Calcutta High Court (Appellete Side)
Smt. Radha Rani Ray vs Sri Gautam Paul on 15 January, 2014
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
Present: The Honb'le Mr. Justice Tarun Kumar Gupta
C. O. No.3615 of 2010
Smt. Radha Rani Ray
Versus
Sri Gautam Paul
For the Petitioner: Mr. S. P. Roychowdhury
Mr. Debasish Roy
Mr. Soumya Roy
For the opposite Party: Mr. Priti Bhusan Chakraborty
Mr. Amit Banerjee
Judgement on: 15th January, 2014
Tarun Kumar Gupta, J.:-
This is an application under Article 227 of the Constitution of
India challenging order No.5 dated 6th of October, 2010 passed by
learned Additional District Judge, in-charge, First Fast Track Court at
Sealdah, District - 24 Parganas (South) in Misc. Appeal No.82 of 2010
arising out of order dated 13th of September, 2010 passed in Misc. Case
No.25 of 2006 which in turn arose out of Title Execution Case No.3 of
2004.
This application has a very checkered background which may be
summarized as follows:-
The present petitioner along with her mother as plaintiffs filed a
suit for partition being Title Suit No. 4 of 1989 in respect of premises
No.14 C, Shambhu Babu Lane, P. S. Entally, Calcutta -14 wherein the
present O. P. was described as one of the defendants being a stranger
purchaser of 1/9th share of the dwelling house from another co-sharer. In
that partition suit the petitioner plaintiff prayed for a decree of pre-
emption under Section 4 of the Partition Act against the O. P. defendant
being a stranger purchaser. After contested hearing said suit was
declared in preliminary form by a judgment dated 27th of August, 1992
by learned Assistant District Judge, 9th Court at Alipore declaring 7/9th
share of the petitioner plaintiff with mother Debi Rani Paul and
undivided 1/9th share of Sujit Kumar Paul, Smt. Gita Paul, Smt. Chhabi
Ghosh and Smt. Rubi Ghosh and undivided 1/9th share of the O. P.
defendant. However, learned court declined to pass any order of pre-
emption under Section 4 of the Partition Act observing that O. P.
defendant was not a stranger to the family of the petitioner plaintiff.
Being aggrieved the plaintiff and her mother preferred First
Appeal being F. A. No.152 of 1993 in the Hon'ble High Court at
Calcutta. The High Court allowed the appeal in part permitting the
petitioner to buy up share of the O. P. defendant to the extent of
undivided 1/9th share under Section 4 of the Partition Act by
declaring the defendant as a stranger purchaser of undivided 1/9th
share of co-sharer Bivabati Paul, by a judgment dated 11th of
September, 1998.
The O. P. defendant preferred Special Leave Petition being
S.L. P. No.2148 of 1999 before the Hon'ble Supreme Court against
said decree dated 11.09.1998. Said Special Leave Petition which
was renumbered as Civil Appeal No.5942 of 2000 was allowed on
the ground that application under Section 4 of the Partition Act
was premature as the defendant being stranger purchaser did not
ask for partition of his undivided 1/9th share. However, Hon'ble
Apex Court has held that the defendant was a stranger to the family
of the plaintiff through her father Nirod Baran Paul and the
property was their family dwelling house. In the meantime the
plaintiff purchased 1/9th share of other co-sharers and became
owner of 8/9th share of the suit dwelling house.
The petitioner plaintiff thereafter filed Title Suit No.63 of
2001 praying for declaring that the O. P. defendant being a
stranger purchaser in terms of the Supreme Court judgment dated
17th of October, 2000 had no right to joint possession of the suit
property being the family dwelling house of the plaintiff, for
mandatory injunction and for other consequential reliefs.
Learned Trial Court decreed said suit on contest by granting
a mandatory injunction vide judgment dated 20th November, 2003.
The petitioner being decree holder filed Title Execution Case No.3
of 2004 on 26th of March, 2004 in the court of learned Civil Judge
(Senior Division) at Sealdah.
Present O. P. being defendant judgment debtor preferred an
appeal being Title Appeal No.31 of 2004 which was dismissed on
contest by learned First Fast Track Court District Judge, Alipore
vide judgment dated 31st of March, 2005. In said judgment the
trial court judgment was modified to the extent that the present
petitioner being respondent was permitted to buy out undivided
1/9th share upon depositing the consideration money and thereupon execution of a deed of reconveyance. On 27th of April, 2005 the consideration moiney of the deed of conveyance was deposited in the trial court in terms of the decree passed in Title Appeal No.31 of 2004.
The O.P. judgment debtor preferred a second appeal being SAT No.3230 of 2005 against judgment and decree of Title Appeal No.31 of 2004 but the same was dismissed on 7th of August, 2006 under order 41 Rule 11 of the Code of Civil Procedure.
The present petitioner decree holder's petition for breaking open the padlock and bolt was allowed by the learned executing court vide order dated 29.08.2006. The court bailiff tried to execute the writ for delivery of possession on 11th September, 2006 but failed to execute the same due to resistance put up by O. P. judgment debtor.
The O. P. judgment debtor filed on 15.09.2006 SLP (Civil) No.16142 of 2006 against the judgment dated 7th of August, 2006 passed in SAT 3230 of 2005. In the meantime in the executing court the O. P. judgment debtor filed one petition dated 20.09.2006 under Section 151 of the Code of Civil Procedure for rejection of the execution petition filed by the decree holder and petitioner decree holder, on the other hand, filed an application dated 25th of September, 2006 praying for police help under order 21 Rule 97 of the Code of Civil Procedure.
The Special Leave Petition (Civil) 16142 of 2006 arising out of SAT No.3230 of 2005 filed by the O. P. judgment debtor was dismissed by Hon'ble Apex Court vide order dated 2nd of February, 2007.
The petitioner decree holder filed an application dated 21.02.2007 under Order 21 Rule 34 of the Code of Civil Procedure. The O.P. judgment debtor filed a review petition being Review Petition (Civil No.224 of 2007) arising out of SLP (Civil) No.16142 of 2006 but the same was dismissed by the Hon'ble Supreme Court vide order dated 14th of March, 2007.
The application under Order 21 Rule 34 filed by the petitioner decree holder was allowed on contest after rejecting the application under Section 151 of the Code of Civil Procedure filed by the O. P. judgement debtor praying for rejection of the execution petition vide order dated 29th of March, 2007.
Thereafter O. P. judgement debtor filed an application dated 8th of June, 2007 under Order 21 Rule 97, 100 and 101 read with Section 47 of the Code of Civil Procedure being Misc. Case No.25 of 2007.
The O. P. judgment debtor preferred a revisional application being C. O. No.182 of 2007 against order dated 29th of March, 2007 in this High Court which was rejected after contested hearing vide order dated 10th of September, 2007.
The petitioner decree holder filed an application dated 11th of July, 2007 under Section 151 of the Code of Civil Procedure for dismissing Misc. Case 25 of 2007 for not being maintainable.
Learned executing court after contested hearing dismissed the Misc. Case No.25 of 2007 vide order dated 20th of September, 2007.
The O. P. judgement debtor filed one appeal being Misc. Appeal 1 of 2008 against order of dismissal dated 20th September, 2007 passed in Misc. Case No.25 of 2007. However, said Misc. Appeal No.1 of 2008 was dismissed after contested hearing vide order dated 13.02.2008.
The O. P. judgment debtor filed a second Misc. Appeal being SMAT No.7 of 2008 against the order dated 13th of February, 2008 passed in Misc. Appeal No.1 of 2008 in May, 2008 but the same was not pressed.
06.02.2009 : Learned Civil Judge Senior Division at Sealdah passed an order in Title Execution No.3 of 2004 directing the decree holder to file Bengali Deed of Reconveyance as per submission of the learned advocate of judgment debtor.
07.02.2009: Draft copy of deed of reconveyance in Bengali language filed in Court in Title Execution No.3 of 2004.
24.02.2009: Judgement debtor filed written objection against Bengali draft deed of reconveyance.
03.11.2009: By order No.161 the draft deed of reconveyance in Bengali language was accepted by the learned court and judgment debtor was directed to register the deed. 06.11.2009: By order No.163 the Bench Clerk No.II was directed to execute and register the deed of reconveyance in Bengali language within one month.
The O. P. judgment debtor thereafter filed on 20.11.2009 Misc. Appeal No.119 of 2009 in the Court of learned Additional District Judge, Sealdah challenging order No.161 dated 03.11.2009 and order No.163 dated 06.11.2009. After contested hearing said Misc. Appeal being No.119 of 2009 was dismissed vide order dated 12.04.2010.
On 23rd of April, 2010 deed of reconveyance Bengali language was registered through order of learned executing court.
The O. P. judgement debtor next filed second Misc Appeal No. SMA 486 of 2008 against order of dismissal dated 12.04.2010 passed in Misc. Appeal 119 of 2009, but the same was dismissed vide order dated 5th of July, 2010.
At the prayer of petitioner decree holder learned executing court allowed the application for police help being Misc. Case No.25 of 2006 vide order dated 13.09.2010.
Sometime in October, 2010 the O. P. judgment debtor filed a special leave petition being SLP (Civil) No.31721 of 2010 against order passed in SMA 486 of 2008.
Learned Additional District Judge, in-charge, Fast Track Court at Sealdah, 24 Parganas (South) was pleased to grant an interim stay till 26.11.2010 in Misc. Appeal No.82 of 2010 arising out of order dated 13.09.2010 passed in Misc. Case No.25 of 2006. This is the order impugned.
The present petitioner decree holder being aggrieved with said order of granting of stay has filed this revisional application and there was an order of stay relating to Misc. Appeal No.82 of 2010 vide order dated 16.12.2010 which was extended from time to time.
The Hon'ble Apex Court was pleased to dismiss the Special Leave Petition (Civil) being No.3171 of 2010 arising out of order dated 05.07.2010 in SMA No.486 of 2008 vide order dated 11th April, 2011.
Mr. S. P. Roychowdhury, learned senior counsel appearing for the petitioner decree holder, submits that learned lower appellate court stayed the execution proceeding of Misc. Case No.25 of 2005 in connection with title execution case No.3 of 2004 by the order impugned on wrong premises. According to him, in the application for stay of all further proceedings in said execution case the O. P. judgment debtor took the plea that the decree passed in Title Suit No.63 of 2001 was null and void and that the Execution Case being No.3 of 2004 was accordingly not entertainable. The executability of the decree and validity of the order of police help dated 13.09.2010 were also challenged. He next submits that at the time of passing the impugned order of stay learned lower appellate court came to a palpable wrong finding that by filing a specific suit being Title Suit No.63 of 2001 the O. P. decree holder tried to bypass the order dated 17the October, 2000 passed by Hon'ble Apex Court in Civil Appeal No.5942 of 2000 wherein Hon'ble Apex Court held that the decree holder was entitled to claim for pre-emption under section 4 of the Partition Act in the pending Partition Suit being Title Suit No.4 of 1989 only if the judgment debtor being a stranger purchaser prayed for allotment of his share,. He submits that subsequent Title Suit being 63 of 2001 was filed on the strength of said Supreme Court judgment and in view of specific provisions of Section 44 of the Transfer of Property Act and that learned lower appellate court failed to appreciate the same. He next submits that learned lower appellate court also failed to take note that the decree passed in Title Suit No.63 of 2001 was confirmed upto the level of the Hon'ble Apex Court by passing the order of dismissal of the SLP (Civil) No.16142 of 2006 on 2nd of February, 2007. He further submits that the review petition being Review Petition (Civil) No.224 of 2007 arising out of said special leave petition was also dismissed by the Hon'ble Apex Court on 14th of March, 2007. According to him, after the decree was tested up to the level of Hon'ble Apex Court no one should be permitted to allege said decree to be null and void. He next submits that learned lower appellate court committed further wrong by observing that the judgment of the Hon'ble Supreme Court in Civil Appeal No.5942 of 2000 was honoured by breach and that it is required to be tested whether the decree passed by learned Civil Judge (Senior Division), Sealdah in Title Suit No.63 of 2001 has become null and void and non-executable on that score. He submits that as the order of stay was passed on wrong premises and on wrong reasons, the same should be set aside at the earliest. He also submits that the hard fought decree which was confirmed up to the level of Hon'ble Apex Court should not be stayed even for a single day on some fancy grounds.
Mr. Priti Bhusan Chakraborty, learned counsel appearing for the O. P. judgment debtor, on the other hand, submits that in Civil Appeal No.5942 of 2000 arising out of Partition Suit being Title Suit No.4 of 1989 it was clearly laid down that the petitioner decree holder was not entitled to get any decree of pre-emption under Section 4 of the Partition Act in the pending Partition Suit so long the judgement debtor being a stranger purchaser did not pray for his separate allotment. According to him, the petitioner decree holder without proceeding with said pending Partition Suit (Title Suit 4 of 1989) where final decree has not yet been drawn, filed a separate suit being Title Suit No.63 of 2001 praying for obtaining a decree of recovery of possession of the same property in round about way. According to him, when the decree passed in Title Suit No.63 of 2001 is questionable being against the spirit of the order of Hon'ble Apex Court passed in connection with Civil Appeal No.5942 of 2000, learned lower appellate court rightly stayed the order of police help passed in connection with Misc. Case No.25 of 2006 which arose from Title Execution Case No.3 of 2004 which in turn arose from said judgment and decree of said Title Suit No.63 of 2001. In this connection he further submits that the decree was not also executable. Accordingly, he prayed for rejection of this revisional application.
A party cannot get an order of stay of a Misc. Case allowing police help for execution of a hard fought decree unless the judgment debtor makes out a prima facie arguable case. At the time of disposing of Civil Appeal No.5942 of 2000 arising out of Partition Suit being Title Suit No.4 of 1989 Hon'ble Apex Court laid down in unequivocal terms that the O. P. judgment debtor was a stranger purchaser of 1/9th share of the family dwelling house of the decree holder from another co-sharer, but the decree holder was not entitled to get any order of pre-emption under Section 4 of the Partition Act so long the stranger purchaser judgment debtor prayed for his separate allotment in said Partition Suit. As such, said order of Hon'ble Apex Court in connection with Civil Appeal No.5942 of 2000 only laid down the future conditions on fulfilling of which (in the pending Partition Suit) the decree holder can get an order of pre-emption under Section 4 of the Partition Act in said partition suit. Hon'ble Apex Court nowhere stated in said judgment dated 17th of October, 2000 in connection with Civil Appeal No.5942 of 2000 that the decree holder is debarred to file any specific suit invoking Section 44 of the Transfer of Property Act for recovery of possession of the suit property being the undivided 1/9th share of the judgment debtor / stranger purchaser. It is also pertinent to mention that the contested judgment and decree dated 28.11.2003 passed in Title Suit Nio.63 of 2001 was confirmed up to the level of the Hon'ble Apex Court. The Hon'ble Apex Court not only dismissed said Special Leave Petition being SLP (Civil) 16142 of 2006 arising out of said judgment and decree of Title Suit No.63 of 2001 but was also pleased to dismissed the review application being review petition (Civil) No.224 of 2007 arising out said SLP (Civil) 16142 of 2006 vide orders dated 2.2.2007 and 14.03.2007 respectively. Under these circumstances learned lower appellate court committed glaring error of both law and fact by observing that the decree of Title Suit No.63 of 2001 and Execution Case being Title Execution Case No.3 of 2004 arising therefrom are required to be re-examined for deciding whether the same were null and void. In this connection it is pertinent to note that the order of acceptance of draft deed of reconveyance vide order No.161 dated 03.11.2009 and the direction of the learned Executing Court to register the deed of reconveyance by order No. 163 dated 06.11.2009 were again tested up to the level of Hon'ble Apex Court and remained undisturbed. During hearing before lower appellate court as well as before this Court in connection with said orders the judgment debtor tried to challenge the judgment and decree passed in Title Suit No.63 of 2001 being void but the same was rejected by this Court in SMA No.486 of 2008 which was confirmed by the Hon'ble Apex Court by rejection of Special Leave Petition being SLP (Civil) 31721 of 2010 vide order dated 11.04.2011. It is thus apparent that the basic ground on which the order of stay was passed by the learned lower appellate court had no basis. In the original written statement filed by the judgment debtor in Title Suit No.63 of 2001 it was nowhere stated that the suit property was vague or indefinite. At the time of execution of the decree it was alleged that the decree was not executable but the same was rightly refused to be entertained by the learned Executing Court.
There is no dispute that the petitioner decree holder has got the decree of eviction in Title Suit No.63 of 2001 after hard and bitter fighting which went up to the Hon'ble Apex Court for more than one occasion. If a litigant is not permitted to enjoy the fruit of a hard fought decree of eviction on some flimsy ground then people may lose faith in the judiciary.
I am of the opinion that the learned lower appellate failed to note any arguable ground for stay of the order passed in Misc. Case No.25 of 2006 in connection with Title Execution Case No.3 of 2004 which in turn arose from the judgment and decree passed in Title Suit No.63 of 2001.
In view of the discussions as made above the order of stay dated 6th of June, 2010 is hereby set aside by allowing this revisional application. The order of stay, if any, stands vacated. Learned Executing Court is free to proceed with the execution case for executing the decree passed in Title Suit No.63 of 2001 as per law. However, learned lower appellate court is hereby requested to dispose of Misc. Appeal No.82 of 2010 urgently and preferably within a period of one month from the date of communication of the order.
However, I pass no order as to costs.
Urgent photostat certified copy of this judgment be supplied to the learned counsels of the parties, if applied for.
(Tarun Kumar Gupta, J.)