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2004 DIGILAW 548 (CAL)

BASANTI SEAL v. PREMLAL SEAL

2004-08-17

SUBHRO KAMAL MUKHERJEE

body2004
SUBHRO KAMAL MUKHERJEE, J. ( 1 ) THIS is an application under section 47 of the Code of Civil Procedure challenging the executability of the decree on the allegation that the decree passed in the suit is a nullity. ( 2 ) RADHESHYAM Seal was the owner of the suit property situated at 4, Krishna behari Sen Street, Kolkata -7 as also, of the properties at Chinsurah, District hooghly and at Jasidih in the State of Bihar now Jharkhand. ( 3 ) THE said Radheshyam Seal on September 1, 1937 executed a registered deed of trust in respect of his properties including the suit property. In the said deed of trust, the settlor appointed himself and his wife, Sabitri Seal, as the trustees to hold the properties for their use and benefits and after their demise for the benefits of their sons, namely Parbati Shankar Seal, Hiralal Seal and subal Charna Seal. ( 4 ) THE heirs and legal representatives of the said Subal Charan are the petitioners in this application. ( 5 ) IN the said deed of trust, the trustees reserved their rights to revoke the said trust and to appoint any of their sons as the beneficiaries. ( 6 ) ACCORDING to the terms of the said deed of trust, the properties covered by the said deed of trust shall vest in the trustees, who may be appointed from time to time. ( 7 ) TROUBLE arose between Subal Charan in one side and Radheshyam Seal, his wife and their other children in the other. In order to avoid unpleasantness, radheshyam Seal asked the said Subal and the members of his family to stay in the back portion at the ground floor of the said premises separately from the other members of the family of Radheshyam. Subal Charan and his heirs are claiming that was a family arrangement and a demarcated portion of the suit property was allotted exclusively in favour of Subal Charan by way of family settlement. Radheshyam Seal, his wife and his other children, have refuted all through the said claim. Subal Charan and his heirs are claiming that was a family arrangement and a demarcated portion of the suit property was allotted exclusively in favour of Subal Charan by way of family settlement. Radheshyam Seal, his wife and his other children, have refuted all through the said claim. ( 8 ) RADHESHYAM Seal and Sabitri executed another registered deed on december 28,1956, inter alia, appointing their two sons, Parbati Shankar Seal and Hiralal Seal as the beneficiaries of the said trust with an expressed stipulation that Subal Charan would not have any right, title and interest in respect of Kolkata and Jasidih properties. ( 9 ) THE trouble between the parents and the son, Subal Charan, aggravated and Radheshyam Seal was compelled to address a letter on May 25,1961 to the employer of Subal, that is, the Postmaster General, Calcutta, inter alia, intimating him that even though he was then 85 years of age and his wife was 75 years of age, their son, Subal, not only assaulted the parents but, also, hurled abusive vulgar and objectionable words and, therefore, requested the said employer to persuade Subal to behave properly so that the old couple could get an opportunity of passing their last days in peace and tranquillity. ( 10 ) DURING his lifetime, Radheshyam Seal revoked the licence granted to subal Charan to reside in the back portion of the premises. Unfortunately, radheshyam Seal died sometime in the year 1962. ( 11 ) YET another registered document was executed by Sabitri as the trustees on December 10, 1962 disentitling Subal Charan even from the Chinsurah property. Sabitri, also expired sometime in the year 1965. ( 12 ) IN the meantime, however, on April 30,1962 Radheshyam Seal against subal Charan instituted the present suit for recovered of possession of the suit property and for recovery of damages and other reliefs. ( 13 ) ON the death of the original trustees, by an order dated September 8, 1976, this Court appointed Parbati Shankar Seal and Hiralal Seal as the trustees on the basis of the deeds dated September 1, 1937, December 28, 1956 and december 10, 1962. ( 14 ) ON December 12, 1977, Subal Charan instituted Suit No. 729 of 1977 before this Court, inter alia, claiming for partition and administration of the properties including the suit property. ( 14 ) ON December 12, 1977, Subal Charan instituted Suit No. 729 of 1977 before this Court, inter alia, claiming for partition and administration of the properties including the suit property. In the said suit Subal Charan challenged the said deeds of appointment of 1956 and 1962. ( 15 ) BY judgment and decree dated September 17, 1979, the learned Single judge of this Court dismissed the present suit for eviction. ( 16 ) PARBATI Shankar and Hiralal preferred an appeal challenging the said judgment and decree dated September 17, 1979. During the pendency of the appeal, Subal Charan expired and his heirs and legal representatives were substituted as respondent in the said appeal. ( 17 ) BY judgment and decree dated July 24, 2003, a Division Bench of this court allowed the said appeal and set aside the judgment and decree of the learned Single Judge. Consequently, a decree was passed in this suit against the heirs and legal representatives of Subal Charan. The Division Bench found that there was nothing on record neither any case was made out that with a desperate intention to get rid of the misdemeanour of Subal Charan, radheshyam Seal had effected a family arrangement with an intention to settle a portion of the property for buying peace. The case of tenancy was rejected with the finding that such case was completely inconsistent with the claim of title through alleged family arrangement. ( 18 ) THE heirs of Subal Charan filed an application under Article 136 of the constitution of India in the Supreme Court of India, which was registered as special Leave Petition (Civil) No. 16901 of 2003. ( 19 ) BY order dated September 19,2003, the Supreme Court of India dismissed the said petition. Liberty was, however, granted to the petitioners in the said petition to approach this Court for extension of time to vacate the premises-in-question. ( 20 ) IN the aforesaid background, the heirs and legal representatives of Subal charan, challenging the executability of the decree, have filed the present application under section 47 of the Code of Civil Procedure. ( 21 ) MR. ( 20 ) IN the aforesaid background, the heirs and legal representatives of Subal charan, challenging the executability of the decree, have filed the present application under section 47 of the Code of Civil Procedure. ( 21 ) MR. Das, learned advocate, appearing in support of the petition, argues that the deed dated December 28,1956 is a nullity inasmuch as under the deed dated September 1, 1937 the settler or the trustees appointed under the 1937 deed had no authority to exclude the said Subal Charan from the benefits in the absence of the consent of Subal Charan. He, further, argues that the findings of the learned Single Judge in respect of issue No. 1 has not been disturbed by the Division Bench and, therefore, the decree passed by the Division Bench without any finding is a nullity. Finally, Mr. Das argues that this execution case must be stayed because of pendency of Suit No. 729 of 1977 between the parties for partition and administration of the properties including the suit property. ( 22 ) FOR invoking the provisions of Rule 29 of Order 21 of the Code of Civil procedure both the suit and the execution case should be in the same Court and the decree holders and the judgment-debtors should, also, be parties to the suit. It is only then the execution of the decree may be stayed taking into consideration facts and circumstances of each case. The stay is not automatic. The general rule is that the execution should not be stayed liberally. The provision of Rule 29 is an extraordinary one and only to be invoked in an extraordinary case. ( 23 ) I am satisfied that the judgment-debtors did not acquire a superior title to retain the property on account of events taking place subsequent to the date of decree. The title to the property and possession remain the same and as such the present judgment-debtors cannot resort to the said Rule 29 of Order 21 of the Code of Civil Procedure at this stage, particularly, when such plea was open to them at the time when the decree was passed against them by this court. I am, therefore, not inclined to stay the execution case only on account of pendency of the partition suit. I am, therefore, not inclined to stay the execution case only on account of pendency of the partition suit. ( 24 ) IT is settled law that an Executing Court cannot go behind the decree and section 47 of the Code of Civil Procedure is not enacted for the said purpose. The decree has become final up to the Apex Court. It is not open to the judgment-debtors to challenge the decree on the grounds available to them during the trial. The powers of the Court under section 47 are very different and much narrower than it's power of appeal, revision or review. ( 25 ) THE Supreme Court of India in the case of Dhurandhar Prasad Singh vs. Jai Prakash University and Ors. , reported in 2001 (6) SCC 534 , observes that the exercise of powers under section 47 of the Code of Civil Procedure is microscopic and lies in a very narrow inspection hole. Thus, it is plain that the executing Court can allow objection under section 47 of the Code of Civil procedure to the executability of the decree if it is found that the same is void ab initio and a nullity, apart from the ground that the decree is not capable of execution under law either because the same was passed in ignorance of a provision of law or that the law was promulgated making the decree in-executable after its passing. ( 26 ) IN the case in hand, the judgment-debtors contested the claim of the decree holders up to the Apex Court. They had opportunities to challenge the deeds of 1956 and 1962. A Division Bench of this Court found that the challenge was devoid of any merit. It was found that the judgment-debtors failed to prove their title in the property-in-question. ( 27 ) I, therefore, do not find any merit in this application under section 47 of the Code of Civil Procedure. I dismiss the said application under section 47 of the Code of Civil Procedure. I make no order as to costs. ( 28 ) ALL parties are to act on a xerox signed copy of this judgment on usual undertaking. Application dismissed.