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2005 DIGILAW 713 (GAU)

Yusuf Hussain v. Tripati Bordoloi

2005-09-22

BIPLAB KUMAR SHARMA

body2005
JUDGMENT B.K. Sharma, J. 1. Both the writ petitions filed by the rival parties to a Title Suit are in respect of the same interlocutory order of the Trial Court/Executing Court and hence were heard analogously. They are being disposed of by this common judgment and order. 2. The facts material for the purpose of disposal of the writ petitions are as follows: The Petitioners in W.P. (C) No. 5314/05 are the Plaintiffs/decree holders in respect of the Title Suit No. 89/93. The Title Suit was filed against the Respondent (s), who are the Petitioners in WP (C) No. 4516/05 for decree of right, title and interest and recovery of khas possession of the suit land. The suit was decreed in favour of the Plaintiffs, making of grievance against which the Defendants preferred the Title Appeal No. 29/98. The appeal was dismissed upholding the judgment and decree passed by the Trial Court. 3. Against such dismissal of the appeal, a regular second appeal being RSA No. 141/2003 was filed by the Defendants before this Court and the same was dismissed. An appeal was preferred before the Supreme Court but the same was also dismissed on 5.7.2004. 4. After the matter arrived its finality in the above manner, the Petitioners in WP (C) No. 5314/05, who are the Plaintiffs/decree holders filed Title Execution Case No. 16/2004 before the Trial Court. The Defendants/judgment debtors, who are the Petitioners in WP (C) No. 4516/05 resisted the execution proceeding by filing an application under Section 47 read with Section 151 of the Code of Civil Procedure, to which the decree holders also filed their objection. 5. When the matter rested thus, the judgment debtors filed an application on 7.10.2004 purportedly under Order 13 Rule 10 read with Section 151 of the Code of Civil Procedure, praying to call for the records of the Trial Court to which also the decree holders filed their objection. The application was rejected by the Trial Court by order dated 01.02.2005 challenging which the judgment debtors approached this Court by filing writ petition, being WP (C) No. 1775/05. The aforesaid writ petition was dismissed on 09.03.2005. While dismissing the writ petition the need for expeditious disposal of the execution proceeding was emphasized and direction was issued to complete the proceeding preferably within two months from the date of furnishing certified copy of the order. 6. The aforesaid writ petition was dismissed on 09.03.2005. While dismissing the writ petition the need for expeditious disposal of the execution proceeding was emphasized and direction was issued to complete the proceeding preferably within two months from the date of furnishing certified copy of the order. 6. After such dismissal of the writ petition the judgment debtors filed yet another application purportedly under Section 151 of the Code of Civil Procedure making a prayer therein to keep the title execution proceeding in abeyance, till all the legal heirs of the judgment debtors are brought on record. The decree holders filed their objection on 23.2.05. Thereafter, by impugned order dated 20.5.05 the executing Court while rejecting the contentions raised by the judgment debtors issued a direction to the decree holders to implead two daughters of the deceased wife of the original Defendant, viz. Rekia Begum and Sekia Begum as party to the execution proceeding fixing 4.3.2005 as the next date for filing objection by Rekia Begum and Sekia Begum. 7. It is the grievance of the decree holders, who are the Petitioners in WP (C) No. 5314/05, that the executing Court ought not have given further chance to Rekia Begum and Sekia Begum for filing objection, inasmuch as, they have already filed their objections in the execution proceeding. According to them further time for filing objection in the proceedings thereof would further delay execution proceeding and the same would be contrary to the principles underlying execution proceedings and the directions issued by this Court in the aforesaid writ proceeding. 8. On the other hand, it is the grievance of the judgment debtors, who are the Petitioners in the other writ petition, i.e. WP (C) No. 4516/05, that the objections raised in respect of the execution proceeding having not been properly considered by the Trial Court, the same has resulted in miscarriage of justice and grave errors of law. According to them, the objections raised in respect of the execution proceeding primarily for the reasons that the legal heirs of the deceased wife of the original Defendant are not party to the execution proceeding, ought to have weighed with the Trial Court, but instead the Trial Court has virtually rejected such objection giving finality to the matter. 9. I have heard Mr. S.P. Roy, learned Counsel appearing for the judgment-debtors/Petitioners in WP (C) No. 4516/2005 and also heard Mr. 9. I have heard Mr. S.P. Roy, learned Counsel appearing for the judgment-debtors/Petitioners in WP (C) No. 4516/2005 and also heard Mr. D. Das, learned Counsel for the decree holders/writ Petitioners in WP (C) No. 5314/2005. Mr. Roy elaborating his argument on the basis of the aforementioned pleas of the judgment debtors, placed reliance on the following decisions in support of his case (i) Mithailal Dassangar Singh v. Annabai Devram Kini and Ors. (2003) 10 SCC 691 ; (ii) V. Uthirapathi v. Ashrab Ali and Ors. (1988) 3 SCC 148; (iii) Badni v. Siri Chand and Ors. AIR 1999 SC 1077 and (iv) N. Jayaram Reddi and Anr. v. The Revenue Divisional Officer and Land Acquisition Officer, Kurnool AIR 1979 SC 1393 . 10. On the basis of the aforesaid decisions, Mr. Roy submitted that while execution proceeding never abate, but unless and until the heirs are brought on record such execution proceedings are required to be kept in abeyance. According to him, after the death of the wife of the original Defendant, her legal heirs ought to have been brought on record by the decree holders. 11. Countering the above argument of Mr. Roy, Mr. Das, learned Counsel for the decree holders submitted that the proceeding initiated by judgment debtors are frivolous and vexatious and with the sole purpose of delaying the execution proceeding. Referring to the factum of dismissal of all the appeals up to the stage of SLP before the Apex Court, Mr. Das submitted that the judgment and decree have attained its finality and the judgment debtors being party to all the proceedings, cannot now take a stand contrary to the records. Mr. Das placed reliance on the decisions of this Court in Narayan Ch. Deb v. United Commercial Bank and Anr. reported in 2004 (2) GLT 237and (ii) In Ravinder Kaur v. Ashok Kumar and Anr. as reported in (2003) 8 SCC 298. 12. I have given my anxious consideration to the submissions made by the learned Counsel for the parties and the materials on record. The original Defendant in the suit viz. Nakibur Rahman was the father of the judgment debtors, the Petitioners in WP (C) No. 4516/05. It appears that during the trial of the suit, upon expiry of the original Defendant, the judgment debtors along with their mother got substituted in place of their deceased father. The original Defendant in the suit viz. Nakibur Rahman was the father of the judgment debtors, the Petitioners in WP (C) No. 4516/05. It appears that during the trial of the suit, upon expiry of the original Defendant, the judgment debtors along with their mother got substituted in place of their deceased father. The learned Counsel for the Petitioners in WP (C) No. 5314/05 i.e. the decree holders, has produced certified copy of the Vakalatnama filed by the legal heirs of the deceased Defendant Nakibur Rahman. In the Vakalatnama, the wife of the deceased and her sons and daughters, depicted their names as Anisa Begum, Merry Begum, Abdul Akhtar, Guna Begum and Mir Yusuf Hussain. While Anisa was the wife of the deceased Defendant, Merry and Guna are the daughters and Abdul Akhtar and Mir Yusuf Hussain are the sons of the deceased. 13. In the Title Appeal preferred by the judgment debtors being Title Appeal No. 29/98 all the substituted legal heirs of the original Defendants were Appellants. I have verified the records of the title appeal in which the judgment debtors have described themselves as (i) Md. Mir Yusuf Hussain, (2) Md. Mir Abdulla Hussain Akhtar, (3) Mustt. Anisa Begum, (4) Mustt. Sakia Begum and (5) Mustt. Rekia Begum. 14. While the Appellants No. 1 and 2 are the sons of the deceased Defendant, the Appellant No. 3, 4 and 5 are the wife and daughters respectively of the deceased Defendant. Mr. Roy, learned Counsel for the judgment debtors on being asked during the course of hearing fairly admitted that Sakia Begum and Rekia Begum are also known as Guna and Merry. He also fairly admitted that Md. Mir Yusuf Hussain, Md. Mir Abdulla Akhtar are also known as Mir Yusuf Hussain and Abdul Akhtar and for that matter Guna Begum, Merry Begum, Rekia Begum and Sakia Begum are the same persons, who are the two daughters of the original deceased Defendant. Likewise, Abdul Akhtar and Mir Yusuf Hussain and Mir Abdulla Akhtar and Md. Mir Yusuf Hussain are the same persons, i.e. the two sons of the original deceased Defendant. Thus, there is no question of any wrong identity of any person. Even at the time of preferring appeal, the Appellants never raised any such objection as has been raised in the instant proceeding. 15. Mir Yusuf Hussain are the same persons, i.e. the two sons of the original deceased Defendant. Thus, there is no question of any wrong identity of any person. Even at the time of preferring appeal, the Appellants never raised any such objection as has been raised in the instant proceeding. 15. Apart from the said legal heirs there is no other legal heirs of the original Defendants, viz. Nakibur Rahman or his deceased wife Anisa Begum. Even during the course of the present proceeding, the learned Counsel for the judgment debtors, could not point out anything as to the availability of any other legal heirs of Anisa Begum, who was the wife of the original Defendant and who got substituted along with her two sons and two daughters in the proceeding in the trial Court and who also subsequently filed appeal as noticed above. After the death of Anisa Begum, nothing was brought on record by the judgment debtors to point out that there are other legal heirs of Anisa Begum. 16. The records have revealed that Rekia Begum and Sakia Begum have also filed their objections along with her two brothers Mir Yusuf Hussain and Mir Abdulla Akhtar. Such application has been filed under Section 47 read with Section 151 of the Code of Civil Procedure. In the application, an objection has been raised relating to description of Rekia Begum and Sakia Begum as Merry and Guna by which names they got substituted in the proceeding before the Trial Court. According to them, description of Rekia and Sakia as Merry and Guna has made the decree inexecutable. It appears that in the execution proceeding, the decree holders have described the judgment debtors as follows: 1(i) Mustt. Anisa Begum, 1(ii) Mustt. Guna Begum, 1(iii) Mustt. Merry Begum, 1(iv) Md. Abdul Akhtar and 1(v) Md. Yusuf Hussain. 17. It is the objection of the judgment debtors that since Mustt. Anisa Begum has already expired (26.12.2002) her legal heirs ought to have been brought on record and that she could not have been impleaded as one of the judgment debtors. Further objection raised is that Rekia and Sakia could not have been described as Guna and Merry. Similarly, Mir Yusuf Hussain and Mir Abdulla Hussain Akhtar could not have been described as Md. Yusuf Hussain as Md. Abdul Akhtar. Further objection raised is that Rekia and Sakia could not have been described as Guna and Merry. Similarly, Mir Yusuf Hussain and Mir Abdulla Hussain Akhtar could not have been described as Md. Yusuf Hussain as Md. Abdul Akhtar. According to the judgment debtors, because of such mistakes in describing the names of judgment debtors, the decree has become in executable and the Trial Court ought to have kept the execution proceeding in abeyance till such time proper corrections are made and or legal heirs of Anisa Begum are brought on record. 18. As discussed above, the judgment debtors at no point of time after expiry of Mustt. Anisa Begum ever brought to the notice of the Court that there are other legal heirs of Anisa Begum. All throughout, right from the stage of trial proceeding, Anisa Begum, who was the wife of the deceased Defendant along with her two sons and two daughters were on record as the substituted Defendants/judgment debtors. It is true that Anisa Begum has expired and thus ought not have been indicated as one of the judgment debtors. However, when names of other judgment debtors have been indicated and brought on record, mere inclusion of the name of Anisa Begum will not be fatal. Her name will automatically stand deleted. There is nothing on record to show that there are other legal heirs of Anisa except her two sons and two daughters. Even the learned Counsel for the judgment debtors, on being asked during the course of hearing, could not point out anyone. 19. As regards the wrong description of Rekia Begum and Sakia Begum as Guna and Merry, same also cannot be said to be fatal when as per own admission of the judgment debtors, Guna and Merry are in fact also known as Rekia and Sakia. Similarly, as per own admission of judgment debtors, Md. Abdul Akhtar and Md. Yusuf Hussain are also known as Mir Abdulla Hussain Akhtar and Mir Yusuf Hussain. They are the daughters and sons of Anisa Begum and there is no dispute relating to the same. 20. When the judgment debtors are identifiable and when the judgment debtors themselves admit that Guna and Merry; Md. Abdul Akhtar and Md. Abdul Akhtar and Md. Yusuf Hussain are also known as Mir Abdulla Hussain Akhtar and Mir Yusuf Hussain. They are the daughters and sons of Anisa Begum and there is no dispute relating to the same. 20. When the judgment debtors are identifiable and when the judgment debtors themselves admit that Guna and Merry; Md. Abdul Akhtar and Md. Yusuf Hussain are also known as Sakia Begum and Rekia Begum and Mir Abdulla Hussain Akhtar and Mir Abdul Hussain and they are the same persons, I see no reason as to why the decree is not executable. If such technicalities as have been raised on behalf of the judgment debtors are given credence, there will be no end to it, which will be contrary to the spirit of the Code of Civil Procedure, after the amendment, it terms of which the whole emphasis is early disposal of such litigations. 21. The judgment debtors went up to the Apex Court with the legal heirs of the original Defendant on record without highlighting anything as to the pleas now being raised before the Executing Court. It gives the irresistible conclusion that the whole endeavour and device of the judgment debtors is some how to delay the execution proceeding. When the judgment debtors themselves admitted their identity, mere technical pleas now being raised on their behalf are only for buying time, so as to delay the execution proceeding. 22. This Court in its earlier order referred to hereinabove already emphasized the need for early conclusion of the execution proceeding. While the Trial Court was perfectly justified in passing the impugned order on the reasons assigned, there was no necessity for further granting time to Rekia Begum and Sakia Begum to file objection, when their application along with their two brothers filed under Section 47 read with Section 151 Code of Civil Procedure is already on record. The Trial Court has already dealt with all the aspects of the matter and thus there is no question of submitting further objection by Rekia and Sakia, who are the same persons earlier described as Merry and Guna. 23. I shall be failing in my duty if I do not refer to the decisions on which the learned Counsel for the parties placed reliance. In the case of Mithailal Dassangar Singh (Supra), the Apex Court was concerned with abatement of a pending suit. 23. I shall be failing in my duty if I do not refer to the decisions on which the learned Counsel for the parties placed reliance. In the case of Mithailal Dassangar Singh (Supra), the Apex Court was concerned with abatement of a pending suit. It was held that once the prayer made by the legal representatives of the deceased Plaintiff for setting aside the abatement as regards the deceased Plaintiff was allowed and the Legal Representative of the deceased Plaintiff came on record, the constitution of the suit was rendered good; it revived and the abatement of the suit would be deemed to have been set aside in its entirely even though there was no specific prayer made and no specific order of the court passed in that behalf. This case is no help to the case of the judgment debtors. 24. In the case of V. Uthirapathi (Supra) the Apex Court held that if the decree holder dies and his legal representative do not come on record then there is no abatement of the execution proceeding and the same remains pending till such time the legal representatives are brought on record. It is not the case in hand as all the legal representatives of the Defendants are on record. 25. In Siri Chand (Supra) the question was based on a common issue against the Appellants in several appeals. Failure to bring the legal representatives of one of the deceased Appellant in one appeal was held to have resulted in abatement of other appeals. I fail to understand how this case is of any assistance to the case of the judgment debtors. Similar effect was noticed in the case of N. Jayaram Reddi (Supra). 26. This Court in the case of Narayan Ch. Deb (Supra), on which Mr. D. Das, learned Counsel for the decree holders, placed reliance, placing reliance on the decision of the Apex Court as reported in AIR 1965 SC 1049 (Dayaram v. Shyamsundari) held that omission to substitute other legal representative and the decree passed on that basis held not to be fatal when two legal representatives of the deceased Defendant were already on record. 27. The Apex Court in the case of Ravinder Kaur (Supra) noticing similar facts and circumstances and protracted litigation resorted by the judgment debtors, held that the whole exercise was only to delay the execution of the decree. 27. The Apex Court in the case of Ravinder Kaur (Supra) noticing similar facts and circumstances and protracted litigation resorted by the judgment debtors, held that the whole exercise was only to delay the execution of the decree. The appeal preferred against the judgment of the appellate Court was dismissed with exemplary costs holding that the objection adopted by the judgment debtor to be an abuse of the process of Court. 28. In view of the above, I do not find any merit in the writ petition No. WP (C) No. 4516/05 and consequently stands dismissed. The other writ petition, being WP (C) No. 5314/05 stands allowed by setting aside and quashing that part of the order dated 20.5.2005 by which the matter was fixed for objection by Rekia Begum and Sakia Begum. The Trial Court/Executing Court shall now finalize the proceeding in Title Execution Case No. 16/04 with utmost expedition keeping in mind the earlier order of this Court dated 9.3.2005 passed in WP (C) No. 1775/05. 29. The writ petitions are answered in the above manner. However, there shall be no order as to costs. Petition dismissed.