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1999 DIGILAW 166 (CAL)

BISWANATH MITRA v. MIHIR KIRAN BANERJEE

1999-04-13

P.K.SEN, VINOD KUMAR GUPTA

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V. K. GUPTA, J. ( 1 ) IT has been more than 25 years since the original suit seeking the eviction of the appellant from the premises in question was filed. That was the Ejectment Suit No. 345 of 1974. That suit was decreed on 13th May, 1977. Ever since, the appellant has been successfully stalling the execution of the decree by taking recourses to one method or the other by filling objections in the execution proceedings, by filing applications after applications, using all available provisions of law. Filing of civil suit in one form or the other was resorted to by the appellant. At one stage, even sub-tenants were set as plaintiffs/applicants to frustrate the decree and its execution. In these past 25 years, the appellant has succeeded in staling the execution of the decree, this appeal being the last (hopefully, so) in the long chain of all such events. ( 2 ) ON 26th November, 1997, when the execution proceedings were on, an application came to be filed by the appellant in the Executing court under Order 21 Rule 97 of the Code of Civil Procedure and section 151 of the Code of Civil Procedure challenging the execution taken up by the respondents on a number of grounds, one of them being the non-fulfilment of the requirement contained in Order 21 Rule 16 of the Code of Civil Procedure. The learned court below vide order dated 26th November, 1997 dismissed the aforesaid application of the appellant and issued a writ of possession for execution by the bailiff with the help of police. It is against this order that the present appeal has been filed. ( 3 ) WE have heard at great length the learned Advocate for appellant as also the learned Advocate for the Respondents. ( 4 ) ON 22nd August, 1994, in Civil Order No. 2858 of 1990, the appellant had set up a plea of satisfaction of the decree. It is against this order that the present appeal has been filed. ( 3 ) WE have heard at great length the learned Advocate for appellant as also the learned Advocate for the Respondents. ( 4 ) ON 22nd August, 1994, in Civil Order No. 2858 of 1990, the appellant had set up a plea of satisfaction of the decree. This court vide its judgment dated 22nd August, 1994 held as under :"considering all aspects of this case and after having heard the learned Advocate of both the sides, I am of the view that the story of satisfaction of the ejectment decree by payment appear rents up to May, 1984 and creation of tenancy by paying and accepting rents is nothing but a muty, particularly in absence of any document or even any affidavit affirmed by the original decree holder in support thereof. The original Judgment debtor is dead and the present substituted Judgment debtor cannot have any personal knowledge about such satisfaction of the decree and consequently their statement that the decree was satisfied out of court and a new tenancy was created must be taken to be an endeavour to continue to possess merrily without having to pay any rent and delaying and frustrating the cause of justice. " ( 5 ) AT a subsequent stage, the appellant filed a fresh civil suit in the court of 10th Bench, City Civil Court, Calcutta. On 25th January, 1993, the learned 10th Bench of the City Civil Court rejected the applicant's contention with regard to the question relating to assignment of the decree in favour of the respondents herein. The following observations made by the learned court in that case need be reproduced :"the plaintiff annexed the copy of the deed of conveyance by which the defendant purchased the suit properties from the previous landlord/decree holder of the plaintiff's father. It appears therein vender/decreeholder has not only transferred his right title and interest in the suit properties to the defendants but also assigned all encumbrances subject to all the monthly tenancies together with all rights under the decree dated 13. 5. 77 as well as ejectment execution case No. 334/77. So it is seen that the defendant have not only acquired the plaintiff's tenancy right but also all the liabilities and rights under the decree; in the impugned Suit. 5. 77 as well as ejectment execution case No. 334/77. So it is seen that the defendant have not only acquired the plaintiff's tenancy right but also all the liabilities and rights under the decree; in the impugned Suit. The defendants by virtue of the deed of conveyance have right to put the decree in execution. Accordingly I find that the decree in ejectment suit No. 345/74 of 2nd Bench which has been assailed here, has been duly assigned to the defendants by this vendors, the previous decree holder/landlords of the plaintiff's father. Accordingly I find that plaintiff has failed to make out a prima facie case to get an injunction order in this suit as he has no right to stop the execution of the ejectment decree passed against the father. " ( 6 ) THIS order was challenged by the appellant in this court in F. M. A. 1639 of 1993 and a Division Bench of this court vide order dated 30th March, 1993 summarily dismissed the appeal filed by the appellant against the aforesaid order of the learned City Civil Court. ( 7 ) IT ought to be noticed that an application was taken out by the respondents for leave to proceed with the execution case after substitution of the present respondents in place of the original decree-holders namely Rathindra Nath Chatterjee and Amal Kumar Chatterjee. In that application, both the original decree-holders were impleaded as respondents/opposite parties and notice of that substitution application was duly served upon the said original decree-holders. ( 8 ) IN the aforesaid background, when we consider the question regarding the legality of the order dated 26th November, 1997 passed by the learned court below dealing with the execution case, we find that in effect and substance the requirement of law contained in Order 21 Rule 16 of the Code of Civil Procedure was substantially met and satisfied in the sence that the transferrer of the decree had not only the notice of the Execution case pending in the Executing Court but also the request of the respondents for substituting their names from that of the original decree-holder. In one way or the other the appellant had only been attempting to thwart the process of law by stalling the execution proceedings. In one way or the other the appellant had only been attempting to thwart the process of law by stalling the execution proceedings. Otherwise, the decree having assumed finality almost 20 years back and no appeal having been filed therefrom, one really is at a total loss to understand how could the machinery of law be held to such a ransom as to stall such execution for almost 20 years. ( 9 ) WE have minutely perused the records and gone through the various orders passed by the court below from time to time. We have also considered the import of Order 21 Rule 16 of the Code of Civil Procedure in so far as it relates to the issuance of notice to the judgment-debtor and the transferor of the decree. In the light of the fact that earlier in the substitution application the transferer had noticed, we are tend to agree with the view of the learned court below that Order 21 Rule 16 of the Code of Civil Procedure was complied with in so far its requirement of issuing notice to the transferer was concerned, particularly in view of the fact that the transferer never objected to either transfer of the decree or to its execution by the present respondents. Rules are meant to help substantial justice. They are not to thwart the process of law. We find that the order impugned in the appeal has not warranted any interference by us because it has not suffered from any illegality nor has there any error of jurisdiction. ( 10 ) THERE is no merit in this appeal. The appeal is dismissed. We direct that the decree to be executed immediately in terms of the order dated 26th November, 1997 as passed by the court below. The order shall be communicated to the court below by a Special Messenger at the cost of the Respondents. Lower Court Records be also sent down to the court below with the help of a Special Messenger at the cost of the Respondents. P. K. Sen, J.-I agree. Appeal dismissed.