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Gauhati High Court · body

1995 DIGILAW 164 (GAU)

Priyabrata Das v. Central Bank of India

1995-07-27

M.SHARMA

body1995
The petitioner/appellant has preferred both the appeal and the revision against the judgment and order dated 11.2.88 passed by the Assistant District Judge, Sonitpur, Tezpur in Misc Case No.72 of 1986 which was preferred for restitution under section 144 CPC and Misc Case No.29 of 1969 preferred under section 47 CPC on the same day by different orders and judgment. 2. The backdrops of both the cases are like this, the Gauhati, Bank Ltd instituted Title Suit No.3 5 of 1954 in the Court of Sub Judge, Nowgong against the predecessor in interest of appellant petitioner for realisation of Rs. 1,05,000/- including interest praying for decree of sale and mortgaged immovable property, comprising 1 bigha 13 lechas of land under Dag No. 1081 of Periodic Patta No.392 of Tezpur town together with house etc thereon. The suit was decreed by order dated 26.8.55 and decree holder Bank instituted Execution Case No.6 of 1956 which was dropped after payment of Rs.6,740/-, but again Title Execution No.4 of 1959 started in Nowgong Court wherein the above mentioned property was sold in auction and the decree holder purchased the same on 20.5.61. The judgment debtor filed objection and after his death on 15.11.61, the execution case was transferred to Tezpur Court and renumbered as Title Execution No.7 of 1965. By order dated 3.5.66 said objection petition was dismissed by confirming the sale. The contention of the appellant/petitioner is that the decree holder filed an application under Order 21, Rule 95 CPC, notwithstanding the talk of compromise held on 6.8.68, wherein the decree holder purchaser agreed not to insist recovery of possession with condition that if the judgment debtor made further payment of Rs.30,000/-, and that on such payment the decree holder would treat the decree as satisfied, that accordingly an amount of Rs.5,000/- out of Rs.30,000/- had been paid. On report to the Court, decree holder was directed to report the same on next date. A report signed by the agent of the decree holder Bank has been submitted indicating consent to finalise the agreement and the process server returned the writ of delivery of possession unexecuted whereof the execution case was dismissed on 30.5.69. But subsequently the Court passed order for delivery of possession on the basis of an application of the decree holder/auction purchaser which was registered as Misc Case No.29 of 1969. But subsequently the Court passed order for delivery of possession on the basis of an application of the decree holder/auction purchaser which was registered as Misc Case No.29 of 1969. As emerges from the contents of the petition and submissions of the learned counsel for the appellant petitioner, an affidavit was filed by one PC Das, IT Advocate, Tezpur, agreeing to purchase half of the property for Rs.25,000/- which, it is contended, was done at the insistence of the decree holder before executing Court and the decree holder wrote a letter Ext 14 agreeing to finalise agreement in pursuance of letter of decree holder (Ext 12), and the minutes of meeting for compromise (Ext 13) has been made. But in spite of all these, it is alleged, decree holder filed a petition on 6.5.68, for issuance of process of delivery of possession against which, the appellant petitioner filed an application with affidavit (Ext 6 and 7) praying for stay of the proceedings until finalisation of talks and the same having failed, the judgment debtor filed objections under section 47 CPC (Ext 8) against the said application for delivery of possession and the same was rejected by order dated 29.11.69. Against this MA (F) 15 of 1970 was filed and the same was allowed with direction to the executing Court to adjudicate the Misc Case 29 of 1969 on merit. But due to the default of die judgment debtor, ultimately the executing Court proceeded with the execution proceeding and delivery of possession was taken by the decree holder/auction purchaser vide his order dated 30.8.73, 27.11.73 and 8.11.73. Against the rejection of the petition under section 47 CPC another MA (F) 5 of 1974 had been preferred and the High Court quashed the said order dated 30.8.73 and 27.9.73 directing the Court below to decide Misc Case 29 of 1969 on merit. In that proceeding Lakshmi Prasad Lahkar, respondent No.2 filed objection and after His death his legal representatives were substituted. Late Lakshmi Prasad Lahkar demolished the house and raised some construction on the land. By order dated 16.6.86 MA (F) 5 of 1974 was allowed and the delivery of possession was set aside remanding the matter to hear the objection under section 47 CPC. Late Lakshmi Prasad Lahkar demolished the house and raised some construction on the land. By order dated 16.6.86 MA (F) 5 of 1974 was allowed and the delivery of possession was set aside remanding the matter to hear the objection under section 47 CPC. On 11.2.88 judgment in Misc Case 29 of 1969 rejecting the objection under section 47 CPC was passed and on the same date Misc Case 72 of 1986 in which application for restitution of the property was preferred was also rejected and therefore both the appeal and revision have been filed. 3. As both the appeal and revision are against the execution proceeding, that is, Title Execution No.4 of 1959 (No.6 of 1956) I decide to dispose of the same by the same judgment. 4. As stated above, the present revision case has arisen against the order of rejection of the application under section 144 CPC by which the appellant claimed property in execution should have been restituted to the appellant to the position of possession as it stood before the passing of the orders dated 30.8.73,27.9.73 and 8.11.73 which was set aside in MA (F) 5 of 1974 by order dated 16.6.86. Allegation in this revision petition is that the learned Court below failed to appreciate the spirit of law as contained in section 144 CPC. 5. The admitted position is that the petitioner never challenged the fact of auction purchase as well as its confirmation, and that sale was not made absolute and the auction purchaser, decree holder, sold the land to respondent No.2. The suit was decreed on 26.8.55 and title execution was instituted in 1956 and the same was dropped after payment of amount of Rs.6,740/-. Title Execution Case No.4 of 1959 was instituted and execution revived and the property in question was sold in auction and the decree holder purchased it in auction on 20.5.61 after obtaining permission from execution Court which was made absolute on 3.5.66. Accordingly judgment debtor's all rights and title ceased from 20.5.61. Apparently the High Court quashed the order dated 30.8.73,27.9.73 and 8,11.73 for giving a decision on merits in the application under section 47 CPC was registered as Misc Case 29 of 1969. Accordingly judgment debtor's all rights and title ceased from 20.5.61. Apparently the High Court quashed the order dated 30.8.73,27.9.73 and 8,11.73 for giving a decision on merits in the application under section 47 CPC was registered as Misc Case 29 of 1969. It is also not disputed that by order dated 4.5.73 the Apex Court in Civil Appeal No. 1323 of 1967 held that under Order 21, Rule 95 CPC Court required to hear objection under section 47 CPC. Nowhere it is alleged by the appellant/petitioner that Court below refused to hear the objection under section 47 CPC as directed by the High Court and the Apex Court in subsequent orders passed in MA (F) 15 of 1970 and 5 of L974. On all occasions the Court below took up the objection under section 47 CPC on merit and decided accordingly. Apparently the grievances of the appellant/petitioner is that in each time the objection has been rejected by the executing Court including order dated 11.2.88. 6. Now the point for consideration before this Court is whether right of restitution under section 144 had been accrued to the appellant/petitioner after rejection of the objection under section 47 CPC. 7. The contention in the application under section 47 CPC is that before and/or after the application under Order 21, Rule 95 CPC talks of compromise had been going on between the decree holder and judgment debtor and notwithstanding the talk held on 6.5.68 in which decree holder agreed not to insist on recovery of possession of mortgaged property on condition of payment of Rs.30,000/-, that out of Rs.30,000/- Rs.5,000/- was required to be paid in cash and accordingly judgment debtor deposited Rs. 1,000/- and the balance of Rs.4,000/- had been subsequently paid on 6.5.88, that is, after one month. Judgment debtor informed the Court and agent of the decree holder Bank put signature and consequently execution case was dropped on 30.5.69, but the prayer for delivery of possession was renewed by decree holder due to non payment of aforesaid money and this petition was registered as Misc Case 29 of 1969. Imputing counter-allegation of non fulfilment of agreement the appellant petitioner filed the objection under section 47 CPC. From this backdrop it emerges that plea of compromise failed in Misc Case 29 of 1969. 8. The learned executing Court on merit decided the objection petition under section 47 CPC. Imputing counter-allegation of non fulfilment of agreement the appellant petitioner filed the objection under section 47 CPC. From this backdrop it emerges that plea of compromise failed in Misc Case 29 of 1969. 8. The learned executing Court on merit decided the objection petition under section 47 CPC. Finding of the Court below is that judgment debtor repeatedly failed to comply with the promise to repay the amount within the stipulated time. It is also on record that the High Court has not passed any order in MA (F) 15 of 1975 to redeliver the possession of the property to the appellant/petitioner. On perusal of the judgment I find the executing Court had discussed the materials on record and appreciated the same on the facts and law involved in this case. 9. One of the conditions necessary for deciding objection under section 47 CPC is that the question must relate to execution, discharge or satisfaction of the decree. The expression' relating to decree' covers the question of executable and unexecutability of the decree. Apparently there is no allegation in the objection application that the decree is not executable or a nullity on the ground of ambiguity. Precise findings of Court below is that the decree was never challenged but proceeding was challenged on the ground of some compromise and rightly the executing Court executed the decree as it cannot go behind the decree, after finding no merit on the plea of compromise. But the allegation is that as there was some compromise between the parties to the knowledge of the Court execution cannot proceed with. Finding of facts of the executing Court is that compromise failed and the decree holder was entitled to renew its execution matter. In that view of the matter I find no irregularity or infirmity in the judgment/order of the Court below to reject the objection petition. 10. As discussed above after rejection of the objection under section 47 CPC prayer for restitution of property can not be maintainable. 11. The 1976 Amendment clarified the position of law that section 144 CPC applies even in cases where a decree is set aside or modified otherwise in appeal or in a separate suit. In this case, apparently no such situation has arisen. 11. The 1976 Amendment clarified the position of law that section 144 CPC applies even in cases where a decree is set aside or modified otherwise in appeal or in a separate suit. In this case, apparently no such situation has arisen. Therefore after rejection of objection under section 47 CPC, there is no reversal of judgment and order and no obligation is imposed on the executing Court to restore the possession of the property to the appellant/petitioner. It also cannot be maintained that non fulfilment of compromise caused sufferings to the appellant. Section 144 CPC can be invoked only when the party, complained sufferings and hardship by an act of Court. The conditions for prayer of restitution are that (a) restitution sought must be in respect of a decree or order which had been varied or reversed, (b) the party applying for restitution must be entitled to the benefit under a reversing decree/order, and (c) the relief claimed must be property consequential on the reversal or variation of the decree. When no decree/ order is reversed section 144 CPC has no application. 12. In view of my above discussion I hold that as on merit, as per direction of the Apex Court as well as High Court, the objection under section 47 CPC has been considered and rejected, therefore the appellant/petitioner cannot have claim to restitution of the property. The judgment and order of the Court below is legal and passed within its jurisdiction and accordingly finding no material to take a different view I affirm the same. 13. In the result both the appeal and the revision petitions are dismissed. The appellant/petitioner is directed to pay an amount of Rs. 1,000/- as to the costs of both the appeal and the revision petition.