SUPREME COURT OF INDIA

Before:- B.N. Kirpal and V.N. Khare, JJ.

Civil Appeal No. 4954 of 2000. (Arising out of SLP (C) No. 1738 of 2000) D/d. 8.9.2000.

Mercantile Industrial Development Co.(P) Ltd. - Appellant

Versus

Wahid Chauhan - Respondent

Civil Procedure Code, 1908, Order 15, Rule 1, Order 21 Rule 24 - Constitution of India, Articles 226 and 227 - Suit for recovery of possession - Objection to execution of decree - Application that decree was nullity and not executable to be tried as preliminary issues filed after 10 years - Application filed 10 years after framing issues - Purpose only to delay - Casts imposed directions issued for speedy disposal.

[Para 4]

ORDER

1. Special leave granted.

2. A suit was filed in 1983 for the recovery of the suit premises. The said suit was decreed in the plaintiff's favour in 1985 in an execution proceeding in which objections were filed by the respondent. One of the objections was whether the decree which had been passed on 7-9-1985 was a nullity. Issue in this regard and other issues were framed on 13-1-1988. We are informed that for a period of nearly ten years no evidence was recorded. On 26-3-1998, an application was filed by the respondent to the effect that Issue 2 relating to the contention that the decree was a nullity and non-executable should be tried as a preliminary issue. The Small Cause Court rejected this application and this was affirmed by the Appellate Bench of the Small Cause Court. The High Court, however, in a writ petition, which was filed, has reversed this decision and has directed Issue 2 to be tried as a preliminary issue.

3. We find that the order of the High Court is not correct. First of all, it appears to us that the exercise of moving this application for treating Issue 2 as a preliminary issue is clearly mala fide and has been done so with a view to prolong the litigation. This application was filed after ten years of the issues being framed. The only desire can be to somehow or the other prolong the dispute. Furthermore, with two courts having rejected the prayer for framing the preliminary issue the High Court was not correctly advised to exercise its writ jurisdiction and set aside the said orders. There was no error of jurisdiction exercised by the courts below and in any event the issue in question cannot be decided without recording evidence. It was not a pure issue of law which may have been regarded as a preliminary issue.

4. We, accordingly, allow this appeal, set aside the judgment of the High Court and direct the executing court to proceed to hear the case expeditiously and dispose of the same within three months from today. The appellant will be entitled to costs. The cost is quantified at Rs 10,000 to be borne by the respondent.

Appeal allowed.