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2007 DIGILAW 445 (PAT)

Rameshwar Pd. Choudhary v. Renuka Mitra

2007-02-28

SYED MD.MAHFOOZ ALAM

body2007
Judgment Syed Md.Mahfooz Alam, J. 1. This Miscellaneous Appeal is directed against the order dated 18.1.1996 passed by Subordinate Judge Ist, Siwan in Miscellaneous Case No. 16 of 1975 arising out of Execution Case No. 7 of 1970 whereby he has allowed the review petition filed by respondents Renuka Mitra and others for review of the order dated 9.2.78 dismissing Miscellaneous Case No. 16 of 1975 and set aside the auction sale and delivery of possession in Execution Case No. 7 of 1970 and ordered that half share of the applicants in the suit properties be restituted to them through the process of court. 2. Appellant Rameshwar Prasad Choudhary and others, who were opposite parties in the said Miscellaneous Case has challenged the said order in this appeal.3.The brief facts of the case are as follows: One Shambhu Prasad filed Mortgage Suit bearing Title (Mortgage) Suit No. 1 of 1962 / 6 of 1964 for redemption of mortgage against Bishwanath Prasad and Bhagwat Prasad. On 31.7.1965 a preliminary decree was passed in the said suit by the Subordinate Judge III, Chapra and by the said decree, the defendants were ordered to pay Rs. 66,655.45 naie paise to the plaintiff and in case of default the plaintiff was given liberty to pray for final decree for sale of mortgaged property. Thereafter the decree-holder Shambhu Prasad filed an application for preparation of final decree as the judgment debtors defaulted in payment of money. After that Shambhu Prasad assigned decree by a registered deed of assignment dated 14.5.1966 in favour of appellant Rameshwar Prasad Choudhary and accordingly, the appellant was made party in final decree and on 22.9.1966 final decree for sale of mortgaged property was passed. Thereafter on 19.5.1970 the decree-holder filed Execution Case No. 7 of 1970 in the court of the Additional Subordinate Judge III, Chapra in which notices under Order 21 Rule 54 of the C.P.C. were issued and the land appertaining to plot Nos. 5154, 5155 and 5158 comprising an area of 1 bigha 14 kathas 19 dhurs was attached. In the meantime, on 15.12.1975 Misc. Case No. 16 of 1975 was filed by Renuka Mitra and others under Sec. 47 of the C.P.C. praying therein to release the abovementioned property and to dismiss the execution case but by order dated 9.2.1978, the learned Sub Judge, Siwan dismissed the miscellaneous case. 3. In the meantime, on 15.12.1975 Misc. Case No. 16 of 1975 was filed by Renuka Mitra and others under Sec. 47 of the C.P.C. praying therein to release the abovementioned property and to dismiss the execution case but by order dated 9.2.1978, the learned Sub Judge, Siwan dismissed the miscellaneous case. 3. Against the said order dated 9.7.1978 Civil Revision No. 849 of 1978 was filed before this Court. During the pendency of the civil revision application, auction sale was held and the lands measuring 1 bigha 14 kathas 19 dhurs in plot Nos. 5154, 5155 and 5158 were auction sold and on 30.3.87 sale certificate was issued. Thereafter on 16.6.1978 delivery of possession of the abovementioned lands was given to the decree holder auction purchaser. After auction sale and delivery of possession, Civil Revision No. 849 of 1978 was disposed of and by order dated 18.7.1984 Civil Revision No. 849 of 1978 was allowed and the order dated 9.2.78 dismissing Misc. Case No. 16 of 1975 was set aside. The court further directed the executing court to execute the decree against defendant Nos. 1, 2 and 6 only. Against the said order the appellant preferred S.L.P. No. 2499 of 1985 before the Supreme Court which was dismissed on 21.1.1991. As "stated above, during the pendency of Civil Revision No. 849 of 1978 the property in dispute was auction sold and delivery of possession was given to the decree holder auction purchaser and as such after disposal of S.L.P. No. 2499 of 1985 by the Supreme Court, respondents (defendant Nos. 3 to 5) filed review application in Misc. Case No. 16 of 1975. In the said revision application one Anjana Dubey respondent No. 4 filed an application for granting permission to prosecute the case in the capacity of purchaser of the disputed property from defendant Nos. 3 to 5 which was allowed. Against the said order, Civil Revision No. 273 of 1995 was filed but the same was dismissed on 26.7.1995. Then the learned Sub Judge, 1st, Siwan finally passed order on the review application on 18.1.1996 and by the said order, the learned Sub Judge set aside the auction sale and delivery of possession and ordered that half share of the applicants in the suit property be restituted to them. The said order has been challenged by the appellant in this appeal. 4. The said order has been challenged by the appellant in this appeal. 4. It has been argued by the learned Advocate of the appellant that the learned Subordinate Judge has committed error in law as well as on facts in holding that Smt. Renuka Mitra, Nityanand Mitra and Gautam Mitra, the vendors of Anjana Dubey respondent No. 4 had half share in plot Nos. 5154, 5155 and 5158, and so their joint interest in the property cannot be put on auction sale. He further argued that there was sufficient material/evidence on record to hold that the properties had already been partitioned between Bishwanath Prasad and Bhagwat Prasad on the one hand and Smt. Renuka Mitra, Nityanand Mitra and Gautam Mitra on the other hand but the learned Subordinate Judge ignored all those evidence and due to that, he arrived at wrong conclusion that as the vendors of Anjana Dueby had half share in the property which was auction sold, as such the auction sale is liable to be set aside. He Submitted that the impugned order is perverse and is not based on materials available on record and as such, the same should be set aside. 5. On the other hand, the learned Advocate of the respondents has challenged the very maintainability of this appeal on the ground that the order passed under Section 47 of the Code of Civil Procedure is not appealable and the same is also barred by principle of Res-judicata as after dismissal of S.L.P. No. 2499 of 1985 by the Apex Court, the finding that the interest of vendors of Anjana Dubey in the property cannot be put in auction sale has attained finality. 6. On the basis of the arguments of both sides, following points arise for consideration in this appeal: (i) Whether the appeal filed by the appellant is maintainable ? (ii) Whether the appeal is hit by the principle of Res judicata ? (iii) Whether Nityanand Mitra, Renuka Mitra and others, the vendors of respondent No. 4 Anjana Dubey had joint interest in plot Nos. 5154, 5155 and 5158 with the original judgment debtors, Bishwanath Prasad and Bhagwat Prasad or they had divided the properties between them through Bakhudah partition ? (iv) Whether the impugned order setting aside auction sale of the abovementioned plots is legal ? 5154, 5155 and 5158 with the original judgment debtors, Bishwanath Prasad and Bhagwat Prasad or they had divided the properties between them through Bakhudah partition ? (iv) Whether the impugned order setting aside auction sale of the abovementioned plots is legal ? Point No. (i) 7 First of all, I would like to take up this point regarding the maintainability of this appeal as it was vehemently argued by the-learned advocate of the respondents that any order passed under Sec. 47 of the Code of Civil Procedure is not appealable. His argument was that the impugned order was passed in Misc. Case No. 16 of 1975 which was initiated on the basis of the application filed by Renuka Mitra and others under Sec. 47 of the C.P.C. He has submitted that against any order passed under Sec. 47 C.P.C. appeal does not lie and as such, this appeal is not maintainable. In support of his argument he has placed reliance upon the decision of this High Court given in the case of Mosamat Narmada Devi and Anr. V/s. Ram Nandan Singh and Ors. - and upon another decision of Allahabad High Court reported in - (Pratap Narain Agarwal V/s. Ram Narain Agarwal and Ors. As against this, the contention of the learned Advocate of the appellant was that the respondents lawyer has tried to confuse the matter by arguing that the impugned order was passed under Sec. 47 of the C.P.C. He has submitted that for setting aside the auction sale, there is definite provisions under the Code of Civil Procedure which are incorporated under Order 21 Rules 89, 90, 91 and 92 of the C.P.C. and any order passed under Order 21 Rule 92 of the C.P.C. is appealable under Order 43 Rule 1(j) of the C.P.C. His submission is that the order was passed under Order 21 Rule 92 of the C.P.C. which is appealable under Order 43 Rule 1(j) of the C.P.C. and so, this appeal is maintainable. There is no doubt that an order passed on an objection filed under Sec. 47 after 1976 amendment in the C.P.C. is not appealable but I am of the view that the argument of the learned Advocate of the appellant is according to law as I am satisfied that the impugned order of setting aside the auction sale was passed under Order 21 Rule 92 of the C.P.C. which is appealable under Order 43 Rule 1(j) of the C.P.C. In such view of the matter, I hold that this appeal is maintainable. Point No. (ii) 8. It was next argued by the learned Advocate of the respondents that the appeal is barred by the principle of res judicata as the same matter was involved in Civil Revision No. 849 of 1978 of this Court in which by order dated 18.7.1984 it was held that the properties of Renuka Mitra and others cannot be put in auction sale and the judgment of this Court attained finality as S.L.P. filed by the appellant against the order of this Court passed in Civil Revision No. 849 of 1978 was dismissed by the Apex Court. The contention of the learned Advocate of the respondents was that after dismissal of S.L.P.No. 2499 of 1985 by the Apex Court on 21.1.1991 the appellant cannot re-agitate the matter regarding half share of Renuka Mitra and others in the properties which were auction sold and hence the appeal is barred by the principle of Res judicata. As against this, the argument of the learned Advocate of the respondents is that in Civil Revision No. 849 of 1978, this Court had simply held that the share of Renuka Mitra and others cannot be put in auction sale but the court had never decided that Renuka Mitra and others had half share in plot Nos. 5154, 5155 and 5158 which were auction sold. So the question as to whether Renuka Mitra and others had half share in the abovementioned properties or not is still wide open and, therefore, it cannot be said that the appeal is barred by the principle of res judicata. 9. 5154, 5155 and 5158 which were auction sold. So the question as to whether Renuka Mitra and others had half share in the abovementioned properties or not is still wide open and, therefore, it cannot be said that the appeal is barred by the principle of res judicata. 9. I have gone through the judgment of this Court dated 18.7.1984 passed in Civil Revision No. 849 of 1978 and I am satisfied that by the said order this Court has not decided the point involved in this appeal with regard to the fact that whether Renuka Mitra and others had half share in plot Nos. 5154, 5155 and 5158 or not rather this Court had simply held that in absence of any decree against Renuka Mitra and others, the court below has erred in law in executing the decree against Renuka Mitra and others. It further transpires that this Court directed the lower court to execute the decree against defendant Nos. 1, 2 and 6 only and not against Renuka Mitra and others. The said order was confirmed by the Apex Court in S.L.P. No. 2499 of 1985. Thus, I am satisfied that the point involved in this appeal that whether Renuka Mitra and others had half share in plot Nos. 5154, 5155 and 5158 or not was never decided in any suit or proceeding either before this Court or before the Apex Court or before any court of law and as such I hold that this appeal is not barred by the principle of res judicata. Point No. (iii) & (iv) 10. This question is very vital for the just decision of the point involved in this appeal. The submission of the learned Advocate of the appellant was that there were sufficient materials on record to hold that plot Nos. 5154, 5155 and 5158 were exclusively allotted to Bishwanath Prasad and Bhagwat Prasad and they were in physical possession of the abovementioned plots and since the decree was against them, as such the order dated 9.7.1978 whereby the learned lower court had rejected the objection petition of the respondents filed in Misc. Case No. 16 of 1975 and ordered to put the aforementioned properties on auction sale, was correct and according to law. Case No. 16 of 1975 and ordered to put the aforementioned properties on auction sale, was correct and according to law. In this regard, the learned Advocate of the appellant has placed reliance upon several sale deeds executed by Nityanand Mitra, Renuka Mitra and others in which there are recitals regarding the partition of the properties in between Nityanand Mitra, Renuka Mitra and others on the one hand and Bishwanath Prasad and Bhagwat Prasad on the other hand. These sale deeds are Exts. A, A/1, A/2, A/3, A/4, A/5, A/6, A/7 and A/8. The learned Advocate further submitted that the abovementioned sale deeds were executed by Nitayanand Mitra, Renuka Mitra and others to different persons including respondent No. 4 Anjana Dubey and in all the sale deeds there are recitals that although the properties were jointly acquired by the father of Nityanand Mitra and Judgment debtors Bishwanath Prasad and Bhagwat Prasad but after partition they were in exclusive possession of their half share. Even the three sale deeds dated 29.1.91 executed by Nityanand Mitra, Renuka Mitra and others in favour of respondent No. 4 Anjana Dubey (Exts. A/6, A/7 and A/8) which are the basis of the miscellaneous case disclose that the properties sold to respondent No. 4 through the said sale deeds were in exclusive possession of the vendors of respondent Anjana Dubey and after partition between the vendors of respondent No. 4 on the one hand and Bishwanath Prasad and Bhagwat Prasad on the other hand the plots in dispute i.e. plot Nos. 5154, 5155 and 5158 were allotted to the share of Bishwanath Prasad and Bhagwat Prasad. Thus, the recitals of the abovementioned sale deeds establish beyond doubt that the properties which were jointly acquired by the father of Nityanand Mitra with judgment debtors Bishwanath Prasad and Bhagwat Prasad, were later on partitioned among them and accordingly, they came in separate possession of the properties allotted in them. These sale deeds which are all dated 29.1.1991 are the basis of the objection petition filed by Anjana Dubey respondent No. 4 but strangely enough, plot Nos. 5154, 5155 and 5158 do not find mentioned in the sale deeds as the plots sold to Anjana Dubey. On the contrary, the recitals of the deeds show that plot Nos. These sale deeds which are all dated 29.1.1991 are the basis of the objection petition filed by Anjana Dubey respondent No. 4 but strangely enough, plot Nos. 5154, 5155 and 5158 do not find mentioned in the sale deeds as the plots sold to Anjana Dubey. On the contrary, the recitals of the deeds show that plot Nos. 5154, 5155 and 5158 were allotted to the share of Bishwanath Prasad and Bhagwat Prasad and they were in exclusive and separate possession of the same. However, respondent No. 4 Anjana Dubey has made out a case that the appellant by bringing the scribe of the deed in his collusion had got inserted wrong plot numbers in the sale deeds dated 29.1.1991 and also incorporated wrong facts regarding the fact of partition in the sale deeds which were rectified through rectification deed dated 7.2.1992 (Ext.2). Therefore, the very pertinent question which arises for determination in this appeal is that what will be the legal status of the rectification deed if the recitals as well as the subject matter of rectification deed are entirely different from the original or previous sale deeds. 11. For deciding the above point first of all, I would like to point out what is the case of the respondents as per the petition filed in Execution Case No. 7 of 1970 for setting aside auction sale and for restitution of properties sold in auction sale specially after amendment dated 23.9.1992. For proper appreciation I would like to quote some of the averments from the said petition. The relevant averments are as follows: Since on frivolous grounds decree holder prosecuted applicants No. 1 to 3 upto the Apex Court. So applicant Nos. 1 to 3 refused the proposal of decree holder and ultimately the negotiation took place finally with applicant No. 4 Smt. Anjana Dubey. Accordingly applicant Nityanand Mitra on the basis of duly executed power of attorney transferred their interest to Smt. Anjana Dubey on 29.1.1991 by virtue of three sale deeds. Applicant Anjana Dubey is a Parda Nashin lady unable to understand the affairs of registration office and applicant Nityanand Mitra a Bengali by caste had no knowledge of Hindi, the decree-holder then managed the scribe Rajiv Prasad & Uma Shanker Prasad by taking them in his collusion to mention some facts against the interest of applicant to which neither executant nor purchaser had knowledge.... The statement contained under the sale deeds dated 29.1.1991 that there was Bakhudha arrangement in between Bhagwat Prasad and Bishwanath Prasad on the one hand and executor on the other hand regarding subject matter of this case is absolutely false without knowledge of applicants and is a collusive statement of decree holder who had gained over the scribe.... Applicants No. 1 to 3 have rectified the above referred deed by virtue of another deed dated 7.2.1992, then it is applicant No. 4 who is entitled to entire share of applicant Nos. 1 to 3, now applicant Nos. 1 to 3 are the proforma petitioners to this case. 12. From the above averments of respondent No. 4 Anjana Dubey it is clear that her basis of claim were the three sale deeds which were executed on 29.1.1991 by Nityanand Mitra, Renuka Mitra and others in her favour but perusal of the sale deeds shows that through the said sale deeds plot No. 5154, 5155 and 5158 were never sold to her rather some other plots were sold to her. According to the averments of respondent No. 4, the scribe in collusion of the appellant intentionally inserted wrong plot numbers as well as wrong boundaries in the sale deeds besides incorrect averments which were rectified by rectification deed dated 7.2.1992 (Ext.2). In support of her case, respondent No. 4 has brought on record some oral evidence also. They are P.W.1 Kamlesh Tiwari, P.W.2 Ram Bahadur Prasad, P.W.3 Ajay Kumar and P.W.5 Hari Narayan Sharma. However, the executants of the deeds, namely, Nityanand Mitra and Renuka Mitra were not examined in support of the contention that the scribe of the deeds dated 29.1.1991 knowingly inserted wrong plot numbers in the deeds in collusion with the appellant and instead of mentioning plot Nos. 5154, 5155 and 5158 he mentioned another plot in the deeds. In absence of the evidence of the executor of the sale deeds, it is difficult to hold that the recitals of the sale deeds executed on 29.1.1991 by Nitayanad Mitra, Renuka Mitra and others were incorrect. 13. It has been argued by the learned Advocate of respondent No. 4 Anjana Dubey that although the executants of the deed were not examined on behalf of the respondents but the rectification deed executed by Nityanand Mitra, Renuka Mitra and others on 7.2.1992 has been brought on record and has been marked Ext. 13. It has been argued by the learned Advocate of respondent No. 4 Anjana Dubey that although the executants of the deed were not examined on behalf of the respondents but the rectification deed executed by Nityanand Mitra, Renuka Mitra and others on 7.2.1992 has been brought on record and has been marked Ext. 2 which discloses that Nityanand Mitra and others had actually sold plot Nos. 5154, 5155 and 5158 to respondent No. 4 Anjana Dubey but due to the fact that the scribe was in collusion with the appellant, he inserted wrong plot numbers in the deed. 14. I have gone through the rectification deed dated 7.2.1992 (Ext. 2) executed by Nityanand Mitra and others. I do not find this fact mentioned in the rectification deed that the seribe of the deed in collusion with the appellant inserted wrong plot numbers and boundaries in the sale deeds dated 29.1.1991 rather the rectification deed clearly mentions that as the draft of the sale deed were prepared on the basis of the previous sale deeds, as such this mistake with regard to the insertion of wrong plot numbers occurred. Likewise, there is no mention in the rectification deed that the statement made in the sale deeds dated 29.1.91 with regard to Bakhudah partition was incorrect and it was inserted by the scribe at the instance of the appellant. Thus, from the above facts I have come to the conclusion that the plea of respondent No. 4 that as the appellant had brought the scribe of the sale deeds dated 29.1.1991 in his collusion and due to that, the scribe inserted wrong plot numbers and boundaries in the sale deeds and also made wrong averments regarding Bakhudh partition in the sale deeds, does not stand corroborated from the recitals made in the rectification deed dated 7.2.1992 (Ext.2). I am further of the view that in absence of examination of the executants of the rectification deed, namely, Nityanand Mitra or Renuka Mitra, it is difficult to hold that by virtue of the sale deeds dated 29.1.1991 they had actually tranferred plot Nos. 5154, 5155 and 5158 to respondent No. 4. 15. I am further of the view that in absence of examination of the executants of the rectification deed, namely, Nityanand Mitra or Renuka Mitra, it is difficult to hold that by virtue of the sale deeds dated 29.1.1991 they had actually tranferred plot Nos. 5154, 5155 and 5158 to respondent No. 4. 15. The fact of Bakhudah partition is mentioned in all the three sale deeds dated 29.1.1991 executed in favour of Anjana Dubey besides in other deeds executed in favour of some other persons and the rectification deed (Ext.2) does not show that Nityanand Mitra and Renuka Mitra had controverted the abovementioned averments in the rectification deed rather the recitals of the Exts. A, A/1, A/2, A/3, A/4 and A/5 which are the sale deeds executed by Nityanand Mitra, Renuka Mitra and others also support the factum of Bakhudah partition between Nityanand Mitra and others on the one hand and Bishwanth Prasad and Bhagwat Prasad (Judgment debtors) on the other hand. Moreover the execution of so many sale deeds by Nityanand Mitra and others establishes beyond doubt that all the properties between Nityanand Mitra and Bishwanath Prasad and Bhagwat Prasad had already been partitioned and the plea of jointness was taken only with a view to obstruct the execution of the decree. It should be kept in mind that any order or decree of the Court must be executed otherwise the people will loose faith in the administration of justice which cannot be permitted. Merely because of the fact that someone appears at the stage of execution and claims that the decree cannot be executed because he has got joint interest in the property when his own act of executing sale deeds to different persons in respect of the so-called joint property establishes that the properties are not joint, the execution of decree cannot be stayed or if executed it cannot be altered. The review petition filed by Nityanand Mitra and others discloses that on the one hand they were challenging the auction sale of plot Nos. The review petition filed by Nityanand Mitra and others discloses that on the one hand they were challenging the auction sale of plot Nos. 5154, 5155 and 5158 and asserting that decree cannot be executed against them as they had joint interest in the abovementioned plots with judgment debtors but on the other hand they were selling the joint property to different persons by executing different sale deeds and none of the sale deeds incorporates recitals that the properties are joint the learned Subordinate Judge should have rejected the prayer of setting aside auction sale. Thus, I am of the view that there was overwhelming material on record to establish that there was Bakhudah partition in between Nityanand Mitra, Renuka Mitra and others on the one hand and Bishwanath Prasad and Bhagwat Prasad on the other hand and on the basis of the said partition, plot Nos. 5154, 5155 and 5158 were allotted to the share of Bishwanath Prasad and Bhagwat Prasad. Accordingly, I hold that plot Nos. 5154, 5155 and 5158 which were auction sold were not joint properties of Nityanand Mitra and Bishwanath Prasad and Bhagwat Prasad rather on partition, the same were allotted to the share of Bishwanath Prasad and Bhagwat Prasad who were the original judgment debtors. Since the decree was passed against Bishwanath Prasad and Bhagwat Prasad, as such, the decree-holder or assignee had genuine right to execute the decree against them and put their properties in auction sale. Thus, I am of the view that the order by which plot Nos. 5154, 5155 and 5158 were put on auction sale was correct and there was no occasion for the learned Subordinate Judge to set aside the auction sale and to revert back the possession of the properties to respondent No. 4. 16. Before parting with the judgment I would like to make some comments on the legal status of Rectification deed (Ext.2). According to the review petition of the respondents, the necessity of executing rectification deeds arose because of the fact that some mistake had occurred in the sale deeds dated 29.1.91 with regard to plot numbers, boundaries and other details including some averments and for removal of the defects the rectification deed (Ext.2) was executed. According to the review petition of the respondents, the necessity of executing rectification deeds arose because of the fact that some mistake had occurred in the sale deeds dated 29.1.91 with regard to plot numbers, boundaries and other details including some averments and for removal of the defects the rectification deed (Ext.2) was executed. The perusal of this rectification deed (Ext.2) shows that it is entirely different in description of plot number, boundaries and other details including some averments from the original sale deeds dated 29.1.1991 (Exts. A/6, A/7 and A/8) and as such, it cannot be said to be rectification deed of original sale deeds dated 29.1.1991. I am of the view that any document which contains entirely, different recitals besides subject from original document cannot be said to be the rectification deed of the original documents executed earlier. I, therefore, hold that Ext.2 cannot legally acquire the status of rectification deed of the sale deeds executed on 29.1.1991. I further hold that through the said rectification deed the title of plot Nos. 5154, 5155 and 5158 did not pass to respondent No. 4 Anjana Dubey. Accordingly, point Nos. (iii) and (iv) are decided. 17. In the result, I find merit in this appeal and as such, the same is hereby allowed and the order dated 18.1.1996 passed in Misc. Case No. 16 of 1975 arising out of Execution Case No. 7 of 1970 whereby the learned Subordinate Judge has set aside the auction sale and delivery of possession in Execution case No. 7 of 1970 and ordered for restitution of the properties is hereby set aside and the order dated 9.2.1978 of the Subordinate Judge, Siwan dismissing Misc. Case No. 16 of 1975 is hereby confirmed.