awaited till the outcome. [Para 10] [371-E, F, G; 372-A] 1.2. It cannot be said that in a case of this nature, namely where a review petition was dismissed, the doctrine of merger will have any application whatsoever. It is one thing to say that the respondent was entitled to file an application for review in terms of section 114 read with Order 47 Rule 1 CPC, but it is another thing to say that the decree passed in favour of the respondent merged with the order dismissing the review application. Matter might have been different, if the review application had been allowed either wholly or in part in terms whereof an application for execution of the decree could have been filed only in terms of the modified decree. It is not the contention of the respondent that any order of stay was passed in the review application. Thus, there was no bar in proceeding with the execution case. The decree of possession passed in favour of the respondent became enforceable immediately on its passing. An execution petition therefor was required to be filed within a period of 12 years. [Paras 11 and 13] [371-A, B, C, D; 372-B, C] 1.3. The order of purported stay passed by this Court in terms of its Order dated 21.3.1988 is also of no assistance to the plaintiff-decree holder. The Special Leave Petition was filed only against the Order dated 1.7.1985 refusing to review its judgment and decree dated 2.9.1983. The stay of operation of the Order dated 1.7.1985 for all intent and purport was meaningless as the review petition already stood dismissed. Further, the direction of this Court that computation of mesne profit would go on and the same would be deposited by the appellant is of no consequence inasmuch as by reason thereof neither proceeding was stayed nor the operation of the judgment and decree had been stayed. In fact, it was an order passed in favour of the decree holder. The said direction did not come in his way to execute the decree for possession. Therefore, there is no reason to hold that the said order could be construed to be one passed in favour of the decree holder-respondent as was contended or otherwise. The Executing Court as well as the High Court committed a manifest error in opining that the Execution Petition was not barred by limitation. [Paras 15, 16, 17 and 18] [373-G; 374-A, B, C, D] Rekha Mukherjee v. Ashis Kumar Das and Ors., [2005] 3 SCC 427, distinguished. W.B. Essential Commodities Supply Corpn. v. Swadesh Agro Farming and Storage Pvt. Ltd., [1999] 8 SCC 315; Hasham Abbas Sayyad v. Usman Abbas Sayyad and Ors., [2007] 2 SCC 355 and Raghunath Rai Bareja and Anr. v. Punjab National Bank and Ors., (2006) 13 SCALE 511, referred to. Satyajit A. Desai, Anangha S. Desai, Amol N. Suryawanshi and Venkateswara Rao Anumolu for the Appellants. Makarand D. Adkar, Vijay Kumar and Vishwajit Singh for the Respondents.

CASE NO.: Appeal (civil) 5323 of 2007 PETITIONER: Manohar S/o Shankar Nale and others RESPONDENT: Jaipalsing S/o Shivlalsing Rajput and others DATE OF JUDGMENT: 20/11/2007 BENCH: S.B. Sinha & Harjit Singh Bedi JUDGMENT: J U D G M E N T [Arising out of SLP(C) No. 25959 of 2005] S.B. SINHA, J. 1. Leave granted. … Continue reading

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