Calcutta High Court (Appellete Side)
Radheshyam Jadav vs Sri Bisswajit Basu & Ors on 20 December, 2013
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE C.O. No. 3490 of 2013 Present :
The Hon'ble Mr. Justice Prasenjit Mandal Radheshyam Jadav.
Versus Sri Bisswajit Basu & Ors.
For the petitioner: Mr. S.P. Roychowdhury,
Mr. Tapas Mukherjee,
Mr. Dipanjan Sinha Roy,
Mr. Amitava Chatterjee.
For the opposite parties: Mr. Mohendra Prasad Gupta, Mr. Abhishek Banerjee, Mr. Sanjib Das.
Heard On: 09.12.2013.
Judgement On: December 20, 2013.
Prasenjit Mandal, J.: Challenge is to the Order No.184 dated September 17, 2013 passed by the learned Civil Judge (Junior Division), 2nd Court, Howrah in Title Execution Case No.05 of 2000 arising out of Title Suit No.338 of 1967 thereby rejecting an application under Section 151 of the C.P.C.
The predecessors-in-interest of the opposite parties herein, namely, one Mamata Basu, since deceased, filed a suit for eviction being Title Suit No.338 of 1967 against one Ekbali Roy before the learned Trial Judge and the said suit was decreed in favour of the plaintiff on March 26, 1968. Thereafter, several proceedings such as one under Section 9 Rule 13 of the C.P.C., other title suit and an appeal therefrom were held and the said matter attained finality. Thereafter, on July 20, 2000 the decree-holder namely, Mamata Basu filed an execution application being Execution Case No.05 of 2000 for execution of the said decree against the judgement debtors namely, Radhika Devi & Lalita Devi. Accordingly, writ of delivery of possession was issued, but, the execution of the writ of delivery of possession was resisted and as such, the decree-holder filed an application under Order 21 Rule 97 of the C.P.C. for police help and the said application had been converted into the misc. case being Misc. Case No.30 of 2004.
The petitioner being a stranger to the decree, filed an application under Order 21 Rules 97, 98 & 101 of the C.P.C. on September 16, 2006 and the said application had been registered as Misc. Case No.37 of 2006, claiming independent right over the suit property. Several steps or proceedings were taken with the said misc. case including substitution. The decree-holder also filed an application for breaking open the padlock of the suit premises and that prayer was allowed on August 31, 2013. Thereafter, the petitioner filed an application for stay of the execution case being Title Execution Case No.05 of 2000. The learned Trial Judge has rejected that application under Section 151 of the C.P.C. by the impugned order. Being aggrieved, this application has been preferred.
Now, the question is whether the impugned order should be sustained.
Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the facts as recorded above are correct and so, the possession of the petitioner with regard to the suit property is nothing, but, a stranger and when the decree was going to be executed after exhaust of all the possible ways, the third party came up with an application under Order 21 Rule 97, 98 & 101 of the C.P.C. for stay of the execution of the decree.
Reiterating the contentions as raised in the list of dates and in the application filed by the petitioner, Mr. S.P. Roychowdhury, learned Senior Advocate appearing for the petitioner has contended that the petitioner is in possession of the suit property and so any question of right, title and interest in respect of the suit property is to be decided in the proceeding under Order 21 Rules 97, 98 & 101 of the C.P.C. and not by an independent suit and such a recourse was adopted by the petitioner herein. So, unless a stay is granted, it will be meaningless to proceed with the execution case on behalf of the petitioner and he would be highly prejudiced. He has also contended that decree-holder filed a suit being Title Suit No.250 of 2009 for declaration and permanent injunction against the judgment debtors and the relief of declaration is to the effect that the plaintiff is the owner of the suit property, in view of the fact that, the Para 2 of the plaint, the plaintiff has admitted that the suit property is occupied by trespassers and as such the execution of the decree in Title Execution Case No.05 of 2000 should be stayed till the disposal of the Title Suit No.250 of 2009. Thus, Mr. Roychowdhury has contended that the impugned order should be set aside and the prayer for stay should be granted till the disposal of the Title Suit No.250 of 2009.
On the other hand, Mr. Mohendra Prasad Gupta, learned Advocate appearing for the decree-holder/opposite parties herein has vehemently raised objection to such contentions and he has contended that in the misc. case being Misc. Case No.37 of 2006 filed by the stranger, several steps were taken by the stranger to delay the disposal of the said Misc. Case No.37 of 2006. But, ultimately, the said misc. case had already abated by the order no.160 dated February 18, 2012 after rejection of the application under Order 22 Rule 4 of the C.P.C. along with an application under Section 5 of the Limitation Act. Thereafter, several opportunities were given to the stranger to take appropriate steps to set aside the abatement, but, in spite of several chances, the petitioner herein did not take any steps deliberately and as such the said misc. case had been dropped for non- compliance of the Court's order. Thereafter, all of a sudden, on September 16, 2013 the application in question under Section 151 of the C.P.C. for stay of the execution case was filed and the said application has been rightly rejected by the impugned order.
Having due regard to the submissions of the learned Advocates of both the sides and on perusal of the materials on record, I am of the opinion that this case is an instance as to how the decree obtained on March 26, 1968 could be flouted.
It is pertinent to mention here that no appeal was preferred against the said decree, but, several other steps had been taken as indicated earlier and after over of all such proceedings, the execution case being Title Execution Case No.05 of 2000 was filed and the writ of delivery of possession was resisted when the bailiff went to execute the said writ.
Mr. Gupta has referred to the decision of P. Janardhana Rao v. Kannan & Ors. reported in (2004) 11 SCC 511 particularly Paragraph nos. 8 & 9 and thus, he has contended that an adjudication before the learned Executing Court on the right, title and interest in respect of the suit property is to be done by way of the steps under Order 21 Rules 97, 98 & 101 of the C.P.C. as taken. An adjudication under the provisions of Order 21 Rules 97, 98 & 101 of the C.P.C. is a sine qua non for a finality of the adjudication of the right, title or interest in the immovable property under execution.
He has next referred to the decision of Usha Sinha v. Dina Ram & Ors. reported in (2007) 7 SCC 144 and thus, he has contended that when the obstruction by a purchaser is made, the doctrine of lis pendens under Section 52 of the Transfer of Property Act would govern. If unfair, inequitable or undeserved protection is afforded to a transferee pendente lite, a decree-holder will never be able to realise the fruits of his decree.
Mr. Gupta has also referred to the decision of Bhaskaran v. Sheela reported in (2008) 17 SCC 1 and thus, he has contended that the language of Rule 104 is clear and unambiguous that any order made under Rules 101 & 103 of Order 21 would be subject to the result of a suit pending on the date of commencement of the proceeding in which such order was made, but, if any suit is filed after institution of the execution case, the provisions of Rule 104 of Order 21 of the C.P.C. will not apply.
In consideration of the above facts and situation and the fact that, the Misc. Case No.37 of 2006 has already abated and no steps have been taken by the petitioner for setting aside the abatement and the decisions referred to above advanced by Mr. Gupta, I am of the view that after abatement of the Misc. Case No.37 of 2006, there is no bar at present to execute the decree for recovery of possession and other reliefs passed in the year 1968. The pendency of the suit being Title Suit No.250 of 2009 will not favour the petitioner and it shall be disposed of in accordance with law and if, ultimately the stranger/petitioner herein gets any favourable order, there is a recourse to get the appropriate relief under the provisions of Section 144 of the C.P.C. In my view, at present, there is no bar to execute the decree in the Title Execution Case No.05 of 2000.
I have already recorded under what circumstances the petitioner has prayed for stay of the execution case, i.e., only at the stage of execution of the decree with the help of police after breaking the padlock of the suit property. So, the attempt of the petitioner is nothing, but, to frustrate the decree-holder to get the fruits of the decree obtained in 1968.
The pendency of the suit being Title Suit No.250 of 2009 will not be a bar for execution of the decree in Title Execution Case No.05 of 2000 in respect of the decree obtained in 1968 in view of the ratio of the decision of Bhaskaran (supra).
The learned Trial Judge has rejected the application under Section 151 of the C.P.C. observing, inter alia, that when a party has a remedy provided elsewhere in the code and he has neglected to avail himself of the same, the inherent powers under Section 151 of the C.P.C. cannot be exercised.
Besides the general observations as made by the learned Executing Court recorded in the above paragraph and the above observations made by this Bench, in my view, the learned Trial Judge has rightly rejected the application under Section 151 of the C.P.C. on contests.
Accordingly, this application is totally devoid of merits and it is nothing, but, an attempt to frustrate the decree obtained by the decree-holder in the year 1968. There is no scope of interference.
The application is, therefore, dismissed. Considering the circumstances, there will be no order as to costs.
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.)