Calcutta High Court
Sri Somesh Ch. Bhattacharyya vs Prosun Kumar Bhattacharyya & Ors on 2 March, 2023
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
BEFORE:
The Hon'ble Justice Bibhas Ranjan De
EC No. 171 of 2014
SRI SOMESH CH. BHATTACHARYYA
VS
PROSUN KUMAR BHATTACHARYYA & ORS.
For the Decree-holder :Mr. Deep Narayan Mukherjee, Adv.
Mr. Subrata Das, Adv.
For the defendant no.1 :Mr. Pratik Bhattacharyya, Adv.(in person)
For the defendant nos. :Mr. S. Ghosh, Adv.
2(a), 2(b), and 2(c)
Mr. J. Mandal, Adv.
For the defendant no. 1(c) : Swaraj Shaw Adv.
Hearing concluded on : 19.01.2023
Judgment on : 02.03.2023
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Bibhas Ranjan De, J.:
Case of the Plaintiff/petitioner:-
1. The instant execution case arose out of a partition suit being CS no. 3 of 2005 in respect of Premise no. 88/2A, Rafi Ahmed Kidwai Road, Kolkata-700013 along with other proprieties, which was compromised between the parties and one preliminary decree was passed on 8th March , 2005 by consent of the parties to the suit. Thereafter, parties to the suit arrived at a settlement and Terms of Settlement was signed by the parties and their respective Ld. Advocates filed before the Hon'ble Court on 19th December, 2007 when final Decree was passed by this Hon'ble Court in terms of settlement.
Thereafter, on 24th September, 2013 Hon'ble Court allowed the application filed by the petitioner seeking certified copy of the decree dated 19th December, 2007 and that was allowed by the Court directing the department to issue certified copy within a week. Plaintiff/petitioner in terms of that decree, plaintiff became the sole and absolute owner of Lot 'A' of premises no. 88/2A, Rafi Ahmed Kidwai Road, Kolkata-700013. Lot 'B' and 3 'C' of the said premises were allotted to the original defendant no. 1 & 2(since deceased).
2. The Original Plaintiff, since deceased paid Rs. 10,00,000/- to the original defendant no. 1 in terms of settlement by issuing a cheque which was encashed thereafter, by that payment original plaintiff obtained south-west tenanted portion of the said premises. To that effect, a draft deed of conveyance was duly stamped but said deed has not been executed and still awaiting execution by the heirs of original defendant no. 1, since deceased. Though, original defendant no. 1, during his lifetime, issued letters of Attornment in respect of said tenanted portion whereby he relinquished his right in favour of the plaintiff in terms of settlement. Original plaintiff made all payment in terms of settlement in favour of original defendant no. 1 and 2. Thereafter, several proceeding was initiated by the original defendant no. 1 before this Hon'ble Court.
3. One receiver was appointed at the instance of defendant No. 1 in respect of schedule A property in connection with GA no. 1361 of 2008 which was disposed of by this Hon'ble Court on 11th January, 2010. Against that order an appeal was preferred 4 being no. A.P.O.T 106 of 2011which was dismissed. Thereafter, defendant no. 1 filed one application being GA No. 1493 of 2009 for re-calling the decree dated 19.12.2007 on the basis of settlement where no interim order was passed. GA No. 1361 of 2008 was finally disposed of by the Hon'ble Single Judge on 07.03.2011with a direction upon Kolkata Municipal Corporation to consider the application, if submitted by the defendant no.1 in respect of construction within Lot 'B' of schedule A property in accordance with the provisions for construction.
4. The order dated 07.03.2011 was challenged in appeal being no. APOT no. 106 of 2011 which was dismissed. Original defendant no. 1 again preferred an appeal being no. APOT no 4223 of 2010 which was disposed of by the judgment and order dated 10.12.2012 by the Hon'ble Division bench dismissing the appeal holding inter alia:-
A. that the question of setting aside of compromise decree can't be re-opened in view of the order dated 07.03.2011 in APOT no. 106 of 2011.5
B. no reason was found to interfere with the decision of the Single Judge.
C. Prayer for re-examining or re-considering of compromise decree was found untenable by the Hon'ble Court. D. That the question of sanction of building plan submitted by the defendant no. 1 was found to be an exclusive domain of Kolkata Municipal Corporation. Hon'ble appellate Court further opined that original defendant no. 1 submitted building plan for construction of four storied building instead of construction of a stair case, kitchen, water reservoir and a toilet in Lot 'B' of the schedule A property in terms of settlement.
5. Thereafter, on 3rd April. 2014 the present execution case was filed. Original defendant no. 1 filed an application under Section 47 of the Civil Procedure Code, 1908 before the Hon'ble Court being no. GA No. 3022 of 2014 which was dismissed on 16th November, 2015 holding inter alia:-
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A. That there was nothing about making any substantial construction by the original defendant no. 1 in terms of settlement executed by and between the parties. B. Parties to the compromise cannot turned around and resist the terms of compromise decree C. Question of abatement does not arise following death of original post-degree death of original defendant. no. 2 as no substitution is necessary.
D. Defendant no. 1 was found to be estopped from challenging the decree as in executable and no defect was found in decree whatsoever.
The aforesaid observations in order dated 16th November, 2015 on an application under Section 47 of the Civil Procedure Code, 1908 never challenged before any forum by the original defendant no. 1.
6. However, after death of original plaintiff on 18.20.2018 the present petitioner was substituted by an order dated 21st June, 2019 on a substitution petition being no. GA No. 1255 of 2019. 7 That order was carried in appeal by the substituted plaintiff being no. APOT 96 of 2019 which was disposed of on 4th September, 2019 by upholding the direction for amendment as well as finality of the decree between the parties.
7. On behalf of the plaintiff / petitioner Ld. Advocate, Mr. Deep Narayan Mukherjee has submitted as follows:-
A. Final decree has already been passed by the Hon'ble appellate Court on 10.12.2012 in connection with APO No. 423 of 2010.
B. Decree passed by the Court is very much executable by the order dated 16.11.2015 under Section 47 of the Code of Civil Procedure,1908, by the Hon'ble Single Judge. C. The suit was never abated by dint of the order of the Hon'ble Single Judge on 16.11.2015.
D. Re-opening of final decree was not allowed by the order dated 10.12.2012 of the Hon'ble Division Bench in connection with APO 423 of 2010.8
E. Reason of Refusal of sanctioned of plan submitted by the defendant no. 1 was explained by the order dated 10.12.2012 in APO No. 423 of 2010.
F. On the issue of substantial construction Hon'ble Single Judge did not stand in the way by the order dated 16.11.2015 in dealing with the application under Section 47 of the Code of Civil Procedure, 1908.
8. Ld. Advocate, Mr. Pratik Bhattacharyya, defendant no. 1(b), appearing in person, made his submission orally as well as by written notes of submission. Mr. Bhattacharyya placed his argument as follows:-
A. All the properties devolved upon the parties to this execution equally from their grandfather, since deceased. Therefore, the instant execution case arising out of order dated 19.12.2007 in terms of settlement dated 19.12.2007 is not binding upon the parties. Moreover, the purported decree dated 19.12.2007 in CS/ 3/2005 was signed by only the Ld. 9 advocates of the parties but, not by the parties and as such the decree is not binding upon the parties.
B. After demise of defendant no. 2 on 31.05.2008 no substitution application was filed and therefore, the decree is not executable. That apart, the order dated 19.12.2007 passed by the Hon'ble Justice Maharaj Sinha as His Lorship then was, retired on 16.08.2012 and decree was ultimately singed in the year 2014. Thereby, scheduled A property has not been partitioned by metes and bounds in three (3) Lots. EC/171/2014 being pre-matured cannot be filed afresh. Accordingly, the instant execution case is not maintainable. C. No order recording disposal of CS/3/2005 was found in the website of this Hon'ble Court. Suit was decreed in part but, it did not reach its finality (final decree) subject to compliance of all stipulation including co-operation from all sides in respect of constructions etc. within two (2) years. Thereby, the suit being no. CS/3/2005 cannot be said to be disposed off by way of final decree as stipulations as per in Terms Of Settlement (hereinafter referred to as TOS) dt. 19.12.2007.
10D. TOS dt. 19.12.2007 was not registered under Section 49 of Registration Act, 1908 as it contains proposed sell of several immovable properties and transaction of money by an between the parties, under the Transfer of Property Act. E. Plaintiff wanted to execute the 'decree' not the 'final decree' according to tabular statement.
F. After TOS dt. 19.12.2007 deceased defendant no. 1 filed GA/1361/2008 to get relief to make construction converting proposed Lot 'B' in schedule A property habitable with all amenities but opposed by both the adverse parties on the ground of Floor Area Ratio, showing their deviation from under takings. Therefore, all the parties are still residing together with all amenities as before and after filing CS/3/2005.
G. Both the adverse parties apply for apportionment and mutation before the Kolkata Municipal Corporation (hereinafter referred to as KMC) knowing fully well that deceased defendant no. 1 was having no amenities in his proposed Lot 'B'. Such apportionment and mutation was done by the KMC without any order of the Court. The 11 defendant no 1 has filed building plan dated 09.07.2011 which is still pending with KMC. However, scheduled A property is still a joint property being enjoyed by all parties in respect of water electricity ingress & egress as well as sewerage system etc. According to TOS dt. 19.12.2007 the scheduled A property i.e Lot A B & C need to be segregated after constructions in each proposed Lots for having minimum amenities and thereafter the property in question could be partitioned by metes and bound and decree could be drawn up.
H. After summing up entire argument advanced by Mr. Bhattacharyya following issues were emphasized by Mr. Bhattacharyya:-
a. The instant execution case is not maintainable. b. No final decree was ever drawn up so, suit is still pending moreso, order of disposal of the suit was never found in the Court's Website. Alternatively, no final decree could be drawn up because of non-compliance of stipulations of the decree.12
c. TOS singed by the predecessor in interest are not binding upon the parties.
d. After demise of defendant no. 2 on 30.05.2008 no substitution petition was filed within the period of limitation and suit was abated against defendant no. 2 by operation of law.
e. TOS dated 19.12.2007 was not registered under Section 49 of the Transfer of the Property Act.
f. According to TOS proposed Lot 'B' in schedule A Property required to be habitable with all amenities but opposed by the adverse parties namely plaintiff and defendant no. 1. Thereby, TOS was not ownered by the plaintiff and defendant no.2.
Decision with reasons:-
9. Before entering into the issues, it would be profitable to introduce the parties to this execution case. Original plaintiff filed partition suit against original defendant nos. 1 & 2. The said suit was decreed on compromise between the original plaintiff and original defendant nos.- 1& 2. Subsequently, after 13 demise of all three original parties to the suit their legal heirs were brought on record. Substituted plaintiff is being supported by substituted defendant nos. 2 (a), 2(b) & 2(c). In opposition to that, substituted defendant no. 1(b), appearing in person, is being assisted by substituted defendant nos. 1(a) & 1(c).
10. The scheme of the Civil Procedure Code, 1908 is that in one proceeding the Court determines the liability of a party and the corresponding right of the other party and incorporates them in the decree and in another proceeding it executes the decree, i.e., at the instance of one party specifically enforces liability against the other. There can be no execution or specific enforcement of a liability without a previous determination of the liability by a Court and incorporated in a formal document called a decree.
11. An agreement or compromise, which is an act of the parties, is not a formal determination by the Court of liability of one party to another. A compromise may give rise to a formal determination, e.g. a decree, but is not itself a decree and cannot be executed. The Court has to determine whether suit 14 has been adjusted at all by the compromise and whether it is lawful or not. It is only when it is satisfied about these matters that it will hold that the liability of a party is that accepted by him in the compromise and will pass a decree embodying it.
12. But, no such jurisdiction was conferred upon an executing Court having also no jurisdiction to decide whether the compromise is lawful or not and to determine the liability arising from it. Under the scheme of the Code executing Court has also no power to vary the terms of the decree already passed.
13. Section 47 of the Civil Procedure Code, 1908 is the only Provision that deals with jurisdiction of an executing Court.
But, it is confined to determining all questions arising between the parties to the suit and relating to execution discharge or satisfaction of the decree. It enjoins that all these questions shall be determined by the executing Court and not by a separate suit. All other questions can be determined by a separate suit.
14. In our case, it cannot be disputed that the predecessor in interest of the parties to this execution case were parties to a 15 partition suit being no. C.S. 3/2005 in respect of properties in question and that suit was compromised between those predecessors in interest by a preliminary decree on 08.03.2005. Subsequently, at the instance of those parties terms of settlement was prepared and signed by the parties and filed before the Court for drawing final decree, which ultimately passed on 19.12.2007.
15. As I find from the TOS original plaintiff was allotted Lot 'A' of the premises no. 88 /2A Rafi Ahmed Kidwai Road, Kolkata-700013. Lot-'B' & Lot 'C' of the said premises were allotted to the original defendants nos.- 1& 2.
16. Original defendant no. 1, after disposal of the suit on compromise, filed an application being GA. No. 1361 of 2008. Hon'ble Justice Sanjib Banerjee sought for an opinion from Kolkata Municipal Corporation (hereinafter referred to as KMC) as to whether construction could be made to make Lot 'B' self- sufficient by the order dated 11.01.2010. Subsequently, on 07.03.2011 the Hon'ble Single Bench disposed of GA No. 136 of 2008 & GA 1493 of 2009 with some direction upon the collector. The order dated 07.03.2011 was challenged in 16 A.P.O.T 106 of 2011 before the Hon'ble Division Bench but, the appeal was dismissed.
17. Before dismissal of the appeal no. A.P.O.T 106 of 2011 the substituted plaintiff/ petitioner filed GA No. 2719 of 2019 with a view to execute the decree and that was carried in appeal. But, ultimately, GA No. 2719 of 2019 became infructuous after obtaining certified copy from the collector of Calcutta.
18. However, defendant No. 1 again filed GA No. 1493 of 2009 with a view to re-call the judgement and decree dated 19.12.2007. But, no result was yielded in favour of defendant no. 1 by the order dated 22.06.2009 in connection with the aforesaid GA no. 1493 of 2009.
19. Ultimately, in appeal being no. A.P.O 423 of 2010 Hon'ble Division Bench addressed on all issues arose out of connected applications by the judgment dt. 10.12.2012.
20. Defendant no. 1 in appeal no APO 423 of 2010 tried to make the Hon'ble Division Bench understand, by referring order dated 27.08.2010 in connection with GA No. 2944 of 2010, that no construction can take place in Lot 'B' unless 17 three Lots are separated. Defendant no. 1 further submitted before the Hon'ble Division Bench that three (3) lots cannot be partitioned and separated so as to implement the consent terms in violation of law and thereby consent terms cannot be implemented and required to be set aside.
21. Hon'ble Division Bench observed that defendant no. 1 filed GA No. 1493 of 2010 for setting aside the compromise decree dated 19.12.2007 but, it was dismissed by the Hon'ble Single Bench on 07.03.2011 which was further challenged in appeal being no. APOT 106 of 2011 which was also dismissed on 21.03.2011. Accordingly, Hon'ble Division Bench refused to determine such question of setting aside decree dated 19.12.207.
22. Hon'ble Division Bench only took up the question of validity of the order dated 14.09.2010 passed by Ld. Single Judge refusing to review the earlier order dated 27.08.2010 directing the submission of a plan to the Municipal Authority. In this regard Hon'ble Division Bench observed as follows:-
" 19. We do not think that the learned Single Judge had committed any error. By directing 18 the Defendant No. 1 to submit a plan for sanction by the Corporation. Whether that plan could be sanctioned in accordance with law is something that was within the domain of the officers of the Corporation. It was not for the Court to consider whether the plan which the defendant No. 1 proposed to submit was as per the building rules and regulations. It is obvious that only a plan which is in accordance with law can be sanctioned by the Corporation. If the plan submitted by Defendant No. 1 is not sanctioned it is for him to adopt appropriate steps to remedy the situation, either by challenging the order or by submitting a fresh plan.
20. We have noticed that time and again the Division Bench of this Court had passed orders to ensure that the settlement without prejudice being caused to any one of them. The Division Bench had directed the defendant No. 1 to submit a plan so as to make Lot B habitable. It appears however, that defendant No. 1 submitted a plan which was for constructing a new building on Lot B and it is in these circumstances that the competent authority refuse to sanctioned the same. The import of the order dated 24th February 2011 passed by the Division Bench of this Court is unambiguous inasmuch as the plan which the defendant No. 1 was submit was for the construction of a staircase, a kitchen, a water reservoir and a toilet in Lot B which fell to the share of Defendant No. 1 under the consent 19 terms. Instead of submitting such a plant, defendant No. 1 submitted a plan depicting the construction of a building at the rear end of Lot B and for connecting the same to the existing structure. It is in these circumstances that sanction for such a construction was denied.
21. We do not therefore, think it necessary to consider whether the consent terms are legal and justified as the compromise decree has been passed. There was a challenge to that compromise decree by the defendant No. 1 and he sought revocation of that decree. The learned Single Judge having failed to pass any order on that application in favour of defendant No 1, he filed APOT No. 106 of 2011 which has been dismissed.
22. In these circumstances we do not think that the order which has been passed in G.A. No. 2944 of 2010 on 14th September 2010 is illegal and, therefore, the appeal is dismissed.
23. Urgent certified photocopies of this order, if applied for, be given to the learned advocates for the parties upon compliance of all formalities."
23. Therefore, dispute regarding construction was set at rest by the judgement dated10.12.2012 in APO No. 423 of 2010 by the Hon'ble Division Bench.
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24. Defendant no. 1 filed one application under Section 47 raised issues namely, there was no final decree, decree was inexecutable, share of the defendant no. 1in Lot B was not habitable, decree was not drawn up according to terms of settlement, the heirs of the defendant no. 2 had not substituted in execution application and execution application was not in proper form.
25. All the issues raised in application under Section 47 of the Civil Procedure Code, 1908 were addressed by the Hon'ble Justice I.P. Mukheji in GA No. 3022 of 2014 in connection with this execution case. Hon'ble Single Bench dismissed the application under Section 47 of the Civil Procedure Code, 1908 by the order dated 16.11.2015 which runs as follows:-
"The Court: A decree was passed on 19th December, 2007. It was a compromise decree. It was for partition of premises no. 88/2A, Rafi Ahmed Kidwai Road, Kolkata- 700013 along with other properties.
An application for execution (EC No. 171 of 2014) was taken out by the plaintiff for execution of the decree. Another application (GA No. 3022 of 2014) under Section 47 of the Code of Civil Procedure was filed by the defendant no. 1, namely, Pran Kumar Bhattacharyya.21
In this execution application various points have been taken on behalf of the said defendant to challenge the decree.
First, it was stated that it was not a final decree, but a preliminary or a part decree. Secondly, it was stated that the decree was inexecutable. It was submitted that the decree provided for division of the premises into Lot „A‟, Lot „B‟ and Lot „C‟. Lot „B‟ had fallen in the share of the defendant no. 1 Lot „B‟ was not habitable. The decree provided for some constructions to be made. Therefore, unless those constructions were made according to the choice of the defendant no. 1, the decree could not be executed. Mr. Bhattacharyya, learned counsel submitted that the portion which fell in the share of the defendant no. 1 did not provide for bathroom, kitchen, staircase etc. Other ancillary points were taken, namely, that the decree was not drawn up according to the Terms of Settlement, the heirs of the defendant no. 2 had not been substituted in the execution application was not in proper form.
As far as substitution of the heirs of the defendant no. 2 is concerned, this Court noted in an earlier order that no substitution was required if a party died after the decree. It was carried in appeal. The appeal, I am told, was dismissed.
As far as the first ancillary point is concerned, I think it is of no substance. A certified copy of the decree is annexed to the execution application. Furthermore, a party to a compromise decree cannot, In my opinion, turn around and resist execution thereof on the above technical point that a certified copy of the execution application, it was the obligation of the defendant no. 1 to supply a certified copy thereof to facilitate execution.22
I have scrutinized the execution application and hold that it is in proper form. In my opinion, this matter has been unnecessarily prolonged for a considerable length of time before this Court because of the resistance of the defendant no. 1. It has also spent similar time before the Court of Appeal at the instance of the same party.
The decree is a compromise decree for partition. The reference to construction in the said decree only refers to those constructions which would make each of the partitioned parts of the premises independent and capable of separate enjoyment. In my opinion, the decree does not provide for making substantial constructions as the defendant no. 1 has indicate in his proposed plan. Substantial constructions may be carried out by any of the parties only after partition in terms of the decree, in my opinion.
Furthermore, the import of the expression „construction‟ to be made in the premises was considered by the Division Bench of this Court in its judgment and order dated 10th December, 2012 where the Division Bench explained the following:
" We have noticed that time and again the Division Bench of this Court had passed orders to ensure that the parties to the compromise decree implement the terms of the settlement without prejudice being caused to any one of them. The Division Bench had directed the defendant No. 1 to submit a plan so as to make Lot B habitable. It appears however, that defendant No. 1 submitted a plan which was for constructing a new building on Lot B and it is in these circumstances that the competent authority refused to sanction the same. The import of the order dated 24th February, 2011 passed by the Division Bench of this Court is unambiguous inasmuch as the plan which the defendant No. 1 was to submit was for the construction of a staircase, a kitchen, a water reservoir and a toilet 23 in Lot B which fell to the share of Defendant No. 1 under the consent terms. Instead of submitting such a plan, Defendant No. 1 submitted a plan depicting the construction of a building at the rear end of Lot B and for connecting the same to the existing structure. It is in these circumstances that sanction for such a construction was denied."
Most importantly, the defendant no. 1 has received Rs. 10 lakhs from the plaintiff for agreeing to take Lot B under the decree. Furthermore, he is entitled to further amounts as owelty. Having so agreed by signing the compromise and having acted upon it, the defendant no. 1 is stopped from challenging the decree itself as inexecutable.
I come to a conclusion that there is no defect in the decree whatsoever which makes it inexecutable. Hence, the application GA No. 3022 of 2014 under Section 47 Code of Civil Procedure is dismissed."
26. Therefore all issued raised by Mr. Bhattacharyya have been duly addressed and disposed of either by the Hon'ble Division Bench or by the Hon'ble Single Bench of this Court but, those order remained unchallenged. Finally, the issues raised by Mr. Bhattacharyya were also taken up by the Hon'ble Single Bench in connection with GA no. 3022 of 2015 in connection with an application under Section 47 of the Civil Procedure Code, 1908 and that order also remained unchallenged.
27. In aforesaid view of the matter, I am unable to re-open the issues raised by Mr. Bhattacharyya again before this executing 24 Court. Nothing if left to this executing Court but to issue direction towards execution of the decree.
28. Therefore, defendant no. 1(a), to 1(c) , are directed to execute the deed of conveyance in respect of premises no. 88/2A, Rafi Ahmed Kidwai Road, Kolkata -13 and also to execute the deed of conveyance in respect of Lot 'B' & Lot 'C' and to hand over the possession of the property of Lot 'A' in favour of the plaintiff within 8(eight) weeks, subject to payment of all owelty money as per Terms of Settlement, from date failing which receiver shall be directed for enforcement of the order.
29. Mater is returnable on 11.05.2023 for affidavit of compliance.
[BIBHAS RANJAN DE, J.]