Gauhati High Court
Bhola Mazumdar vs Dr. Jawaharlal Sarkar on 19 May, 2015
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
CRP NO. 29/2009
Sri Bhola Mazumdar,
S/o Late Sitesh Chandra Mazumdar,
Pound Road, Dhubri Town,
P.O. & District - Dhubri (Assam) ... Petitioner/Defendant.
VERSUS
Dr. Jawaharlal Sarkar,
S/o Late Budheswar Sarkar,
Church Road, Dhubri Town,
P.O. & District - Dhubri (Assam ....Respondent/Plaintiff.
BEFORE THE HON'BLE MR JUSTICE HRISHIKESH ROY For the petitioner : Mr. S. Banik, Mr. B. Sarma, Mr. K.N. Suri.
Mr. P. Bhuyan. ... Advocates.
For the respondent : Ms. R. Choudhury,
Mr. F.U. Borbhuya ... Advocates.
Date of hearing and Judgment : 19.5.2015.
JUDGMENT AND ORDER
Heard Mr. S. Banik, the learned Counsel appearing for the petitioner (Judgment-Debtor). Also heard Ms. R. Choudhury, the learned Counsel appearing for the respondent (Decree-Holder).
2. The Title Suit No.58/1991 for ejectment of the tenant with further claim for arrear rent, damage and interest was allowed through the judgment dated 30.6.1993 (Annexure-II) by the learned Munsiff No.1, Dhubri and although the aggrieved defendant challenged the judgment in higher forums, the ejectment order became final with the eventual rejection of the defendant's S.L.P. by the Apex Court.
CRP No.29/2009 Page 1 of 3 23. The landlord then applied for execution through the Title Execution Case No. 13/2000 where the J.D. filed an application under Section 47 read with Section 151 of the CPC to contend that the Trial Court while ordering ejectment and payment of arrear rent, never ordered for damage @Rs.25/- per day from 16.2.1991 till the eviction of the defendant and moreover interest @11% p.a. was never directed by the Trial Court. According to the J.D., the decree was erroneously prepared where the prayers (d) and (e) made in the plaint, shouldn't have been included in the Court's decree.
4. However the leaned Munsiff No.1, Dhubri through the impugned order dated 25.11.2008 (Annexure-XII) observed that the decree was upheld by the Appellate Court and was also confirmed by the Revisional Court and accordingly it was held that non-enforceability of the decree as pleaded by the J.D. is beyond the purview of the Executing Court. Consequently J.D's application was dismissed and Writ was issued for execution.
5. The connected case records shows that the same landlord had also filed the Title Suit No.59/1991 in respect of another tenant Dibakar Majumdar and this suit was similarly decreed whereby damage @Rs.30/- per day from 16.2.1991 till ejectment of the defendant and interest @11% p.a. till realization of the amount was ordered in terms of prayers (d) & (e) in the plaint of the Title Suit No.59/1991. This decree was affirmed finally by the Apex Court and in the consequent execution process, the J.D. therein filed similar objection under Section 47 of the CPC to challenge the levy of damage and interest, upon the defendant. In the other proceedings; when the Executing Court dismissed the J.D's application through its order dated 25.11.2008 in the Title Execution Case No.14/2000, the aggrieved defendant filed the CRP No.28/2009. But this Court through the judgment dated 30.1.2009 dismissed the Revision petition by observing, inter alia, that the J.D. unsuccessfully challenged the decree in all the available forums right uptil the Supreme Court but the decree as prepared by the Trial Court was left undisturbed by the higher Courts. On this basis the order of the Executing Court wasn't interfered by this Court.
CRP No. 29/2009 Page 2 of 3 36. I have carefully considered the rival submission and have also noted that the decree (Annexure-III) drawn up by the Trial Court granting damage @Rs.25/- per day and also burdening the defendant with payment of interest was untouched by all the higher forums. More importantly during those proceedings, the defendant tenant never challenged the validity of the decree in its present form. In such circumstances, I feel that the approach of the Executing Court in rejecting the J.D's application under Section 47 of the CPC can't be faulted. Support for this conclusion can also be secured from the opinion given by this Court on 30.1.2009 while it dismissed the similar CRP No.28/2009 filed by a cotenant under the same landlord.
7. In view of the above discussion and reasoning, I hold that no illegality has been committed by the Executing Court in passing the impugned order dated 25.11.2008 (Annexure-XII) and consequently this Revision petition is dismissed by leaving the parties to bear their own cost. The Registry should return the LCR along with a copy of this order to the concerned Court.
JUDGE Datta.
CRP No. 29/2009 Page 3 of 3