Gauhati High Court
Page No.# 1/8 vs Bishnulal Rabidas And 9 Ors on 4 January, 2022
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/8
GAHC010022082020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/52/2020
REKHA MUKHARJEE AND 5 ORS
W/O- LATE SATYABRATA MUKHARJEE
R/O- RAMANI ROAD NO. 2
KARIMGANJ TOWN
P.O- KARIMGANJ
P.S AND DIST- KARIMGANJ
ASSAM
2: SHUBHASISH MUKHARJEE
S/O- LATE SATYABRATA MUKHARJEE
R/O- RAMANI ROAD NO. 2
KARIMGANJ TOWN
P.O- KARIMGANJ
P.S AND DIST- KARIMGANJ
ASSAM
3: SUBRATA MUKHERJEE
S/O- LATE SATYABRATA MUKHERJEE
R/O- RAMANI ROAD NO. 2
KARIMGANJ TOWN
P.O- KARIMGANJ
P.S AND DIST- KARIMGANJ
ASSAM
4: SHANTA CHATTERJEE (MUKHARJEE)
D/O- LATE SATYABRATA MUKHARJEE
R/O- JAMES RESIDENCE BLOCK NO.1
FLAT NO. 4D -1
MOTILAL GUPTA ROAD
BAHALA
KOLKATA- 700008
WEST BENGAL
5: MITHU CHAKRABORTY (MUKHARJEE)
Page No.# 2/8
D/O- LATE SATYABRATA MUKHARJEE
W/O- SRI RAJAT CHAKRABORTY
R/O- FLAT NO. 704
7TH FLOOR
ROSE REGENCY GARDENS
PLOT NO. 10
SECTOR- 6
KHARGHAR
NAVI MUMBAI- 410210
6: RAKHI CHAKRABORTY (MUKHARJEE)
D/O- LATE SATYABRATA MUKHARJEE W/O- BIBHUTI BHUSAN
CHAKRABORTY
R/O- NAYABARI
P.O- TILLA BAZAR
P.S- KARIMGANJ
DIST- KARIMGANJ
ASSAM
VERSUS
BISHNULAL RABIDAS AND 9 ORS
S/O- LATE RAGHU RAM RABIDAS ALIAS RAGHUNATH RABIDAS
R/O- STATION ROAD
KARIMGANJ TOWN
WARD NO. 18 OF THE KMB P.O- KARIMGANJ UNDER KARIMGANJ P.S
DIST- KARIMGANJ
ASSAM
2:KESHAB LAL RABIDAS
S/O- LATE KRISHNA RABIDAS
R/O- STATION ROAD
KARIMGANJ TOWN
WARD NO. 18 OF THE KMB P.O- KARIMGANJ UNDER KARIMGANJ P.S
DIST- KARIMGANJ
ASSAM
4:NANDALAL RABIDAS
S/O- LATE RAGHU RAM RABIDAS
R/O- STATION ROAD
KARIMGANJ TOWN
WARD NO. 18 OF THE KMB P.O- KARIMGANJ UNDER KARIMGANJ P.S
DIST- KARIMGANJ
ASSAM
5:LONGI RABIDAS
W/O- SRI BHAGIRATI RABIDAS
D/O- LATE RAGHU RAM RABIDAS
R/O- VILL- BARGOOI
P.O AND P.S- RATABARI
DIST- KARIMGANJ
Page No.# 3/8
ASSAM
6:JAMUNA RABIDAS
W/O- SRI RAMCHARAN RABIDAS
D/O- LATE RAGHU RAM RABIDAS
R/O- VILL AND P.O- SADARSWANPUR P.S
DIST- HAILAKANDI
ASSAM
7:MUNNI RABIDAS
S/O- LATE KRISHNA RABIDAS
R/O- STATION ROAD
KARIMGANJ TOWN
WARD NO. 18 OF THE KMB P.O- KARIMGANJ UNDER KARIMGANJ P.S
DIST- KARIMGANJ
ASSAM
9:GANGA RABIDAS
W/O- KRISHNA RABIDAS
R/O- VILL AND P.O- SADARSWANPUR
P.S AND DIST- HAILAKANDI
ASSAM
10:SADHU RABIDAS
S/O- LATE LAKSHMI PRASAD RABIDAS
D/O- LATE KRISHNA RABIDAS AND KUTIA RABIDAS
R/O- VILL PAKHICHARRA
P.O- MONCHERRA
P.S AND DIST- HAILAKANDI
ASSAM
------------
Advocate for : MR. P KATAKI Advocate for : MR G N SAHEWALLA appearing for BISHNULAL RABIDAS AND 9 ORS BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH JUDGMENT & ORDER Date : 04-01-2022 Heard Mr. S Dutta, learned senior counsel for the petitioners assisted by Mr. P Kataki, learned counsel. Also heard Mr. GN Sahewalla, learned senior counsel for the respondent Nos. 1, 2, 4, 5, 6, 7, 9 and 10 assisted by Ms. S Katakey. None has appeared on behalf of the other respondents.
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2. This is an application under Article 227 of the Constitution of India challenging the orders dated 20.11.2019 and 29.02.2020 passed in Misc Case No.252/2017 arising out of Title Execution Case No.11/2016 by the Court of the Munsiff No.1, Karimganj.
3. The brief facts of the instant case is that the respondents herein as plaintiffs have filed the suit for ejectment of one Satyabrata Mukherjee (since deceased) who is the predecessor-in-interest of the petitioners herein. The said suit was filed for ejectment of the predecessor-in-interest of the petitioners from the suit house and for recovery of arrear rent. The said suit was registered and numbered as Title Suit No.273/1990. The predecessor-in-interest of the petitioners filed his written statement challenging the maintainability of the suit as well as also denying to the statements and allegations made against the said defendant. In the said written statement at paragraph No.9 the defendants categorically admitted that he was a tenant under the plaintiffs but denied that he was a defaulter in making payment of the rent and had also denied that the plaintiff had any bonafide requirement of the suit premises. It is also relevant herein to take note of that the proforma defendant No.2 filed a written statement supporting the case of the defendant and stating inter-alia that the defendant No.1 is not liable to be evicted from the suit.
4. On the basis of the pleadings as many as seven issues were framed. Of the seven issues, issue No.2 is related to as to whether the defendant was a defaulter in payment of rent, issue No.3 was as to whether the plaintiff had bona-fide requirement of the suit premises and the issue No.5 was as to whether the proforma defendant No.2 has lawfully sold his 1/6 th share of the suit holding in favour of the defendant No.1 with the knowledge of the plaintiff.
5. As regards the issue No.2, the trial Court vide the judgment and Page No.# 5/8 decree dated 31.08.2004 held that the defendant was the defaulter in payment of rent. As regards the bona-fide requirement the trial Court held that the plaintiff had bona-fide requirement of the suit land and as regards the issue No. 5 it was held that the said issue was redundant to discuss as the said issue had already been adjudicated upon in Title Suit No.191/1993 and Title Appeal No.1/2000. Consequently, the suit was decreed in favour of the plaintiffs/respondents herein.
6. Thereupon an appeal was preferred before the Court of the District Judge, Karimganj which was registered and numbered as Title Appeal No.9/2007. The said appeal was dismissed vide the judgment and decree dated 24.05.2007 thereby confirming to the findings of the judgment and decree passed by the trial Court on 31.08.2004.
7. Being aggrieved and dissatisfied, the predecessor in interest of the petitioners preferred a revision application before this Court which was registered and numbered as CRP 389/2007. The said application was also dismissed by the judgment and order dated 14.07.2015 thereby permitting the petitioner therein a period of four months time to vacate the suit premises.
8. In spite of the judgment passed by this Court on 14.07.2015 granting a period of four months to the predecessor-in-interest of the petitioners herein to vacate the suit premises, the judgment debtor did not do so. Consequently the respondents herein as decree holders filed an application for execution of the decree dated 31.08.2004 which was registered and numbered as Title Execution case No.11/2016.
9. In the said execution proceedings an application was filed under section 47 CPC by the petitioners as judgment debtors contending that the decree passed in Title Suit No.191/1993 which been confirmed in Title Appeal No.1/2000 and thereafter affirmed by this Court in RSA Page No.# 6/8 No.133/2003 has been fraudulently obtained without impleading one of the legal heirs of the late Raghu Nath Rabi Das. It has been further alleged in the said application that the decree passed in the instant suit would not have been passed in favour of the plaintiffs/ decree holders if the said decree passed in Title Suit No.191/1993 had not been fraudulently obtained. The respondents herein filed a written objection challenging the maintainability of the said application which was registered as Misc Case No.252/2017 under section 47 CPC as well as also denying to the statements and allegations made therein.
10. The Executing Court vide an order dated 20.11.2019 rejected the said application on the ground that the executing court cannot go behind the decree and the questions raised by the judgment debtors relating to forgery of signature and fraud by suppression of certain facts by the decree holder cannot be looked into by the executing court in exercise of the jurisdiction under section 47 CPC and consequently dismissed the application under section 47 CPC. Thereupon, an application was filed again by the petitioners herein before the executing court stating inter alia that till the disposal of CRP 18/2020 pending before this Court the proceedings of the Title Execution case No.11/2016 ought to be stayed. The Executing Court vide an order dated 29.02.2020 rejected the said application and thereby issued writ of possession fixing 20.03.2020 for Nazis cost. It is against the said orders dated 20.11.2019 and 29.02.2020 the petitioner has approached this Court under Article 227 of the Constitution of India. Taking into consideration that the application under Section 47 CPC if allowed would have finally disposed of the execution proceedings as such this proceeding under Article 227 of the Constitution of India is converted to a proceeding under Section 115 of the CPC.
11. I have heard the learned counsel for the parties at length.
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12. From a perusal of the application under section 47 CPC it reveals that the judgment debtors/applicants of the application under section 47 CPC had not challenged the decree passed in Title Suit No.273/1990 or the affirmation in Title Appeal No.9/2007 and subsequently the confirmation in CRP No.389/2007 as a nullity. What the petitioners herein have tried to canvass in the said proceeding is the decree passed in Title Suit No.191/1993 which have been affirmed in Title Appeal No.1/2020 and subsequently confirmed with modification in RSA No.133/2003 had been fraudulently obtained. Under such circumstances, the application under Section 47 CPC was nothing but an attempt or a bogey adopted by the judgment debtors to delay the execution proceeding and thereby deprive the decree holders of the fruits of the decree. It is also relevant herein to take note of that the stand taken by the predecessor-in-interest of the petitioners in his written statement that he was a tenant and there was no claim whatsoever made as regards any sale deed executed in favour of the predecessor-in-interest of the petitioner before the trial Court.
13. It is well established principle of law that the executing court cannot go behind the decree and its limited jurisdiction is only to decide on the question of discharge, satisfaction and/or execution of the decree unless and until the said decree had been held by a competent court of jurisdiction to be a nullity. Under such circumstances no interference is called for in exercise of the revisional jurisdiction of this Court as the orders impugned in the instant proceedings do not suffer from any error of jurisdiction or there has been any illegality or material irregularity in exercise of the jurisdiction by the Court below. Consequently the instant petition stands dismissed.
14. The respondent Nos.1 and 2 have filed an affidavit before this court Page No.# 8/8 on 23.12.2021 bringing to the notice of this Court that even after the decree has been passed and affirmed by this Court, the petitioners are still withholding to the suit premises thereby disentitling the respondent Nos.1 and 2 to the use of the suit premises for which the respondents i.e., the decree holders are entitled to compensation.
15. I have perused the said affidavit and I am of the opinion that it would be in the interest of justice that the decree holders may, if advised file an application before the Executing Court claiming mense profit for the illegal occupation of the suit premises beyond the period after the confirmation of the decree by this Court on 18.04.2015 and the petitioners herein who are the judgment debtors shall be entitled to file written objection and the Executing Court may also decide that aspect of the matter within the purview of section 47 CPC.
16. With the above observations the petition stands dismissed. However, no costs.
JUDGE Smita