Calcutta High Court
Hindusthan Gas And Industries Limited vs Adhish Chandra Sinha on 6 May, 1993
Equivalent citations: (1994)2CALLT184(HC)
JUDGMENT Bhagabati Prasad Banerjee, J.
1. This is an appeal against an order dated 14th January, 1993 passed by the learned trial Judge in Extraordinary Suit No. 20A of 1987, on an application for execution of a decree for possession of the immovable property. The plaintiff-respondent filed a suit for eviction of the appellant-defendant who was a tenant in respect of the premises in question. The Ejectment Suit was originally filed in Alipore, 24-Pargarnas (before its bifurcation) being Title Suit No. 36 of 1981.
2. The case had a chequered career. The appellant was a tenant under the defendant-respondent in respect of the suit premises situated at 2/8B, Sarat Bose Road in respect of the ground floor with three service rooms on the first floor of the out-house of the premises No. 2/8B, Sarat Bose Road, Calcutta. The defendant-appellant undertook to vacate the premises by 31st October, 1975 and thereafter the appellant-tenant failed to vacate the suit premises. The plaintiff-respondent thereafter served a notice to quit under Section 13(6) of West Bengal Premises Tenancy Act, 1956 requiring the appellant to quit and vacate the premises also on the ground of reasonable requirement. The tenant appellant was called upon to vacate the premises by 31st July, 1980. Notice was served as the respondent-landlord wanted to avail of additional ground for eviction. Immediately on receipt of the notice to quit the appellant-tenant filed a suit in the Original Side of this Court being Suit No. 583 of 1980 challenging the validity and/or legality of the Notice to quit dt. 13/14th June, 1980 and for a declaration that the appellant/tenant continued to be a monthly tenant. Thereafter on 7th August, 1980 the plaintiff-respondent instituted a suit for ejectment before the District Court at Alipore being Title Suit No. 37 of 1980. An Application was taken out by the plaintiff-respondent for dismissal of the Suit No. 583 of 1980 filed in this court on the ground of lack of jurisdiction and that by the order dated 25th March, 1981 the suit filed the appellant in this court was dismissed. The appellant thereafter preferred an appeal from the said order dt. 25th March, 1980. Thereafter the appellant filed an application for stay of the eviction suit at Alipore Court in Title Suit No. 37 of 1980 under Section 10 of the Code of Civil Procedure on the ground of the pendency of the suit filed by the appellant in the High Court. By the order dt. 19th November, 1983 an application under Section 10 of the Code of Civil Procedure was allowed by Alipore Court and the eviction suit against the appellant was stayed. The said order of stay under Section 10 of the Code of Civil Procedure was challenged by the respondent-plaintiff before this court which was set aside by this court on 14th July, 1984. The appellant being aggrieved by the said order dated 14th July, 1984 setting aside the order of stay under Section 10 of the Code of Civil Procedure moved a Special leave Petition to the Supreme Court which was dismissed on 27th December, 1984. In 1987 the Alipore Suit was transferred to this Court under Clause 13 of the letters Patent by consent of the parties. Ultimately, eviction suit was decreed by this court on 3rd May, 1992. The judgment-decree dt. 3rd May, 1992 passed in the said eviction suit by this court was challenged in appeal filed by appellant and the appeal court dismissed the said appeal and affirmed the decree for eviction on. 14th December, 1992 in Appeal No. 224 of 1991. Special Leave Petition was filed before the Supreme Court against the judgment passed by the Appeal Court on 14th December, 1992 but the said Special Leave Petition was also dismissed by the Supreme Court. For the purpose of recovery of possession an application for execution of the decree was filed before the learned trial Judge with a prayer for appointment of Receiver over the; suit premises for execution with direction to take over physical possession of the same from the appellant judgment-debtor and deliver vacant possession therefor to the respondent-decree holder by removing judgment debtor and/or Mr. R. L. Bathwal, its agents, employees assignees or any other person claiming it or in occupation of the suit premises. An alternative prayer was also made for execution of the decree by directing the Sheriff to hand over either by himself or through his agent the vacant possession of the suit premises. The said application for execution was duly contested by the judgment-debtor/appellant and the learned trial Judge after considering the rival contentions of the parties appointed Mr. Ashim Ghosh, Bar-at-Law and Mr. Samrat Sen, Advocate as Joint Receivers in respect of the suit premises which was directed to take over possession and in case of any resistance to use police force for the. purpose of recovery of possession.
3. Mr. Anindya Kumar, Mitra, learned counsel appearing on behalf of the appellant submitted that for the purpose of executing the eviction decree by dispossessing the judgement-debtor, the execution court has no power to appoint a Receiver at the first instance with a direction to recover possession and in case of resistance to take police help and recover possession. Mr. Mitra submitted that for the purpose of recovery of possession by executing the decree the ordinary modes of execution as provided in the Code of Civil Procedure has to be followed and that as the property is situated outside the jurisdiction of this court, the decree should be sent for execution to the original court in which the suit was first instituted and that court alone has got the territorial jurisdiction to execute the decree. It was next submitted by Mr. Mitra that the Receiver could only be appointed in a case when no other mode of execution was provided under the law. In this connection, Mr. Mitra referred the provision of Section 51 of the Code of Civil Procedure which provides several modes of execution of a decree subject to such conditions and limitations as may be prescribed and that the provisions of Section 51(d) of the Civil Procedure Code provides for execution of a decree by appinting a Receiver. But such a drastic power would not be exercised unless a case has made out for appointment of Receiver on the basis of the principles laid down in Order 40 Rule 1 of the Code of Civil Procedure. It was submitted that for the purpose of appointing Receiver a Special case has to be made out. It was further submitted that whenever Receiver is appointed such a Receiver has all the powers under Order 40 Rule 1 and that Receiver could only be appointed where there is no effective remedy for execution in law. It was further submitted that no case had been made out in the application for appointment of Receiver. Receiver cannot be appointed merely by making a prayer for appointment of Receiver, circumventing ordinary and usual procedure for eviction of a decree. It was pointed out that ordinary mode of execution of a decree for eviction and recovery of possession is to execute the 'decree through the court Bailiff and in case of resistance, the court has power to order for police help on being satisfied with that the judgment-debtor had resisted the bailiff and because of resistance bailiff could not take possession. It was further submitted that appointment of Receiver and taking over possession with police help is an extreme method which is a very harsh and should take recourse as a last resort. It was further submitted that a party can only be dispossed in accordance with procedure prescribed by law and that it is not the law to take possession by eviction through Receiver and that too with police help in case of resistance at the first instance. Reliance was placed to the decision of the Division Bench of this court in the case of Raja Pramath Nath Madia v. H.V. Low and Company, reported in 34 CWN 328 wherein it has been held that this court, on its original side, has power to appoint at his own hand a Receiver by way of execution in respect of property situated outside its ordinary original jurisdiction and belonging to a defendant who resides outside such jurisdiction. But it should be careful and sparing in the exercise of this power and should exercise it only on a proper case being made out from sufficient materials that it is necessary or advantageous that a Receiver should be appointed by itself. It cannot make an appointment on the sole ground that this is the only form of execution open to itself one can be availed of to enforce its decree as a matter of course. It was further held that while there is no express provision to this effect, the course contemplated by the Code of Civil Procedure for sale in execution of immovable property is that they should be carried out by courts having territorial jurisdiction over such property although there can be exception to his principles.
3a. Reliance was also placed to another decision of Division Bench Judgement of this Court in the case Jugal Charan Mondal v. Pankajini wherein it was held that a court which has competently passed a decree, does not lose jurisdiction to execute it merely by reason of loss of territorial or pecuniary jurisdiction in the meantime. But this "jurisdiction to execute" means merely jurisdiction to entertain the execution application and to transfer it to the proper Court for execution, and it does not extend beyond that and it does not entitle the said court, in such circumstances, to proceed further with the court, having territorial and pecuniary jurisdiction in the matter, on appropriate transfer to it of the particular decree for execution, that is, for such purpose. It was contended by Mr. Mitra that in the instant case though the suit was transferred from Alipore Court to this court, under Clause 13 of the Letters Patent, the decree could not be executed by this Court and in this case for the purpose of execution of the decree in question an execution has to be physically made by Alipore Court having territorial jurisdiction over the property in question or in other words, it was submitted that this court has no jurisdiction to execute the decree in respect of the property situated beyond the territorial jurisdiction of this court even if the suit was disposed of by this Court on transfer.
4. Mr. Sudipta Sarkar, learned counsel appearing on behalf of the decree-holder/respondent submitted that Section 51 of the Code of Civil Procedure prescribed several modes of execution of a decree and Clause (d) of Section 54 expressly confer power upon the court to execute a decree by appointing a Receiver and that it is at the discretion of the court to execute on the prayer being made by the parties to appoint ' Receiver, Mr. Sarkar submitted that it is not necessary for the executing-court to disclose reasons and grounds why the decree is to be executed by appointing a Receiver and not by other modes. Mr. Sarkar further submitted that in view of the facts and circumstances of the case it must be held that special facts and circumstances exist for which the decree had to be executed by appointing a Receiver and for that purpose Mr. Sarkar highlighted the history of the litigation and submitted that in the instant case the judgement-debtor undertook to vacate the premises in question in 1975 but failed to do so. Thereafter the decree-holder served a notice to quit also on the ground of reasonable requirement and that when decree for eviction was passed on all the grounds and when the litigation is pending for more than 12 years it would be nothing but travesty of justice if the decree is not executed within a reasonable time in an effective manner. The condition of health of the plaintiff opposite party has been disclosed and from this state of affairs as disclosed in this case, Mr. Sarkar submitted that it was a fit and proper case where the court has rightly exercised the power to execute the decree by appointing a Receiver. Mr. Sarkar submitted that Section 38 of the Code expressly provided that the power upon the court which passed the decree is to execute the same and also competent to send decree in other courts for execution. It was further submitted that under Section 39 of the Code, the Court which passed a decree made on the application of the decree-holder sent it for execution to another court and that accordingly it was submitted that the transfer of decree could only be made at the instance of the decree holder and not at the instance of judgement-debtor. Mr. Sarkar further submitted that when the suit was transferred to this court under Clause 13 of the Letters Patent on consent of parties in that event the judgement-debtor was estopped from challenging the jurisdiction of this court to execute the decree on the ground that this court is not the competent court to execute the decree. It was further submitted that in a case like this as the property situated beyond the territorial jurisdiction of this court, the Sheriff or the officers of this court cannot straightway go and execute the decree and that the only mode for execution of such a decree is to appoint a Receiver for the purpose of executing the decree and the appointment of Receiver cannot cause any prejudice to any person. The appointment of Receiver was made by the learned trial Judge on notice and upon hearing the parties and as such no prejudice or hardship of any kind could have caused upon the judgement-debtor who was obliged to vacate the premises in question pursuant to the decree passed by this court. Mr. Sarkar further submitted that so fax as the judgement-debtor is concerned the judgement-debtor has no right to technicalities. Execution must be done according to law, but the purpose of execution would be frustrated if the submission of the appellant is accepted that this court has no jurisdiction to execute the decree and that for the purpose of execution of the decree, the decree has to be sent Alipore Court and the said court should execute the decree in the ordinary course which would take months and years to get possession of the property and that course of action is followed in that event the very purpose of obtaining the decree would be completely nugaotry and frustrated. The principles laid down by the Division Bench of this Court in Raja Pramath Nath Malia (supra) could not be disputed as this court in its original side has power to appoint a Receiver by way of execution in respect of the property situated outside the ordinary original jurisdiction of this court but it should be careful and sparing in the exercise of this power and should exercise it only in a proper case having made out on sufficient materials that it is necessary or advantageous that Receiver should be appointed by itself. It cannot make appointment of a Receiver on the sole ground for it is the only the form of execution open to the court and can be availed of to execute a decree as a matter of course. We respectfully agree with the view expressed by the decision of the Division Bench of this Court in Jugal Charan Mondai's case (supra) but the same is not applicable in the facts and circumstances of the case Inasmuch as in that case the Division Benh of this Court considered the effect of loss of territorial and pecuniary jurisdiction, subsequent to the passing of the decree and in that connection it was held that the court which had competently passed the decree does not lose jurisdiction to execute it merely by reasons of loss of territorial or pecuniary jurisdiction in the meantime and it was held that the expression 'jurisdiction to execute' means merely jurisdiction to entertain the execution application and to transfer it to the proper court for execution. In this case admittedly, the court lost its jurisdiction over the subject matter of the suit and that is why the court was competent to entertain execution application but could not execute the same and for the purpose of execution it has to be transferred to the competent court of which had been confered jurisdiction over the matter. In the instant case in the view of the provision of Section 38 read with Clause 13 of the Letters Patent the learned trial Judge who had passed the decree had jurisdiction to execute the decree of this court also had jurisdiction to transfer it. We are of the view that when the suit has been transferred under Clause 13 of the Letters Patent and that too by consent and the Court has jurisdiction to try and dispose of the suit the court has the jurisdiction to execute the decree in accordance with provision of the Code of Civil Procedure even though the suit property was beyond the territorial jurisdiction of this Court. On transfer of the suit the court assumed the jurisdiction over the subject matter of the suit property for all practical purposes including execution. The Division Bench judgment of this court in Ambika Ranjan Majumadar (supra) it was held that territorial jurisdiction is condition precedent to a court executing a decree. That was not a case where the suit was decided on transfer. When the suit had been transferred under Clause 13 of the Letters Patent where the court in which the suit was transferred for disposal, assumed of the jurisdiction of the original court and can exercise territorial jurisdiction over the subject matter of the suit. Accordingly, ratio of the judgment in Ambika Ranjan Majumdar is wholly inapplicable in the instant case. Further in that case the question of selling of the properties in execution of a decree was considered. But in. the instant case, the, question of simple recovery of possession of the property pursuant to the decree of eviction which is in the possession of the judgment-debtor and no other parties are affected. In case of sale of property, the people of the locality is also entitled to know that a property is going to be sold so that the intending buyers who are interested may apply but if the sale is made by a court which is situated far away from the locality create difficulty, and inconveniences but in the instant case there is no such of any inconveniance to the judgment debtor or any other party inasmuch as the scope of the execution is very much limited.
5. It is important plinciple of law that rules of procedure are only handmaid of justice and ought not to be used for obstruction the course of justice. It is the duty of the court executing the decree to aid the decree holder in recovering possession of the premises after physically evicting the judgment debtor at an earliest possible time otherwise the very purpose of the decree will become nugatory. Section 51 of the Code enumerates in general terms, various modes in which the court may order execution for a decree according to the nature of the relief sought to be granted may require. Execution by appointment of a Receiver is known as equitable execution and is entirely within the discretion of the court and that decree holder may choose the mode of execution and the court has no power to refuse the order of execution in the mode asked for but equitable execution by appointment of a Receiver being an exceptional remedy a case has to be made out in support of it. The decree holder must show that immediate execution was necessary or that he may be prevented from getting the decree executed in usual and ordinary manner or for other good and sufficient reasons. It is also well settled that appointment of a Receiver for executing proceeding is form of equitable relief is generally granted on the ground that there was no effective remedy for execution by any other mode prescribed in this behalf. Section 51 of the Act has provided several modes. Supreme Court in the case of Padrauna Raj Krishna Sugar Works Ltd. v. Land Reforms Commisoner, held while considering the provisions of 286(2) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 and the process prescribed by Clause (a) to (e) of Section 279 of that Act. Section 279 of that Act sets out the procedure for recovery of arrears of land revenue and that 286 (2) of that Act also provides the power exercisable by the collector in recovering arrears of income tax which are recoverable as arrears of land revenue are not restricted to the land revenue Code the Collector is entitled to exercise all the powers of the Civil Court for the purpose of recovery of amount due. In that connection the Supreme Court had the occasion to consider the scope of Section 51 of the Civil Procedure. In that case Supreme Court held that it is not the law that one particular mode has to be exhausted before the alternative course provided in Act for execution has to be adopted. The provision of Sections 51 of the Code of Civil Procedure could not be interpreted to mean that before the execution of a decree the court should adopt strictly the alternative mode one by one. Only when the mode prescribed by (a) to (d) falls in that event the court may fall back upon the residuary power by which the court was given liberty to adopt any other manner as the nature of the relief granted may require or in other words, this residuary clause could only be adhered to after exhausting alternative mode prescribed in (a) to (d) of Section 51 of the Act. We are of the view that appointment of a Receiver for execution is not a matter of course and for that purpose a special case has to be made out. Order 40 rule 1 of the Court provides the circumstances in which the court may appoint Receiver and whenever a Receiver is appointed under the Code that Receiver has to be appointed on the basis of the principles laid down in Order 40 Rule 1 of the Code of Civil Procedure the court can appoint a Receiver in view of the fact that it is just and convenient to appoint a Receiver. The learned trial Judge has considered the aspect of the matter and accordingly we are of the view that for execution of the decree appointment of a Receiver is not the method of execution as a matter of course but some special case had to be made out but that not considered by the learned trial judge. On the facts disclosed in this case it is clearly evident that the decree-holder is suffering from renal failure and as a patient he requires reasonably for his own use and occupation. Further in the instant case, the judgment debtor undertook to vacate the premises by 31st October, 1979 which he had failed and neglected to do so. Decree was passed not only on the ground of failure to fulfil the undertaking but also on the ground of reasonable requirement. It is also on record that in order to forest all the eviction proceeding, a suit was filed by the judgement debtor in the year 1980 challenging validity of the notice of eviction and thereafter stalled the execution proceeding by obtaining an order for stay. The suit for eviction was filed in the year 1981 but the life of the litigation has not yet come to an end. So, clear 12 years have passed the decree for eviction which was passed by the learned trial Judge was affirmed on appeal by the Division Bench and the matter went up to Supreme Court and the Supreme Court dismissed the special leave petition thereby the decree for eviction has reached its finality. When decree for eviction has reached its finality and that there was no other impediment in the way of executing the decree and that there was no lawful ground to resist the execution, the judgement-debtor cannot claim that he could only be evicted by the ordinary mode which may be time-consuming process when the judgement-debtor knows that he had to finally vacate on the basis of the decree of the court. There is no equity in his favour. No case has been made out why the decree could not be executed. In the instant case when the matter came up before the Division Bench even though there was no stay the judgement-debtor agreed not to execute the decree so that the appeal filed by the judgement-debtor may be disposed of. We are of the view that in view of the peculiar facts and circumstances of the case disclosed in this case the judgement debtor has been able to make out a strong and exceptional case for execution of a decree by appointment of a Receiver. Admittedly, this court has power to appoint a Receiver and in view of the peculiar facts and circumstances of the case we are of the veiw that the circumstances prescribed in 0.40 Rule 1 of the Code exists for which we are of the view that the order appointing Receiver for the purpose of executing decree was proper. It has been held by the Supreme Court in Chinnamal v. P. Arumugham, , that Code of Civil Procedure designed to facilitate justice and it should not be treated as an enactment providing for punishment and penalties. The laws of procedure should be so construed as to render justice wherever reasonably possible. In the case of Owners and parties interested in M.V. "Valli Pero" v. Fernandeo Lopez, reported it was also held by the Supreme Court for rules of procedure not to construe literally but it should be construed pragmatically so as to advance the justice otherwise, rules of procedure will become the mistress instead of rewaiving the handmaid of justice, contrary to the role attributed to it in our legal system. Here is the case where the landlord had obtained a decree after filing the suit 12 years back. So many litigations were going on between the parties. The decree was finally affirmed by the Supreme Court and under such circumstances we are of the view that it is the duty of the court to execute the decree to aid the decree holder in recovering the possession of the premises after physically evicting the judgement debtor at the earliest possible time. In the facts and circumstances of the case the ordinary mode of execution through the court bailiff would create difficulty and which would consume several months or years. It would be inequitable and, contrary to justice to delay execution in the instant case. A party against whom a decree for eviction has been passed cannot claim the decree has to be executed in such a manner so that he may be benefited by the procedural delay. We are of the view that the court retains its power to appoint a Receiver if the court finds that it was just and convenient mode for recovery of the property as the facts and circumstances may require.
6. In the instant case there is no scope for resisting or avoiding the execution and delay in the instant case would defeat the cause of justice. Even though we do not agree with the reasons given by the learned trial Judge, we affirm the decision of the learned trial Judge in appointing a Receiver for the purpose of executing the decree in the manner indicated by the learned trial Judge. In order to avoid any hardship to the judgement-debtor. The judgment-debtor is given three months, time to vacate the premises and in case the judgement debtors fails to vacate the premises within the said period, the Receiver appointed by the learned trial Judge would execute the decree and recover possession in the manner indicated by the learned trial Judge. Three months time is granted as the appellant prayed for such time.
Accordingly, the appeal is dismissed with this modification.
Receiver and all parties to act on a signed copy of the minutes of the operative part of this judgement and order on the usual undertaking.
Amal Kanti Bhattacharjee, J.
7. I agree.