# Sresth Singh & Anr v. Virendra Kumar Singh & Ors

- **Citation:** (2021) 6 ILRA 134
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-03-29
- **Case number:** He referred to order dated 25.09.2012 in Writ-C No.48402 of 2012
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sresth-singh-anr-v-virendra-kumar-singh-ors-45141
- **Pages:** 5

## Headnote

A. Civil Procedure Code,1908 - O. XXI R.
97 and 11 - Decree on the basis of
compromise - Execution of decree -
Obstructions caused severally - Gross
abuse of process of Court - Exemplary
cost, when can be imposed - Successive
objections by the father, then by the
mother, and thereafter by the son and
daughter to obstruct the execution, which
were rejected up to High Court - Held,
while rejecting the objection the Court
below lawfully recorded a finding of abuse
of process of Court for moving the
application malafidely under Order XXI
Rules 97 and 101 C.P.C. so as to frustrate
the execution of decree - Exemplary cost
imposed on the appellants. (Para 10, 12
and 13)
First Appeal dismissed. (E-1)
Cases relied on :-

## Text

134 INDIAN LAW REPORTS ALLAHABAD SERIES

14. This appeal lacks merit and is
accordingly dismissed.
----------
(2021)06ILR A134
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.03.2019

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.

First Appeal 381 of 2018

Sresth Singh & Anr. ...Appellants
Versus
Virendra Kumar Singh & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Vinay Kumar Khare, Sri Sharvesh Kumar
Pandey

Counsel for the Respondents:
Sri Vinod Singh

A. Civil Procedure Code,1908 - O. XXI R.
97 and 11 - Decree on the basis of
compromise - Execution of decree -
Obstructions caused severally - Gross
abuse of process of Court - Exemplary
cost, when can be imposed - Successive
objections by the father, then by the
mother, and thereafter by the son and
daughter to obstruct the execution, which
were rejected up to High Court - Held,
while rejecting the objection the Court
below lawfully recorded a finding of abuse
of process of Court for moving the
application malafidely under Order XXI
Rules 97 and 101 C.P.C. so as to frustrate
the execution of decree - Exemplary cost
imposed on the appellants. (Para 10, 12
and 13)
First Appeal dismissed. (E-1)
Cases relied on :-
1. Punjab State Power Corporation Ltd. Vs Atma
Singh Grewal; (2014) 13 SCC 666
2. Dnyandeo Sabaji Naik Vs Pradnya Prakash
Khadekar; (2017) 5 SCC 496
3. Haryana State Co-op. L&C Federation Ltd. Vs
Unique Co-op. L&C Co-op. Society Ltd.; (2018)
14 SCC 248

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Sri Sharvesh Kumar Pandey
holding brief of Sri Vinay Kumar Khare,
learned counsel for the objector/appellants
and Sri Vinod Singh, learned counsel for
decree holder/respondent No.1.

2.

Learned
counsel
for
the
objector/appellants submits as under:-

(i)
Execution
Application
being
Execution Case No.1 of 2012 was not
maintainable since there was no decree for
eviction of the objector-appellants herein.

(ii) Appellants are occupying the
disputed portion of the house since their
birth.

(iii) Appellants have inherited the
property as a Joint Hindu Property, as they
are grand children of Shobha Singh who
has three sons, namely, Virendra Singh,
Amit Singh and Anil Kumar Singh. The
appellants are son and daughter of Amit
Singh.

(iv) A suit for permanent injunction
being Original Suit No.136 of 2000 (Anil
Kumar Singh Vs. Shobha Singh and others)
was filed in which a compromise decree
was passed on 28.08.2003 whereby each
son of Shobha Singh, namely, Virendra
Singh, Amit Singh and Anil Kumar Singh
(Adopted son) each were given 1/3rd share.
At the time of aforesaid decree the
appellants were minor. They were not party
to the compromise decree. Therefore, they
lawfully filed objection in Execution Case
No.1 of 2012 under Order XXI Rule 97 and
6 All. Sresth Singh & Anr. Vs. Virendra Kumar Singh & Ors.
135
101 C.P.C. but court below has arbitrarily
rejected it.

3. Sri Vinod Singh, learned counsel
for respondent No.1 supports the impugned
order. He submits that firstly, father of the
appellants
filed
various
applications
/objections and after being unsuccessful he
had set up his wife and when she also
became unsuccessful then he has set up his
son and daughter, who are appellants
herein.
He
referred
to
order
dated
25.09.2012 in Writ-C No.48402 of 2012
(Amit Kumar Singh Vs. State of U.P. and
others), order dated 13.01.2014 in Writ-C
No.811 of 2014 (Amit Kumar Singh Vs.
Shobha Singh and 3 others) and order dated
11.08.2016 in First Appeal No.739 of 2013
(Smt. Pooja Vs. Virendra Kumar Singh and
4 others).

4. I have carefully considered the
submissions of learned counsel for the
parties and with their consent this appeal is
being finally heard.

FACTS

5. Briefly stated facts of the present
case are that the appellants have objected to
the execution of the decree of the disputed
house situate at Rajendra Nagar, Kasba Orai,
District Jalaun. The land of this house was
purchased by the grand father of the
appellants, namely, Sri Shobha Singh son of
Mukund Singh by registered sale deed dated
12.04.1944. In the year 1975 he took loan of
Rs.40,000/- from Orai Sahkari Grih Nirman
Samiti 470, Rajendra Nagar, Orai, for
construction of the house over the aforesaid
land purchased by him. He repaid the housing
loan taken by him. The aforesaid Shobha
Singh had huge immovable properties. He
had three sons, namely, Anil Kumar Singh,
Virendra Kumar Singh, and Amit Kumar
Singh. His aforesaid son, Anil Kumar Singh
filed injunction suit being O.S. No.136 of
2000 (Anil Kumar Singh Vs. Shobha Singh,
Smt. Shushila Devi wife of Shobha Singh,
Virendra Kumar Singh and Amit Kumar
Singh) for permanent injunction with respect
to the disputed house. In the said suit, a
compromise dated 11.08.2003 signed by all
the parties to the suit was jointly filed and
after verification the compromise was
accepted by the Court on 13.08.2003 and the
decree dated 28.08.2003 was passed in terms
of the compromise.

6. Thereafter Shobha Singh filed an
Execution Case No.61 of 2008 (Shobha
Singh Vs. Anil Kumar Singh) for execution
of the decree. In the execution case, Amit
Kumar Singh filed an objection to the
application 31-Ga 2 dated 21.05.2012
(Annexure No.7 to the Civil Misc. Writ
Petition No.811 of 2014) Amit Kumar
Singh Vs. Shobha Singh and others and in
paragraph 2 thereof he stated that "'kksHkk flag
us fookfnr edku dks _.k ysdj fuekZ.k djk;k Fkk
ftlds fy, fjdojh gsrq dk;Zokgh dh x;h gS] vkSj
'kksHkk flag us fookfnr edku dh uhykeh ls cpkus gsrq
o _.k olwyh dh dk;Zokgh gksus ikus gsrw ekuuh;
mPp U;k;ky; esa fjV la[;k 44622 lu~ 2009 'kksHkk
flag cuke LVsV vkQ ;w0ih0 vkfn izLrqr dh gS tks
fd fopkjk/khu gSA"

7. It appears that prior to the said
objection, the father of the appellants
herein, namely, Amit Kumar Singh filed
a Misc. Case No.1 of 2009 under Section
151
C.P.C.
for
setting
aside
the
compromise
decree
dated
13.08.2003
/28.08.2003 on the ground that although
Anil Kumar Singh is the natural son of
Shobha Singh but he was adopted by
Ranbir Singh and therefore, Anil Kumar
Singh had no right in the property of
Shobha Singh. This application being
Misc. Case No.01 of 2009 (Amit Kumar
Singh Vs. Anil Kumar Singh and others)
136 INDIAN LAW REPORTS ALLAHABAD SERIES
was rejected by the court of Additional
District Judge, Jalaun at Orai by order
dated 27.08.2012. Against that order,
father of the appellants herein, namely, Sri
Amit
Kumar
Singh
filed
Writ-C
No.48402 of 2012 which was dismissed
by this Court by order dated 25.09.2012,
as under:

"Challenging the said order only
submission advanced is that at the time of
passing
of
the
compromise
decree
petitioner
had
no
knowledge
that
respondent no. 2 was given in adoption.
The compromise is not disputed. It has
been signed by the petitioner. A decree on
the basis of the compromise has been
passed in his presence and upon hearing the
petitioner.
Therefore,
the
said
order
decreeing the suit no. 136 of 2000 on the
basis of compromise can not be recalled."

8. Thereafter, the aforesaid Amit
Kumar Singh (father of the appellants
herein) filed another Misc. Case No.2 of
2009 (Amit Kumar Singh Vs. Shobha
Singh and others) under Section 47 C.P.C.
This Misc. Case No.2 of 2009 was
dismissed by the Court of Additional
District Judge, Jalaun at Orai by order
dated 19.03.2013. He again filed an Misc.
Case No.10 of 2003 (Amit Kumar Singh
Vs. Shobha Singh and others) under
Section 47 C.P.C. which was rejected by
the court of Additional District Judge, Orai
by order dated 24.05.2013. He again filed
an application 25-Ga 2 in the aforesaid
Misc. Case No.10 of 2003 (Amit Kumar
Singh Vs. Shobha Singh) which was
rejected by the court of Additional District
Judge, Orai by order dated 06.07.2013.
Again an application 3-Ga 2 was filed by
the aforesaid Amit Kumar Singh which
was rejected by the court below by order
dated 30.09.2013. In the mean time,
another son of Shobha Singh, namely,
Virendra
Kumar
Singh
filed
an
Execution Case No.01 of 2012 in which
Amit Kumar Singh, the father of the
appellants herein, filed an application
27-Ga 2 which was rejected by the court
below by order dated 21.10.2013. All
these orders were challenged by Amit
Kumar
Singh,
the
father
of
the
appellants herein in Writ Petition No.811
of 2014 which was dismissed by this Court
by order dated 13.01.2014.

9. After the father of the appellants
herein, namely, Amit Kumar Singh could
not succeed to obstruct the execution of the
decree passed in O.S. No.136 of 2000, then
his wife Smt. Pooja Singh (mother of the
appellants herein) as a third party filed
an application 21-Ka in Execution Case
No.1 of 2012 which was rejected by the
court of Additional District Judge, Court
No.5, Jalaun at Orai by order dated
13.09.2013 observing that the application
is abuse of process of Court. Against this
order, the mother of the appellants
herein, namely, Smt. Pooja Singh filed
First Appeal No.739 of 2013 in which a
counter affidavit dated 15.02.2014 was
filed by grand father of the appellants
herein, namely, Sri Shobha Singh. In the
counter affidavit Shobha Singh denied
every allegations made by the mother of the
appellants herein. Shobha Singh mentioned
in paragraph 20 of his counter affidavit
that mother of the appellants Smt. Pooja
Singh has also filed an injunction suit in
O.S. No.257 of 2013 in the court of Civil
Judge (Senior Division), Jalaun at Orai
in which 7-C application has been
rejected by a detailed order dated
30.10.2013 passed by the Civil Judge
(Senior Division). The aforesaid First
Appeal No.739 of 2013 was dismissed by
this Court by judgment dated 11.08.2016.
6 All. Sresth Singh & Anr. Vs. Virendra Kumar Singh & Ors.
137

10. Thus, after the mother and the
father of the appellants herein, namely,
Amit Kumar Singh and Smt. Pooja
Singh were unsuccessful to obstruct the
execution of decree passed in August,
2003, then they have set up their son and
daughter (appellants herein) who filed a
Misc. Case No.58 of 2017 (Km. Aishwarya
Singh and another Vs. Virendra Singh and
others) under Order XXI Rules 97 and 101
C.P.C. objecting the execution of decree of
O.S. No.136 of 2000. The application
No.20-Ga 2 and 3-Ka 1 filed by the
appellants herein mainly on the ground that
they being co-parcener have a right in the
disputed property and therefore, the decree
cannot be executed against them were
rejected by the court of Additional District
Judge/Special Judge (SC/ST Act) Jalaun at
Orai by two separate orders both dated
26.02.2018. Aggrieved with these orders
dated 26.02.2018, the appellants herein
have filed the present appeal under
Section 96 C.P.C.

11. Facts of the case as briefly noted
above leaves no manner of doubt that as
per own case and also as established by
documentary evidences on record, the
grand father of the appellants herein,
namely, Shobha Singh purchased the
land of the disputed house by registered
sale deed on 02.04.1944 and he got
constructed the disputed house in the
year 1975 by taking loan from Orai
Sahkari Grih Nirman Samiti, Rajendra
Nagar, Orai. He subsequently defaulted in
repayment of housing loan, resulting in
recovery proceedings against him which
was challenged by him in Writ Petition
No.44622 of 2019. It was admitted by the
father of the appellants herein in his
objection to the application 31-Ga 2 in
Execution Case No.61 of 2008, Annexure
No.7 to the Writ Petition No.811 of 2014
(Amit Kumar Singh Vs. Shobha Singh and
another). Thus, the disputed property is
the self acquired property of Shobha
Singh which is subject matter of the
compromise decree dated 25.08.2003 in
O.S. No.136 of 2000.

12. The facts of the case as noted
above clearly establish gross abuse of
process of Court by Amit Kumar Singh,
his wife Pooja Singh and now by their son
and daughter who are appellants herein. In
the impugned order dated 26.02.2018 the
court below while rejecting the application
of the appellants herein, briefly discussed
the facts and lawfully recorded a finding of
abuse of process of Court by the appellants
by
moving
the
application
3-Ka
1
malafidely under Order XXI Rules 97 and
101 C.P.C. so as to frustrate the execution
of decree which has been rejected by the
impugned order.

13. In the light of the facts of the case
as briefly discussed above, I do not find
any infirmity or perversity in findings
recorded by the court below in the
impugned order. The abuse of process of
Court by the appellants is well evident on
record. Therefore, exemplary cost is
necessary to be imposed on the appellants
herein for filing this frivolous appeal and
abusing the process of Court, in view of the
law laid down by Hon'ble Supreme Court
in Punjab State Power Corporation Ltd.
Vs. Atma Singh Grewal (2014) 13 SCC
666 (para 14) and Dnyandeo Sabaji Naik
Vs. Pradnya Prakash Khadekar (2017) 5
SCC 496 (paras 9 to 14).

14. In Dnyandeo Sabaji Naik
(supra), Hon'ble Supreme Court has
observed that it is not merely a matter of
discretion but a duty and obligation cast
upon all courts to ensure that the legal
138 INDIAN LAW REPORTS ALLAHABAD SERIES
system is not exploited by those who use
the forum of the law to defeat or delay
justice.
Hon'ble
Supreme
Court
commended all courts to deal with
frivolous
filings,
firmly
and
impose
exemplary costs.

15. The principles laid down in the
case of Dnyandeo Sabaji Naik (supra),
have been reiterated by Hon'ble Supreme
Court in the case of Haryana State Co-op.
L&C Federation Ltd. vs. Unique Co-op.
L&C Co-op. Society Ltd., (2018) 14 SCC
248 (Paras 16 & 17) while dismissing the
appeal of the Haryana State Coop. L&C
Federation Ltd. (supra) with exemplary
cost of Rs.5 lacs.

16. In the case of Punjab State
Power Corporation Ltd. (supra), Hon'ble
Supreme Court emphasised that imposition
of exemplary costs should be in real terms
and not merely symbolic.

17. Facts of the case and the findings
recorded in paras 5 to 13 above leave no
manner of doubt that the process of Court
has been grossly abused by the appellants.
This Court must view with dis-favour the
attempt of litigants to abuse judicial
process and must deal with them firmly
otherwise sanctity of judicial process shall
be
seriously
eroded.
In
such
cases
consequences
must
follow
so
that
unscrupulous to the detriment of the
legitimate may not misuse the process of
dispensing
justice.
The
tendency
of
repeated attempt to revive a stale issue,
needs to be curbed by Courts firmly by
imposing real time costs. It is necessary to
do so, so that on one hand access to Courts
may be available to people with genuine
grievances and on the other hand frivolous
and groundless filing of cases constituting
serious menace to the administration of
justice and consuming precious time of
Court and clogging the infrastructure, may
be discouraged and productive resources
may be deployed in handling genuine
cases.

18. For all the reasons aforestated, the
appeal
is
dismissed
with
cost
of
Rs.1,00,000/-.

19. The cost shall be deposited by the
appellants with the court below within two
months and on deposit the respondent
Nos.1, 2 and 3 shall be entitled to withdraw
it in equal proportion.
----------
(2021)06ILR A138
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.07.2019

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

First Appeal No. 525 of 2019

Shri Om Tiwari ...Appellant
Versus
Smt. Shikha Tiwari ...Respondent

Counsel for the Appellant:
Sri B.D. Shukla

Counsel for the Respondent:
--

A. Civil Law - Hindu Marriage Act, 1955 -
Sections 13 & 25 - Family Courts Act,
1984 - Section 10 - Divorce petition -
Permanent
Alimony,
claimed
-
No
pleading in written statement on the issue
of alimony - However, the Court framed
an addition issue on it - Validity -
Application to strike of additional issue,
filed - Held, mere framing of an issue does
not cause prejudice to any party, rather it