High Court of Delhi was dealing with petition under Article 227 impugns the order dated 21st December, 2021 passed by the Trial Court whereby the Miscellaneous application filed on behalf of the petitioner in the Review Petition filed by the petitioner, for stay of the execution proceedings filed on behalf of the respondent, has been dismissed.
Brief Facts:
On 22nd January, 2016, a Civil Suit was filed by the respondent before the Trial Court seeking inter alia possession of the second floor of the suit property. The Civil Suit was decreed in favour of the respondent vide judgment dated 21st January, 2019. A petition was filed by the petitioner under Article 227 against one of the orders passed in the Execution Petition which was dismissed by the Court. A Review Petition was filed by the petitioner against the judgment of the Trial Court. An application was also filed on behalf of the petitioner before the Executing Court seeking stay of the execution proceedings in view of the Review Petition having been filed by the petitioner. The said application filed on behalf of the petitioner was dismissed. Against the said dismissal, a petition under Article 227 was filed before the Court. The Bench disposed of the said petition, while granting the petitioner opportunity to file a stay application in the pending Review Petition filed by him, and directed those warrants of possession shall not be executed against the petitioner till 18th November, 2021. Thereafter, an application for stay was filed on behalf of the petitioner before the Review Court, seeking stay of the execution proceedings. Then fresh warrants of possession were issued by the Executing Court. Thereupon, another application was filed on behalf of the petitioner seeking postponement of execution proceedings, which was dismissed by the Review Court on account of lack of jurisdiction. The stay application filed on behalf of the petitioner was dismissed by the Review Court, observing/reasoning that there are no powers under the CPC in the Court to stay the execution proceedings initiated before the Civil Court of another District.
Petitioner’s Contention:
The counsel for the petitioner submitted that in view of the fact that the Review Petition is still pending, the execution of the warrants of possession be deferred.
Respondent’s Contention:
Learned Counsel for the respondent submitted that there has been suppression of facts in the present petition and relevant orders passed in the aforesaid proceedings have been concealed. He handed over a copy of the order dated 28th February, 2020 passed by the Court in the second appeal filed on behalf of the petitioner.
HC’s Observations:
After hearing both the sides Court observed that there is no mention of the order dated 28th February, 2020 in the petition filed by the petitioner and nor has a copy of the same been filed. Court found that the order has deliberately been concealed by the petitioner, as, in terms of the said order the petitioner withdrew the second appeal filed before this Court with liberty to approach the Executing Court seeking time to vacate the premises in question. Court found that instead of approaching the Executing Court to seek time, the petitioner went ahead and filed the Review Petition against the judgment dated 21st January, 2019 passed by the Trial Court.
Court stated that once, the original judgment and decree has been upheld in appeal and the second appeal has also been withdrawn, obviously the attempt of the petitioner in filing the Review Petition was only to gain time and delay the handing over of the possession of the suit property in terms of the judgment of the Trial Court.
HC Held:
After evaluating submissions made by both the parties the Court held that “As is evident from the narration of facts above, throughout the attempt of the petitioner has been to file various petitions and applications only so as to retain unlawful possession in the suit property. The conduct of the petitioner has been dishonest and reprehensible. Even the present petition has been filed by concealing relevant and material facts. It is settled position of law that equitable considerations have to be weighed in while entertaining petitions under Article 227 of the Constitution of India.”
Court dismissed the petition with cost of Rs 50,000.
Bench: Hon'ble Mr. Justice Amit Bansal
Case Title: Vishwanath Ojha v. Surender Singh Bohania
Case Details: CM(M) 1218/2021
Read Judgment;
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