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2001 DIGILAW 524 (CAL)

Noorjahan Bibi v. Rahima Bibi

2001-08-20

PRATAP KUMAR RAY

body2001
JUDGMENT Pratap Kr. Ray, J.: The defendants/respondents of Miscellaneous Appeal No.153 of 2000 have challenged the judgment and order dated 19.1.2001 passed by the learned Additional District Judge, 4th Court, Barasat, 24 Parganas North, whereby miscellaneous appeal as arose out of challenge of order No. 31 dated 20.4.2000 passed by the learned Civil Judge (Junior Division), 1st Court, Barasat, refusing to grant injunction in the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure in Title Suit No. 325 of 1995 as filed by the plaintiffs therein, was allowed, allowing such application for injunction and restraining the defendants/respondent Nos. 1 to 3 by way of temporary injunction from executing further the Title Execution Case No. 11 of 1991 and from disturbing the possession of the plaintiffs/appellants over the suit property till disposal of Title Suit No. 325 of 1995. 2. For appreciation of the impugned order, factual matrix is required to be considered. 3. Title Suit No. 576 of 1973 was filed by the present petitioners as plaintiffs therein before the 3rd Court of Munsifat Sealdah against Wajedali Sardar, Entaj Sardar and Others. The said suit was a suit for declaration and injunction and the suit was decreed ex parte against the defendants declaring the ownership of the suit property as of the plaintiffs and restraining the defendants from using the tank which was in the scheduled property and catching or rearing fish therein and also from interfering with the possession of the plaintiffs in the said tank under 'A' schedule property of the suit. Such judgment and decree was passed on 22.12.80. The decree was put into execution being registered as Title Execution Case No. 11 of 1991. In this Title Execution Case, as application under section 47 of the Code of Civil Procedure was filed by the legal heirs of Entaj Sardar, who was a defendant in Title Suit No. 576 of 1973 praying, inter alia, that the decree since became a nullity upon exercise of fraud as no summons were served upon the predecessor-in-interest of such applicants and on ground that during pendency of the suit since the predecessor-in-interest breathed last there was an automatic abatement of the suit, such decree was not possible to be executed. This application was registered as Miscellaneous Case No. 18 of 1995 and the same is pending before the executing court for decision. 4. This application was registered as Miscellaneous Case No. 18 of 1995 and the same is pending before the executing court for decision. 4. During pendency of such application, the legal heirs of Entaj Sardar filed Title Suit No. 325 of 1995 being the plaintiffs therein against the decree holders of the aforesaid decree praying, inter alia, necessary declaration and injunction to the effect that the decree as passed in Title Suit No. 576 of 1973 was void in law and inoperative and further the same was not binding upon the plaintiffs and further prayed for necessary declaration that Title Execution Case No. 11 of 1991 could not be proceeded with for execution of the said decree and also for declaration that the decree holders of the said suit who were the defendant Nos. 1 to 3 in the suit had no right, title and interest in the suit property and injunction was prayed for against the defendants restraining them from executing the said decree as passed in the said Title Suit No. 576 of 1973. An application under Order 39 Rules 1 and 2 of the Code of Civil Procedure was filed by the plaintiffs of Title Suit No. 325 of 1995 alleging, inter alia, the same grounds as were the grounds in the pending application under section 47 of the Code of Civil Procedure in Miscellaneous Case No. 18 of 1995. The learned trial court, that is, learned Civil Judge (Junior Division), 1st Court at Barasat, refused to pass any injunction order on the observation that the allegation as made since were required to be proved, namely, that summons in the earlier suit were not served upon the predecessor-in-interest, that the predecessor-in-interest breathed last during pendency of the suit and that fraud was exercised upon the court, ad interim order of injunction as prayed for staying execution proceedings could not be justified, by order dated 20.4.2000. Challenging the said order dated 20.4.2000 passed in Title Suit No. 325 of 1995, Miscellaneous Appeal No. 153 of 2000 was filed by the plaintiffs of the said suit. An ad interim order of injunction staying execution of the decree in Title Execution Case No. 11 of 1991 was passed by the learned first appellate court, that is, learned Additional District Judge, 4th Court at Barasat. An ad interim order of injunction staying execution of the decree in Title Execution Case No. 11 of 1991 was passed by the learned first appellate court, that is, learned Additional District Judge, 4th Court at Barasat. Challenging the same, a revisional application under section 115 of the Code of Civil Procedure registered as C.O. No. 2472 of 2000 was filed in this court by the defendants/respondents of the said miscellaneous appeal. By order dated 2.1.2001, such revisional application was disposed of directing to maintain such order of ad interim injunction and further directing to decide the miscellaneous appeal on merit by fixing a specific time by Subhro Kamal Mukherjee, J. While passing such order on 2.1.2001, Subhro Kamal Mukherjee, J, made it clear that the court had not gone into the merits of the case in view of the pendency of the miscellaneous appeal. Before the learned court below, opposing the injunction application, the present petitioners took the point that the suit was not maintainable and further took the point that the application under section 47 of the Code of Civil Procedure was already pending on the self-same issue, but in the miscellaneous appeal the same points were urged. However, the learned first appellate court by the order dated 19.1.2001 allowed the miscellaneous appeal. 5. Learned Advocate of the petitioners herein has taken different points assailing the order of the learned first appellate court passed in the miscellaneous appeal. It is urged by the learned Advocate of the petitioners that the suit was not maintainable in terms of the provisions of law as laid down under section 47 of the Code of Civil Procedure and reliance has been placed to the judgment reported in (1996) 4 SCC 178 , wherein it is held that even a decree is nullity, the same question could be raised in the execution proceeding, but no separate suit could be filed. Learned Advocate of the petitioners further has contended that even if it be assumed that the present plaintiffs of the suit are strangers and not parties to the earlier suit and is considered as third parties, still then applying the statutory provision as laid down in Order 21 Rule 97 of the Code of Civil Procedure read with Rule 99 thereof, the new suit was not maintainable, and this point could very well be urged and decided by the executing court. It is further contended that already an application under section 47 of the Code of Civil Procedure since pending, filing of separate suit is hit by doctrine of parallel proceeding. It is further urged that in view of amendment of Code of Civil Procedure, there is no scope of multiplicity of proceedings by the self-same parties with reference to a decree and/or by the legal heirs and representatives, and all questions are to be considered and adjudicated by the executing court. 6. Learned Advocate for the opposite parties submits that since the predecessor-in-interest of the present plaintiffs/opposite parties were not duly served with the summons in Title Suit No. 576 of 1973, but the court was made to believe that the same was served, it is a clear case of fraud exercised upon the court. Further, it is contended that since the predecessor-in-interest of the plaintiffs of Title Suit No. 325 of 1995 breathed last during pendency of the said Title Suit No. 576 of 1973, the suit had abated and there was no question of recording any formal abatement order. It is further alleged that the judgment and decree was passed ex parte upon exercising such fraud and accordingly a fresh suit could be filed challenging the said judgment and decree and reliance has been placed for such contention vehemently on section 44 of the Evidence Act. It is further alleged that the doctrine of res judicata is squarely applicable in this field, as earlier the present petitioners in the civil revision case challenging the ad interim order passed by the learned first appellate court took all these points, namely, the points as are now urged about maintainability of the suit, parallel proceeding etc. 7. Considering the rival contentions of the parties, the only short point to be considered by this Court is namely, whether the suit is maintainable, and if the suit is not maintainable, the entire matter will vanish. It has been contended by the learned Advocate for the opposite parties that maintainability question was never raised and this point cannot be considered now, has no legal basis in view of the settled legal position, that a question of law can be taken at any point of time. It has been contended by the learned Advocate for the opposite parties that maintainability question was never raised and this point cannot be considered now, has no legal basis in view of the settled legal position, that a question of law can be taken at any point of time. Furthermore, this is an application under Article 227 of the Constitution of India having a wide amplitude that the power as exercised by the Court under section 115 of the Code of Civil Procedure. Section 115 of the Code of Civil Procedure having such limitation in the matter of exercising power by the revisional Court only to consider the legality and propriety of the impugned order, but the Court when exercising jurisdiction under Article 227 of the Constitution of India has the power not only to test the legality and propriety of the impugned order, but also the other relevant points as would go to the root of the matter in question and thereby to pass appropriate direction. Reliance is placed to the judgment in the case of Hari Vishnu vs. Ahmed, reported in (1955) 1 SCR 1104 . Considering the jurisdiction of the Court now the question is being decided. It is now a settled legal position that multiplicity of proceedings should be avoided and after the amendment of Code of Civil Procedure in the year 1976, there is no scope further to file any suit on the self-same subject matter as was earlier adjudicated and crystallised by a judgment and decree of a court. In the instant case, the plaintiffs/opposite parties have framed the suit on the ground of fraud and nullity and thereby had taken a point of non-executability of the decree and prayed for necessary declaration. The question whether a decree is executable or not now very well can be urged under section 47 of the Code of Civil Procedure between the parties of the proceeding and/or even by the representatives of such parties. The fact is not disputed that the plaintiffs are the legal heirs of a defendant of the earlier suit and accordingly they are coming under the clause 'representative' as stipulated in section 47 of the Code of Civil Procedure. Section 47 of the Code of Civil Procedure has vested power to the executing court to consider all questions about satisfaction, execution of the decree. Section 47 of the Code of Civil Procedure has vested power to the executing court to consider all questions about satisfaction, execution of the decree. Here, in the present suit, a point has been raised that the summons were not served and the suit had abated and accordingly the decree could not be executed and further on the ground that the plaintiffs therein exercised fraud upon the court. Such questions can very well be decided by the executing court and the points are not at all res integra. Long back, Supreme Court decided this point even in the pre-amendment Code of Civil Procedure in the judgment Vasudeu Dhanjibhai Modi vs. Rajabhai Abdul Rehman & Ors., reported in (1970) 1 SCC 670 , a judgment of 3 Judges Bench whereby it was held "When a decree is a nullity for instance where it is passed without bringing the legal representatives on record of a person who was dead at the date of the decree, the question could be decided by the executing court." After amendment, filing of a separate suit has faced a strong embargo in view of introduction and framing of section 47 as well as Order 21 Rule 97 of the Code of Civil Procedure. Under the present Code of Civil Procedure, there is no scope to file a separate suit as all the questions are now to be decided by the executing court and even on such decision, the same would be considered as a fresh decree and there is a provision of appeal against the same as stipulated in the statutory provision under Order 21 by expressing the language as a deeming decree. Reliance is placed to the judgments about non-maintainability of another suit, in Babu Lal vs. Raj Kumar & Ors., reported in (1996) 3 SCC 154 and Bhanwar Lal vs. Raj Kumar & ors., reported in (1995) 1 SCC 6 . The same point has also been considered by a Division Bench of this Court in Deba Prasad Mazumdar vs. Man Mohan Mazumdar & ars., reported in 1997(1) CHN 495 . Hence, considering this settled legal position, this court is of the view that the suit is not maintainable and the forum was to file application under section 47 of the Code of Civil Procedure assailing the decree as non-executable on grounds as taken. Hence, considering this settled legal position, this court is of the view that the suit is not maintainable and the forum was to file application under section 47 of the Code of Civil Procedure assailing the decree as non-executable on grounds as taken. Another question is to be considered, namely, the question of parallel proceeding. Admittedly, the plaintiffs of Title Suit No. 325 of 1995 before filing such suit had approached the executing court with an application under section 47 of the Code of Civil Procedure praying, inter alia, that the decree was not executable on the self-same grounds as are taken in the plaint of Title Suit No. 325 of 1995. That application is still pending, being Miscellaneous Case No. 18 of 1995. Hence it is clear that during pendency of such application under section 47 of the Code of Civil Procedure another suit was filed, that is, the present suit, and as such, the same is accordingly attracted by the doctrine of parallel proceeding, which is not permissible under law. Parallel proceeding doctrine has been evolved on the ground of abuse of process of law. The Apex Court in the judgment reported in the case of Agricultural and Processed Food Products vs. Aswal Agro Furana & ars., reported in (1996) 4 SCC 297 , at paragraph 29 has considered this doctrine in depth and held that parallel proceeding is not maintainable. Hence, in that view of the matter the title suit itself was not maintainable. 8. The point of res judicata as urged has no basis, since Subhro Kamal Mukherjee, J. while disposing of the earlier Civil Revision case as arose out of challenge of the ad interim order passed in Miscellaneous Appeal No. 153 of 2000, made it clear that the court had not gone into the merits of the point. Since Subhro Kamal Mukherjee, J. did not pass the order on merit and accordingly even if the question of maintainability of the suit was raised by advancing identical argument by the petitioners therein, who are also petitioners herein, doctrine of res judicata is not applicable. 9. Since Subhro Kamal Mukherjee, J. did not pass the order on merit and accordingly even if the question of maintainability of the suit was raised by advancing identical argument by the petitioners therein, who are also petitioners herein, doctrine of res judicata is not applicable. 9. Considering the entire matter, hence, it is clear that Title Suit No. 325 of 1995 itself is not maintainable and when the suit itself was not maintainable the question of passing any injunction order is also not arising, and in that view of the matter, the impugned order passed by the learned first appellate court is set aside and quashed and this application is allowed. Appeal allowed.