Calcutta High Court
Sm. Lila Mukul Biswas vs Dilip Kumar Biswas & Ors on 20 January, 2021
Author: Debangsu Basak
Bench: Debangsu Basak
1 IA No. GA 5 of 2020 (Old No. GA 423 of 2020) In CS 227 of 1974 With IA No. GA 3 of 2018 (Old No. GA 3463 of 2018) In CS 227 of 1974 With IA No. GA 2 of 2018 (Old No. GA 2821 of 2018) In CS 227 of 1974 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction Original Side SM. LILA MUKUL BISWAS Vs. DILIP KUMAR BISWAS & ORS.
For the Intervenors : Mr. Mainak Bose, Advocate Mr. Meghnad Dutta, Advocate Mr. S. Rudra, Advocate For the Decree holder : Mr. S.N. Mitra, Sr. Advocate Mr. Rajarshi Dutta, Advocate Ms. Madhumita Das, Advocate Ms. Neha Mishra, Advocate Hearing concluded on : January 20, 2021 Judgment on : January 20, 2021 DEBANGSU BASAK, J. :-
Three applications are taken up for analogous hearing as they are in respect of an execution of the same decree.2
In the order of time, IA No.GA/2/2018 is first in point of time and is at the behest of the decree-holder. IA No.GA/3/2018 and IA No.GA/5/2020 are at the behest of persons seeking to intervene in the execution proceedings.
Since the persons seeking to intervene in the execution proceedings raise a point of executability of the decree, learned advocate appearing in support of such application is permitted to address the Court first.
Learned advocate appearing for the intervenors submits that his client are in settled possession. He submits that a person in settled possession cannot be evicted without the due process of law. In support of such contention, he relies upon (2012) 5 SCC 370 (MARIA MARGARIDA SEQUEIRA FERNANDES AND OTHERS VS. ER ASMO JACK DE SEQUEIRA (DEAD) THROUGH LRS.) He draws the attention of the Court to the plaint of the suit and the prayers made therein. He submits that the mother filed a suit against the son seeking declaration. He submits that, the predecessor of the intervenors subscribed his signature on the plaint. Since the intervenors are in settled possession, allowing the execution of the decree will mean dispossession of the intervenor. He submits that the decree contemplates raising of a wall in the middle of a room in possession of the intervenor. In the event such 3 wall is raised, the intervenor will be evicted from such property. Therefore, such decree cannot be executed to such extent as against the intervenors.
Learned senior advocate appearing for the decree-holder submits that, the intervenors were aware of the suit as will appear from the endorsement of the predecessor-in-interest of the intervenors in the plaint. He submits that, the intervenors are not claiming a better, higher or an independent title to that of any of the parties bound by the decree. In fact, according to him, the intervenors are claiming title through one of the parties to the suit. He submits that, the execution proceeding is a due process of law. In this proceeding, the intervenors applied for adjudicating their right, title and interest in respect of the property concerned. He draws the attention of the Court to such application and submits that the intervenors failed to produce any document establishing any semblance of title in respect of the immovable property. He relies upon (2003) 10 SCC 449 (H. SESHADRI VS. K.R. NATARAJAN AND ANOTHER) and submits that, a person claiming through or under a judgment-debtor can be dispossessed in the execution of a decree passed against the judgment-debtor. 4
In June, 1974, a suit being CS No.227 of 1974 (Lila Mukul Biswas vs. Dilip Kumar Biswas) was instituted for a declaration that a deed of disclaimer and release and deed of rectification respectively dated December 3, 1971 and February 15, 1972 were not binding upon the plaintiff and were null and void.
A compromise was entered into between the parties to the suit. A decree dated September 9, 1977 was passed. In terms of such decree, the defendant nos.1 and 6 were allotted and demarcated western portion of premises no.23, Kartick Bose Street, Kolkata - 700 009. Such allotment is delineated in the plan annexed to the family settlement. The decree contemplates separation of the allotments by metes and bounds. The decree was put into execution by the defendant no.3. By an order dated August 19, 1987, a Receiver was appointed. Since the Receiver was not taking steps, the defendant no.6 took out an application being GA No.2870 of 2014 praying for discharge of the Receiver and appointment of a new Receiver for the purpose of implementing the decree.
In such application, by an order dated December 18, 2014, the earlier Receiver was discharged and a new Receiver was appointed. The new Receiver was permitted to appoint an engineer/valuer. 5
A meeting was convened by the incoming Receiver. The Receiver took step for the purpose of execution of the decree. Various steps were taken for the purpose of preparing a plan in accordance with the decree. Ultimately, a plan was prepared. The parties obtained sanction of the plan for partition from Kolkata Municipal Corporation. The parties started bearing the municipal taxes in respect of the portion allotted to them in terms of the decree. When the parties started implementing the decree by making a construction in accordance with sanctioned plan, the intervenors herein started objecting which necessitated the defendant no. 6 to approach the Court by way of the first application.
The intervenors are not parties to the decree or the suit in which the decree was passed. The intervenors claim that the intervenors were put into possession by the predecessor in interest of the parties to the suit.
As will appear from the endorsement in the plaint the predecessor in interest of the intervenors was aware of the suit. The predecessor in interest admittedly subscribed his signature on the plaint of the suit.
The intervenors are yet to establish by any evidence that the intervenors have any independent right, title and interest in respect of the immovable property concerned. There is a letter of revocation of the 6 licence granted in favour of the intervenors. It is true that there is no suit for eviction pending as against the intervenors. These facts do not transmute the lack of title of the intervenors in the property as one of right, title and interest of any nature over and in respect of the same property.
Maria Margarida Sequeira Fernandes (supra) is of the view that a person in possession should not be evicted other than the due process of law. In the facts of the present case, there is an application for execution. There are two applications at the behest of the intervenors. In one of them the intervenors invited the Court to adjudicate upon the right, title and interest of the intervenors.
As noted herein, the intervenors may be in possession, they however are not in a position to establish that they have a right, title and interest which is independent of or higher than or contrary to the right, title and interest of the parties to the suit.
In H. Seshadri (supra) the Supreme Court is of the view that, for the purpose of considering an application under Order 21 Rule 99 of the Code of Civil Procedure, 1908 what is required to be considered is whether the intervenors claimed a right independent of the judgment- 7 debtor or not. Only a person claiming through or under the judgment- debtor may be dispossessed in execution of the decree passed against the judgment-debtor but not in possession of the premises in question in his own independent right or otherwise.
In the facts of the present case, I am not in a position to return a finding that the intervenors are in possession of the property on a right which is independent of the decree-holder.
In such circumstances, I find no merit in the two applications of the intervenors. IA GA 3 of 2018 and IA GA 2 of 2018 are dismissed accordingly.
There will be orders in terms of prayers (b), (c) and (d) of the Master's Summons dated September 25, 2018. IA No. GA 5 of 2020 is allowed to such extent.
Prayer for stay on behalf of the intervenors is considered and refused.
(DEBANGSU BASAK, J.) B.Pal/TR