Calcutta High Court
Turner Morrison & Co. Ltd vs Prakash Bakshi on 24 February, 2015
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE Present :
The Hon'ble Justice Soumen Sen G.A. No.1507 of 1997 C.S. No.906 of 1980 Turner Morrison & Co. Ltd.
Vs.
Prakash Bakshi
For the Plaintiff : Mr. Utpal Bose, Sr. Adv.,
Mr. A. Mukherjee,
Heard on : 07.08.2014, 14.08.2014, 21.08.2014,
01.12.2015, 20.1.2015, 27.01.2015,
17.02.2015.
Judgment on : 24th February, 2015
Soumen Sen, J.:- This execution application has been filed for execution of a decree dated 25th February, 1985.
On or about 1974, the defendant was inducted as a licensee of the plaintiff in respect of two adjoining flats being Nos.7 & 8 at Premises No.47, Park Street, Calcutta along with the furniture, amenities and fixtures therein.
The plaintiff by a notice dated 22nd January, 1977 revoked the leave and licence granted to the defendant and called upon him to deliver up quiet, vacant and peaceful possession of the said two adjoining flats. Since thereafter the defendant filed a declaratory suit before the learned City Civil Court at Calcutta claiming right to occupy the said two adjoining flats being Nos.7 & 8 till March, 1988 on the basis of an alleged agreement dated March 1, 1974. The said suit was dismissed on 27th November, 1978. Thereafter on 1st October, 1980, the plaintiff filed a suit being C.S. No.906 of 1980 praying, inter alia, for recovery of possession of the two adjoining flats being Nos.7 & 8 at Premises No.47, Park Street, Calcutta. On 25th February, 1985, the suit was decreed in favour of the plaintiff. The salient features of the decree are stated below:-
i) The defendant was directed to deliver up quiet, vacant and peaceful possession of the said two adjoining flats together with all amenities, furniture and fixtures.
ii) The defendant was directed to pay to the plaintiff a sum of Rs.236.12 per month towards arrears of licensee fee commencing from 1st October, 1977 upto a period of 3 years prior to filing of suit.
iii) The defendant was directed to pay mesne profit at the rate of Rs.30 per day from 1st October, 1977 till possession is delivered to the plaintiff.
iv) The defendant was directed to pay a sum of Rs.200 per month for the use of the amenities calculated from 1st October, 1977 till possession is delivered to the plaintiff.
v) The defendant was restrained by way of a permanent injunction from dealing with and/or disposing of or in any way transferring/assigning or encumbering the flats together with all amenities.
The defendant preferred an appeal. The said appeal was dismissed by the Hon'ble Division Bench on 16th December, 1985. On 18th July, 1986, the petitioner filed the execution application. On 18th July, 1986, the learned Master was pleased to pass an order directing the defendant to deliver vacant and peaceful possession of the said flats together with kitchen and other amenities lying thereat. The learned Master appointed the Sheriff to take possession.
On 17th December, 1986, in terms of the order passed by the learned Master, a representative of the sheriff's office along with a representative of the plaintiff visited the premises and notice was served on the son of the defendant who was found residing in the said flats asking him to deliver vacant and peaceful possession within 4 days from the date of receipt of the notice. The representative of the Sheriff also prepared a report dated 19th December, 1986 to that effect. On 23rd December, 1986, the representative of the Sheriff along with a representative of the plaintiff again visited the premises to take possession but it was found that the flats were locked. As the order did not provide for breaking of locks possession could not be handed over. A report dated 5th January, 1987, was also prepared to that effect.
On 15th January, 1986, an order was passed to direct the Officer- in-charge, Park Street Police Station to assist the decree-holder at the time of execution of the said decree for handing over peaceful and vacant possession of the flats to the plaintiff. The Special Leave Petition preferred by the defendant against the order dated 16th December, 1985 was rejected by the Hon'ble High Court by an order dated 28th January, 1987. However, it was ordered that the possession of the defendant would not be disturbed till 31st December, 1987, withdraws the appeal pending before the Hon'ble High Court at Calcutta within two weeks from the date of the said order. The defendant thereafter applied for clarification of the order dated 28th January, 1987. The Civil Miscellaneous Petition in Special Leave to Appeal was rejected by an order dated 31st March, 1987. On 19th May, 1987, possession of one flat being Flat No.7 without any amenities was handed over to the plaintiff by the officer of the Sheriff. The flat was thereafter put under padlock by the representative of the plaintiff.
On 2nd June, 1987, the Sheriff filed a report regarding delivery of possession of one flat being Flat No.7. The appeal preferred by the defendant was dismissed on 20th October, 1987. On April, 1988, the plaintiff filed a further application for execution praying, inter alia, for a direction upon the Sheriff to deliver possession of Flat No.8 and kitchen No.11 in terms of the decree. On 31st March, 1990, an order was passed directing the Sheriff to deliver possession of Flat No.8 to the plaintiff. On 4th December, 1996, when the representative of the Sheriff visited the flat it was found that the original Flat No.8 was double locked and marked as Flat No.9A and was occupied by one IGT Exports. It further transpired that the Flat No.7 number plate was missing and the same was linked with the original Flat No.8 (now marked as 9A) and both the flats were occupied by IGT Exports as one Flat, i.e., 9A. In view thereof, the possession of the flat could not be given to the plaintiff. On 16th April, 1997, the instant execution application was filed.
In the proceeding, affidavits have been filed by Sri Manjeet Kaur Uppal, Sri Neeladri Chatterjee, Sri Surinder Singh, Sri Didar Singh, Sri Balbir Singh, Sri Bhawan Kumar Bhatia, Sri Nand Lal Todi. In the affidavits filed by those persons, it was contended by them that the flats in respect whereof the plaintiff claiming to be decree-holder are different flats and not the flats in occupation of the said persons. However, none of the persons appeared before this Court after filing affidavits.
The question arises in this case is whether an execution application would be maintainable at this stage having regard to the fact that the Sheriff has already filed a report regarding the possession of flats in question have been duly delivered to the plaintiff. It may so happen as submitted by Mr. Utpal Bose, learned Senior Counsel appearing on behalf of the plaintiff, that the persons who are claiming to be in possession of the flats had surreptitiously entered the said flats taking advantage of the absence of the plaintiff from the suit premises after the Sheriff has delivered possession. There may be some justification in the argument that the plaintiff would now be again put back to its original position and may have to launch proceedings against such persons in occupation of the said two flats but for that in this jurisdiction I cannot pass an order directing eviction of the said persons. Once a decree stands satisfied, the Executing Court loses its jurisdiction. It may be an extremely unfortunate situation and the plaintiff may have to again initiate proceeding against such persons who, according to the plaintiff, have clandestinely and illegally entered the flats but no order could be passed by the Executing Court. This aspect of the matter was considered by me in Smt. Radha Rani Basak Vs. Smt. Niva Alias Sankari Bose & Ors. reported at 2013 (1) ICC 765 in which I have held:-
"22. The Court really appreciates the anxiety of the plaintiff that in the event the plaintiff is required to initiate a proceeding for recovery of possession, it might take some time. Already the plaintiff had spent more than 10 years in getting possession of the suit premises from which they claimed to have been dispossessed. However, there is no lis pending in which the Civil Court could pass an order for restoration of possession. The suit had been decreed. In the execution proceeding, the bailiff had delivered possession of the suit premises and filed a report. The said report was taken on record and decree stands satisfied. Thereafter, the Court becomes functus officio. It is not a proceeding under Section 144 of the Code of Civil Procedure. In the meantime, the opposite parties have filed a suit which may or may not be completely unmeritorious. Although this Court, on a reading of the plaint, finds it to be prima facie mala fide having regard to the pleadings in the plaint and orders passed in the eviction suit, however, directing the police to execute a decree by evicting the said opposite parties would not be in due process of law, after all, possession is the ninth point in law. The claim may be moonshine and vexatious, but in this proceeding, the said suit cannot be dismissed nor any order could be passed for restoration of possession in favour of the plaintiff.
23. This Court, with all its sympathy for the plaintiff, is also unable to pass any direction and can only express its anguish in the manner in which sometimes a decree-holder is put to jeopardy and helplessness as it happened in the instant case."
In view of the aforesaid, this execution application is dismissed as not maintainable. However, this order of dismissal shall not prevent the plaintiff from taking any appropriate steps in accordance with law for recovery of possession. The time spent in prosecuting this proceeding shall be excluded in the event the plaintiff takes appropriate steps in accordance with law within a period of six weeks from date.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.
(Soumen Sen, J.)