Calcutta High Court (Appellete Side)
Shri Suraj Rajak @ Dhobi & Ors vs Sri Jambulal Dhobi & Anr on 3 January, 2012
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
1 Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE C.O. No. 4452 of 2006 Present :
The Hon'ble Mr. Justice Prasenjit Mandal
Shri Suraj Rajak @ Dhobi & ors.
Versus
Sri Jambulal Dhobi & anr.
For the petitioners: Mr. Hiranmoy Bhattacharjee, Mr. Saurav Chowdhury, Mr. Kaushik Roy, Mr. Tanmoy Mukherjee.
For the opposite parties: Mr. S.P. Roychowdhury, Mr. Anit Rakshit, Mr. Pasupati Sana.
Heard On: 15.11.2011, 23.11.2011 & 24.11.2011. Judgement On: January 3, 2012.
Prasenjit Mandal, J.: This application is at the instance of the legal representatives of the defendant and is directed against the order dated October 18, 2006 passed by the learned Additional District Judge, Barrackpore in Misc. Appeal No.38 of 2006 thereby affirming the judgment and order dated March 27, 2006 passed in Misc. Case No.35 of 2004 arising out of a Title Execution Case No.61 of 2001.
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The short fact necessary for the purpose of disposal of this revisional application is that the opposite party no.1 and the predecessor in interest of the opposite party no.2 instituted a suit being Title Suit No.280 of 1986 against one Gopal Dhobi, predecessor-in-interest of the petitioners for eviction from the premises in suit as described in the schedule of the plaint and that suit was decreed on contest. The predecessor-in-interest of the petitioners filed an appeal being Title Appeal No.98 of 1999 and that appeal was also dismissed on contest. Subsequently, the plaintiffs filed an execution case being Title Execution Case No.61 of 2001 for recovery of possession as per decree and they got the delivery of possession with the help of police after breaking open the pad lock on February 19, 2003.
The plaintiffs / decree-holders contended that the present petitioners had made forcible entry into the premises in suit on February 24, 2003 and filed an application under Order 97, 99, etc. of the C.P.C. and that application was converted into the misc. case no.35 of 2004. The said misc. case was also dismissed on March 27, 2006.
Thereafter, the petitioners preferred a misc. appeal being Misc. Appeal No.38 of 2006 and that misc. appeal was also dismissed by the impugned order. Being aggrieved, the petitioners have preferred this application.
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Now, the question is whether the impugned order should be sustained.
Upon hearing the learned advocates for both the sides and on perusal of the materials on record, I notice that the facts as noted above are not in dispute. It is worthy to mention that on the prayer of the decree-holders the said execution case was disposal of on full satisfaction on April 10, 2003. After being disposed from the premises in suit, on June 20, 2003 the decree- holders filed an application for restoration of the possession with the help of police and the said application was allowed on August 30, 2003.
It may be noted herein that during the pendency of this application, the question of maintainability was raised before this Bench and by an order dated August 1, 2011 this Bench held that the application is maintainable. Thereafter, the application was heard on merits.
Mr. Hiranmoy Bhattacharjee appearing on behalf of the petitioners has submitted that the petitioners are claiming their independent right over the premises in suit to the extent of 1/3rd share therein and as such, the decree is not executable at all. He has also submitted that both the courts below have failed to appreciate such contention of the petitioners and as such, the impugned order cannot be supported.
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By referring to the paragraph no.22 of the decision of Shew Bux Mohata & anr. v. Bengal Breweries Ltd. & ors. reported in AIR 1961 SC 137, Mr. Bhattacharjee has submitted that where the decree-holders of their own accepted delivery of possession with defendant remaining on the premises with their permission, and they granted a receipt acknowledging full delivery of possession and permitted the execution case to be dismissed on the basis that full possession had been delivered to them by the defendant, they are bound to the position that the decree has been fully executed and the decree cannot be executed any more. Under the circumstances, the second application for execution is not maintainable but the lower appellate court has failed to appreciate the situation.
By referring to the paragraph no.16 of the decision of Mrs. Rosane Jerome D'souza v. Bhagvandas Gangaram Kamble by his legal representatives reported in 2005(2) ICC 521, Mr. Bhattacharjee has submitted that if the judgment debtors have taken possession of property illegally after decree holder was put in possession of the said property in execution of a decree, the remedy available to the decree-holder is to again take possession in accordance with law. There cannot be a second execution when there is legal, complete and effectual delivery of the property on the earlier occasion. Thus, Mr. Bhattacharjee has submitted that this decision is fully applicable in the instant case and as such, the 5 application for execution for the second time is not maintainable at all.
With due respect to Mr. Bhattacharjee, I am of the view that this is not applicable for the reasons discussed afterwards.
Mr. Bhattacharjee has next referred to the decision of K. Ramalingam & ors. v. K.N. Krishna Reddi & anr. reported in AIR 1974 Madras 325 and thus, he submits that once possession has been legally delivered, a second application for delivery will not lie, unless there has been no legal, complete and effectual delivery of possession on the earlier occasion. In the latter case, a subsequent application will be maintainable. Such an application cannot be called a 'second application'. But where only a paper delivery has been made it cannot be said that the decree has been executed unless the Court satisfies itself that actual physical delivery has been effected.
Mr. Bhattacharjee has next referred to the decision of State Bank of India & ors. v. S.N. Goyal reported in (2008)8 SCC 92 particularly the paragraph no.25 and thus, he submits that after the disposal of the application for execution on full satisfaction, the Judge becomes functus officio when he passes the order. Therefore, he cannot vary the terms of the order.
With due respect to Mr. Bhattacharjee, I am of the opinion that the facts stated therein are completely different from that of the present case and that the said submission is not the ratio 6 of the said decision. So, this decision will not be applicable in the instant case.
Mr. Bhattacharjee has next referred to the decision of Bhanwar Lal v. Satyanarain & anr. reported in AIR 1995 SC 358 particularly the paragraph no.3 and thus, he submits that according to the provision of Order 21 Rule 35(3) of the C.P.C., the person in possession of the immovable property to be delivered under the decree must be per force bound by the decree. In the instant case, since the decree has been fully satisfied, the second time application is not maintainable. The executing court becomes functus officio with the disposal of the execution case on full satisfaction.
This submission of Mr. Bhattacharjee, I hold, cannot be accepted because this is not at all the ratio of the said decision. The ratio of the decision is that the application under Order 21 Rule 35 of the C.P.C. could well be treated as one under Order 21 Rule 97 of the C.P.C. when obstruction is created. Even the second and third application by the decree-holder under Order 21 Rule 97 of the C.P.C. is not barred by limitation and the principles of res judicata. Therefore, this decision, I hold, is in favour of the decree-holders / opposite parties who filed the application dated June 20, 2003 under Section 151 of the C.P.C. for restoration of possession with the help of police personnel again.
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Then Mr. Bhattacharjee has referred to the decision of Ranchhod & anr. v. Hukmaji & ors. reported in AIR 2011 Madhya Pradesh 153 and thus, he submits that the expression 'any person' under Order 21 Rule 97 not assigned to cover only third parties and strangers. But all persons resisting the delivery of possession are covered within its meaning. Such persons include the judgment debtor.
With due respect to Mr. Bhattacharjee, I am of the view that this decision will not be helpful to his clients inasmuch as the said matter related to identification of the suit property. Here the identification of the suit property is not in dispute.
Mr. Bhattacharjee has then referred to the decision of Gopal Chandra Sadhukhan v. Sheikh Jamsed & anr. reported in AIR 1965 Calcutta 51 particularly the paragraph no.15 & 16 and thus, he submits that the objection raised by the petitioners in their application under Order 21 Rule 97, 99, etc. of the C.P.C. should be duly considered and appropriate orders should be passed. The order granting police help passed without service of notice to the opposite party is illegal.
This decision relates to claim of possession by a third party in good faith o his own account or on account of some person other than the judgment debtor. But this is not the case under consideration.
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Lastly, Mr. Bhattacharjee has referred to the decision of Adhar Chandra Poria v. Radharani Panja & anr. reported in 2006(2) CHN 694 and thus, submits that since a suit for partition being Title Suit No.422 of 2003 is pending over the claim of title to the suit property before the learned Civil Judge (Senior Division), Barasat, the opposite party cannot avail of the right of appeal. This decision, I hold, is not applicable now inasmuch as the misc. appeal has already been dismissed on merits and the suit has not been finally disposed of. The learned Lower Appellate Court has rightly observed that the said suit does not have any material bearing in the misc. appeal.
Per contra, Mr. Roychowdhury, learned Senior Advocate appearing on behalf of the opposite party has referred to the decision of Monishi Mohan Gupta & ors. v. Netai Chand Dey reported in 1975(2) CLJ 340 particularly the paragraph no.15 and thus, he has submitted that when the opposite party had obtained a decree of recovery of possession against the petitioners and when such decree was affirmed by the First Appellate Court, the Executing Court is competent to revive the execution case. In case, possession was not, in fact, delivered and the Executing Court is competent to issue a fresh writ. Thus, he has submitted that no revision lies.
Mr. Roychowdhury has next referred to the decisions of Bibhuti Bhusan Dutta v. Dr. Samarendra Nath Misra reported in 9 2002(3) CHN 482, Hiralal Sha v. Debprosad Dey & ors. reported in 1998(1) CLJ 348 and P. Janardhana Rao v. Kannan & ors. reported in 2005(1) CLJ(SC) 25 and thus, he has submitted that the provision of Order 21 Rule 99 of the C.P.C. specifically provides the relief to persons other than judgment debtors dispossessed of immovable property in execution of a decree. In an application under Order 21 Rule 97 of the C.P.C., the third can resist the decree on the ground that he has acquired an independent title over the suit property and that he is not claiming through the judgment debtor or in other words, he is not bound by the decree. Therefore, the plea that the second execution case is not maintainable, is not available to him. The petitioners having stepped into the shoes of the original judgment debtor cannot file the application under Order 21 Rule 97, 99, etc. of the C.P.C. setting up a different colour of title and so, the Court below was right to dismiss the misc. appeal preferred by the petitioners. Under the circumstances, no revision is maintainable. He has also submitted that when the execution of the decree is obstructed by the obstructionists, the decree-holder is entitled to remove such obstructions. He has also contended that when forcible possession is taken by the petitioners, fresh execution for recovery of possession is maintainable. These three decisions are, in my opinion, very much applicable in the instant case. 10
Having considered the materials on record and the submissions of the learned Advocates of both the sides and the above decisions, I am of the view that the decisions of Hiralal Sha (Division Bench) and the decision of Bibhuti Bhusan Datta (supra) (a Division Bench judgment of this Hon'ble Court) are very much relevant in the instant situation. The decree-holders / opposite parties herein have contended that the petitioners took forcible possession of the suit property on the pretext of acquiring 1/3rd title to the suit property. But, there is no dispute that they are none but the heirs of the original judgment debtor. The judgment and decree of the learned Trial Judge was affirmed by the First Appellate Court. Thereafter, the judgment debtor did not prefer any second appeal. The result is that the judgement and decree had attained its finality and the present petitioners being the legal representatives are bound by the decree. When forceful possession was taken after the disposal of the execution application on full satisfaction, the decision of Mrs. Rosane Jeroone D'Souza (supra) for proceeding in accordance with the law, I am of the view, is not applicable. The decree-holders / opposite parties herein need not file a separate suit and they can file an application for revival of the execution application under the above circumstances. The lower Appellate Court is, therefore, justified in dismissing the misc. appeal preferred by the judgment debtors.
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Above all, from the materials on record, I find that the Misc. Case No.35 of 2004 preferred by the petitioners herein was disposed of on taking evidence on behalf of both the sides. The learned Trial Judge, upon analysis of evidence on record dismissed the misc. case. The lower appellate court has also dismissed the Misc. Appeal No.38 of 2006 arising out of the said misc. case. Thus, I find that both the courts below had come to the concurrent findings of fact based on evidence. Their findings, I hold, cannot be said to be perverse at all on the basis of materials on record. So, there is no scope of interference with the concurrent findings of fact, in this application. My view gets support from the decision of Jamnabai Ramchandra Vadekar v. Modern Auto & Machinery Agency reported in (2000) 10 SCC 573 and also on other decisions such as Mohan Amba Prasad Agnihotri & anr. v. Bhaskar Balwant Aher (D) through L.R.s reported in (2000) 3 SCC 190 and (1999) 9 SCC 264.
Accordingly, I am of the view that there is no scope of interference with the impugned order. This application is bound to fail.
Accordingly, the application is dismissed. Considering the circumstances, there will be no order as to costs.
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Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.) Later:
Heard the learned advocates for both the sides. Over the prayer for stay of the impugned order on behalf of the petitioner, I am of the view that this prayer should not be entertained in view of the observations made by me above.
Accordingly, the prayer for stay is considered and rejected.
(Prasenjit Mandal, J.)