Nomal Chandra Gogoi v. Sonmai Saikia — 1999 DIGILAW 69 (GAU)

J.N. SARMA, J. — This revision against the depicts/reflects the pitiable condition of a decree-holder in India. It was stated long back by the Privy. Council that the misery of a litigant in India starts after obtaining a decree, that is, what has happened in the present case. Certain brief facts are necessary to be stated. 2. Title Suit No. 19 of 1979 was instituted on 26.4.79 by the present petitioner as plaintiff before the learned Munsiff No. 2 at North Lakhimpur alleging that the opposite party No. 2 (in this revision, the defendant No. 1 in the suit) forcibly and illegally trespassed into a small portion of land, that is, 1 katha-1 lecha covered by Dag No. 606 of Annual Patta No. 89 at Part-IV of North Lakhimpur town. Accordingly the suit was filed for a decree to recover possession of that portion of the land by evicting the opposite-party No. 2. It may be stated herein that the O.P. No. 2 is the husband of opposite party No. 1. 3. The main defendant in the earlier title suit filed written statement alleging that he is the owner and accordingly possessing the disputed land. The suit was dismissed on 12.11.84. There was an appeal by the present petitioner before the learned Assistant District Judge, North Lakhimpur. After hearing both the parties, the learned Assistant District Judge allowed the appeal and remanded the suit for fresh disposal with a direction to ascertain the identity of the suit land by appointing a Survey Commissioner. The learned Munsiff appointed the Survey Commissioner who after causing survey with due notices to both the parties submitted the survey report which was on hearing both the parties, accepted by the learned Munsiff vide its order dated 21.8.89. 4. 6 PWs are examined including the plaintiff. PW-1 was the concerned Mondal. One Court witness, that is, Survey Commissioner was examined by the Court, who confirmed the survey report. The opposite party No. 2 examined himself as DW-1. Certain documents were also exhibited. The learned Munsiff No. 2 thereafter decreed the suit by his judgment and decree dated 3.11.89. Thereafter the Title Execution Case No. 14 of 1989 was started before the learned Munsiff. In the meantime the defendant No. 2 preferred title appeal, being Title Appeal No. 16tof 1989 and that was allowed and the suit was dismissed. The learned Munsiff No. 2 thereafter decreed the suit by his judgment and decree dated 3.11.89. Thereafter the Title Execution Case No. 14 of 1989 was started before the learned Munsiff. In the meantime the defendant No. 2 preferred title appeal, being Title Appeal No. 16tof 1989 and that was allowed and the suit was dismissed. There was a second appeal, being Second Appeal No. 142 of 1991 before this Court and the said second appeal was allowed by judgment dated 5.7.93 and the judgment of the learned Munsiff was restored and the judgment of the appellate Court was quashed. On 18.1.94 the executing Court on the prayer of the judgment - debtor granted 30 days time to opposite party No. 2 to obtain stay order from the Hon'ble Supreme Court. Thereafter no stay order was obtained and it is submitted by Shri B.K. Goswami, learned advocate for the opposite party that the special leave petition was rejected by the Hon'ble Supreme Court. The present petitioner is the wife of the opposite party No. 2 instituted the Title Suit No. 3 of 1994 before the learned Munsiff claiming right, title etc. over the suit land in respect of which a valid decree was put in execution by the petitioner. It may be stated herein that in the earlier suit where her husband contested the suit, the present O.P. No. 1 filed an application to be added as a party and that application was rejected holding that the present O.P. No. 1 was not a necessary party. Thereafter suppressing all the material facts the opposite party No. 1 filed a petition No. 42/94 on 24.2.94 invoking the jurisdiction of the Court under Order 21 Rule 97 and 101 of the Code of Civil Procedure before the learned executing Court on the basis of which the Misc. Case No. 8 of 1994 has been started. The decree holder filed an objection on 3.8.94 wherein, inter alia, it was specifically alleged that under Order 21 Rule 97 and 101 of the Code of Civil Procedure the petition was not maintainable at the instance of the opposite party No. 1. This petition was to be thrown out on the ground of suppression of material facts, inasmuch as filing of the earlier suit Title Suit No. 3 of 1994 was not mentioned by the present O.P. No. 1. This petition was to be thrown out on the ground of suppression of material facts, inasmuch as filing of the earlier suit Title Suit No. 3 of 1994 was not mentioned by the present O.P. No. 1. Thereafter, by the impugned order dated 23.5.94, the learned executing Court rejected the objection of the decree holder and allowed the petitioner to lead evidence in the said misc. case. Hence the revision. 5.1 have heard Shri S. A. Laskar, learned advocate for the petitioner and Shri B.K. Goswami, learned advocate for the respondents. Shri Laskar contends that this application is misconceived and vaxatious application and it should be thrown out on the ground alone. He submits that it is not the object of the legislature that each and every application which will be filed will receive enquiry at the hand of the executing Court. Both the parties relied on the same set of rulings, that is, (1998)3 Supreme Court Cases 723 (Silverline Forum Private Limited, appellant-Vs-Rajiv Trust and another, respondents), (1997)3 Supreme Court Cases 694: AIR 1997 S.C. 856 (Brahmdeb Choudhury, appellant-Vs-Rishikesh Prasad Jaiswal and another, respondents). Shri Laskar draws my attention to (1998) 3 Supreme Court Cases 723 (Silverline Forum Private Limited, appellant-Vs-Rajiv Trust and another, respondents) (supra). That is a case where a decree holder complained of resistance to the execution of a decree and the Court explained in which situation it is incumbent to the executing Court to enquire it. The Supreme Court in paragraphs 11, 12 and 14 has laid down the law as follows:- "11. When a decree-holder complaints of resistance to the execution of a decree it is incumbent on the execution Court to adjudicate upon it. The words "all questions arising between the parties to a proceeding on an application under Rule 97" would envelop only such question as would legally arise for determination between those parties. In other words, the Court is not obliged to determine a question merely because the resister raised it. The questions which the executing Court is obliged to determine under Rule 101, must possess two adjuncts. In other words, the Court is not obliged to determine a question merely because the resister raised it. The questions which the executing Court is obliged to determine under Rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g., if the obstmctor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. In the adjudication process envisaged in Order 21 Rule 97(2) of the Code, the execution Court can decide whether the question raised by a register or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section. The executing Court can decide whether the resister or obstructor is a person bound by the decree and he refuses to vacate the property. The question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97(2) of the Code. (Paras 11,12 and 14)" 6. The Supreme Court has pointed out that the adjudication of Order 21 Rule 97 do not necessarily involve a detailed enquiry or collection of evidence. The Court on admitted facts can pass an order to make an enquiry or not to make it. This is because of the situation that if by filing an application under Order 21 Rule 97 another front of war can be opened. No decree will reach its logical conclusion and the decree of a Civil Court will be mere paper decree. That is not the intention of the legislature. In the case reported in AIR 1997 S.C. 856 (Brahmdeo Chaudhury, appellant- Vs-Rishikesh PrasadJaiswal & another, respondents) in paragraph-5 the Supreme Court has laid down the same law as mentioned in (1998)4 Supreme Court Cases 543 (Shreenath and. another, appellants-Vs-Rajesh and others, respondents). 7. The other case is (1995)1 Supreme Court Cases 242 (Nooruddin, appellant-Vs-Dr. K.L. Anand, respondent). That case need not be discussed inasmuch as that case has been subsequently considered by the Apex Court. another, appellants-Vs-Rajesh and others, respondents). 7. The other case is (1995)1 Supreme Court Cases 242 (Nooruddin, appellant-Vs-Dr. K.L. Anand, respondent). That case need not be discussed inasmuch as that case has been subsequently considered by the Apex Court. In the same tenor there is another decision, that is, (1998)4 Supreme Court Cases 543 (Shreenath and another, appellants-Vs-Rajesh and others, respondents) (supra). In this background let us decide the present controversy. 8. The question of identity of the land and who was in possession that was discussed by this Court in Second Appeal No. 142 of 1991 and this Court found that it is the opposite party No. 2, the husband, who trespassed to the land of the plaintiff and dispossessed him. It was further found that the dispossession was 6 to 7 years back before the suit. It was further found that the annual patta stood in the name of the plaintiff of the earlier suit as found by this Court up to the year 1980 and taking all these things into account the suit was decreed. Further in the judgment of the learned Munsiff as well as the judgment of this Court it was considered that it was specifically found by the Mondal as well as the S.D.C. that it was the defendant/ opposite party No. 2 who was in possession of the land and the survey report was accordingly submitted and that was acted upon. 9. The suit land is covered by Dag No. 606, the opposite party No. 1 claims that she was in possession of the land covered by Dag No. 606 and her husband was in possession in Dag No. 605. This contention was negatived by the learned Munsiff in the earlier suit having relied the survey report and that finding was found to be correct in the second appeal. So the very basis of the claim of the opposite party No. 1 that she was in possession of the Dag No. 606, that was negatived by the trial Court and that was affirmed by this Court. So another round of litigation cannot be allowed to go on the same plea which was tried and negatived by the Courts, if that is allowed, that will open a flood gate. 10. In that view of the matter this revision petition is allowed and the impugned order dated 23.5.94 in Misc. So another round of litigation cannot be allowed to go on the same plea which was tried and negatived by the Courts, if that is allowed, that will open a flood gate. 10. In that view of the matter this revision petition is allowed and the impugned order dated 23.5.94 in Misc. Case No. 8/94 shall stand set aside and quashed. I am not deciding anything regarding the maintainability of the suit as that order has not been annexed in this revision application.