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2005 DIGILAW 683 (GAU)

Momin Ali @ Mukif v. Pranab Banerjee

2005-09-15

I.A.ANSARI

body2005
JUDGMENT I.A. Ansari, J. 1. This is an application made under Section 24 read with Section 151 of the Code of Civil Procedure (in short, the Code) seeking withdrawal of the Title Execution Case No. 53 of 2004 from the Court of learned Civil Judge (Junior Division) No. 1, Guwahati, and transfer thereof to any other Court of competent jurisdiction. 2. I have heard Mr. J. Das, learned Counsel, appearing on behalf of the judgment-debtor-applicant herein, and Mr. D. Baruah, learned Counsel, for the decree holder-opposite party herein. 3. Apreliminary objection has been raised, on behalf of the decree holder-opposite party, that as the applicant had already made a transfer application under Section 24 read with Section 151 of the Code seeking withdrawal and transfer of the said Title Execution proceeding from the Court of the learned Civil Judge (Junior Division) No. 1, Guwahati, to any other Court of competent jurisdiction and this transfer application, which had given rise to Transfer Misc. Application No. 165 of 2005, has, upon hearing the learned Counsel for the parties, already been dismissed by the learned District Judge, Kamrup, Guwahati, by order, dated 8.7.2005, another application for transfer of the said execution; (sic) under Section 24 read with Section 151 of the Code is misconceived and not maintainable in law, for, the order, dated 8.7.2005, aforementioned has not been impugned, points out Mr. Baruah, in any revision or writ petition. In such a situation, the order, dated 8.7.2005, aforementioned, submits Mr. Baruah, remains in force and until the order, dated 8.7.2005, aforementioned is set aside and/or quashed, another application for transfer, such as the present one, cannot be made either in the Court of the learned District Judge, Guwahati, or in this Court. This apart, contends Mr. Baruah, the present transfer application has no merit and may, therefore, be dismissed in limine. 4. Controverting the above submissions made on behalf of the opposite-party, Mr. J. Das, learned Counsel, has submitted that there is no bar under the law in making an application under Section 24read with Section 151 of the Code to the High Court seeking transfer of a suit or an execution proceeding if a prayer for transfer of the suit or the proceeding has been turned down by a District Judge. According to Mr. According to Mr. Das, the applicant, apprehending that he may not get justice from the Court of the learned Civil Judge (Junior Division) No. 1, Guwahati, sought for transfer of the said Title Execution proceeding, but the learned District Judge did not consider the materials and relevant facts and dismissed the application by observing to the effect that the transfer application was nothing, but a ploy to delay the execution of the decree after the judgment-debtor had lost in multiple proceedings. 5. Before entering into the merit of the present transfer application, what needs to be noted is that Section 24 of the Code empowers the High Court as well as every District Judge to, inter alia, withdraw any suit or proceeding from any Court subordinate to it and transfer the same for disposal to any Court subordinate to it. The powers, so conferred, on the District Judge can be exercised obviously for withdrawal and transfer of a suit or a proceeding, which is pending in a Court subordinate to the District Judge of the district concerned; whereas the High Court can transfer a suit or proceeding from any Court subordinate to it and this power of the High Court obviously includes the power to transfer the suit or proceeding from one district to another. However, what is of paramount importance to note is that a ground, which is not good enough to enable transfer of a suit or a proceeding by the District Judge from one Court to another, cannot become a good ground for withdrawal or transfer of such a suit or proceeding by the High Court, for, the conditions precedent for exercise of the powers of withdrawal or transfer vested in the High Court as well as the District Judge under Section 24 of the Code are the same. This apart, an application for transfer made under Section 24 is nothing but a miscellaneous proceeding and provisions of the Code shall, so far as maybe, followed in all proceedings in every Court of civil jurisdiction. When a transfer application is made before a District Judge under Section 24 read with Section 151 of the Code and whether the same is allowed or disallowed, the decision given in such a proceeding cannot be reversed by the District Judge on a subsequent transfer application made on the same ground. When a transfer application is made before a District Judge under Section 24 read with Section 151 of the Code and whether the same is allowed or disallowed, the decision given in such a proceeding cannot be reversed by the District Judge on a subsequent transfer application made on the same ground. When the District Judge cannot entertain a second trans few application on the same ground on which the transfer application has been rejected, the question of the High Court transferring such a suit or proceeding does not arise at all, for, while entertaining an application under Section 24 read with Section 151 of the Code, the High Court will not be sitting as a Court of appeal or revision over the order of the District Judge. Mr. Das contends that even if an application for pre-arrest bail made under Section 438, Code of Criminal Procedure is turned down by the Session Judge, there is no impediment on the part of the High Court to allow such an application and, similarly, if one transfer application has been rejected by the District Judge, there is no bar for the High Court to allow the transfer application on the same ground. 7. While dealing with the submission of Mr. Das that even if an application for pre-arrest bail made under Section 438, Code of Criminal Procedure is turned down by the Session Judge, there is no impediment, on the part of the High Court, to allow such an application and, hence, if one transfer application has been rejected by the District Judge, there is no bar for the High Court to allow transfer of the suit or proceeding on the same ground, it is of paramount importance to note that that if a prayer for pre-arrest bail is rejected by the Session Judge, the Session Judge cannot allow another petition for pre-arrest bail unless some new facts or grounds for granting such a relief is made out, though the doctrine of res judicata does not apply to orders of bail. Similarly, if the High Court has rejected a prayer for pre-arrest bail, it cannot, in the absence of any other new reason, grant pre-arrest bail on the same ground on which it had earlier considered and rejected the prayer for pre-arrest bail. Similarly, if the High Court has rejected a prayer for pre-arrest bail, it cannot, in the absence of any other new reason, grant pre-arrest bail on the same ground on which it had earlier considered and rejected the prayer for pre-arrest bail. Considered thus, it is clear that when the learned District Judge has already rejected an application for transfer made under Section 24 read with Section 151 of the Code by order, dated 8.7.2005, aforementioned, no application under Section 24 read with Section 151 of the Code can be entertained by this Court on the same ground, for, the order, dated 8.7.2005, aforementioned, will still remain valid and in force and so long as the order, dated 8.7.2005, aforementioned remains in force and not superseded, another application for transfer on the same ground cannot be entertained by the High Court under Section 24 read with Section 151 of the Code. I am fortified in coming to this conclusion from the decision reported in AIR 2003 Kant 39 (M.V. Ganesh Prasad v. M.L. Vasudevamurthy and other), wherein Karnataka High Court, referring to a decision, reported in 1984 2 KLJ 508, has held that a second application under Section 24 does not lie, when an application made under the very provision has already been dismissed by the District Judge. 8. Thus, when a transfer application is made on a ground and this is objected to by the contesting party, an issue arises and the answer given by the Court on the issue, so raised, will remain binding on the parties concerned and their successors-in-interest in subsequent proceedings unless the finding is changed or reversed. 9. In the case at hand, agrees Mr. Das, the transfer application has been made on the same accusation as had been made before the learned District Judge. Hence, when the learned District Judge considered the ground and rejected the same, the finding remains binding and since this finding cannot be reopened by making another application under Section 24 read with Section 151 of the Code, the present application will not be sustainable. In fact, the grievance of the present Petitioner is that the learned District Judge has not taken into account the relevant facts, while passing the order, dated 8.7.2005, aforementioned and turning down the prayer for transfer of the said proceeding made by the present applicant. In fact, the grievance of the present Petitioner is that the learned District Judge has not taken into account the relevant facts, while passing the order, dated 8.7.2005, aforementioned and turning down the prayer for transfer of the said proceeding made by the present applicant. Suffice it to mention here, in this regard, if I may reiterate, that this Court, while entertaining a transfer application made under Section 24 read with Section 151, does not sit as a Court of appeal or revision against the order passed by the learned District Judge. 10. For the view that I have taken above, the present transfer application cannot be said to be maintainable, particularly, because as long as the order, dated 8.7.2005, aforementioned remains in force, the second application for transfer of the said execution proceeding on the same ground on which the application for transfer was moved before the learned District Judge cannot be entertained by this High Court. 11. Though the above finding is sufficient to dismiss this transfer application, it is also important to take note of the background in which the present transfer application has been made. 12. The order, dated 3.2.2005, aforementioned was challenged by way of writ application, which gave rise to W.P. (C) No. 2265 of 2005, and by order, dated 6.4.2005, this Court dismissed the writ petition. The observations made by this Court while dismissing the writ petition are of great relevance in the present transfer application. I, therefore, reproduce herein-below the relevant observations made in the decision, dated 6.4.2005, aforementioned. 6. In this regard, the Apex Court observed and held thus: Therefore, raising a dispute in regard to the description or identity of the suit schedule property or a dispute in regard to the boundary of the suit schedule property is only a bogey to delay the eviction by the abuse of the process of Court. Courts of law should be careful enough to see through such diabolical plans of the judgment-debtors to deny the decree-holders the fruits of the decree obtained by them. These types of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing law's delay and bringing bad name to the judicial system. 7. Courts of law should be careful enough to see through such diabolical plans of the judgment-debtors to deny the decree-holders the fruits of the decree obtained by them. These types of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing law's delay and bringing bad name to the judicial system. 7. What crystallizes from the above discussion is that raising of a mere dispute, in an execution proceeding, with regard to description or identity of the suit property is not enough and not to be, normally, allowed if such an objection has not been taken by the Respondent concerned at the initial stage of the proceeding. However, if the decree does not specify the suit property, recourse to Section 152 of the Code of Civil Procedure may be had. A judgment-debtor shall not be allowed to frustrate the decree if he raises a dispute with regard to description or identity of the suit property as a pretext to defeat or delay the decree, which is, otherwise, lawful, for, allowing such a resistance to a decree to continue will amount to abuse of the process of the Court. In the case at hand, the judgment-debtor, as the facts narrated hereinabove clearly reveal, did not dispute the description and/or identity of the suit property at any stage of proceedings until the execution proceedings reached the final stage. The resistance to the present decree on the ground that the suit property is not identifiable and/or on the ground that the judgment-debtor is sought to be evicted from a property, which is not covered by the decree, cannot be sustained, particularly, when the very claim of the judgment-debtor in the suit was a claim of adverse possession over the said property. 8. Because of what has been discussed and pointed out above, I am of the view that the learned Executing Court was within the ambit of law in passing the impugned order, dated 3.2.2005, declining to allow the Petitioner, as judgment-debtor, to adduce evidence in the said execution proceeding. 13. 8. Because of what has been discussed and pointed out above, I am of the view that the learned Executing Court was within the ambit of law in passing the impugned order, dated 3.2.2005, declining to allow the Petitioner, as judgment-debtor, to adduce evidence in the said execution proceeding. 13. Before the writ petition was dismissed, the present applicant, as judgment-debtor, had made several petitions for adjournment in the said Title Execution proceeding and after the writ petition was dismissed on 6.4.2005, the said proceeding was taken up, as scheduled, by the learned Civil Judge (Junior Division) No. 1, Guwahati, on 7.4.2005, but on the prayer of the judgment-debtor, the matter was fixed on 13.4.2005. On 13.4.2005, again, the judgment-debtor made appetition seeking time and from the reading of the order, dated 13.4.2005, passed therein, it transpires that the learned Executing Court fixed the proceeding for objection hearing, on 25.4.2005, after great reluctance making it clear that the judgment-debtor had already obtained several adjournments and had been delaying the proceeding on one ground or the other. Before, however, the objection hearing could take place on 25.4.2005, the judgment-debtor made the said transfer application on 19.4.2005. After hearing both sides, the learned District Judge passed the order, dated 8.7.2005, aforementioned observing therein to the effect, inter alia, that the said transfer application was nothing, but an attempt to delay the execution of the decree and it was on this consideration that the transfer application was rejected. 14. What is, however, of paramount importance to note is that in the transfer application made before the learned District Judge, the judgment-debtor had submitted that the judgment-debtor had seen the Opposite party/Decree Holder Sri Gautam Baneijee going towards the residential house of the Civil Judge (Junior Division) No. 1 on 6th April, 2005, and that Md. Nur Islam Ali and Md. Salim Ahmed too had seen Sri Gautam Baneijee going to the residential house of the Civil Judge (Junior Division) No. 1, Guwahati. As against such accusation, the judgment-debtor has, now, submitted, in the present transfer application, that as the decree holder had been visiting the residence of the Civil Judge, there was an apprehension in the mind of the judgment-debtor that he might not get justice from the Court of the Civil Judge (Junior Division) No. 1, Guwahati. As against such accusation, the judgment-debtor has, now, submitted, in the present transfer application, that as the decree holder had been visiting the residence of the Civil Judge, there was an apprehension in the mind of the judgment-debtor that he might not get justice from the Court of the Civil Judge (Junior Division) No. 1, Guwahati. No particular has, however, been given, in the present transfer application, as regard the dates, on which and the time, at which, the decree-holder had been seen visiting the residence of the Civil Judge (Junior Division) No. 1, Guwahati. This transfer application has been sworn by the judgment-debtor. This affidavit is totally vague inasmuch as the affidavit gives no clear indication at all as to whether the statements made in para 9 are based on knowledge or information. The Petitioner has vaguely stated in the affidavit that the statements made in paragraphs 1 to 11 are true to his knowledge and that the submissions made in paragraphs 1 to 11, which relate to the record, are true to his information. Apart from the fact that the Petitioner has not clearly stated, in his affidavit, that within his own knowledge, the decree holder has visited the house of Civil Judge (Junior Division) No. 1. Guwahati, and if so, on what day or at what time, there was not even a whisper in the transfer application, which was made in the Court of learned District Judge, that the judgment-debtor had seen the decree-holder visiting the house of the Civil Judge (Junior Division) No. 1, Guwahati; rather, what was stated therein was that the judgment-debtor had seen the decree-holder going towards the residence of the Civil Judge (Junior Division) No. 1, Guwahati. This accusation had been rightly objected to by the decree-holder as vague and indefinite. Considered thus, I am left with no doubt in my mind that the present transfer application is a frivolous attempt of the judgment-debtor to delay the execution proceeding aforementioned. 15. Because of what have been discussed and pointed out above, I find that the present transfer application is neither maintainable nor does it have any merit. For such frivolous attempts made by the judgment-debtor and for the wastage of public time of this Court, the judgment-debtor needs to be saddled with costs. 16. In the result and for the foregoing reasons, this transfer application is dismissed with cost of Rs. 500/-. For such frivolous attempts made by the judgment-debtor and for the wastage of public time of this Court, the judgment-debtor needs to be saddled with costs. 16. In the result and for the foregoing reasons, this transfer application is dismissed with cost of Rs. 500/-. Application dismissed.