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2006 DIGILAW 1099 (GAU)

Jitendra Kumar Dhar v. Sibu Paul

2006-12-11

R.B.MISRA

body2006
JUDGMENT R.B. Misra, J. 1. Heard Mr. A.M. Lodh, learned senior counsel assisted by Mr. M. Dutta, learned Counsel for the petitioners and Mr. K.N. Bhattacharjee, learned senior counsel assisted by Mr. S. Acharjee, learned Counsel for the respondent No. 1. None appears for and on behalf of the respondent No. 2 despite service of notice upon him. 2. This is a petition/civil revision petition under Article 227 of the Constitution against the order dated 24.05.2006 passed by the learned Civil Judge (Senior Division), North Tripura, Kailashahar in Civil Misc. Case No. 5 of 2005 preferred against dismissal of execution proceeding No. 18 Ex (T) of 2001 by the decree-holders Sri Haribal Dhar and others. By the impugned order dated 24.05.2006 passed in Civil Misc. Case No. 5 of 2005 the execution case was not to continue in view of the pendency of T.S. No. 24 of 2002. Accordingly, the execution case was stayed and Civil Misc. Case No. 5 of 2005 was disposed of by the learned Civil Judge (Senior Division), Kailashahar. 3. At the outset, learned senior counsel for the petitioners has submitted that the impugned order dated 24.05.2006 is beyond the scope, power and jurisdiction of learned Civil Judge (Sr. Division) According him the impugned order dated 24.05.2006 is also in derogation and in teeth of the different orders passed on the same issue by the concerned Court. In order to appreciate, it is necessary to give the factual position of the case as below: (i) The predecessors of the petitioners preferred civil suit No. T.S. 10 of 1979 before the Civil Judge (Senior Division), Dharmanagar for declaration of title and recovery of possession of suit property against the defendant/respondent No. 2, namely, Kshitish Nandi. (ii) The first appeal preferred by the defendant/respondent No. 2 vide Title Appeal No. 10 of 1996 was dismissed by the first appellate Court vide its judgment dated 17.05.1999. (iii) The second appeal preferred against the above order by the defendant/respondent No. 2 before the High Court was also dismissed on 23.07.2001. (iv) The petitioners herein filed Execution 18 of 2001 before the Civil Judge (Senior Division), Dharmanagar for recovery of possession of the suit land. (iii) The second appeal preferred against the above order by the defendant/respondent No. 2 before the High Court was also dismissed on 23.07.2001. (iv) The petitioners herein filed Execution 18 of 2001 before the Civil Judge (Senior Division), Dharmanagar for recovery of possession of the suit land. (v) It appears that after having come to know about the pendency of the execution case, Judgment Debtor Opposite Party No. 1/respondent No. 1 Sri Sibu Paul, instituted a Civil suit No. T.S. 11 of 2002 against the petitioner claiming that he had already acquired right, title in the suit land by way of adverse possession as he had already entered into an unregistered deed of agreement with respondent No. 2 Shri Kshitish Chandra Nandi for purchase of suit land at Rs. 12,000/- however, since the said deed could not be executed, therefore, the declaration was being sought that the aforesaid judgment dated 29.08.1996 of passed Trial Court and its dismissal by the first appellate Court (i.e., order dated 17.05.1999) and also its affirmation vide judgment dated 27.03.2001 of this Court are to be declared to be void and also for granting perpetual injunction against the said execution Case No. Ex. (T) 18 of 2001. (vi) The respondent No. 1/Sibu Paul preferred a petition for temporary injunction under Order 39 Rule 1 of CPC for restraining the petitioner herein/decree-holder from executing the decree Ext. (T) 18 of 2001. However, at once stage, ex parte interim order of injunction was granted which was subsequently vacated by the Trial Court vide order dated 12.08.2002 in Misc. Case No. 24/2002. (vii) The respondent No. 1 preferred appeal before the Additional District Judge, Dharmanagar (Civil Misc. Appeal No. 4 of 2002). The District Judge, North Tripura, Kailashahar transferred the case to the Additional District Judge, North Tripura, Kailsahahar. (viii) Title Suit No. 11 of 2002 was transferred to Civil Judge, Senior Division, Kailashahar and it, after renumbered, became Title Suit No. 24 of 2002. (ix) Against the above order, petition filed by the respondent No. 1 under Article 227 of the Constitution bearing W.P.(C) No. 399 of 2004 was allowed to be withdrawn vide order dated 03.02.2004 of this Court. (ix) Against the above order, petition filed by the respondent No. 1 under Article 227 of the Constitution bearing W.P.(C) No. 399 of 2004 was allowed to be withdrawn vide order dated 03.02.2004 of this Court. (x) After transfer of the suit and the execution case to the file of Civil Judge (Senior Division), Kaliashahar the respondent No. 1 filed a petition before the Trial Court under Order 21 Rule 35 and 97 of CPC read with Section 151of CPC for the dismissal of the execution case in respect of the same land for which the Civil Judge (Senior Division), Dharmanagar by its order dated 29.08.1996 had declared the title and recovery in favour of the petitioner which was subsequently affirmed on 17.05.1999 by the first appellate Court as well as by the order dated 27.03.2001 of this Court in Second Appeal and for which Execution Case No. 18 of 2001 was pending before the Civil Judge, (Senior Division), Dharmanagar. 4. According to the learned Counsel for the petitioner, when the application of the respondent No. 1 already preferred in Title suit No. 24 of 2002 an application for temporary injunction under Order 39 Rule 1 of CPC for restraining the petitioner a decree-holder of the land/property in question from executing the decree Ext (T) 18 of 2001 was rejected then whether for the same purpose a misc. application No. 5 of 2005 in Ex. (T) 18 of 2001 of the petitioner, praying the rejection of the execution petition with a direction that the execution of decree of the petitioner cannot affect the respondent No. 1 could be entertained. According to him, learned Civil Judge, Senior Division had exceeded his jurisdiction and over reached the earlier proceeding and in utter ignorance to the earlier order and in derogation to the earlier proceedings of the same land/property has entertained this Civil Misc. Case No. 5 of 2005 and also has stayed the execution of the suit only on the ground that there is pendency of the Title Suit No. 24 of 2002. 5. On the other hand Mr. K.N. Bhattacharjee, learned Senior Counsel for the respondent No. 1 has submitted that earlier application was preferred in different T.S. 24 of 2002 for interim injunction under Order 39 Rule 1 of CPC which was rejected on 12.08.2002. The said Misc. 5. On the other hand Mr. K.N. Bhattacharjee, learned Senior Counsel for the respondent No. 1 has submitted that earlier application was preferred in different T.S. 24 of 2002 for interim injunction under Order 39 Rule 1 of CPC which was rejected on 12.08.2002. The said Misc. Case No. 24 of 2002 was in different Suit No. T.S. 24 of 2002 and emanating from original suit No. TS 10 of 1979, as the later suit was not between the same parties or not between the petitioners and the respondent No. 1 Sri Sibu Paul whereas, it has been submitted by the learned Counsel that the application Civil Misc. No. 5 of 2005 could not be maintainable under Order 21 Rule 35 and Order 21 Rule 97 of CPC as these provisions are for different purposes. 6. According to the learned Counsel for the petitioner Order 21 Rule 35 of CPC deals with decree for immovable property and Order 21 Rule 97 of CPC deals with resistance or obstruction to possession of immovable property. According to him none of these provisions are applicable in the present case as nobody has approached before the Court for decree of immovable property or in respect of resistance or obstruction to possession of immovable property. For convenience Order 21 Rule 35 as well as Order 21 Rule 97 of CPC are reproduced below: Decree for immovable property (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property. (2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree. (2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree. (3) Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree holder in possession. 97. Resistance or obstruction to possession of immovable property. (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. (2) Where any application is made under Sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. 7. According to Mr. Bhattacharjee, the learned Counsel for the respondent No. 1, the provisions even if Order 21 Rule 35 and Order 21 Rule 97 of CPC is not applicable to the present case, however the scope of Section 151 of CPC is so exhaustive to deal to say that the impugned order dated 24.05.2006 of the learned Civil Judge, Senior Division, Kailashahar was to meet the ends of justice. In order to indicate the scope of Section 151 of CPC the attention of this Court has been drawn to the decision of the Supreme Court in (M/S. Ram Chand and Sons Sugar Mills Private Ltd., Barabanki (U.P.) v. Kanhayalal Bhargava and Ors. The relevant paragraph 5 is quoted as below: (5) Section 151 of the Code reads: Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. The words of the section appear to be rather wise. The words of the section appear to be rather wise. But the decisions of this Court, by construction, limited the scope of the said Section. In Padam Sen v. State of Uttar Pradesh 1961 CriLJ 322, the question raised was whether a Munsiff had inherent powers under Section 151 of the Code to appoint a commissioner to seize account books. This Court held that he had bi such power. Raghubar Daya, J., speaking for the Court, observed: The inherent powers of the Court re in addition to beh powers specifically conferred on the Court by the Code. They are complementary to those powers and, therefore, it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of these powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It is also well recognized that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code, This Court again in Manohar Lal Chopra v. Raja Seth Hiralal AIR 1962 SC 527 , considered the question whether a Court had inherent power under Section151 of the Code to issue temporary injunction restraining a party from proceeding with a suit in another State. In that context, Raghubar Dayal, J., after quoting the passage cited above from his earlier judgment, interpreted the said observations thus: These observations clearly mean that the inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in Section 151 itself. But those powers are not to be exercised when their exercise may be in conflict with what had been expressly provided in the Code or against the intentions of the Legislature. This restriction, for practical purposes, on the exercise of these powers is not because these powers are controlled by the provisions of the Code but because it should be presumed that the procedure specifically provided by the Legislature for orders in certain circumstances is dictated by the interests of justice. This Court again in Arjun Singh v. Mohindra Kumar [1964] 5 SCR 946, considered the scope of Section 151 of the Code. This Court again in Arjun Singh v. Mohindra Kumar [1964] 5 SCR 946, considered the scope of Section 151 of the Code. One of the questions raised was whether an order made by a Court under a situation to which Order IX Rule 7 of the Code did not apply, could be treated as one made under Section 151 of the Code. Rajagopala Ayyangar, J., made the following observations: It is common ground that the inherent power of the Court cannot override the express provisions of the law. In other words, if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication or the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which relates. Having regard to the said decisions, the scope of the inherent power of a Court under Section 151 of the Code may be defined thus: The inherent power of a Court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by construction on the provisions of Section 151 of the Code, they do not control the undoubted power of the Court conferred under Section 151 of the Code to make suitable order to prevent the abuse of the process of the Court. 8. In view of the exhaustive guidelines given in AIR 2003 SC 3004 Surya Dev Rai v. Ram Chander Rai and Ors. specifically in view of the decision of Hon'ble Supreme Court in AIR 2006 SC 1474 (Kishore Kumar Khatian and Anr. 8. In view of the exhaustive guidelines given in AIR 2003 SC 3004 Surya Dev Rai v. Ram Chander Rai and Ors. specifically in view of the decision of Hon'ble Supreme Court in AIR 2006 SC 1474 (Kishore Kumar Khatian and Anr. v. Praveen Kumar Singh) the jurisdiction under Article 227 may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. But when a Court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Art. 227. The failure to render the necessary findings to support its order would also be jurisdictional error liable to correction. 9. Heard the learned Counsel for the parties and have perused the documents. The learned Trial Court has not taken notice of its earlier order 29.08.1996 passed by the Civil Judge, Senior Division in T.S. 10 of 1979 where the title of the said land in question was decided in favour of the petitioner which too was affirmed by the first appellate Court by its order dated 17.05.1999 in Title Appeal No. 10 of 1996 and against which also a second appeal was dismissed by this Court by order dated 27.03.2001. When a title in favour of some party in respect of some land/property has already been finalized then the same could not have been ignored while passing any subsequent order in respect of same land/property. That order could not be ignored or brushed aside or left from consideration or being referred. Simultaneously, by the order dated 12.08.2002 passed in Misc. Case No. 24 of 2002 preferred in T.S. 24 of 2002 (earlier T.S. 11 of 2002) of respondent No. 1 Sibu Paul the prayer for temporary injunction under Order 39 Rule 1 of CPC for restraining execution of decree of the land/property in question was declined. Therefore, in an Ex. (T) 18 of 2001 such order dated 12.08.2002 was also not to be overlooked while passing the impugned order dated 24.05.2006. In present facts and circumstances the said misc. application No. 5 of 2005 preferred in Ex. Therefore, in an Ex. (T) 18 of 2001 such order dated 12.08.2002 was also not to be overlooked while passing the impugned order dated 24.05.2006. In present facts and circumstances the said misc. application No. 5 of 2005 preferred in Ex. (T) 18 of 2001 was not to be dealt with and disposed of separately by granting the stay of execution. Such approach was apparently exceeding the jurisdiction by the concerned civil Court. To meet the ends of justice even if it was necessary then the misc. application No. 5 of 2005 might be taken for adjudication along with Title Suit No. 24 of 2002, which is yet to be adjudicated upon. 10. In these circumstances I am of the considered view that the order dated 24.05.2006 has been passed by the Civil Judge, Senior Division, North Tripura, Kailashahar illegally exceeding its jurisdiction. Therefore, it is set aside. However, the Trial Court is at liberty to adjudicate the Title Suit No. 24 of 2002 on its own merit keeping in view the above observations indicated above. 11. With the above observations and directions, the Civil Revision Petition is allowed. No order as to costs. Petition allowed.