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2008 DIGILAW 372 (GAU)

Kshitish Nandi v. Hira Dhar

2008-05-23

UTPALENDU BIKAS SAHA

body2008
JUDGMENT Utpalendu Bikas Saha, J. 1. As proposed by this Court and also as agreed to by the learned Counsel for the parties, this revision petition is taken up for final disposal at the admission stage. 2. In this revision petition under Section 115 of the Code of Civil Procedure (for short the Code) the petitioner has questioned the legality of the order dated 13.04.2007 passed by the learned Civil Judge, Senior Division, North Tripura, Dharmanagar in Civil Misc. 02 of 2007 [Ex. 18(T) of 2001] whereby and whereunder the learned Civil Judge, Senior Division dismissed the application of the petitioner filed under Section 47 of the Code on the ground of limitation. 3. Heard Mr. D.K. Biswas, learned Counsel along with Mr. S. Lodh, learned Counsel for the petitioner and Mr. A.M. Lodh, learned senior counsel, assisted by Mr. A. Lodh, learned Counsel for the respondents. Also heard Mr. S. Deb, learned senior counsel, who appeared on request of this Court to assist it. 4. For examining the merits of the petition, it is necessary to note the factual matrix of the case. The petitioner is the judgment-debtor in the execution case No. Ex. 18(T) of 2001 pending before the learned Civil Judge, Senior Division, Dharmanagar and the respondents are the decree-holders who filed the aforesaid execution case on 21.8.2001 for executing the decree dated 29.8.1979 passed in favour of them in Title Suit No. 10 of 1979 wherein they sought for recovery of possession of the suit land described in details in the Schedule of the plaint. Against the aforesaid decree dated 29.8.1979, the petitioner judgment-debtor preferred Title Appeal 10 of 1996, which was dismissed on 15.5.1999 with certain modification of the decree, inter alia, fourthly the appellant and his men and agents are perpetually restrained from entering into the suit land (SC Plot No. 6027 of Khatian No. 2741) as described in the Schedule of the plaint and from disturbing the peaceful possession of the respondents. Thereafter, the petitioner filed Second Appeal against the aforesaid order dated 15.5.1999, which was also dismissed on 27.3.2001 without any interference with the aforesaid modification made by the learned first appellate court and ultimately the respondents decree-holders filed the aforesaid execution case on 21.8.2001 and the petitioner judgment-debtor appeared in the said execution proceeding on 22.1.2002 in response to the notice of the Court served upon him on 7.1.2002. On 29.4.2002 the execution proceeding was stayed and the said execution case was transferred to the court of learned Civil Judge, Senior Division, Kailashahar on 17.9.2002 as per order of the learned District Judge. One Sibu Pal filed Title Suit No. 24 of 2002 in the Court of learned Civil Judge, Senior Division in the month of April 2002 relating to the land involved in the aforesaid execution proceeding and after hearing the parties the learned Civil Judge, Senior Division stayed the execution proceeding on 24.5.2006. Against the said order of stay, the respondents decree-holders filed Civil Revision Petition 41 of 2006 before this Court and this Court after hearing the parties vide order dated 11.12.2006 allowed the aforesaid revision petition setting aside the stay order passed by the learned court below and thereafter, the petitioner filed the petition under Section 47 of the Code on 6.3.2007 raising his objections, which was registered as Civil Misc. 2 of 2007 on the ground that the boundary of the decretal land has been shown as east boundary of the suit land but there is no such khas land on the eastern boundary of suit land as given in the plaint and the decree is a non-existent one and, therefore, the decree is not executable. The aforesaid petition of the petitioner judgment-debtor under Section 47 of the Code was ultimately dismissed on 13.4.2007 by the learned executing court, i.e. the learned Civil Judge, Senior Division, Dharmanagar as barred by the law of limitation. Hence, the instant revision petition impugning the aforesaid order dated 13.4.2007 on the ground that the learned executing court acted on the assumed jurisdiction, which the learned Court below is not conferred with and thus order impugned is passed with material irregularity and illegality in reference to the question of jurisdiction. More so, the findings of the learned executing Court is perverse and apparently illegal as the learned judge of the court below dismissed the petition under Section 47 of the Code filed by the petitioner judgment-debtor holding that the said petition is barred by the law of limitation under Article 137 of the Limitation Act wherein for filing such petition period is prescribed as three years from the date of appearance of the judgment-debtor in the execution proceeding. 5. Mr. 5. Mr. Biswas, learned Counsel appearing for the petitioner judgment-debtor questioned the legality of the impugned order on the ground that the executing court did not consider the relevant facts and the real dispute involved in the execution proceeding and the learned executing court without deciding the real dispute cannot send the Bailiff and the Survey Commissioner to attach the land because that would be an act of force and arbitrariness. He also contended that the law of limitation has no application so far the petition under Section 47 of the Code is concerned. However, he conceded the said point and raised another point that when the question of limitation was addressed by the respondents decree-holders, it was the duty incumbent upon the court below to determine the said question of limitation with reference to the fact as to when the right to apply of the petitioner judgment-debtor accrued to file objection under Section 47 of the Code, as there is no pre-determined point of time prescribed as to from when the limitation will run. As that was not done by the learned executing court, the impugned order of the learned executing court suffers from non-exercise of jurisdiction. Mr. Biswas also contended that it was the duty of the executing court to first decide the dispute raised with regard to the decretal property and then sent the decree for execution. In support of his aforesaid submission, Mr. Biswas relied on a decision of the Apex Court in the case of Dr. Madhukar Trimbak Gore vs. Vasant Ramkrishna Kolhatkar reported in AIR 1983 Bom 277 . He finally submitted that which date shall be the starting point of limitation or which date shall be the reckoning point on and from which the right to apply accrues under Article137 of the Limitation Act depends upon the facts and circumstances of each case and cannot be generalized and in the instant case it is the admitted position that the execution proceeding was stayed on 29.4.2004 after filing Title Suit No. 24 of 2002 by one Sibu Pal in the month of April 2002. Thereafter, the execution case was transferred to the court of learned Civil Judge, Senior Division, Kailashahar on 9.9.2002 and from that period the execution proceeding was pending there and again re-transferred on 21.2.2007. Thereafter, the execution case was transferred to the court of learned Civil Judge, Senior Division, Kailashahar on 9.9.2002 and from that period the execution proceeding was pending there and again re-transferred on 21.2.2007. The execution proceeding was finally stayed on 24.5.2006 and after the setting aside of the stay order on 11.12.2006 by this Court in CRP No. 41 of 2006, the execution proceeding revived and till the revival of the execution proceeding there was no real threat on the petitioner judgment-debtor of dispossession from the land in question. According to him, right to file application under Section 47 of the Code accrues only from the date of actual threat of dispossession, i.e. after revival of the execution proceeding and in support of his aforesaid submission, Mr. Biswas referred to paragraph 5 of the decision of the Apex Court in the case of Balwant Singh vs. Gurbachan Singh, reported in AIR 1993 SC 136 . 6. Mr. A. Lodh, learned Counsel appearing for the respondents decree-holders raised question on maintainability of the instant revision petition. He would contend that the power of revision of the High Court is to be confined only to the point of jurisdiction and nothing else. Even if the order of the learned court below is wrong either on fact or law whatsoever unless the said error is related to jurisdiction, the High Court cannot exercise its revisional jurisdiction to reverse the order of the learned executing court. In the instant case, there is no such jurisdictional error committed by the learned court below and the petitioner judgment-debtor also did not raise any such plea of jurisdictional error in his petition. Hence, it would not be proper for this Court to exercise its revisional jurisdiction in the instant case either to find out any error of law or fact. On the point of jurisdictional error, Mr. Lodh placed reliance on the decision of the Apex Court in the case of Sher Singh vs. Joint Director of Consolidation and other reported in (1978) 3 SCR 982 . On the point of jurisdictional error, Mr. Lodh placed reliance on the decision of the Apex Court in the case of Sher Singh vs. Joint Director of Consolidation and other reported in (1978) 3 SCR 982 . He also contended that the executing court rightly held that the law of limitation is applicable in case of an objection under Section 47 of the Code and the starting point of limitation would start from the date of receipt of notice by the judgment-debtor in the execution proceeding or from the date of appearance and in the instant case, it is the admitted position that the notice was served upon the petitioner judgment-debtor on 7.1.2002 and he also appeared on 22.1.2002 before the executing court. Therefore, the period of limitation of three years if counted from the date of appearance would expire on 22.1.2005 and admittedly the petitioner judgment-debtor filed the application under Section 47 of the Code on 31.1.2007. Hence, the learned court below has rightly dismissed the said application as the same was filed beyond the period of limitation and the action of the learned trial court gets support from the decision of the Apex Court in the case of Merla Ramanna vs. Nallaparaju reported in (1955) 2 SCR 938 , Mr. Lodh contended. 7. Mr. S. Deb, learned senior counsel who appeared on the request of this Court to assist it, would submit that in the case of Ramanna (supra) their Lordships of the Apex Court held that Article 181corresponding to Article 137 of the Limitation Act was applied due to the reason that the execution proceeding involved in that case was against a void decree and it would not be proper for the court to apply the said case as a precedent in every execution proceeding as every execution proceeding has its own character and there cannot be any straightjacket formula for deciding the starting point of limitation in filing application under Section 47 of the Code. He also tried to enlighten this Court on the scope of Section 47 of the Code as well as regarding third Schedule of the Limitation Act, particularly Articles 126,135,136 and 137 and under what circumstances the law of limitation will be applied. In support of his aforesaid submission, Mr. He also tried to enlighten this Court on the scope of Section 47 of the Code as well as regarding third Schedule of the Limitation Act, particularly Articles 126,135,136 and 137 and under what circumstances the law of limitation will be applied. In support of his aforesaid submission, Mr. Deb relied on the decision of the Calcutta High Court in the case of Rasomay Mitra vs. Smt. Lachmi Todi, reported in AIR 1982 Cal 178 of the decision of the Punjab & Haryana High Court in Santa Singh vs. Dial Singh, reported in wherein their Lordships of the Punjab & Haryana High Court also considered the case of Ramanna (supra). 8. Against the contention of Mr. Lodh, learned Counsel for the respondents decree-holders, Mr. Biswas, learned Counsel for the petitioner judgment-debtor referring to the order of the learned executing court contended that admittedly till 11.12.2006 though there was an execution proceeding before the learned Civil Judge, Senior Division but there was no real threat of dispossession to the petitioner judgment-debtor in view of the decree in question as the execution proceeding was either stayed vide order dated 24.5.2006 passed in Misc. 05 of 2005 arising out of the execution case or transferred from one court to another and the matter was fixed for taking steps by the decree-holder and the said order of stay was set aside by the order of this Court dated 11.12.2006 passed in CRP No. 41 of 2006 filed by the respondents decree-holders. He also contended that there is no quarrel with the proposition laid down by the Apex Court in the case of Sher Singh (supra) relating to the scope of revisional jurisdiction of the High Court as the same is confined only to the jurisdictional error and miscarriage of justice. But the fact of the case in hand is different than the case of Sher Singh (supra). But the fact of the case in hand is different than the case of Sher Singh (supra). In the instant case, as the learned court below has failed to consider the fact that at one point of time there was a stay order and the execution case was transferred from Dharmanagar to Kailashahar on 7.9.2002, i.e., after filing of the case of Sibu Paul (supra) and again said execution proceeding was stayed on 24.5.2006 and between the first and second order of stay though there was an execution proceeding, but in real sense from that execution proceeding there was no real threat of dispossession to the petitioner judgment-debtor. Hence, it was not obligatory on the part of the petitioner judgment-debtor for filing application under Section 47 of the code. Real threat of dispossession, i.e., right to apply accrued only after setting aside the order of stay dated 24.5.2006 by this Court vide order dated 11.12.2006 passed in CRP No. 41 of 2006 and that being the real date of threat, the period of limitation of three years would have started from that date and it is admitted position that the petitioner judgment-debtor submitted the application under Section 47 of the Code within three years from the date of setting aside the order of stay by the High Court on 11.12.2006. Mr. Biswas finally contended that the learned executing court ought to have took note of those facts for the purpose of counting the starting point of limitation relating to filing of petition under Section 47 of the Code and non-consideration of such fact is also non-exercise of jurisdiction and for such non-exercise of jurisdiction, an aggrieved party has the right to approach the High Court for invoking revisional jurisdiction. Hence, the instant revision petition is maintainable, he contended. 9. Having considered the respective submissions, the questions arise for consideration of this Court are whether the learned executing court failed to exercise its jurisdiction and committed any miscarriage of justice by way of dismissing the application under Section 47 of the Code on the point of limitation and whether Article 137 of the Limitation Act is applicable in case of an application under Section 47 of the Code and if so, what should be the starting point of limitation. Before considering the above questions raised, for better appreciation, the provisions of Section 47 of the Code and Article 137 of the Limitation Act are reproduced herein below: 47. Questions to be determined by the court executing decree (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (2) [* * *] (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section be determined by the court. 10. After taking note of various decisions of different High Court including the decision of the Calcutta High Court in the case of Monmothanath vs. Lachmi Debi, AIR 1928 Cal 60, in the case of Ramanna (supra), the Apex Court held:- The proper article of limitation applicable was Article 181, and that time commenced to run under that article from the date not of sale, but of actual dispossession, and that the proceedings were accordingly in time. We agree with this decision and hold that an application by a party to the suit to recover possession of properties which had been taken delivery of under a void execution sale would be in time under Article 181, if it was filed within three years of his dispossession. Therefore, there is no legal impediment to the plaint filed on 7.8.1939 being treated as an application under Section 47, on the ground that it is barred by limitation. 11. In Dr. Madhukar Trimbak Gore (supra), a Single Judge of the Bombay High Court in paras 19 and 20 held as follows: 19. When in execution a question arises to the identity of the property of which possession has to be delivered to the decree-holder, obviously such a question would relate to the execution of the decree and it would be for the executing Court to decide it as required by subsection (1) of Section 47 of the Code, since it would not be possible for the decree-holder to get it determined by a separate suit. The proposition is so obvious so as not to need any authority. The proposition is so obvious so as not to need any authority. But on facts similar to the ones in the present case the Allahabad High Court in Rahim Bux vs. Mohammad Shafi, AIR 1971 All 16 has held that in such cases it is for the executing court to decide the question after taking such evidence as may be necessary as to what is the property of which possession has to be delivered. In this case also the executing Court would do well to hold a proper inquiry and determine the question with regard to the identity of the room which has to be delivered to the applicant. 20. Mr. Daga, relying on the decisions of the Supreme Court in Managing Director vs. Ajit Prasad Tarway, (1972) 1 LLJ 170 SC and Sher Singh v. Joint Director of Consolidation (1978) 3 SCR 982 , submitted that since no jurisdictional error was committed by the executing Court, this Court cannot interfere with the impugned order in its revisional jurisdiction, I may only say that in holding that the decree was inexecutable the executing Court has refused to exercise the jurisdiction which, as pointed above, vested in it and hence this Court would be within its power to quash the impugned order. 12. In the case of Rasomay Mitra (supra), a Single Judge of the Calcutta High Court (Guha, J.) while considering the execution case wherein a plea of rejection was raised on the ground of limitation relating to an objection under Section 47 of the Code, held that Article 137 of the Limitation Act would govern an application under Section 47 of the Civil Procedure Code and upheld the order of rejection of the application under Section 47 of the Code on the ground of limitation. His Lordship also disagreed with the decision of Allahabad High Court in the case of Nar Singh Datt vs. Ram Pratap reported in AIR 1961 All 436 , wherein it was held that no limitation is prescribed for objection under Section 47 of the Code and objection under that section cannot fall within Article 181 of the Limitation Act. 13. His Lordship also disagreed with the decision of Allahabad High Court in the case of Nar Singh Datt vs. Ram Pratap reported in AIR 1961 All 436 , wherein it was held that no limitation is prescribed for objection under Section 47 of the Code and objection under that section cannot fall within Article 181 of the Limitation Act. 13. In the case of Santa Singh (supra), the Punjab and Haryana High Court after considering the case of Ramanna (supra) and taking note of the scope of Section 47 of the Code vis-a-vis Article 181 of the Limitation Act, held in para 12 as follows: 12. Turning to Issue No. 1 regarding limitation, it will be seen that the limitation for such an objection petition under Section 47 is governed by Article181 of the Limitation Act, 1908, which is now equal to Article 137 of the Limitation Act, 1963. It has been held in Ramanna's case (1955) 2 SCR 938 (supra) that when a sale in execution is inoperative and void, an application by a judgment-debtor to have it declared void and for appropriate reliefs is governed by Article 181 and not by Article 166 of the Limitation Act. Thus the objection petition in this case was within time. 14. In Balwant Singh (supra), as referred by Mr. Biswas, learned Counsel for the petitioner judgment-debtor, their Lordships of the Apex Court held in para 5 that the period of limitation under Article 137of the Limitation Act would commence from the date when the right to apply accrues. The question when such right to apply accrues will depend on the facts and circumstances of each case. In that case, the controversy before their Lordships was regarding the date from which the period of limitation shall commence under Article 137 of the Limitation Act, 1963 and ultimately considering the fact of that case, their Lord ships held that the period of limitation would commence from the date of actual threat of dispossession. For better appreciation, para 5 of the aforesaid judgment is quoted herein below: 5. The period of limitation under Article 137 is three years which commences from the date when the right to apply accrues. The question when such right to apply accrues will depend on the facts and circumstances of each case. For better appreciation, para 5 of the aforesaid judgment is quoted herein below: 5. The period of limitation under Article 137 is three years which commences from the date when the right to apply accrues. The question when such right to apply accrues will depend on the facts and circumstances of each case. In the present case in execution of the decree for pre-emption on 13.6.1963, the delivery of symbolical possession on an area measuring 62 kanals, 13 marlas was wrongly recorded. Ladha Singh, father of the appellants continued to remain in possession over the aforesaid land and he also filed declaratory suit challenging the recording of the delivery of symbolical possession in favour of the decree-holder. The said declaratory suit was decreed in favour of Ladha Singh by the trial court and was affirmed by the Additional District Judge by order dated 12.5.1969. No relief for injunction was granted in view of the fact that Ladha Singh was in actual possession of the land. The decree-holder now in 1973 filed suit for partition claiming land on the basis of order dated 13.6.1963. The appellants as such submitted an objection petition under Sections 47/152/151 of the Code of Civil Procedure in the Executing Court on 22.7.1973 for rectifying the mistake and for restitution of the land for which symbolical possession was wrongly recorded. In the aforesaid admitted facts, we are of the view that the period of limitation under Article 137 would commence when actual threat of dispossession commenced i.e. on taking the proceedings for partition in the year 1973. The High Court in our view was not right in holding that the limitation in the facts and circumstances of the present case would commence from 13.6.1963 and not in 1973. (Emphasis supplied) 15. Having noted all the aforecited case laws, according to this Court only the case of Balwant Singh (supra) has a direct bearing on the issue in hand. Though from the other cases this Court can take assistance regarding the applicability of Article 137 of the Limitation Act in an application under Section 47 of the Code, but from those cases this Court would not get any assistance as to how and from which date the period of limitation will be counted and what should be the starting point of limitation. According to the understanding of this Court, the period of limitation in filing an application under Section 47 of the Code as has been settled by the various decisions, particularly the decision of the Apex Court in Ramanna (supra) as well as in Balwant Singh (supra), the period of limitation of three years under Article 137 of the Limitation Act would commence from the date when actual threat of dispossession commenced. 16. Now, the question arises when the actual threat of dispossession commenced or right to apply accrued in the instant case. This Court has gone through the entire order sheet of the execution proceeding as placed by Mr. Biswas, learned Counsel for the petitioner judgment-debtor wherefrom it appears that on 29.4.2002 the execution proceeding was stayed by the learned Civil Judge, Senior Division, Dharmanagar, North Tripura in Ex. 18 (T) 01 till final disposal of Misc. 09 of 2002 and the said stay order was vacated on 12.8.2002 and on 20.8.2002, the learned District Judge, North Tripura, Kailashahar transferred the execution case from the court of learned Civil Judge, Senior Division, Dharmanagar to the court of learned Addl. District Judge, Dharmanagar and thereafter, the execution proceeding was withdrawn from the file of learned Addl. District Judge, Dharmanagar and was transferred to the court of learned Civil Judge, Senior Division, Kailashahar and by that way, the matter proceeded upto 24.5.2006 when the learned Civil Judge, Senior Division passed an order, inter alia, "Considering all the facts and circumstances of both the cases I am in the opinion that the application filed by Shri Shibu Paul has got merit and it is maintainable. Accordingly, I also hold that the execution case should not continue further in view of the pendency of the Civil Suit T.S. 24 of 2002. Accordingly this Execution case should be stayed." Thereafter, the aforesaid order of stay was vacated only on 11.12.2006 by this Court in CRP No. 41 of 2006. Therefore, upto that date there was no real threat of dispossession to the petitioner judgment-debtor. From the impugned order, it appears that though the learned executing court passed a detailed order, but failed to consider the above facts. Therefore, upto that date there was no real threat of dispossession to the petitioner judgment-debtor. From the impugned order, it appears that though the learned executing court passed a detailed order, but failed to consider the above facts. For such non-consideration of the above facts, it can be easily held that the learned executing court failed to exercise the jurisdiction vested in it and at the same time, this Court also hold that the executing court very rightly held that Article 137 of the Limitation Act would be applied in connection with an application under Section 47 of the Code. But it has failed to consider what should be the exact date of starting point, i.e., when right to apply accrued for filing such application. 17. This court cannot restrain itself from saying that the executing court failed to exercise its jurisdiction vested in it properly to render proper justice to the parties/Justice not only has to be done but it ought to have shown to be done. This court is of considered opinion that there cannot be any straightjacket formula for counting the period of limitation as prescribed under Article 137 of the Limitation Act in preferring an application under Section 47 of the Code. It would depend upon the facts and circumstances of the particular case. In the instant case the period of limitation would have commenced from the date of vacation of the stay order passed by this Court on 11.12.2006 in CRP No. 41 of 2006, i.e., when the real threat of dispossession occurred and the right to apply accrued. 18. Now the question arises regarding the maintainability of the instant revision petition. There is no quarrel with the proposition of Sher Singh (supra) that unless there is a jurisdictional error, the High Court should not interfere with an order of the subordinate court in exercising its revisional jurisdiction. 18. Now the question arises regarding the maintainability of the instant revision petition. There is no quarrel with the proposition of Sher Singh (supra) that unless there is a jurisdictional error, the High Court should not interfere with an order of the subordinate court in exercising its revisional jurisdiction. But in the instant case, this Court has already held that the learned executing court has failed to consider the real dispute arose before it while deciding the application under Section 47 of the Code, rather without taking the relevant facts into consideration, inter alia, real threat of dispossession, i.e., right to apply accrues, the learned executing court has dismissed the application filed under Section 47 of the code as barred by limitation applying the date of receipt of the notice by the petitioner judgment-debtor for the purpose of counting the period of limitation. 19. Therefore, this Court has no hesitation to hold that the instant revision petition is maintainable. Hence, the impugned order calls for interference of this Court and accordingly, this Court interfere with the same and set aside and quash the impugned order dated 13.4.2007 passed by the learned Civil Judge, Senior Division, North Tripura, Dharmanagar in Civil Misc. 02 of 2007 [Ex. 18 (T) of 2001] and remit the matter back to the executing court with a direction to determine all the disputes relating to execution of the decree as raised in the application under Section 47 of the Code in accordance with law. 20. With the above observations and direction, the instant Civil Revision petition is allowed and disposed of accordingly. 21. No order as to cost. 22. Before parting with the record, this Court highly appreciates the assistance rendered by Mr. S. Deb, learned senior counsel in this case.