Calcutta High Court (Appellete Side)
Mrs. Saroj Thakar vs Central Arya Road Transport And Another on 16 January, 2019
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
C.O. No. 4064 of 2018
Mrs. Saroj Thakar
Vs.
Central Arya Road Transport and another
For the petitioner : Mr. Saptangshu Basu,
Mr. Debasish Roy,
Mr. Arup Banerjee,
Mr. Kaushik Dey
For the opposite party no.1 : Mr. Saktinath Mukherjee,
Mr. Abhrajit Mitra,
Mr. Chayan Gupta
Hearing concluded on : 02.01.2019
Judgment on : 16.01.2019
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Sabyasachi Bhattacharyya, J.:‐
1. The brief facts of the case are as follows:
2. The petitioner and the proforma opposite party no. 2, being decree‐holders, obtained
an eviction decree against the judgment‐debtor/opposite party no. 1 on August 18, 2010.
3. Execution was levied, giving rise to Title Execution Case No. 183 of 2010. In the said
proceeding, the Court bailiff handed over possession of the decretal property to the decree‐
holders on March 29, 2011.
4. Allegedly, on April 5, 2011, the judgment‐debtor re‐entered the suit premises.
5. On July 4, 2014, an application under Section 47 of the Code of Civil Procedure
(Miscellaneous Case No. 431 of 2011), filed by the judgment‐debtor, was dismissed. Meanwhile,
the judgment‐debtor had preferred an appeal, bearing F.A. No. 3 of 2015, against the eviction
decree which was dismissed by a division bench of this Court on March 23, 2017, in presence of
both sides. It was observed in the said judgment of the division bench:
"....... Thus we affirm the findings of the learned Trial Court and maintain the decree for
eviction passed by the learned Trial Court with this modification that the defendant/appellant is given
two months time to vacate the suit premises and to deliver vacant and peaceful possession thereof to the
plaintiffs/respondents; subject to payment of occupational charges as per the earlier direction of this Court
directly to the plaintiffs/respondents, in default, the plaintiffs/respondents will be entitled to recover 3 vacant possession of the suit premises from the defendant through the process of execution in accordance with law.
Before parting with, we like to mention here that certain amount of money was directed to be deposited by the defendant/appellant with the learned Registrar General of this Court towards occupational charges and in addition thereto, the defendant/appellant was also directed to pay certain amount of money directly to the plaintiffs/respondents and deposit certain amount of money with learned Registrar General of this Court towards occupational charges of the suit premises per month. The defendant/appellant has complied with the said directions of the Court and deposited the amount which he was required to deposit in terms of the order of the Court. He has also paid the monthly payment to the plaintiffs/respondents as per the direction of the Court. He has also deposited the periodical payments in court as per the Court's order.
Having regard to the fact that the defendant/appellant has enjoyed the stay order and the deposits and/or payments were also directed to be made by the defendant/appellant as a condition for enjoying the benefit of the said Stay order, we hold that the plaintiffs/respondents are entitled to receive the deposited amount together with the interest accrued thereon in addition to the payments made to the plaintiffs/respondent as the defendant/appellant has failed to succeed in this appeal.
We permit the plaintiffs/respondents to withdraw the entire deposited amount together with interest accrued thereon.
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The learned Registrar General of this court is, thus, directed to pay the said deposited amount together with interest accrued thereon to the plaintiffs/respondents subject to the compliance of necessary formalities by the plaintiffs/respondents in this regard.
The appeal is, thus, dismissed. ............"
6. It is relevant to mention that although possession was handed over in favour of decree‐holders, the execution case was not dropped on recording satisfaction of the decree.
7. On June 23, 2017, the decree‐holders filed an application for proceeding with the execution case by issuing writ of possession. On December 19, 1997, the decree‐holders filed their affidavit of evidence in connection with the execution case as well as an application under Rule 208 of the Civil Rules and Orders framed by this Court, alleging that on April 5, 2011 the judgment‐debtor all on a sudden came to the suit property and forcibly entered the same by dispossessing the decree‐holders, and praying for police assistance for execution of the decree through the Court bailiff.
8. On January 6, 2018, the judgment‐debtor/opposite party no. 1 filed an application praying for dismissal of the execution case on the ground that the decree stood satisfied fully since the decree‐holders recorded possession of the suit property in execution of decree and a copy of the bailiff's report dated March 29, 2011 was on record.
9. The executing court, vide order dated September 13, 2018, allowed the maintainability application and held that the applications filed by the decree‐holders for issuing writ of possession and police help were not maintainable.
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10. Challenging the said order dated September 13, 2018, learned senior counsel appearing for the petitioner argues that the premise on which the impugned order was passed was that a second execution case was not maintainable in view of the first execution case having reached its culmination by satisfaction of the decree. However, in the present case, the original execution case has all along been pending and was never dropped upon recording satisfaction of the decree. As such, the applications‐in‐question had been filed by the decree‐holders not in the form of a second execution case but in a continuing execution proceeding.
11. It is further submitted on behalf of the petitioner that the order of the division bench, disposing of the first appeal, was passed much after re‐entry of the judgment‐debtor to the suit premises. As such, the subsequent applications were filed for issuance of writ of possession and police help to give effect to the order of the division bench. It is argued, that, in fact, the judgment‐debtor all along participated in the first appeal and had conceded to the position that he was in possession of the decretal property and had been paying occupation charges imposed as condition of stay of execution of the eviction decree by the division bench, thereby admitting that the execution was still pending. Since the judgment‐debtor acquiesced to the factual position that stay of execution had been granted, it does not now lie in the mouth of the judgment‐debtor to challenge the maintainability of such execution proceeding.
12. The petitioner, in this context, cites a judgment of a co‐ordinate bench of this Court, reported at 2012 (1) CLJ (Cal) 619 [Shri Suraj Rajak @ Dhobi & Ors. Vs. Sri Jambulal Dhobi & Anr.], wherein it was held that even the second and third application by the decree‐holder under Order XXI Rule 97 of the Code of Civil Procedure was not barred by limitation and the 6 principles of res judicata. It was held that, when forcible possession was taken after the disposal of the execution application on full satisfaction, the decree‐holders need not file a separate suit and they can file an application for revival of the execution application under the said circumstances.
13. Learned senior counsel for the petitioner further submits that the order of the division bench of this Court, recording that in default of payment of occupation charges, the plaintiffs/respondents would be entitled to recover vacant possession of the suit premises from the defendant through the process of execution in accordance with law, had conferred validity to the right of decree‐holders to revive the execution proceedings and have the judgment‐debtor removed despite the previous re‐entry of the decree‐holder.
14. It is further pointed out that a subsequent attempt to review the judgment of the division bench on the part of the judgment‐debtor had met with failure, as reflected from the order of the division bench dated August 11, 2017, passed in RVW 139 of 2017, arising out of F.A. No. 3 of 2015.
15. Learned senior counsel appearing for the judgment‐debtor opposite party no. 1, on the other hand, submitted that once the decree was satisfied by handing over of possession by the Court bailiff in favour of the decree‐holders, which is an admitted position, the Executing Court becomes functus officio and has no power to grant a second execution of the same decree. It is indicated by learned senior counsel that several other remedies are open to the decree‐ holders, such as Section 145 of the Code of Criminal Procedure, Section 6 of the Specific Relief 7 Act and as embodied in Article 136 of the Limitation Act. However, levying a second execution case for the same decree is impermissible in law.
16. In support of such proposition, learned senior counsel cites a judgment of a co‐ ordinate bench of this Court reported at (2015) 3 CHN 367 [Turner Morrison & Co. Ltd. vs. Prakash Bakshi] , wherein it was held inter alia that once a decree stands satisfied, the executing court loses its jurisdiction.
17. Learned senior counsel next cites a judgment reported at (2013) 2 CHN 41 [Smt. Radha Rani Basak vs. Smt. Niva Alias Sankari Bose & Ors.]¸ wherein the same proposition was reiterated.
18. Learned senior counsel next cites a judgment reported at AIR 1961 SC 137 [Shew Bux Mohata and another vs. Bengal Breweries Ltd and others], wherein it was held that once a decree is fully satisfied, it cannot again be executed. In the said reported judgment, it was held that under Order XXI Rule 35 a person in possession and bound by the decree has to be removed only if necessary, that is to say, if necessary to give the decree‐holder the possession he is entitled to and asks for. But it was held to be open to the decree‐holder to accept delivery of possession under that Rule without actual removal of the person in possession. If he does that, then he cannot later say that he has not been given that possession to which he was entitled under the law. 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 defendant, they are bound to the position that the decree has been fully executed and cannot be executed anymore.
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19. In the aforesaid judgment, the Supreme Court relied on a division bench judgment of this Court reported at AIR 1931 Cal 427 [Jagadish Nath Roy vs. Najar Chandra Paramanik and others]. In the said judgment it was held that the second application for execution was not maintainable and the remedy of the decree‐holder, if any, lies in a suit properly constituted for the purpose, when the decree‐holder received possession in execution of the decree.
20. It was held in the said judgment that the decision of the Calcutta High Court had uniformly laid down that where symbolical possession had been erroneously delivered to a decree‐holder as against the judgment‐debtor, the decree providing for actual and not symbolical possession, such delivery of possession was not a nullity but operated as actual possession as against the latter and his representatives and that from this point of view a suit for actual possession against the judgment‐debtor must be instituted within twelve years from the date of symbolical possession. It was also held that the said decisions did not mean that a decree‐holder to whom the peon erroneously delivered symbolical possession could not refuse to take such possession and stands upon his rights to get the kind of possession that the decree has entitled him to.
21. Learned senior counsel for the judgment‐debtor/opposite party no. 1 next places reliance on the language of Order XXI Rule 11 of the Code of Civil Procedure. By placing particular reliance on Sub‐Rule (2), clause (f) thereof, it is argued that the written application for execution has to contain the information as to whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results. Continuing with such argument, learned counsel for the opposite party no. 1 9 places Form No. 6 of Appendix E of the Code of Civil Procedure, which also contains the similar provision.
22. It is thus argued that the decree‐holder has to mandatorily disclose whether there has been any previous application had been filed for execution of the decree, implying thereby that a second application for execution does not lie.
23. It is thus argued that the executing court was justified in holding the applications of the decree‐holders, for issuance of writ of possession and police help, to be not maintainable.
24. Upon hearing both sides, it is evident that the order of the division bench of this Court, passed in F.A. No. 3 of 2015, assumes significance in the matter. On the day on which the said appeal was disposed of, that is, March 23, 2017, the judgment‐debtor/opposite party no. 1 had already re‐entered the suit premises after being dispossessed once pursuant to the decree of the Trial Court. The judgment of the division bench reflects that both sides were represented and two months' time was given to the judgment‐debtor to vacate the suit premises and to deliver vacant and peaceful possession thereof to the decree‐holders, subject to payment of occupation charges. It was specifically recorded in the said judgment that in default of payment of occupation charges, the plaintiffs/respondents would be entitled to recover vacant possession of the suit premises from the defendant through the process of execution in accordance with law.
25. It was also recorded that the judgment‐debtor had complied with the previous directions of the Court and deposited certain amounts as condition of grant of stay of execution 10 of the proceeding, thereby impliedly admitting that there was a subsisting execution case which was required to be stayed for the judgment‐debtor to remain in possession. As such, if not otherwise, the decree‐holders, in any event, are liable by virtue of the judgment and decree of the division bench to vacate possession of the decretal premises upon expiry of the two months granted to them from March 23, 2017. Such liability of the judgment‐debtor translates directly to a right of the decree‐holders to obtain such possession and clothes the decree‐holders with right to prosecute the pending execution case which was stayed till then by the division bench. The judgment‐debtor, having acquiesced to such position, cannot revert back and seek the umbrage of legal propositions to retain its illegal possession in respect of the suit premises.
26. None of the judgments, relied on by the judgment‐debtor, was passed in such a factual context but laid down the general proposition of law in that regard. As such the said judgments are ex facie distinguishable on such score alone and are not applicable to the present circumstances.
27. Another aspect which has to be looked into is the existence of Order XXI Rules 97 and 98 of the Code of Civil Procedure, chronologically subsequent to Rule 35 of Order XXI of the Code.
28. While Rule 35 provides that possession of an immovable property shall be delivered to the decree‐holder, if necessary, by removing any person bound by the decree who refuses to vacate the property, Rule 97 contemplates that a decree‐holder is resisted or obstructed by 'any person' in obtaining possession of the property, the decree‐holder may make an application to the Court complaining of such resistance or obstruction.
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29. Rule 98 to Order XXI envisages that the Court will make an order allowing the application and directing that the decree‐holder be put into the possession of the property or dismiss the application or pass any other order which it may deem fit. The additional factor of a third‐party having raised any question under Rule 101 of Order XXI, which is also contemplated in Rule 98, does not arise in the present case.
30. As such, it is seen that Rule 97 also contemplates handing over of possession in favour of the decree‐holder 'against any person' which expression includes a judgment‐debtor as well.
31. Such a provision would be superfluous if it is held that execution of an eviction decree can be only undertaken within the periphery of Rule 35 of Order XXI, since otherwise Rule 99 of Order XXI, encompassing the rights of third party-judgment resistor, would be sufficient, coupled with Rule 100, and Rules 97 and 98 would be rendered redundant and superfluous.
32. It is basic law that, while interpreting a statute, the Court cannot proceed on a premise that legislature used superfluous words. It has to be presumed that all the expressions used in a statute have some meaning. In such context, a harmonious construction of the operation of Rule 35 and Rule 97 of Order XXI, in so far as the latter relates to judgment‐debtors, indicates unerringly that even at a stage subsequent to delivery of possession under Rule 35, the executing court is not powerless to hand over possession of the decretal property to the decree‐ holders.
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33. The judgments cited on behalf of the judgment‐debtor did not take this aspect of the matter into consideration and as such cannot be said to have laid down any proposition thereon or contrary thereto.
34. Another special feature of the present case is that, the execution case was never dropped and the Executing Court did not, at any point of time, record the satisfaction of the decree in specific terms, although the bailiff had filed its report.
35. Such a factual position, coupled with the judgment of the division bench passed in F.A. No. 3 of 2015, give rise to the presumption that the execution case itself was very much alive and there does not arise any question of any second execution case being filed.
36. Another aspect of the matter, which skipped the notice of the executing court while passing the impugned order, is that an appeal is a continuation of a suit and the Trial Court's decree is always at jeopardy during pendency of an appeal against the same, since the matter remains sub judice till the appellate court takes its final decision.
37. Even if the trial court's decree is affirmed by the appellate court, the former merges with the appellate court's decree and finally attains culmination only upon the appellate court passing its decree.
38. As such, it is a valid proposition of law that a decree remains alive to be executed till the final Court of appeal passes a judgment on the same.
39. The issue at hand ought to be viewed from another perspective as well. Even when a judgment debtor is evicted by due process of law pursuant to an eviction decree passed by the 13 trial court, Section 144 of the Code of Civil Procedure provides for the possession of the said judgment debtor to be restored if the decree of the trial court is set aside in appeal or even a review. Such provision is based on the doctrine of merger, by virtue of which it is deemed that the trial court's decree is merged with the final decree passed by the appellate court.
It would be absurd to assume that when a judgment debtor can take advantage of the said principle, the decree holder cannot, even when the decree holder gets possession pursuant to the trial court's decree but is thereafter dispossessed unlawfully by the judgment debtor again, thereby nullifying the effect of the said decree, even if such decree finally merges, albeit by affirmance, with the final decree of the appellate court upholding such eviction.
Such an inequality between the judgment debtor, who succeeds only in the final court, and a decree holder, who succeeds in both courts, could not be in consonance with principles of natural justice and equality, as well as rights to life and property, as enshrined in the Constitution of India.
40. In the present case, the only execution case which was filed remained pending, disposal of the first appeal and even after its re‐entry, the judgment‐debtor acquiesced to the factual and legal position that the execution was pending, by depositing occupation charges pursuant to the stay order passed by the Appellate Court and acceding to the final judgment in the appeal, granting the judgment‐debtor two months' time to vacate the decretal premises.
41. In the event a pedantic approach is adopted and it is held that the judgment‐debtor will have to file a separate suit to get the decree executed, it will tantamount to flouting the 14 specific direction of the division bench and would be equivalent to a contempt of court. This court cannot give a premium to such an interpretation and it is obvious that the executing court refused to exercise jurisdiction vested in it by law in holding the applications of the decree‐ holders, for implementing the eviction decree, to be not maintainable.
42. Accordingly, the impugned order cannot be sustained.
43. Hence, C.O. No. 4064 of 2018 is allowed, thereby setting aside the impugned order and directing the executing court to dispose of the applications filed by the decree‐holders (the present petitioner and proforma opposite party no. 2) respectively for issuance of writ of delivery of possession and for police help to implement the eviction decree, after re‐hearing those in presence of both sides, within one month from the date of communication of this order to the executing court.
44. There will be no order as to costs.
45. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
( Sabyasachi Bhattacharyya, J. )