The Delhi High Court’s Justice Valmiki Mehta recently had some rather harsh words for an Additional District Judge..Mehta J was hearing a Second Execution Appeal in a suit between the appellant/plaintiff Delhi Transport Corporation and respondent/defendant Vidya Mandir Classes Limited. The appellant had filed a suit against the latter for displaying its advertisements on their Bus Queue Shelters without having a license to do so..On May 14, 2012, the trial court passed an ex-parte judgment and decree in favour of the appellant. An application filed by the respondents to set aside the ruling under Order IX Rule 13 was dismissed, in effect conferring finality on the aforementioned judgment..When the appellant filed execution proceedings, the respondent objected to it on the ground that the decree was passed against M/s Vidya Mandir Classes, whereas the objector was M/s Vidya Mandir Classes Ltd. On November 6, 2013, these objections were dismissed by the executing court. However, on January 22, 2016, the first appellate court went as far as to set aside the 2012 judgment..Pulling up the ADJ for this ruling, Mehta J was at a loss of words as to how a court hearing execution proceedings could set aside a judgment that had attained finality..“I am not only perturbed and disturbed by the impugned judgment dated 22.1.2016, but this Court would like to go on to observe that if courts pass judgments such as the impugned judgment, then there will result a rule of jungle and not the rule of law..This Court even after going through the impugned judgment repeatedly has not been able to understand as to how the first appellate court has demonstrated complete lack of knowledge of basics of law, and, the first appellate court is not a junior judicial officer but holds the rank of an Additional District Judge.”.He further went on to note the judge’s lack of understanding of the powers of the appellate court under Order XLI Rule 33 of the CPC..“Not only the course of action taken by the first appellate court in the impugned judgment is against all canons of law and justice, but the first appellate court has for setting aside the judgment and decree dated 14.5.2012 invoked its assumed powers under Order XLI Rule 33 CPC..I am really amazed as to how the first appellate court could have invoked Order XLI Rule 33 CPC because the provision…even on a plain reading thereof would only apply when the first appeal is filed against the main judgment and decree. Order XLI Rule 33 CPC when used in execution proceedings can only be confined to the scope of the execution proceedings. There is nothing whatsoever in Order XLI Rule 33 CPC which empowers an appellate court in execution proceedings to set aside a final judgment and decree passed by a trial court.”.A clearly miffed Mehta J then went on to order that action be taken against the unnamed ADJ. He directed that a copy of the judgment be sent to Acting Chief Justice Gita Mittal,.“…to bring to the notice of Hon’ble the Acting Chief Justice the conduct of this judicial officer concerned, namely, Sh. KXXXXX, ADJ. The judgment of this Court be also sent to the Inspecting Judges Committee of this Judicial Officer for the year 2016. The Inspecting Judges Committee for the year 2016 is requested to consider not only the illegality in passing the judgment dated 22.1.2016 by the first appellate court but also it may kindly note the strong observations made by this court…”.Therefore, the High Court held that the judgment dated May 14, 2012 was final and set aside the operative part of the 2016 ruling. As a parting shot, the Court clearly held,.“Once a judgment and decree is final, an executing court has no power under any provision of law not only to not go behind the decree much less have any power to set aside a judgment and decree which has achieved finality..Observations by the first appellate court in the impugned judgment that it cannot remain as a mute spectator and shut its eyes to illegality is only an apology for acting beyond any and every principle of law known in this country and with which the first appellate court was undoubtedly bound by.”.Read order:.Image taken from here..Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.
