Gauhati High Court
Bacchu Sk @ Basir Sk vs Nurul Huda Sarkar on 30 October, 2019
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/6
GAHC010239382018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(I/O) 364/2018
1:BACCHU SK @ BASIR SK
S/O- LATE SADER SK, R/O- VILL ADABARI PT-I, P.O- SAGOLCHARA, P.S
AND DIST- DHUBRI, ASSAM
VERSUS
1:NURUL HUDA SARKAR
S/O- LATE KAMAL UDDIN SARKAR, R/O- VILL- SAGOLCHARA PT-III, P.O-
SAGOLCHARA, P.S AND DIST- DHUBRI, ASSAM, PIN- 783301
Advocate for the Petitioner : MS. R CHOUDHURY
Advocate for the Respondent : MR F U BARBHUIYA
Linked Case : FAO 62/2018
1:BACCHU SK @ BASIR SK
S/O LATE SADER SK
R/O VILL. ADABARI PART-I
P.O. SAGOLCHARA
P.S. AND DIST. DHUBRI
ASSAM.
VERSUS
1:MD NURUL HUDA SARKAR
S/O LATE KAMAL UDDIN SARKAR
R/O VILL. SAGOLCHARA PART-III
P.O. SAGOLCHARA
Page No.# 2/6
PIN 783324
P.S. AND DIST. DHUBRI
ASSAM.
Advocate for the Petitioner : MS. R CHOUDHURY
Advocate for the Respondent : MR F U BARBHUIYA
Linked Case : I.A.(Civil) 3840/2018
1:BACCHU SK @ BASIR SK
S/O LATE SADER SK
R/O VILL. ADABARI PART-I
P.O. SAGOLCHARA
P.S. AND DIST. DHUBRI
ASSAM.
VERSUS
1:MD NURUL HUDA SARKAR
S/O LATE KAMAL UDDIN SARKAR
R/O VILL. SAGOLCHARA PART-III
P.O. SAGOLCHARA
PIN 783324
P.S. AND DIST. DHUBRI
ASSAM.
Advocate for the Petitioner : MS. R CHOUDHURY
Advocate for the Respondent :
BEFORE
THE HON'BLE MR JUSTICE PRASANTA KUMAR DEKA
ORDER
30.10. 2019 Heard Ms. R. Choudhury, learned counsel for the petitioner. also heard Mr. F U Barbhuyan, learned counsel for the respondent.
Page No.# 3/6 The respondent as the plaintiff filed Title Suit No. 1/2016 in the court of learned Civil Judge at Dhubri against the present petitioner/defendant for specific performance of contract in respect of a particular plot of land described in the schedule of the plaint. The said suit was decreed ex-parte as follows:-
"ORDER
16. In view of the above discussion and the decisions reached in the foregoing point for determinations, the suit of the plaintiff is decreed ex-parte with cost. It is hereby decreed and directed that the plaintiff do pay to the defendant the balance sale consideration of Rs.10,00,000/- (ten lakh) within three months from today and upon receipt of the same, the defendant is directed to execute a formal registered sale deed in this regard and thereafter to deliver the possession of the suit land to the plaintiff and is permanently restrained thereafter from interfering with the possession of the plaintiff".
Thereafter the said decree was put into execution which was registered as Title Execution No. 2/2018 in the court of learned Civil Judge, Dhubri. On receipt of the notice from the executing court, the petitioner filed an application under Order 9 Rule 13 of the CPC which was registered as Misc (J) Case No. 28/2018. In the said application it was stated that in Title Suit No. 1/2016 along with Misc(J) Case No. 4/2016, the plaintiff respondent took steps and the summons was served on a person namely Mohiruddin instead of the present petitioner defendant whose name is Bacchu SK @ Basir SK. The said person Mohiruddin did not inform about the service of summons and its acceptance by him. Mohiruddin is the son of Babul Hussain and the said Babul Hussain is the son of the petitioner/defendant. The relation between the petitioner/defendant and Babul Hussain is strained because of the fact that the said Babul Hussain also filed Title Suit No. 20/2016 against the petitioner/defendant for specific performance of contract in respect of the same land which is the decreetal land in Title Execution No. 2/2018. Alleging that there were suppression of material facts in the plaint by the plaintiff/respondent in the suit, the petitioner sought for setting aside the ex- parte judgement and decree. Similar petition was also filed in Misc(J) Case No. 4/2016 arising out of Title Suit No. 1/2016 by way of which the plaintiff/respondent sought for temporary injunction against the present petitioner.
The plaintiff/respondent filed his written objection against the application under Order 9 Rule 13 of the CPC which was registered as Misc(J) Case No. 28/2018. In the said written objection it was raised that the defendant petitioner appeared before the court below and on Page No.# 4/6 two occasions took time to file written statement by him and later on as the defendant/petitioner remained absent and did not file any written statement so after closing the stage for filing the written statement suit proceeded ex-parte.
The learned court below vide order dated 15.09.2018 passed in Misc(J) Case No. 28/2018 rejected the said application under Order 9 Rule 13 of the CPC following which the connected FAO No. 62/2018 was filed under Order 43 Rule 1(d) of the CPC. During the pendency of the said FAO No. 62/2018, the petitioner filed an application under Section 47 of the CPC with a prayer for setting aside the ex-parte decree in Title Suit No. 1/2016 and also setting aside the agreement for sale vide registered sale deed No. 987/909/14 along with consequent sale permission. The said application was filed admittedly in Title Execution No. 2/2018 which was objected by the plaintiff/respondent on similar grounds as referred hereinabove. In addition to the ground of objection it was further raised that the jurisdiction of the executing court under Section 47 of the CPC is very limited and the relief/reliefs sought for by the defendant/petitioner are beyond the scope of the limited jurisdiction under Section 47 of the CPC. Vide order dated 24.09.2018, the learned Civil Judge, Dhubri rejected the said application under Section 47 of the CPC and issued writ for execution. Being aggrieved, the petitioner filed CRP(I/O)364/2018 challenging the said order of rejecting the application under Section 47 of the CPC.
Ms. Choudhury, learned counsel for the petitioner submits that the learned court below failed to consider the fact that no summons was received by the petitioner personally. The fact that the relation between the petitioner and his son Babul Hussain was strained can very well be inferred inasmuch as the said Babul Hussain also filed a suit for specific performance of contract registered as Title Suit No. 20/2016 pending in the same court. The learned court below ought to have considered that the petitioner is an old and aged person who wanted to distribute his property amongst his legal heirs which was resisted by his son Babul Hussain and as such the relation was strained. The court below ought to have believed the said plea of the petitioner/defendant and allowed the application under Order 9 Rule 13 of CPC. Similarly, Ms. Choudhury submits that the petition under Section 47 of the CPC ought not to have dismissed keeping in view the grounds stated therein. The petitioner had denied the execution of the said agreement for sale on the basis of which the plaintiff/respondent filed Page No.# 5/6 the suit which was decreed ex-parte. Accordingly it is the submission of Ms. Choudhury that the learned court below failed to invoke its jurisdiction both under Order 9 Rule 13 of CPC and under Section 47 of the CPC.
Mr. Barbhuyan, learned counsel for the respondent on the other hand countered the said submission of Ms. Choudhury and submits that it is on record that the petitioner entered appearance through counsel and on two occasions sought time to file written statement which was allowed by the learned court below. Subsequent thereto, no representation on behalf of the petitioner was there nor written statement was filed. The learned court below rightly closed the stage for filing written statement and fixed the suit to proceed ex-parte. Thereafter, no application for setting aside the said order of ex-parte was filed and accordingly, the learned court below rightly passed the ex-parte decree and there is no error apparent in the said decree. Referring to the limited jurisdiction of the executing court under Section 47 of the CPC, it is the contention of Mr. Barbhuyan, learned counsel for the respondent that the reliefs sought in the application under Section 47 of the CPC under no circumstance could be granted by the executing court. The learned court below rightly dismissed the said application and there is no point for interference by the court. Relying the case law of Sunil Poddar and Others Vs. Union Bank of India reported in (2008) 2 SCC 326, it is the contention of Mr. Barbhuyan, that in a similar situation arising out of identical factual matrix, the Hon'ble Apex Court held that defendant had otherwise knowledge of the proceedings and he could have appeared and answered the plaintiffs claim but he cannot put forward a ground of non-service of summons for setting aside ex-parte decree passed against him by invoking Order 9 Rule 13 of CPC. Summing up his submission Mr. Barbhuyan, sought for dismissal of both the revision petition and the first appeal against the order.
I have given due consideration to the submissions of the learned counsel. Order 9 Rule 13 of CPC stipulates invocation of the jurisdiction of a court on the ground that no summons were duly served on the defendant and for any other sufficient cause for which the defendant could not remain present at the time of hearing of the suit. In the present case in hand, the contention of the petitioner is that the summons was served on a person other than the petitioner and the same was not intimated to him on the ground that the relation between the petitioner and his son Babul Hussain was strained because of dispute between the father Page No.# 6/6 and the son. In order to support the contention of the said strained relation, Title Suit No. 20/2016 filed by the said Babul Hussain against the present petitioner was pressed by Ms. Choudhury. However, the said submission cannot be accepted inasmuch as the learned court below on verifying the records came to the conclusion that the petitioner entered appearance and took time twice for filing written statement which were allowed and further there was default on the part of the petitioner and as such the suit proceeded ex-parte. If we consider the ratio as held by the Hon'ble Apex Court in the decision of Sunil Poddar and Others Vs. Union Bank of India reported in (2008) 2 SCC 326,(supra) the defendant once entered appearance before the court, the plea of non receipt of summons cannot be considered in an application under Order 9 Rule 13 of CPC. The grounds for setting aside the ex-parte decree are not at all sufficient causes. The learned court below rightly exercised its jurisdiction in dismissing the application under Order 9 Rule 13 of the CPC.
Section 47 of the CPC gives the jurisdiction to an executing court to decide the excutability of a decree and the said proceeding must be between the parties defined therein in the said provision under Section 47 of the CPC. The fact that Title Suit No. 20/2016 is pending cannot at all be considered inasmuch as the plaintiff therein Title Suit No. 20/2016 does not fall within the terms of party as defined under Section 47 of the CPC. Moreover there are no grounds to show that the decree for specific performance is a nullity and as such inexecutable.
Accordingly, in my considered opinion the learned court below while dismissing the application under Section 47 of the CPC rightly did so and no interference is required by this court. Keeping in view the discussions made hereinabove, I am inclined to dismiss both the revision petition and the appeal which I accordingly, do. No costs.
Interim order if any stands vacated.
JUDGE Comparing Assistant