Jharkhand High Court
Om Prakash Chabra vs Sri Bijay Kumar Sarawgi on 9 January, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND, RANCHI
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C.M.P. No. 926 of 2024
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Om Prakash Chabra, aged about 88 years, son of late Ram Chand Chhabra, C/o M/s Exide Power Point, Main Road, Ranchi, PO and PS Hindpiri, District Ranchi, Jharkhand .....Defendant/ Judgment Debtor/ Petitioner
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1.Sri Bijay Kumar Sarawgi, son of late Rikhab Chand Sarawgi, resident of Old Civil Surgeon Bungalow, Main Road, Ranchi, PO and PS Hindpiri, Disrict Ranchi, Jharkhand ...... Plaintiff/ Decree Holder/ Opposite Party
2.M/s New Battery Centre, represented through Om Prakash Chabra, office at Main Road, Ranchi, PO and PS Hindpiri, District Ranchi, Jharkhand ... Defendants/ Judgment Debtors/ Performa Opposite Party
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner(s) :- Mr. Amit Kumar Das, Advocate For the Opp.Party No.1 :- Mr. Shashank Shekhar, Advocate Mr. Karbir, Advocate
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3/09.01.2025 It has been pointed out that so far as Opposite Party No.2 is concerned he is performa-Opposite Party.
2. Heard Mr. Amit Kumar Das, the learned counsel appearing on behalf of the petitioner as well as Mr. Shashank Shekhar, the learned counsel appearing on behalf of the Opposite Party No.1.
3. This petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 23.07.2024 passed by learned Additional Civil Judge, Jr. Division, Ranchi in Execution Case No.04 of 2020 whereby the objection filed by the petitioner under Section 47 of the CPC has been rejected.
4. Mr. Amit Kumar Das, the learned counsel appearing on behalf of the petitioner submits that the Opposite Party no.1 had initially instituted a civil suit for eviction of the petitioner being Eviction (Title) Suit No.52 of 2016 and by the 1 C.M.P. No. 926 of 2024 judgment dated 23.04.2014 passed by learned Additional Munsif-II, Ranchi, the said suit was decreed in favour of the O.P.No.1. He further submits that aggrieved with the said judgment, the petitioner has moved in Civil Revision No.16 of 2014 in which the trial court records were called for on 30.11.2018 and the said civil revision was admitted by the order dated 07.03.2019 and the said revision application is still pending for final hearing. He then submits that the O.P.No.1 has initially filed the Execution Case No.13 of 2014 in which the petitioner has appeared and ultimately the said execution case was dismissed by order dated 17.08.2016 due to non-prosecution by the Opposite party. He submits that the Opposite party has filed restoration petition for restoring the said execution case which was further dismissed for non-prosecution by order dated 12.06.2018. He further submits that thereafter fresh Execution Case No.4 of 2020 was filed in which objection was made under section 47 which has been rejected by the learned court on the ground that it is not maintainable. He submits that once O.P.No.1 has chosen to file the restoration petition which was dismissed, he has got no right to file the second execution case and to buttress his argument, he relied in the case of Sudama Ram v. The State of Jharkhand and Others, 2012 SCC OnLine Jhar 859. Relying on the above judgment, he submits that the impugned order may kindly be set aside. On query by the Court, with regard to remedy, he submits that now the O.P.No.1 is required to file fresh suit. On this ground, he submits that the order may kindly be set aside.
5. Per contra, Mr. Shashank Shekhar, the learned counsel appearing on behalf of the O.P.No.1 draws the attention of the Court to Order IX Rule 4 of CPC and submits that it is open to file a fresh suit for execution in light of that provision and only limitation is that it may be within the limitation period. He submits that the learned Court has rightly passed the said order and there is no illegality. He further draws the attention of the Court to section 141 CPC and 2 C.M.P. No. 926 of 2024 submits that execution case also comes under the parameteria of the suit. To buttress his argument, he firstly relied in the case of Brakewell Automotive Components (India) Private Limited v. P.R. Selvam Alagappan, (2017( 5 SCC 371, paragraph nos.22 and 23 of the said judgment is quoted below:
"22. Judicial precedents to the effect that the purview of scrutiny under Section 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness are plethoric. This Court, amongst others in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman [Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman, (1970) 1 SCC 670 : AIR 1970 SC 1475 : (1971) 1 SCR 66] in essence enunciated that only a decree which is a nullity can be the subject-matter of objection under Section 47 of the Code and not one which is erroneous either in law or on facts. The following extract from this decision seems apt : (SCC pp. 672-73, paras 6-7)
"6. A court executing a decree cannot go behind the decree :
between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.
7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representative on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record : where the objection as to the jurisdiction of the court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction."
23. Though this view has echoed time out of number in similar pronouncements of this Court, in Dhurandhar Prasad Singh v. Jai Prakash University [Dhurandhar Prasad Singh v. Jai Prakash University, (2001) 6 SCC 534 : AIR 2001 SC 2552] , while dwelling on the scope of Section 47 of the Code, it was ruled that the powers of the court thereunder are quite different and much narrower than those in appeal/revision or review. It was reiterated that the exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole and an 3 C.M.P. No. 926 of 2024 executing court can allow objection to the executability of the decree if it is found that the same is void ab initio and is a nullity, apart from the ground that it is not capable of execution under the law, either because the same was passed in ignorance of such provision of law or the law was promulgated making a decree unexecutable after its passing. None of the above eventualities as recognised in law for rendering a decree unexecutable, exists in the case in hand. For obvious reasons, we do not wish to burden this adjudication by multiplying the decisions favouring the same view.
6. By way of relying on the above judgment, he submits that scope of section 47 CPC is discussed and in light of this judgment, the argument of learned counsel for the petitioner is not tenable.
7. He further draws the attention of the Court to the judgment of the Privy Council in the case of Govind Prasad v. Har Kishan (Weir, J.), AIR 1929 Allahabad which is as under:
"This is an application by the plaintiff in a civil suit to review an order of the Small Cause Court Judge of Meerut dismissing the plaintiff's suit. The facts are those. The plaintiff, who is the applicant in these proceedings brought a suit against the defendants, who are the respondents in these proceedings, on 20th May 1927 that suit was dis- missed under O. 9, R 3, in consequence of neither party having appeared when the suit was called for hearing. The plaintiff applied to the learned Judge on 3rd September 1927, to have the suit restored, and the learned Judge dismissed that application. The plaintiff then brought a new suit upon the saume cause of action on 17th October 1927. In that suit the learned Judge has passed the following order:
"The application for restoration was dismissed. The present suit is not maintainable. Dismissed with costs."
In my opinion the learned Judge was clearly wrong in holding that the plaintiff was not entitled to bring a second suit, when an application to restore his first suit had been dismissed. Two authorities have been cited to me, namely, Daya Shankar v. Raj Kumar (1) and Bhudeo v. Baikunthi (2). I entirely agree with the leaned Judge who decided both those cases, and I, therefore, set aside the order of the Small Cause Court Judge and direct him to proceed with the trial of the suit No. 6390 of 1927. Application allowed. Costs will be costs of the case."
8. Relying on the above judgment he submits that identical was the situation in that case and that case was allowed by the Court. He further draws the attention of the Court to the Division Bench judgment of this Court in the 4 C.M.P. No. 926 of 2024 case of Smt. Karmi Devi v. Satendra Kumar Singh and Another, 2010 (1) JLJR 10 and by way of drawing the attention of the Court to paragraph no.5 of the said judgment, he submits that two issues were framed in that case and issue no.1 was identical to the present facts. He further submits on relying on the judgment in the case of Mt. Balkesia v. Mahant Bhagwan Gir, AIR 1937 Patna 9, the answer of the first issue was made in paragraph no.15 of the said judgment by which judgement it has been held that there is no bar of availing remedy by way of filing another suit. On this ground, he submits that the said order is not required to be interfered by this Court as the O.P.No.1 will be remediless that too when he is having the decree in his favour. He submits that the second execution case was filed within time and that aspect has been taken care of and it is well settled in light of the judgment of the Hon'ble Supreme Court as well as of the Division Bench of this Court. On the point of filing of the petition within limitation, he further relied in the case of Bhagyoday Coopertive Bank Limited v. Ravindra Balkrishna Patel Deceased Through His Legal Representatives and Others, (2022) 14 SCC 417 and he relied on paragraph no.25 of the said judgment which is as under:
"25. The first question we have to consider is: whether the dismissal of the execution petition filed by the appellant apparently on the ground of default or withdrawal of the first execution petition will result in a bar for the filing or the prosecuting of the second execution petition. In this regard, in fact, we must notice that the learned counsel for the respondent does not seek to raise any objection as such to the contentions of the appellant that the second execution application would be maintainable provided it is within the period of limitation. We also find merit in the contentions of the appellant that the mere dismissal of the first application on the ground of default may not result in the decree-holder being precluded from filing a fresh execution petition provided it is within time."
9. Referring the above judgments, he submits that the facts of the present case are identical and in view of that there is no merit in this petition 5 C.M.P. No. 926 of 2024 and it may kindly be dismissed.
10. In view of the above submission of the learned counsels appearing on behalf of the parties, the Court has gone through the materials including the impugned order. It is an admitted position that the O.P.No.1 has instituted Eviction (Title) Suit No.52 of 2016 which was decreed in favour of the O.P.No.1 against that the revision was preferred by the petitioner herein which is still pending. The O.P.No.1 has filed the Execution Case No.13 of 2014 which was dismissed for default. Subsequently, the petitioner has filed restoration petition which was further dismissed for default and thereafter the present execution case has been filed by the O.P.No.1 within the period of limitation and these facts are not in dispute. The only argument was advanced by the learned counsel for the petitioner that once the restoration petition was filed for restoration of the dismissed execution case and further it was dismissed, the second execution case is not maintainable. This aspect appears to be the subject matter before the Division Bench of this Court in the case of "Smt. Karmi Devi" (supra) relied by the learned counsel for the O.P.No.1, wherein at paragraph no.5, the two issues have been framed which are as under:
"5. In the background of the facts of the case, the important questions that fall for consideration are:-
(i) Whether after the dismissal of the petition for restoration of suit under Order IX Rule 4, CPC a fresh suit is maintainable?
(ii) Whether after dismissal of the suit for default, a fresh suit is barred by res judicata"
11. The discussion was made in paragraph no.13 which is as under:
"13. In the case of Mt. Balkesia vs. Mahant Bhagwan Gir, (AIR 1937 Patna 9), a similar question came for consideration before a Division Bench of the Patna High Court. In that case also taking the similar view His Lordship James, J. observed:
"Mr. Khurshaid Husnain argues, in the second place, that the present suit should be regarded as barred by reason of the provisions of O.9, R. 4. O.9, R.4, provides that where a suit is dismissed under R. 2, or R. 3, the plaintiff may bring a fresh suit, or he may apply for an order to set the dismissal aside. Mr. Khurshaid Husnain argues that these two provisions are mutually exclusive, so that if the plaintiff elects to avail himself of his right 6 C.M.P. No. 926 of 2024 to apply to have the order of dismissal set aside, he is thereby precluded from availing himself of the right to institute a fresh suit. The only decisions in point which have been brought to our notice by Mr. Khurshaid Husnain are adverse to this argument : 63 I C 239 of Stuart, J., A I R 1926 All 678 of Daniels, J., and.50) All 837 of Weir, J., all of the Allahabad High Court. In all these cases it has been held that the alternative provisions of R.4 are not mutually exclusive, and that a plaintiff whose application for a restoration of his suit has been dismissed is not precluded from instituting a fresh suit. I do not consider that any ground has been made out which justifies us in differing from the view expressed by the learned Judges whom I have named. It appears to us that a reasonable reading of the rule provides that the plaintiff may bring a fresh suit or he may apply for a setting aside the dismissal. If he satisfies the Court and obtains an order setting aside the dismissal, he proceeds with his original suit. If having applied for an order to set aside the order of dismissal, he fails to satisfy the Court and his application is dismissed, he is left to his alternative remedy which is that he may, subject to the law of limitation, bring a fresh suit."
12. The answer to above was made in paragraph no.15 of the said judgment, which is as under:
"15. In the light of the provisinos contained in Order IX and the law discussed hereinabove, it can be safely concluded that in case of dismissal of suit under Order IX Rule 4 CPC the plaintiff has both the remedies of filing of fresh suit or application for restoration of the suit. If he chooses one remedy he is not debarred from availing himself of the other remedy. Both these remedies are simultaneous and would not exclude either of them."
13. This aspect is further well settled in light of the Privy Council judgment relied by the learned counsel appearing on behalf of the O.P.No.1 in the case of "Govind Prasad" (supra). In light of the above discussion, it is crystal clear that in Rule 4 under Order IX CPC in cases where none of the parties are present at the time of call and the suit was dismissed for default, there is no bar on the plaintiff to bring a fresh suit on the same cause of action giving the details of the said suit which was dismissed for default and applying such principle in any event there is no bar even in the Code of Civil Procedure to prefer a second execution case. However, it has to be before expiry of limitation period. In such circumstances as in the present case none of the 7 C.M.P. No. 926 of 2024 parties were represented and dismissal for default occurred.
14. That apart, this Court is bound by this proposition of law laid down in the case of "Bhagyoday Coopertive Bank Limited"(supra) wherein the Hon'ble Supreme Court in unambiguous terms has accepted the contention of the appellant, the contention of the party of that case that mere dismissal of the first execution application on the ground of default may not result in the award-holder/ decree-holder being precluded from filing a fresh execution petition provided it is within time. Admittedly, the second execution was filed within time and it is well settled that any party cannot be allowed to be remediless and that too when the decree is in the favour of the O.P.No.1. Thus, there is no illegality in the order of the learned court.
15. So far as the judgment relied by Mr. Das, the learned counsel appearing on behalf of the petitioner in the case of Sudama Ram v. The State of Jharkhand and Others (supra) is concerned, that appears to be a judgment in which the Division Bench judgment of this Court as well as the other judgments of the Hon'ble Supreme Court has not been considered and it is said to be per incuriam. Further, in that case, in the restoration petition, the main issue was itself decided and thereafter the second petition was filed. In this background, it was held by the co-ordinate Bench of this Court that it will be endless litigation if that petition is allowed. The facts of the present case is otherwise as has been discussed hereinabove, judgment relied by the learned counsel appearing on behalf of the petitioner is not helping the petitioner.
16. In view of above facts, reasons and analysis, C.M.P. No. 926 of 2024 is dismissed.
17. Pending petition if any also stands disposed of accordingly.
18. The learned executing court will expedite the execution case.
( Sanjay Kumar Dwivedi, J.) SI/, A.F.R. 8 C.M.P. No. 926 of 2024