Calcutta High Court (Appellete Side)
2635/2011 on 14 November, 2011
Author: Dipankar Datta
Bench: Dipankar Datta
1 14.11.2011
Item No.52 SB C.O. 2635 OF 2011 Mr. S. P. Ghosh..............for the petitioners. Mr. S. K. Mallick..........for the opposite party. T. S. No. 168 of 1970 was instituted by Suniti Bala Debnath, the opposite party no.1, seeking eviction of one Ramkissen Dubey (hereafter Ramkissen), defendant no.1 therein and others from the suit property and recovery of possession. While the suit was being tried, one Panchanan Shaw (hereafter Panchanan) filed an application for addition of party alleging that he had purchased the suit property from Ramkissen. The application for addition of party was rejected, whereafter T.S. No. 150 of 1971 was instituted by Panchanan against the opposite party no.1 praying for declaration of his title in respect of the self-same suit property along with consequential relief.
The suits were heard analogously and the learned Judge of the trial Court by his common judgment and decree dated 31.08.1971 dismissed T.S. No. 150 of 1971 and decreed T.S. No. 168 of 1970. In the process of rendering judgment, the learned Judge returned 2 certain important findings to the effect that Panchanan had acquired no title from Ramkrissen by purchase; that Ramkrissen was a tenant under Madan Chowdhury, vendor of the opposite party no.1; that after purchase of the property from Madan Chowdhury by the opposite party no.1, there was no attornment of tenancy and, therefore, Ramkrissen could not be treated to be a tenant under the opposite party no.1; and that possession of Ramkrissen vis-a-vis the suit property was that of a trespasser. It is not in dispute that separate appeals were preferred against the judgment and decree in the aforesaid suits and the first appellate Court allowed the appeals. It is also not in dispute that second appeals having been preferred by the opposite party no.1 against the judgment and decree of the first appellate Court, a learned Judge of this Court by judgment dated 23.12.2003 affirmed the view taken by the trial Court and, thereby, allowed the second appeals. Special Leave Petition filed in the Supreme Court against the second appellate judgment did not succeed. The opposite party no.1, after dismissal of the Special Leave Petition, put the decree for ejectment of Ramkissen into execution. Ramkissen had expired in the meantime and is being represented by his heirs and representatives. In course of the execution case, the petitioners, who are the representatives of Panchanan, filed an application under Section 47 of the Code of Civil Procedure, giving 3 rise to Misc. Case No. 5 of 2007. They also filed an application under Order 6 Rule 17 of the Code for incorporating provisions contained in Order 21 Rules 100, 101 and 98 in the cause title of the application under Section 47 of the Code. The learned Judge of the executing Court did not consider the application and by order dated 21.01.2011 kept the same in abeyance and fixed a date in early February, for hearing. The order was not challenged by the petitioners. Hearing on the next day was adjourned but ultimately, the application under Section 47 of the Code was heard by the learned Judge on 28.02.2011. Misc. Case No. 5 of 2007 stood rejected on contest by the order passed on that date. This order forms the subject matter of challenge in the present revisional application.
I have heard Mr. Ghosh, learned advocate for the petitioners and Mr. Mallick, learned advocate for the opposite party no.1. Considering the fact that the trial Court found Panchanan not to have acquired any right, title and interest in respect of the suit property and the view taken by it having been affirmed upto the Supreme Court, I do not consider that the learned Judge of the executing Court was unjustified in dismissing Misc. Case No. 5 of 2007 for the reasons mentioned therein. Ramkissen had been found to be a trespasser in respect of the suit property and, therefore, could not have sold the suit property to Panchanan and 4 Panchanan was rightly found not to have acquired any right, title and interest in respect of the suit property. The petitioners being the heirs of Panchanan cannot claim a better right than Panchanan himself. It is settled law that a decree passed without jurisdiction could be regarded as nullity and objected to in proceedings under Section 47 of the Code but an erroneous or illegal decision, which is not void, cannot be objected in execution or collateral proceedings. Mr. Ghosh's endeavour, I hold, has been to show that the decree of the trial Court is erroneous but not void. It appears that the attempt of the petitioners is to frustrate the decree and to prolong their stay in the suit property without lawful authority.
The decisions cited by Mr. Ghosh reported in AIR 1971 SC 2355 and in 89 CWN 792 have been considered. In the former decision, it was held that a decision given by a Court on erroneous assumption of jurisdiction would not operate as res judicata. I have failed to find the materiality of the ratio laid down in such decision to the facts at hand. It is not the claim of any party that the trial Court did not have the jurisdiction to decide the issues raised before him. An erroneous decision passed within jurisdiction is as much binding as a correct decision, so long it is not interdicted by a higher Court. It would be an improper exercise of revisional jurisdiction to delve into issues which already 5 stand decided and concluded upto the Supreme Court. The latter decision of this Court has followed the earlier decision of the Supreme Court having regard to the fact situation before the learned Judge. The said decisions do not have application here and thus cannot come to the rescue of the petitioners. I find that in holding the application under Section 47 of the Code as not maintainable, the learned Judge of the executing Court did not commit any illegality.
There is no merit in the revisional application. The same stands dismissed without order for costs.
Urgent photostat certified copy of this order, if applied for, be furnished to the parties as early as possible.
(DIPANKAR DATTA, J.)