Calcutta High Court (Appellete Side)
Tarak Roy Chowdhury vs Lalmohan Shaw And Others on 2 April, 2019
1 S/L. 38.
April 2, 2019.
MNS.
C. O. No. 235 of 2019 Tarak Roy Chowdhury Vs. Lalmohan Shaw and others Mr. Sounak Bhattacharya ...for the petitioner.
Mr. Sabyasachi Chatterjee, Mr. A. Mukherjee, Ms. Debolina Sarkar ...for the opposite parties.
Leave is granted to the petitioner, as per the prayer of learned counsel for the petitioner, to incorporate the certified copy of the first impugned order dated March 26, 2018 in the revisional application and to amend the cause title and the prayer portion of the revisional application to incorporate a challenge against the said order of the court below.
The present challenge is directed against an order, whereby the petitioner's application under Section 47 of the Code of Civil Procedure was rejected by the executing court.
After having lost in the trial court and in the appellate court in a suit for eviction under the West Bengal Premises Tenancy Act, 1997, the judgment-debtor/petitioner took out an application under Section 47 of the Code on the ground that the eviction decree was a nullity, since the civil court did not have jurisdiction to take up the matter. 2
The basis of such submission was that the civil court's jurisdiction was barred under Section 21 of the West Bengal (Thika Tenancy Acquisition and Regulation) Act, 2001, since the suit premises was a thika tenancy and, by virtue of Section 8(3) of the said Act of 2001, the eviction suit had to be filed before the thika tenancy controller.
The executing court, by the first impugned order, rejected the application under Section 47 of the Code. By the second impugned order, the executing court rejected an application for review of its previous order, taken out by the judgment-debtor/petitioner.
Learned counsel for the petitioner argues, by placing reliance upon a Division Bench judgment of this Court reported at (2016) 3 CHN 1 (Krishna Shaw & Ors. V. Netai Pandit), that in the event the civil court did not have jurisdiction to pass a decree, the decree would be treated to be a nullity and as such, could not be enforced.
Learned counsel also cites a judgment reported at (2003) 4 Supreme Court Cases 147 (Sarwan Kumar and another Vs. Madan Lal Aggarwal), wherein it was held, inter alia, that a decree passed by a civil court lacking inherent jurisdiction to entertain the suit in view of a specific bar of law would be a nullity and, therefore, objection regarding invalidity of such decree could be raised at any later stage, including the stage of execution of the decree or any other collateral proceedings.
The petitioner files a supplementary affidavit with leave of court, wherein a document is annexed, which was produced before the executing court. The said document pertains to information issued to the petitioner in reply to a query under the Right to Information Act, 2005, made by the petitioner, indicating that the suit property was a thika tenancy.
3
By placing reliance on the said document, learned counsel for the petitioner argues that since the suit property was a thika tenancy, the civil court did not have jurisdiction to take up the suit for hearing and to pass the eviction decree-in-question. Since the appeal against the said decree was a continuation of the same proceeding, even the judgment of affirmance of the appellate court could not cure the inherent lack of jurisdiction of the civil court in passing the said decree. As such, it is submitted, the executing court ought to have held that the decree was a nullity in the eye of law and to have desisted from proceeding with the case.
Learned counsel for the decree-holders/opposite parties submits that the document on which reliance was placed by the petitioner was not conclusive proof of the property being a thika tenancy.
It is further argued that the same question was raised by the petitioner in the suit as well as in the appeal and the issue was held against the petitioner by both the said courts. As such, the question cannot be reagitated before the executing court.
A perusal of the cited judgments reveals that there were certain essential distinctions between those and the present case.
In the Division Bench judgment of this Court referred to by the petitioner, the adjudication was in respect of a hearing under Order XLI Rule 11 of the Code of Civil Procedure of a second appeal, which arose from the decree passed in the concerned suit and not from an execution case.
It was undoubtedly open to the judgment-debtor to raise all questions of law of a substantial nature, which arose in the suit, in the second appeal, and as such, there was no bar in taking the point in the case reported.
4
However, in the present case, the trial court's decree had merged with the decision rendered in appeal and, in view of no second appeal having been preferred against the same, the said decree attained finality. The executing court, as is well-settled, could not go behind the decree.
As far as the cited judgment of the Supreme Court is concerned, the judgment- debtor in the said case had initially taken out an application under Order IX Rule 13 of the Code of Civil Procedure against an ex parte decree passed against the judgment-debtor. Subsequently, a regular appeal was preferred against the decree-in-question, which was ultimately dismissed as time-barred.
As such, the adjudication on merits remained at the level of the court of first instance and the decree never merged with that of a superior forum, unlike the present case.
This apart, in the present case, it is seen from the judgment of the appellate court that the petitioner sought an amendment of the written statement to incorporate the plea of the property being a thika tenancy, which prayer was turned down. As such, in the absence of any basis in the pleadings as regards the property being a thika tenancy, it does not lie in the mouth of the judgment-debtor to raise the question of thika tenancy at the belated stage of execution of the decree.
Moreover, it is apparent from the document placed before the executing court that even factually the petitioner was not on a sound footing, inasmuch as the document merely pertained to information supplied under the Right to Information Act, 2005 about the suit property being a thika tenancy. The said document was neither an adjudication under Section 8(3) of the 2001 Act, nor a decision of any competent forum in that regard. 5 As such, the said document was not conclusive proof of the suit property being a thika tenancy.
In the absence of such factual evidence as regards the suit property being a thika tenancy, the basis is absent for the petitioner to build a super-structure of arguments on the premise of Sections 21 and 8 of the 2001 Act.
In such view of the matter, the executing court was justified in rejecting the application under Section 47 of the Code and subsequently in refusing to review the said order.
Accordingly, C. O. No. 235 of 2019 is dismissed on contest, without, however, any order as to costs.
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.)