Calcutta High Court (Appellete Side)
Tarapada Dey & Ors vs Amitava Dey on 19 January, 2009
Author: Biswanath Somadder
Bench: Biswanath Somadder
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
THE HON'BLE MR. JUSTICE BISWANATH SOMADDER
C.O. NO. 3641 OF 2007
TARAPADA DEY & ORS.
VERSUS
AMITAVA DEY
For the Petitioners: Mr. Sudhis Dasgupta.............Senior Advocate,
Mr. H.P.Roy Choudhury..................Advocate.
For the Opposite Party: Mr. J.R.Chatterjee.................Senior Advocate.
Mr. Aniruddha Chatterjee................Advocate,
Mr. Gouri Sankar Pal.....................Advocate.
Heard On : 19.06.2008 & 05.12.2008.
Judgment on: 19.01.2009
BISWANATH SOMADDER, J. - This is an application under Article
227 of the Constitution of India in respect of an order bearing no. 57 dated 14th
March, 2007, passed by the learned Judge, Second Bench of the City Civil Court
at Calcutta in Miscellaneous Case No. 961 of 2006 arising out of Title Execution
case no. 48 of 1998.
The petitioners in the instant application are the judgment-debtors who
are contesting the execution case pending before the learned court below.
By the order impugned, the learned court below dismissed the judgment-
debtors' application dated 20th May, 2006, filed before it under section 47 of the
Code of Civil Procedure, 1908.
The facts of the case relevant for the purpose of disposing the instant
application, in brief, are as follows: -
By a common judgment delivered by the learned trial court, three suits,
being Title Suit Nos. 2723/94, 2194/94 and 3558/94, in which the main dispute
was between the two branches of a family over control of a business of sale and
repair of watches, stood disposed of, against which three appeals were preferred
before a Division Bench of this Hon'ble Court by the petitioners No. 1 to 5 herein.
From the observations made in the judgment and order dated 06th October, 2005
passed by the Division Bench of this Hon'ble Court it appears that the dispute
revolved round 'M/s. B.K.Dey', the trade name of a proprietary concern, originally
belonging to Bijoy Krishna Dey (since deceased), which is being run in a rented
shop room from premises no. 15, Mahatma Gandhi Road, Calcutta. The Division
Bench of this Hon'ble Court dismissed the three appeals of the petitioner nos.1 to
5 herein with the following observations: -
"Section 14 of the West Bengal Premises Tenancy Act, however as
construed by this Court in the case of Debabrata Vs. Kalyan, does not
make sub-letting "unlawful" per se. so this authority cannot be applied in
the facts of the present appeal.
In the subject-controversy, the Tarapada branch in our opinion
cannot be allowed to have the Deed of gift invalidated on the ground that
if given effect to, it would amount to creation of sub-tenancy or
assignment without prior consent of the landlord. It is the landlord alone
who can raise this issue.
There is another aspect of the controversy, however, which requires
consideration. The subject of gift, which appears from the schedule to the
deed of Gift, is as follows: -
"under P.S. Muchipara, temporary property in holding no. 15,
Mahatma Gandhi Road, Calcutta- 700 019, in the ground floor, one
shop-room the width of which is 12 ft. and length is 10 ft. the said
shop-room housing the watch shop named B.K.Dey along with the
goods, furniture and goodwill of business is the property mentioned
in the schedule of this deed and the four boundaries are described
below........"
It is not necessary for our purpose to describe the boundary and we
are not doing so.
Thus, four categories of properties are forming subject of the gift,
being the shop-room, goods, furniture and goodwill of the business. The
tenancy of Bijoy Krishna in respect of the shop-room is guided by the
West Bengal Premises Tenancy Act, 1956. In the first place there is no
clear and specific mentioned of transfer of the tenancy right in the shop-
room by Bijoy in favour of Amitava in the gift deed.(Ext.1).
In fact, in the Plaint of T.S. 2194 of 1994, instituted by Somnath, a
specific allegation was made that Bijoy Krishna, in collusion with the
landlady was going to transfer the tenancy. This allegation was made in
paragraph 6 of the plaint. In his written statement, dated 30th July,
1996, in response to such allegation, Bijoy Krishna specifically averred
that he was still tenant in respect of the suit premises, but was ready to
abrogate the tenancy right in favour of Amitava. There is no evidence we
have been taken through, from where inference can be drawn as regards
change of tenancy of the subject shop room subsequently.
Mere intention to abrogate tenancy expressed by the tenant alone,
in our view cannot abrogate the tenancy and its incidence outside the
ambit of the statute guiding landlord tenant relationship. Till the death of
Bijoy Krishna, the tenancy remained with him. The tenancy, with which
a third party (being the landlord) is involved, cannot be deemed to have
undergone a change by virtue of the execution of the Deed of Gift. In
these cases we are not concerned with the effect of the deed of gift upon
the tenancy of the shop-room in the name of Bijoy Krishna. As observed
hereinbefore that gift deed in its terms do not contemplate assignment of
tenancy of the shop-room. That question will be decided, if raised at all,
in an appropriate time in presence of the landlord. Incidentally, it may be
observed that if the gift deed is construed as a gift comprising tenancy
right in the shop-room vis-à-vis the terms of tenancy agreement between
Bijoy and his landlord then at best such part of the gift may be declared
invalid because of any statutory bar, if there be any. In such a case also
the gift as a whole would not be valid.
We are therefore of the view that the Judgments and Decrees of the
Trial Court do not warrant any interference.
All the three appeals are, accordingly, dismissed with the
observations made hereinbefore in respect of the tenancy of the shop-
room in question.
Parties to bear their own cost."
The specific contention of the petitioners in the present application is that
the learned court below did not take into consideration that the decree-holder's
execution application had become non-existent on passing of the appellate decree
by the Division Bench of this Hon'ble Court and was, therefore, not maintainable
in law. In this regard, reliance has been placed by the learned advocate for the
petitioners on the following judgments: -
I. M/s Gojer Bros. (Pvt.) Ltd. -vs- Shri Ratan Lal Singh
reported in (1974) 2 SCC 453,
II. Lakshmi Narayan Guin and Ors. -vs- Niranjan Modak
reported in (1985)1 SCC 270,
III. Syam Mandal -vs- Satinath Banerjee & Ors. reported in 21
CWN 776.
It has also been contended on behalf of the petitioners that it is the duty of
the executing court to look into all the proceedings leading upto the decree and
not merely look at the decree as it is finally drafted. Learned advocate for the
petitioners relied on certain observations of the Division Bench of this Hon'ble
Court in the judgment and order dated 06th October, 2005, while it dismissed the
three appeals preferred by the judgment-debtors in respect of the shop room in
question to substantiate this point and also relied on the case of Bhavan Vaja &
Ors. -vs- Solanki Hanuji Khodaji Mansang & Anr. reported in (1973) 2 SCC
40.
The learned advocate for the petitioners also submitted that the provision
of section 14 of the West Bengal Premises Tenancy Act, 1956, forbids a tenant to
transfer or assign his tenancy rights or any part thereof, without previous
consent in writing and no such consent was obtained from the landlord by the
original tenant. In this context, the learned advocate for the petitioners relied on
the case of Amar Kumar Sen -vs- Gita Rani Das & Ors. reported in (2005) 13
SCC 83 and further submitted that on the death of Bijoy Krishna Dey, being the
original tenant of the disputed shop room, his tenancy right in respect of the
disputed shop had devolved, amongst others, upon his sons, i.e. Tarapada,
Ranjit, Somnath, Biswanath and Moni (being the judgment-debtors), under
section 8(a) of the Hindu Succession Act, 1956, and not on Amitava, being the
decree-holder and the grandson of Bijoy Krishna. Hence, the learned advocate for
the petitioners submitted that the execution case was not maintainable and
ought to have been dismissed by the learned court below by allowing the
application filed by the judgment-debtors under section 47 of the Code of Civil
Procedure, 1908. He finally submitted that in the facts and circumstances of the
case, the impugned order is liable to be set aside by this Court in exercise of its
jurisdiction under Article 227 of the Constitution of India.
On behalf of the decree-holder/ opposite party it was submitted that the
execution case was filed before the learned executing court on 26th March, 1998
for execution of the judgment and decree dated 29th January, 1998 passed by the
learned trial court. It was also submitted by the decree-holder /opposite party
that after the dismissal of the three appeals by the Division Bench of this Hon'ble
Court, the judgment and decree dated 06th October, 2005, passed by the High
Court was filed before the learned executing court along with an application for
resumption of the execution proceeding from the stage it was stopped. It was,
therefore, submitted that the decree of the learned trial court and the order and
decree, as drawn, in respect of the appeals dismissed by the Division Bench of
this Hon'ble Court on 06th October, 2005, was adopted by the learned executing
court in execution case no. 48 of 1998, pursuant to the aforementioned
application filed before it by the decree-holder. In so far as the contention of the
petitioners are concerned with regard to the application for execution of the
decree of the learned trial court having become non-existent on passing of the
judgment and order by the Division Bench of this Hon'ble Court on 06th October,
2005, it has been submitted that in the execution application, which is in tabular
form, the column relating to 'appeal' was answered 'no' since at the time of filing
of the execution application in 1998, no notice of appeal dated 23rd March, 1998
was received by the decree-holder and subsequently the Hon'ble High Court,
sitting in appeal had had stayed the execution until disposal of the appeals.
According to the learned advocate for the decree-holder/ opposite party, the
decisions reported in (1974) 2 SCC 453 and (1985) 1 SCC 270 cited by the
petitioners were clearly distinguishable since those judgments spoke of different
decree passed in appeal which were in variation with the decree of the trial court
and were in relation to matters of eviction of tenant by the landlord and therefore
not applicable at all in the facts of the instant case. It has also been contended
by the learned advocate for the decree-holder /opposite party that the
assignment of the shop room, even if it was construed as assignment of tenancy,
cannot be objected to, by the any third party, in absence of written consent of the
landlord and such assignment of tenancy right or sub-tenancy is not barred or
bad in law per se, but creation of such sub-tenancy, without written consent of
the landlord, was actionable by the landlord alone, by filing of a suit for eviction
of the tenanted premises, which was evident from the decision rendered in the
case of Debabrata Mukherjee -vs- Kalyan Kumar Roy reported in 85 CWN 594.
The learned advocate for the decree-holder /opposite party further submitted
that before the Division Bench of this Hon'ble Court same arguments were made
by the learned advocate for the petitioners herein and the Hon'ble Court of
Appeal rejected all arguments and the decisions cited and had held that the
landlord alone had the right to take steps against such action. The learned
advocate also relied on the following judgments on the proposition of law that the
executing court cannot go behind the decree: -
I. Vasudev Dhanjibhai Modi -vs- Rajabhai Abdul Rehman and
Ors. reported in (1970)1 SCC 670,
II. Food Corporation of India -vs- S.N. Nagarkar reported in
AIR 2002 SC 808,
III. Darshan Singh -vs- State of Punjab reported in 2007 (3) WBLR
(SC) 237.
Relying on the case of C.Gangacharan -vs- C. Narayanan reported in
(2000) 1 SCC 459, the learned advocate for the decree-holder/opposite party
submitted that unless the decree was void ab initio or without jurisdiction, the
executing court cannot go behind the decree of a court of competent jurisdiction.
Regarding the narrow power of the executing court under section 47 of the
Code of Civil Procedure, 1908, the learned advocate for the decree-
holder/opposite party relied on the case of Dhurandhar Prasad Singh -vs- Jai
Prakash University & Ors. reported in AIR 2001 SC 2552 and Nepal Food
Corporation -vs- UPT Imports and Exports Ltd. reported in 2001 (1) CHN
716.
The learned advocate for the decree-holder /opposite party, thus,
submitted that the order passed by the learned court below cannot be said to be
suffering from any palpable infirmity or reasoning or error of law or was an order
passed without jurisdiction, which could warrant interference of this court, in
exercise of its jurisdiction under Article 227 of the Constitution of India. He also
submitted that the learned executing court duly exercised jurisdiction vested
under him and rightly refused to entertain the section 47 application filed by the
judgment-debtors, being the petitioners herein.
After considering the submissions made by the learned advocates
appearing on behalf of the parties and upon perusing the instant application and
the order impugned, I am of the view that the only point that falls for
consideration in the instant case is whether in the light of the given facts, the
learned executing court fell into any grave error of law or failed to exercise its
jurisdiction while rejecting the judgment-debtors' application under section 47 of
the Code of Civil Procedure, 1908.
For the said purpose, the relevant portion of the impugned order is
required to be set out: -
" On scrutiny of the record it is seen that all the above
questions/disputes were decided by this court in T.S. No. 2723/94
which was decreed by this court against the defendant/J.Drs. and this
court was pleased to give declaration that Amitava i.e. the decree
holder/O.P. is the absolute owner of the suit shop room and business
named and styled as M/S. B.K.Dey by virtue of the deed of gift dt.
23.10.92. He only is entitled to run, operate, administer and manage
the said business and is entitled to get all the profits of the said
business. This court further held in the judgement passed in T.S. No.
2723/94 that the defdt/J.Drs. have no right, title and interest in the
disputed shop room and business and they do deliver khas possession
of the disputed shop room and business to Amitava (decree holder).
Against the said judgement an appeal was preferred before the Hon'ble
Court. The said appeal was registered as F.A.No. 270/98 and after
hearing both the parties Hon'ble Court was pleased to dismiss the said
appeal as per judgement dated 6.10.05. I have carefully perused the
xerox copy of the judgement dt. 6.10.05 passed by the Hon'ble Court in
F.A.No. 270/98. Their Lordships held in the said judgement that in the
subject controversy, the Tarapada branch (defdt/Jdrs) cannot be
allowed to have the deed of gift invalidated on the ground that if given
effect to, it would amount to creation of sub-tenancy or assignment
without prior consent of the landlord. It is the landlord alone who can
raise this issue. Their Lordships further held in the above judgement
that mere intention to abrogate the tenancy expressed by the tenant
alone, cannot abrogate the tenancy and its incidence outside the ambit
of the statute guiding landlord tenant relationship. Till the death of
Bijoy Krishna, the tenancy remained with him. The tenancy, with
which a third party (being the landlord) is involved, cannot be deemed to
have undergone a change by virtue of the execution of the deed of gift.
Hon'ble Court further held in F.A.No. 270/98 that "In these cases are
not concerned with the effect of the deed of gift upon the tenancy of the
shop room in the name of Bijoy Krishna. As observed hereinbefore that
gift deed in its terms do not contemplate assignment of tenancy of the
shop room. That question will be decided, if raised at all, in an
appropriate time in presence of the landlord. Incidentally it may be
observed that if the gift deed is construed as a gift comprising tenancy
right in the shop room vis-à-vis the terms of tenancy agreement between
Bijoy and his landlord then at best such part of the gift deed may be
declared invalid because of any statutory bar, if there be any. In such a
case also the gift as a whole would not be valid. We are therefore of the
view that the judgements and decrees of the trial court do not warrant
any interference."
It is well settled that the executing court cannot go behind the
decree.
That being the above position of law and having regard to the above
finding given by the Hon'ble Court in the judgement dated 6.10.05
passed in F.A.No. 270/98 I am of the view that the instant application
U/S 47 of the C.P.C. filed by the petitioners has got no merit at all and
as such the instant misc. case should be dismissed.
Hence, it is,
Ordered.
that the instant misc. case be and the same is dismissed on
contest, but in the circumstances without any cost."
A bare reading of the above-quoted portion of the impugned order reveals
that the learned court below considered at length, the judgment and order of the
Division Bench of this Hon'ble Court dated 06th October, 2005 and held, inter
alia, that it was well-settled that the executing court cannot go behind the
decree.
At this stage, it may not be out of place to take note of the fact that
during the course of the hearing of the instant application, it was brought to the
notice of this Court that the judgment-debtors/ petitioners have instituted a Title
Suit, being Title Suit No. 2037 of 2008 before the learned City Civil Court at
Calcutta against the landlady, being the defendant no.1, and Bimal Kumar Dey,
as the proforma defendant, for declaration and injunction and prayed, inter alia,
as follows:-
"a) For a declaration that the plaintiffs and proforma defendant
No.2 are tenants in respect of the shop room situated on the ground
floor of Premises No. 15, Mahatma Gandhi Road, Police Station
Muchipara, Kolkata- 700 009 as stated in the schedule hereunder
written.
b) Mandatory order directing the defendant No.1 to mutate the
name of the plaintiffs and proforma defendant No.2 as tenants and
issue rent receipts jointly in their names.
c) Permanent injunction restraining the defendant No.1 from
issuing any rent bills in favour of any third party except the plaintiffs
and the proforma defendant No.2.
d) Temporary Injunction restraining the defendant No.1 from
issuing any rent bills in favour of any third party except the plaintiffs
and the proforma defendant No.2.
.........................................."
The pleadings in the plaint of the aforementioned Title Suit No. 2037 of
2008 specifically adverts to and relies upon the proceedings of Title Suit No. 2723
of 1994 as well as the judgment and order dated 06th October, 2005 passed by
the Division Bench of this Hon'ble Court dismissing the three appeals preferred
by the petitioners herein. In paragraph no. 6 it has been stated by the plaintiffs
that as per section 14 of the West Bengal Premises Tenancy Act, 1956, the gift of
tenancy of a shop room was illegal and the same could not be transferred without
the written consent of the landlord and no such written permission was taken by
Bijoy Krishna Dey and as such, the tenancy of the said shop room devolved on
the legal heirs of the deceased tenant, Bijoy Krishna Dey, as per provisions of the
law of the land.
It is, thus, clear that the judgment-debtors/petitioners have instituted the
aforementioned suit, after dismissal of the three appeals by the Division Bench of
this Hon'ble Court on 06th October, 2005, to have their substantive right of being
declared tenant under defendant no.1, being the landlady, under the provisions
of West Bengal Premises Tenancy Act, 1956 adjudicated by a Civil Court.
The judgment of the Hon'ble Supreme Court being in Gojer Brothers'
case (supra) was delivered in the context of whether the decree of the trial court
had merged into the decree of High Court and whether by reason of section 17-D
of the West Bengal Premises Tenancy Act, 1956, the decree for eviction was
incapable of execution.
The judgment rendered by the Hon'ble Supreme Court in Lakshmi
Narayan Guin's case (supra) was rendered in the context of applicability of sub-
section (1) of section 13 of the West Bengal Premises Tenancy Act, 1956 which
was extended to Memary during the pendency of a first appeal.
The Division Bench judgment of this Hon'ble Court in Syam Mandal's case
(supra) was rendered in a fact situation where an appeal from a decree for
ejectment was dismissed for default and the decree-holder applied to the trial
court to execute its decree for ejectment which was by then more than one year
old and the court without giving any notice to the petitioner issued the writ and
gave symbolic possession to the landlords.
In my opinion, none of the above judgments relied on by the learned
advocate for the petitioners are applicable in the facts of the instant case, since
the Division Bench of this Hon'ble Court was pleased to go into all the issues
sought to be raised herein, in the three appeals and had clearly held in the
judgment and order dated 06th October, 2005, inter alia, that it was for the
landlord alone to raise the issue as to whether the deed of gift would be
invalidated on the ground that, if given effect to, it would amount to creation of
sub-tenancy or assignment without prior consent of the landlord.
The doctrine of merger, as applicable in case of a decree passed by the
trial court with that of the appellate court's, cannot be questioned. However, in
the facts of the instant case, the judgments relied on by the learned advocate for
the petitioners are not at all applicable in the facts of the instant case since the
decree-holder, after dismissal of the three appeals by the Division Bench of this
Hon'ble Court on 06th October, 2005, filed an application before the learned
executing court incorporating the judgment and order of the Division Bench of
this Hon'ble Court and prayed for resumption of the execution proceedings of the
decree dated 29th January, 1998, from the stage it was stopped. The Division
Bench of this Hon'ble Court, having affirmed the judgment and decree of the
learned trial court by dismissing the appeals preferred by the judgment-debtors,
effectively allowed resumption of the execution proceedings which had remained
stayed during the pendency of the three appeals before the Division Bench of this
Hon'ble Court. The judgment and order of the Division Bench dated 06th
October, 2005 was brought to the notice of the learned executing court by the
decree-holder. In my opinion, It cannot be open to the petitioners to now
contend that the execution application cannot be proceeded, as the same has
become non-existent on the passing of the appellate decree by the Division Bench
of this Hon'ble Court. As a matter of fact, the consequential effect of the
judgment and order of the Division Bench of this Hon'ble Court dated 06th
October, 2005 was the confirmation and affirmation of the decrees of the learned
trial court, without any modification, variation or clarification of any sort
whatsoever and the appellate decree passed on the same day was, therefore,
merely a recording of the dismissal of the three appeals simpliciter. In any event,
formal drawing up of a decree is merely an incidental function and in the instant
case the appellate decree, as drawn up simply records dismissal of appeal and
nothing else. The Division Bench, in the judgment and order dated 06th October,
2005, made it clear that the judgments and decrees of the trial court did not
warrant any interference and therefore, in my opinion, the execution proceedings
which had earlier remained stayed before the learned trial court, stood revived
automatically, upon the pronouncement of the judgment by the Division Bench
of this Hon'ble Court on 06th October, 2005 and passing of the consequential
appellate decree on the same day, recording dismissal of the appeal.
In Bhavan Vaja's case (supra), relied on by the learned advocate for the
petitioners, the Hon'ble Supreme Court, inter alia, held that although it was true
that an executing court could not go behind the decree under execution, but that
did not mean that it had no duty to find out the true effect of that decree. The
Hon'ble Supreme Court in the said judgment observed that for construing a
decree it could, and in appropriate cases it ought to, take into consideration the
pleadings as well as the proceedings leading up to the decree. The Hon'ble
Supreme Court further held that in order to find out the meaning of the words
employed in a decree, the court often had to ascertain the circumstances under
which those words came to be used. In my opinion, such proposition of law is
undoubtable, but wholly inapplicable in the facts of the instant case, since there
is no doubt with regard to the circumstances under which the words employed in
the decree, which was sought to be executed by the decree-holder, came to be
used and the plain duty of the executing court has been duly discharged by
taking note of the dismissal of the appeals and the observations made by the
Division Bench of this Hon'ble Court in the judgment and order dated 06th
October, 2005, leading up to the appellate decree passed on the same day,
recording dismissal of appeal.
In the judgment of the Hon'ble Supreme Court in Amar Kumar Sen's case
(supra), which has also been relied on by the learned advocate for the petitioners,
the only point which came up for consideration was whether the original tenant
had transferred the tenancy rights in favour of his son, being the respondent
no.4, and the Hon'ble Supreme Court, after taking into consideration the scope of section 14 of the West Bengal Premises Tenancy Act, 1956 held, inter alia, that the said provision made it clear that the tenancy right could be transferred only with the previous consent given in writing by the landlord. The Hon'ble Supreme Court in the said judgment held that since it was not shown to the Hon'ble Court that the appellant-landlord, at any point of time, had given his consent in writing to original tenant to transfer his tenancy right, the plea that the original tenant had transferred his tenancy right in favour of his son, i.e., respondent no.4, could not be accepted. It is noteworthy to observe that the Hon'ble Supreme Court in Amar Kumar Sen's case was considering an appeal by way of special leave preferred by the landlord and not by a third party. In the instant case, the issue sought to be raised by the petitioners before the learned court below in the application under section 47 of the Code of Civil Procedure, 1908 could not have been made without the presence of the landlord, as was observed clearly and in no uncertain terms by the Division Bench of this Hon'ble Court, in the judgment and order dated 06th October, 2005. Therefore, in my view, the judgment of the Hon'ble Supreme Court in the Amar Kumar Sen's case is wholly inapplicable in the facts and circumstances of the instant case.
Section 47 of the Code of Civil Procedure reads as follows: -
"Questions to be determined by the Court executing decree. - (1) all questions arising between the parties to the suit in which the decree was passed, or their, representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court."
The provisions under Order XXI read with section 47 of the Code of Civil Procedure, 1908, provides the scheme and mechanism whereby the executing court executes decrees and orders. The questions to be determined by the court executing a decree, in my opinion, cannot traverse beyond the plain language and construction of the decree. The above provisions of law have been brought in by the legislature to facilitate execution of valid decrees and not for the purpose of creating hindrances and obstacles along the way. As observed hereinbefore, in the facts of the instant case, the decree passed by the learned trial court was affirmed by the judgment and order of the Division Bench of this Hon'ble Court on 06th October, 2005, which upheld its validity. Consequently, the appellate decree passed on the very same day, merely recorded dismissal of the appeal by the Division Bench of this Hon'ble Court. In the judgment and order dated 06th October, 2005, the Division Bench of this Hon'ble Court, inter alia, went into all the questions sought to be raised by the judgment-debtors before the learned executing court in the application under section 47 of the Code of Civil Procedure, 1908. The impugned order, which takes due note of the observations made by the Division Bench of this Hon'ble Court in the judgment and order dated 06th October, 2005, cannot be said to be suffering from even an iota of infirmity of reasoning or any error of law or can be said to be an order passed without jurisdiction which could warrant interference of this Court in exercise of its jurisdiction under Article 227 of the Constitution of India. The application is, therefore, liable to be dismissed and the same is hereby dismissed.
(Biswanath Somadder, J.)