Research › Search › Judgment

Calcutta High Court · body

2002 DIGILAW 548 (CAL)

Prasanta Banerjee v. Chamali Sinha

2002-08-16

Narayan Chandra Sil

body2002
JUDGMENT : - Narayan Chandra Sil, J. : This revisional application under Article 227 of the Constitution of India is directed against the order dated 28.2.2002 passed by Shri S. Chakraborty, learned Additional District Judge, Second Court at Alipore, South 24-Parganas in connection with Civil Revision No. 573 of 2001 affirming the Order No. 19 dated 4.9.2001 passed by Shri A. Bhowmick, Civil Judge (Junior Division), Fourth Court at Alipore, South 24-Parganas in connection with Title Execution Case No.2 of 2001 arising out of Title Suit No. 97 of 1986. 2. It appears from the record that the O.P/ judgment debtor filed an application under section 144 read with section 151 of the Code of Civil Procedure before the executing court with a prayer for a direction to the decree-holder to deliver the possession of the suit property to the judgment-debtor. It further appears from the record that the Title Suit No. 97 of 1986 for eviction of the tenant on the ground of building and re-building was filed by the petitioner/ landlord and the said suit was decreed with some conditional orders under section 18A of the West Bengal Premises Tenancy Act. It appears from the impugned order passed by the learned Additional District Judge, Alipore that amongst those conditions it was provided in the said decree that the landlord shall get the plan for construction of multi-storied building on the suit land sanctioned within 180 days from the date of the decree and the tenant must be informed by registered post of such sanction of the plan within 30 days thereof. It was also provided in that decree that the tenant shall vacate the suit premises in favour of the landlord within 90 days of the receipt of information of such sanction and the plaintiff/landlord shall grant a receipt of delivery of possession to the tenant/defendant. It was also stipulated in that decree that after taking possession of the suit premises the landlord shall comply with the construction work within a period of 18 months and upon completion of construction, the landlord shall deliver possession of the same floor area as the tenant/ defendant was in possession. It was also stipulated in that decree that after taking possession of the suit premises the landlord shall comply with the construction work within a period of 18 months and upon completion of construction, the landlord shall deliver possession of the same floor area as the tenant/ defendant was in possession. It was also stipulated there that in case the tenant fails to vacate the suit premises within the stipulated period from the date of the receipt of information of sanction order, the landlord shall be at liberty to put the decree into execution subject to the condition as set out in section 18A of the West Bengal Premises Tenancy Act. 3. It further appears from the record that the tenant filed an appeal against the judgment and decree passed by the trial court being Title Appeal No. 226 of 1995 before the learned Civil Judge (Senior Division), Second Court, Alipore which was dismissed and thereafter the tenant had preferred a second appeal before the High Court which is still pending. 4. It appears from the record that a copy of the application under section 144 read with section 151 of the Code of Civil Procedure has been annexed. In the said application the conditions of the decree have been elaborately stated. It is also stated in that application that on 26.6.2001 some persons introducing themselves to be the court bailiffs being accompanied by police personnel forcibly evicted the tenant from the suit property and threw away all his belongings. It was claimed in that petition that the decree was not at all executable because the decree-holder did not comply with the conditions of the decree. The said petition was contested by the landlord before the executing court and after hearing both the parties the learned executing court was pleased to allow the application. Against that order the landlord preferred a revisional application before the learned Additional District Judge, Second Court, Alipore and the learned Additional District Judge by his order impugned dismissed, the revisional application and affirmed the order passed by the learned executing court. 5. Mr. Against that order the landlord preferred a revisional application before the learned Additional District Judge, Second Court, Alipore and the learned Additional District Judge by his order impugned dismissed, the revisional application and affirmed the order passed by the learned executing court. 5. Mr. S.P. Roychowdhury, learned counsel appearing for the petitioner submits that if there is any violation of the condition of the decree as alleged by the O.P., the remedy is not by filing application under section 151 of the Code of •Civil Procedure but one either under section 18 of the West Bengal Premises Tenancy Act or under section 47 of the Code of Civil Procedure. Mr. Roychowdhury has then pointed out to me that although the O.P. has taken the ground of violation of condition of the decree they have pointed out in their application as regards the ground taken by the petitioner in the first appeal. Mr. Roychowdhury then argues before me that the first appellate court affirmed the decree without changing any conditions and that indicates that there was no condition remains thereafter and even if there is any violation of any condition the remedy of the O.P. is in getting compensation in terms of the decree. Mr. Roychowdhury has then referred to the ratio decided in the case of Kunhayammed vs. State of Kerala, 2000(6) SCC 359 , in order to apply the doctrine of merger. It was held in that case that the doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily recognised. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. It was also observed by the Hon'ble Apex Court that the logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by an inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. When a decree or order passed by an inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way, whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. The Hon'ble Apex Court however, also observed that the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been .laid shall have to be kept in view. 6. Mr. Jyotirmoy Bhattacharya, the learned counsel for the O.P./tenant judgment-debtor has pointed out while arguing before me that in their objection they did not raise any question of jurisdiction nor did they suggest that the appropriate procedure was to file petition under section 18 of the West Bengal Premises Tenancy Act or under section 47 of the Code of Civil Procedure specifically. It is also pointed by Mr. Bhattacharya that as in the instant case there is no violation of the provisions of section 18A of the West Bengal Premises Tenancy Act, so there is no point for filing any application under section 18 of the said Act. Mr. Bhattacharya while agreeing with the doctrine of merger did not agree with the submissions made by the learned counsel for the petitioner that with the affirmation of the decree passed by the learned trial court in appeal, the conditions imposed in the decree died down. Mr. Bhattacharya has also referred to a number of case laws. Thus, it was held in the case of Mrs. Kavita Trehan & Anr. vs. Balsam Hygiene Products Ltd., AIR 1995 SC 441 , that the law of restitution encompasses all claims founded upon the principle of unjust enrichment. Restitutionary claims are to be found in equity as well as at law. Section 144 C.P.C. incorporates only a part of the general law of restitution. It is not exhaustive. Kavita Trehan & Anr. vs. Balsam Hygiene Products Ltd., AIR 1995 SC 441 , that the law of restitution encompasses all claims founded upon the principle of unjust enrichment. Restitutionary claims are to be found in equity as well as at law. Section 144 C.P.C. incorporates only a part of the general law of restitution. It is not exhaustive. The jurisdiction to make restitution is inherent in every Court and will be exercised whenever the justice of the case demands. It will be exercised under inherent powers where the case did not strictly fall within the ambit of section 144 of C.P.C. It was also held by the Hon'ble Apex Court in that case that section 144 of the C.P.C. opens with the words "where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose.....". A case may not strictly fall within the terms of section 144 C.P.C., but the aggrieved party in such a case can appeal to the larger and general powers of restitution inherent in every Court. 7. Now considering the submissions made by the learned counsels for both the parties and the materials before me there is no denying of the fact that the conditions imposed in the decree passed by the learned trial court were not complied by the decree-holder and despite that fact the decree was put into execution for which the o.p./tenant was evicted. It is also candid that the said conditional decree passed by the trial court was affirmed in first appeal. The ratio decided in the case of Kunhayammed (supra) speaks of the merger of the decrees in view of the position of law that it-is absolutely inconceivable that there can exist two decrees or orders simultaneously even after the decree passed by the superior court. But the Hon'ble Apex Court in the said judgment took abundant precaution to observe that the said doctrine of merger is not of universal or unlimited application. But the Hon'ble Apex Court in the said judgment took abundant precaution to observe that the said doctrine of merger is not of universal or unlimited application. Here in the instant case before me the decree passed by the trial court was simply affirmed without any variation or any modification and in that case it would be absolutely meaningless if it is taken that after the merger of the conditional decree passed by the learned trial court with the decree passed by the first appellate court the conditions imposed by the trial court do not exist at all for the simple reason that in that case neither of the parties to the suit shall have any scope to go for the execution of the decree. I like to make it clear here that in the instant case the conditional decree was passed in a suit for eviction on the ground of building and rebuilding. 8. In course of argument it is painted out by the learned counsel for the petitioner that the second appeal is still pending before this High Court. But it is not the case of the parties that any stay order was passed by this court in the said second appeal. Besides the petitioner before me cannot take this plea of the pendency of the second appeal before the High Court against the relief sought for by the o.p./tenant in their application under section 144 read with section 151 of the Code of Civil Procedure in view of the fact that it was the present petitioner who put the decree into execution and after eviction of the o.p/tenant eschewed himself from complying with the other conditions of the decree. In this connection it is just worthwhile to refer to the ratio decided in the case of Mulraj vs. Murti Raghunathji, A.I.R. 1967 SC 1386, which has been mentioned by Mr. Bhattacharya. It was held in that case (hat the order of stay with reference to execution proceeding in an eviction suit is as much prohibitory order as order of injunction except with difference that order of stay is addressed to the court while that of injunction is passed against the party. Therefore, in case of stay order, as opposed to order of injunction, court to which stay order is addressed does not lose jurisdiction to deal with execution unless it had knowledge of stay. Therefore, in case of stay order, as opposed to order of injunction, court to which stay order is addressed does not lose jurisdiction to deal with execution unless it had knowledge of stay. The Hon'ble Apex Court also held in that case that even after stay is brought to its notice, it has power to set aside proceedings taken between time when stay order was issued and the time when it was brought to its notice. 9. Thus, in view of what has been discussed in the foregoing lines I am to hold that the present application under Article 227 of the Constitution of India has no merits to stand, for the learned Additional District Judge was very much within his jurisdiction and limit to pass the order impugned and there was absolutely no error in appreciating the position of law and the facts placed before him. 10. The revisional application under Article 227 of the Constitution of India is, therefore, dismissed. 11. There shall be no order as to costs. 12. Copies of this order be sent down to the courts below at once. Revisional application dismissed.