K. Kannan, J.@mdashBoth the civil revisions are brought at the instance of the 3rd party objector whose objections to the executability of the decree were rejected. The orders in challenge in both the civil revisions are the orders passed by the Executing Court, Civil Judge (Senior Division), Gurgaon before whom a petition for execution of the decree already obtained was filed by the decree holder. The decree which in execution was passed on 10.06.2009 in Civil Suit No. 112 instituted on 30.05.2009. The suit was filed by Tarun Raghava, the 1st respondent herein against the 2nd respondent, his brother Avdesh Kumar Raghava for a declaration to the effect that the defendant should be directed to correct the entries in revenue record on several items of properties measuring 7 kanals 6 marlas of land situate in village Bhondsi, Tehsil Sohna, District Gurgaon. The suit was decreed on consent by the defendant. The prayer in the execution petition would require to be reproduced for the ingenuity that the prayer possesses:-
That the Hon''ble Court was pleased to pass the judgment and decree in favour of decree holder/plaintiff and the defendant/JD was ordered to correct the revenue record plaintiff has also supplied copy of judgment and decree to Halqa Patwari and Girdawar but they flatly refused to correct their revenue record as per judgment and decree. It is therefore, prayed that the revenue officials that are Halqa Girdawar and Patwari of Village Bhondsi, Tehsil Sohna, Distt. Gurgaon may kindly be directed to make the necessary corrections in revenue record, in the spirit of justice and decree alternatively. It is prayed that they may also be sent to civil imprisonment.
2. In the guise of execution of decree against the defendant for correcting the entries, the decree holder was seeking for a direction to the Halqa Patwari and Girdawar that they should be directed to make the necessary corrections in the revenue record in the spirit of justice and decree and in the alternative, they should be sent to civil imprisonment. It can be noticed immediately that the plaintiff, who had obtained the decree directing the defendant to correct the revenue entry, was seeking for a prayer for arrest of the public official, if it was not so corrected. The objections had been filed both by the government officials viz., Tehsildar, Field Kanoogo and Halqa Patwari, on the one hand as well as the petitioner Subhash Singh Raghav who was a member of a cooperative society, who claimed that the property belonged to the society by virtue of the purchase and that the revenue entries cannot be corrected at the instance of a decree holder against a person, who is adversely affected when he was not even a party. Admittedly, the Society itself had not been made a party.
3. The objections raised were rejected by the Execution Judge holding that the revenue officials will uphold the Civil Court decree and since the Society itself had claimed that it had filed a civil suit, an application filed stating the objection under Order 21 Rule 97 was not maintainable. The decree holder quietly withdrew the execution petition on 06.08.2011, for, in the meanwhile, the decree holder, after serving a notice with threat of arrest, appears to have even secured a favourable correction in the revenue entries. The revisions are filed contending that the decrees are per se collusive and illegal and cannot be executed against the orders passed including the order recording the statement that the decree is satisfied.
4. On the contentions raised in the civil revisions that the Court was attempting to execute a decree for correction of revenue entry sought against a private individual as though he was a custodian of public record who could correct the entry, I had summoned the records from the Executing Court. The records have been brought before me for appropriate orders and I notice that at every stage in the proceedings before the learned Judge, there has been an attempt to hoodwink the Court into believing that the decree holder was being defeated of his right to property by the conduct of his brother. I have already noticed that the decree dated 10.06.2009 purports to be a direction to the defendant to correct revenue entry. By the very nature of things, the Courts must have sensed that the parties were attempting to secure a relief which was impermissible. It had been so naive to allow for the decree to be passed and having passed it, then received a execution petition and allowed for a prayer to sustain that if entries are not corrected, the patwari and girdawar should be arrested and sent to civil imprisonment. I am aghast at the type of the petition that had been filed by the decree holder and how the execution process has been misused to the gross naiveti of the Judge.
5. The learned counsel appearing on behalf of the decree holder argues with passion that his client has done nothing wrong and he had only attempting to secure some wrong entries which had come about in the revenue record. He would contend that he has become owner of the property as a heir to his father and the wrong entries which have come about from the year 1990-91 jamabandi were required to be corrected and which has been done after the suit was filed and after the execution petition was levied. I may not really examine the contentions of the respondent-decree holder about the wild assumption of ownership in relation to a property which his father had dealt with as early as on 28.07.1964. After 4 decades and more, here is an attempt by the sons to get smart and manipulate the Court process to achieve their fraudulent ends. The fraud has been perpetrated by the respondent in a systematic fashion. After his father''s sale in the year 1964, it appears, the father has purported to obtain through a family settlement rendered through a decree willingly suffered by his brothers that the property was allotted to the respondent''s father. Subsequently two sons filed a suit against the mother and secured decree on 31.01.1992 against the mother that they were the owners of the property and the 3rd round of litigation was the suit filed by the present 1st respondent against his brother, the 2nd respondent to direct the respondent to carry out the correction in entries. It is inconceivable as to how the 2nd respondent could have carried out a change in revenue entry. The 2nd respondent was no public official and if the entries were required to be changed which, according to the decree holder, was necessary by the false entries obtained by the Society, he ought to have resorted to appropriate action against the alleged wrong entry only in revenue proceedings or against the Government official if there was a deliberate act of the official or against the person who had benefited by the false entry. There could be no direction for correcting the entries in the revenue record without making either the Government revenue official who was in custody of the record or through a decree lawfully obtained relating to title against a person in whose name the entries stood. In either way, there could not have been a lawful decree for one brother to obtain against another brother with a prayer for correction of entries as though the brother was capable of assuming such a right to correct the entry. If this prayer could be admitted, it would even amount to grant of premium to commit a pilferage of official record and proceed with temerity to correct the entry, for after all the decree allowed for such a kind of relief. A decree that directed entries to be corrected in revenue record by the defendant who was a private individual, was per se illegal. The decree passed on 10.06.2009 has not the value of the paper that is written on. That such a decree must have been put through execution for a direction against the patwari and girdawar to give effect the decree "in the spirit of justice" was the very abnegation and derogation of justice which the Court was supposed to uphold.
6. The execution petition was equally incompetent. A presiding Judge ought not to be wooden in his approach in not seeing what the prayers are. The petition could not have been admitted at all at the execution stage. It is highly irresponsible on the part of the Presiding Judge not to come out of the judicial slumber that he went into even when 3rd party objector brought to the attention of the Court that the correction in revenue entries could not have been made by securing a decree against a private individual. The dismissal of the objections have been made on exhorting seemingly a lofty expression given by the Judge that Civil Court decree must always be obeyed and revenue officials must have no occasion for questioning or doubting the correctness. A Civil Court decree that would require to be obeyed shall be a decree that shall be capable of being executed against the person, who has suffered the decree and not against the State or any other 3rd party, who was likely to be seriously harmed. The execution, that was levied, was in respect of a decree, which I have observed was illegal and untenable. The order passed by the Executing Judge rejecting the contentions that the decree could not be executed was patently erroneous. The decrees were in-executable and I declare under the powers which the High Court has under Article 227 over its subordinate Courts that the decree itself was illegal and it could not have been a subject of execution. The decree obtained by the respondent is declared to be illegal and quashed. Any order obtained by the respondent/decree-holder pursuant to the decree shall be restored to status quo anti immediately. The copy of the order is directed to be issued to the custodian of the revenue records pertaining to the village Bhondsi, Tehsil Sohna, District Gurgaon and the status quo ante shall be restored prior to the correction said to have been made recently in 2011. If the respondent has any genuine grievance about the revenue entries or if he believes that he has title to the property in respect of which the title is asserted by any other person, he should at best be resorting to a civil action and secure appropriate declaratory relief against the Society and the State.
7. Many a time decree are obtained among family members to obtain the Court''s impramitur for declaration in relation to immovable property, to defeat or evade payment of stamp duty and registration formalities by bringing about partition or transfer of title relating to immovable property. If ever such a decree is made and as it is made the foundation for enforcement of civil rights and any party takes up a plea of collusion, if he was himself a party or any third party who claims that he is not bound, the nature of decree and whether it could operate to create a lawful transfer of title is bound to be examined by the Court before which its enforcement is sought. There are three fundamental precepts at law which are in operation:
(a) A decree that is relevant, if it relates to matters of a public nature relevant to the decree, it is still not conclusive of what it states (see Section 42 of Evidence Act);
(b) A fraud or collusion in obtaining a decree, which is a relevant could always be shown by the adverse party that the decree is vitiated (see Section 44 of Evidence Act) and
(c) A decree, per se cannot effect a transfer of title or interest in immovable property. It could either declare a transfer that is already effected by a lawfully admissible process or give room for obtaining such transfer, such as a decree of specific enforcement of a right under a statute or a contract.
It has been a daily experience of how delays in Court''s processes themselves afford an additional ground for misusing the Court''s process. A possibility that a litigant can engage the other party to a long drawn illegal dispute is itself becoming an encouragement for vexatious litigant to cool his heels in the corridors of Courts. To him, shall be the message that his prosecution of vexatious actions will secure a telling punishment of his deprecating conduct. The judicial reprimand that is possible could only be a punishment by way of imposition of hefty costs against a person who has misused the Court''s process. Both the Civil Revisions are allowed. The impugned orders by the Executing Court are quashed and the decree which was sought to be executed is also quashed in the jurisdictional ambit of this Court under Article 227 of the Constitution. There shall be exemplary costs imposed against the respondents at Rs. 3,500/- each in each one of the cases u/s 35-A of CPC besides costs in the civil revision petitions which I assess at Rs. 10,000/- each.
