Orissa High Court
Jaydev Panda @ Tripathy vs Dillip Kumar Panda .... Opp. Party on 4 September, 2019
Equivalent citations: AIRONLINE 2019 ORI 147, (2019) 203 ALLINDCAS 608 (2019) 2 CLR 1182 (ORI), (2019) 2 CLR 1182 (ORI)
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
CMP No.23 of 2018
In the matter of an application under Article 227 of the Constitution of
India.
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Jaydev Panda @ Tripathy .... Petitioner
Versus
Dillip Kumar Panda .... Opp. Party
For petitioner ... Dr.Ashok Kumar Mohapatra, Sr. Adv.
Mr.Anup Kumar Mohapatra, Adv.
For Opp. Party ... Mr. Sabita Ranjan Pattnaik, Adv.
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 28.08.2019 : Date of judgment: 04.09.2019
Dr. A.K.Rath, J This petition seeks to lacinate the order dated 15.12.2017 passed by the learned 1st Addl. Civil Judge (Senior Division), Cuttack in Execution Case No.10 of 1989, whereby the executing court accepted the affidavit dated 8.8.2017 filed by the D.Hr-opposite party with regard to the identification of the suit schedule property in accordance with the plaint, decree and rejected the petition filed by the J.Dr.-petitioner to drop the execution proceeding and directed the Amin Commissioner to help bailiff in delivering possession of the property to the D.Hr.
2. This case has a chequered history. The matter has travelled thrice to this Court and once to the apex Court. Bereft of unnecessary details, the short facts of the case are that one Baikuntha Nath Panda filed T.S No.48 of 1977 in the court of the 2 learned Subordinate Judge, Cuttack for declaration that the gift deed dated 18.12.1973 is void and permanent injunction. The suit was dismissed on 30.9.1980. Felt aggrieved, plaintiff filed T.A No.20 of 1981 before the learned District Judge, Cuttack. During pendency of the appeal, sole appellant died; whereafter his adopted son, respondent herein, was substituted. The appeal was allowed on 1.3.1985. The operative part of the judgment is quoted hereunder;
"It is hereby declared that the alleged deed of gift Ext.B dated 18.12.1973 is void, illegal and inoperative and defendant no.1-respondent no.1 had derived no title to the suit property and he is permanently restrained from interfering with the possession of the appellant (the present opposite party no.2 who was then represented by the opposite party no.1 as his father guardian) in respect of the same. The subsequent transfers made by the defendant no.1-respondnet no.1 in favour of defendant nos.3 to 7- respondent nos.3 to 7 are also invalid."
3. Thereafter, defendant no.1-petitioner filed S.A No.112 of 1985 before this Court. The second appeal having been dismissed, he filed SLP (Civil) No.21994 of 2004 before the apex Court, which was eventually dismissed. The D.Hr-opposite party levied Execution Case No.10 of 1989 for execution of the decree. While matter stood thus, D.Hr filed an application under Order 21 Rule 32(1) CPC for violation of the order of injunction. The J.Dr filed objection to the same. By order dated 16.1.1997, the executing court attached the property of the J.Dr. On 5.5.1997, the D.Hr filed a petition for recovery of possession of four rooms forcibly occupied by the J.Dr violating the order of injunction. The J.Dr filed an objection. On 10.9.1998, the executing court allowed the petition for recovery of possession. Assailing the order, the J.Dr filed Civil Revision No.111 of 1998 before the learned 2nd Addl. District Judge, Cuttack, which was dismissed on 19.9.2000. On 9.11.2000, the J.Dr filed a petition to drop the execution case on the ground that there was no prayer for 3 recovery of possession in the suit and as such, the D.Hr cannot take delivery possession of the property. The petition was dismissed on 26.3.2001. While matter stood thus, the J.Dr filed a petition under Sec.47 CPC, which was registered as CMA No.67 of 2004. The petition was dismissed on 31.8.2005. The J.Dr filed WPC No.12873 of 2005 before this Court. By judgment dated 5.4.2017, learned Single Judge dismissed the petition holding that the J.Dr is stopped to question the identity of the property covered under the gift deed to the suit land. Thereafter, the J.Dr took several adjournments and filed an objection to the execution proceeding. By order dated 22.7.2017, the executing court directed the D.Hr to produce the document for proper identification of the suit property. Pursuant to the said order, D.Hr filed an affidavit describing the identification of the suit property. Thereafter, the executing court issued the writ to the Amin Commissioner to cause delivery possession of the suit property to the D.Hr. Against the said order, J.Dr filed CMP No.972 of 2017 before this Court. By order dated 6.9.2017, this Court allowed the petition and remanded the matter to the executing court granting liberty to the J.Dr to file objection to the affidavit of the D.Hr. After remand, the executing court heard the matter in extenso and held that the writ schedule property, which is sought to be recovered, is a part of the suit property mentioned in the plaint. The suit property is described in the plaint in the sabik specification. The D.Hr in its affidavit dated 8.8.2017 has mentioned the corresponding hal and consolidation number of the khata and plot. In the application dated 5.9.1997 filed by the D.Hr, an order was passed allowing the recovery of possession in respect of the writ schedule property, which is a part and parcel of the suit schedule property. The writ schedule property sought to be executed as described in the 4 affidavit dated 8.8.2017 has been properly mentioned in the schedule of the application dated 5.5.1997. It further held that the writ schedule property has been properly described in the affidavit and the objection raised by the J.Dr is not supported by any documentary evidence. Accordingly, it accepted the affidavit filed by the D.Hr dated 8.8.2017, rejected the petition filed by the J.Dr to drop the execution proceeding and directed the Amin Commissioner to take police help and deliver possession of the writ schedule property to the D.Hr.
4. Heard Dr. Ashok Kumar Mohapatra, learned Senior Advocate along with Mr. Anup Kumar Mohapatra, learned counsel for the petitioner and Mr. Sabita Ranjan Pattnaik, learned counsel for the opposite party.
5. Criticising the order, Dr.Mohapatra, learned counsel for the petitioner submitted that the execution petition dated 27.3.1989 was filed prior to the amendment of the CPC (Act 22 of 2002). Prior to the amendment of the CPC, the simple decree for permanent injunction was not executable. The executing court cannot go beyond the decree. The suit property is not identifiable. The decree is not executable for lack of identification. The executing court de hors its jurisdiction in directing the D.Hr to file affidavit for proper identification of the suit property. In the execution petition, it is not stated that the D.Hr has been dispossessed. The description of the property in the execution case is contrary to the schedule of the plaint and the decree. The suit property mentioned in the affidavit filed by the D.Hr is contrary to the schedule of execution petition, plaint and decree. The executing court committed an illegality in accepting the affidavit filed by the D.Hr with regard to identification of the suit property, which is beyond the schedule of the plaint and 5 decree and contrary to the schedule of the execution case. He further submitted that the Amin Commissioner may be deputed for identification of the suit property and delivery possession. To buttress the submission, he placed reliance on the decisions of the apex Court in the case of M/s. Brakewel Automotive Components (India) Pvt. Ltd. V. P.R. Selvam Alagappan, AIR 2017 SC 1577 and this Court in the case of Fakira Pradhan v. Urdhaba Pradhan, ILR 1979 Cuttack 474, Rama Subudhi v. Bhagirathi, 53 (1982) CLT 78, Bisweswar Bhutia v. Udia Sthree, 76 (1993) CLT 913 and Sri Ghanashyam Pradhan v. Sri Ram Pratap Khenria, 2012 (II) CLR 898.
6. Per contra, Mr. Pattnaik, learned counsel for the opposite party submitted that after decree was passed, the D.Hr was forcibly dispossessed. The decree for permanent injunction is executable. He placed reliance on the decisions in the case of Satyawati v. Rajinder Singh, 2013 (II) CLR (SC) 238, M/s. Brakewel Automotive Components (India) Pvt. Ltd. V. P.R. Selvam Alagappan, AIR 2017 SC 1577, Ghanashyam Pradhan v. Ram Pratap Kheria, 2018 (I) ILR Cut 936 and Puspa Sharma v. Kitei Nayak (CMP No.1528 of 2017 disposed of on 8.4.2019).
7. The seminal question that hinges for consideration before this Court as to whether the suit schedule property is identifiable and the executing court is justified in directing the Amin Commissioner to help bailiff to deliver possession of the property to the D.Hr ?
8. There were divergent views of different High Courts including this Court as to whether the provision contained in Order 22 Rule 5 CPC applies to prohibitory decree or it is confined to mandatory direction. In Protap Chunder Doss v. Peary Chowdhrain, (1882) 8 Cal 174 and Kulada Kinkar Roy v. Danesh Mir, (1906) 33 6 Cal. 33, it was held that sub-rule (5) applies to prohibitory as well as mandatory injunctions. The contrary view was expressed in Gordhanlalji v. Maksudan Ballabh, 48 IC 26, Hem Chandra Naskar v. Narendra Nath Bose, AIR 1934 Cal. 402, Evuru Venkata Subbayya v. Srishti Veerayya, AIR 1969 AP 92 and Y. Lakshmaiah v. Esso Eastern Inc., AIR 1974 AP 32.
9. In Fakira Pradhan, this Court held that a decree for prohibitory injunction cannot be executed as provided for under Order 21, Rule 32(5), CPC and the mode of execution of such a decree is the one as laid down in Sub-rule (1) of the Rule.
10. The controversy has been set at rest by Amendment Act, 2002. The explanation inserted to by the Amendment Act, 2002 makes the legal position clear that sub-rule (5) of Order 32 applies to prohibitory as well as mandatory injunctions.
11. In Anant Gopal Sheorey v. The State of Bombay, AIR 1958 SC 915, the apex Court held that no person has a vested right in any course of procedure. A change in law of procedure operates retrospectively.
12. In Jose Da Costa v. Bascora Sadashiva Sinai Narcornin, AIR 1975 SC 1843, the apex Court held that while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment.
13. In K. Eapen Chako v. The Provident Investment Company (P) Ltd., AIR 1976 SC 2610, the apex Court held that if the legislature forms a new procedure alterations in the form of procedure are retrospective unless there is some good reason or other why they 7 should not be. In other words, if a statute deals merely with the procedure in an action, and does not affect the rights or the parties it will be held to apply prima facie to all actions, pending as well as future.
14. In the application under Sec.47 CPC, it is stated that the suit property is not identifiable. The D.Hr filed objection to the same. The executing court framed seven issues. Answering issue no.2 i.e. whether the specification of the scheduled property is ambiguous and is not in consonance with that of the property of plaint in T.S. No.48/77, it was held that D.Hr has proved Ext.K/1, which shows that the properties involved in the execution have been identified by him giving the necessary survey numbers and the properties have been properly described in the decree. It negatived the contention of the J.Dr that the specification of the schedule property is ambiguous and is not in consonance with the property described in the suit. The suit property is identifiable. The petition was dismissed. Assailing the said order, the J.Dr filed WPC No.12873 of 2005 before this Court. In an elaborate judgment, this Court held that the J.Dr is estopped to question the identity of the property covered under the deed of gift, which is the suit land and dismissed the application. The matter has attained finality. The question of identification of property cannot be raised again and again by the J.Dr. Thus the inevitable conclusion is that the suit property is identifiable.
15. In the plaint, the suit schedule property has been described as Sabik Khata No.507, Sabik Plot No.197, Ac.0.22.3 dec. Accordingly, decree was drawn up. The suit was instituted in the year 1977. Thereafter, Hal Settlement operation was started. Further, consolidation operation in the area, where the property falls, started. In the affidavit, the D.Hr has given the corresponding Hal Khata, 8 Plot, Consolidation Khata and Plot and the area admeasuring Ac.0.02 dec. 9 kadi out of Ac.0.22 dec. 3 kadi from which he has been dispossessed. No evidence was adduced by the D.Hr. Learned executing court has accepted the affidavit for limited purpose of finding and the corresponding Hal and consolidation khata number and plot number.
16. In Satyawati, the apex Court, reiterating the view of the Pricy Council, held that difficulties of a litigant in India begin when he has obtained a decree.
17. In M/s. Brakewel Automotive Components (India) Pvt. Ltd., the apex Court held that an executing court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardizing the rights of the parties thereunder. It is only in the limited cases where the decree is by a court lacking inherent jurisdiction or is a nullity that the same is rendered non est and is thus inexecutable. An erroneous decree cannot be equaled with one which is a nullity. There are no intervening developments as well as to render the decree inexecutable. Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof. The powers of the court thereunder are quite different and much narrower than those in appeal/revision or review. The exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole and an executing court can allow objection to the executabilty of the 9 decree if it is found that the same is void ab initio and is a nullity, apart from the ground that it is not capable of execution under the law, either because the same was passed in ignorance of such provision of law or the law was promulgated making a decree inexecutable after its passing.
18. Rama Subudhi is distinguishable on facts. In Rama Subudhi, the description of the land as given in the plaint, the decree and the execution petition was quite vague and uncertain. This Court held that in absence of sufficient particulars, it is difficult to fix up its identity. Where subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it. Since D.Hr claimed delivery of possession in respect of a portion of the plot, it is not open to the executing court to divide the plot and deliver possession of any specific portion.
19. In Bisweswar Bhutia, this Court held that an executing court is always to see that a decree passed by the court becomes executable. The executing court has got no jurisdiction to take any additional evidence but can take such steps to ascertain and fix up the identity of the property in the terms of the decree. Though no evidence can be adduced in the executing court, it can appoint a Commissioner to ascertain the identity of the property in terms of the decree. There is no quarrel over the proposition of law.
20. In Sri Ghanashyam Pradhan, this Court held that decree is to be drawn in conformity with the judgment. Since there is no description of boundary of the suit property, this Court further held that mandatory injunction is not enforceable in law. In the instant case, the suit property is identifiable.
21. In Ghanashyam Pradhan, this Court held that under the guise of purely technical mistake which has nothing to do with any 10 right of the J.Drs., the diabolical plans of the judgment debtors to deny the decree holder the fruit of the decree obtained by him is to be discouraged.
22. Puspa Sharma is distinguishable on facts.
23. The impugned order cannot be said to be perfunctory or flawed warranting interference of this Court under Article 227 of the Constitution. Accordingly, the petition is dismissed. The executing court shall execute the decree forthwith. No costs.
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DR. A.K.RATH, J Orissa High Court, Cuttack.
Dated 4th September, 2019/PKS