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2008 DIGILAW 466 (PAT)

Hari Shankar Prasad Sah v. Yugal Kishore Sah

2008-03-05

body2008
ORDER 1. Heard learned counsel for the petitioners and learned counsel for the opposite parties. 2. This Civil Revision has been filed by defendant 2nd set-judgment-debtors petitioners challenging order dated 18.10.2005, by which learned Subordinate Judge, VIth, Chapra, rejected Miscellaneous Case No. 10 of 2005 filed by the petitioners under the provision of Section 47 of the Code of Civil Procedure (hereinafter referred to as 'the Code' for the sake of brevity). 3. Learned counsel for the petitioners (defendants 2nd set in the court below) submits that the plaintiff-opposite party admitted that the petitioners were his tenants but no eviction was sought under the provisions of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter referred to as 'the Act' for the sake of brevity) and the only relief claimed by the plaintiff-opposite party was for declaration of title and confirmation of possession. He further submits that the law is well-settled that a tenant can be evicted from the tenanted premises only under the provisions of the Act and decree has to be passed under the requirements of the Act, but in the instant case it was not done and hence the decree is a nullity and not executable. He relied upon a decision, of the Hon'ble Apex Court as well as two decisions of this Court, namely, in case of Smt. Kaushalya Devi & Ors. Vs. K.L. Bangal, reported in A.I.R. 1970 S.C. 838, in case of Shri Niwas Fogla Vs. Singheshwar Sahu, reported in 1975 P.L.J.R. 409 and in case of Dineshwar Prasad Bakshi Vs. Parmeshwar Prasad Sinha, reported in 1988 P.L.J.R. 637. 4. So far the title suit is concerned, Issue No. III framed in the suit was "Have the plaintiffs any title to the suit land? And are they entitled to a decree of confirmation of possession or recovery of possession?" and after considering the pleadings and evidence of the parties, the learned trial court while decreeing Title Suit No. 143 of 1971 (9 of 1977) by judgment and decree dated 18.7.1980 directed the defendants to deliver possession of the suit land to the plaintiffs within sixty days from the date or order, failing which, the plaintiff shall be entitled to get delivery of possession from him with the help of due process of the court. 5. 5. The defendants 2nd party (petitioners) challenged the said judgment and decree in Title Appeal No. 141 of 1980, which was dismissed by learned Fast Track Court- V, Saran, by judgment and decree dated 28.12.2004. The said judgment and decree have been challenged by the petitioner-defendant-2nd set in Second Appeal No. 333 of 2005, which is pending for decision in this court. 6. It transpires that after dismissal of the said title appeal, plaintiff-opposite party filed Execution Case No.1 of 2005 for execution of the decree passed by the learned court below. In the said execution case, the petitioners, who were defendants 2nd party-judgment-debtors in the court below, filed Miscellaneous Case No. 10 of 2005 under the provision of section 47 of the Code raising exactly similar points, which they have raised in the said second appeal filed by them in this Court. On the other hand, the plaintiff-opposite parties have specifically claimed that the Executing Court cannot go against the decree and in that regard he has relied upon a decision of the Hon'ble Apex Court in case of Raghubar Dayal Prasad Vs. Ramekbal Sah, reported in A.I.R. 1986 Patna 78. 7. The law is well settled in this regard that although the Executing Court can find out the true effect of the decree if it is ambiguous, but it cannot go behind the decree. The Executing Court cannot be invested with the jurisdiction to determine controversial questions, which are the basis of the decree to be executed. It must take the decree as it is and must proceed to execute it. Whether the plaintiff is entitled to get a decree for eviction of the building and if so on what terms and conditions and whether the defendant is entitled to the benefits of the Rent Control Legislation are all matters to be considered and decided by decree. Executing Court cannot go into these matters and act as a trial court, specially when the decree holder has the title over the suit property and has the Locus Standi for such relief. 8. The Executing Court can very well see whether the decree passed by the court becomes executable, but when the objection to executability of a decree boils down to challenging the maintainability of the suit, it cannot be taken before an executing court. 8. The Executing Court can very well see whether the decree passed by the court becomes executable, but when the objection to executability of a decree boils down to challenging the maintainability of the suit, it cannot be taken before an executing court. However, on passing of a decree for the possession of property, the judgment-debtor is under a liability to handover possession of the property in the same State it was on the date of decree and if he fails it is the duty of the Executing Court to get the decree executed through the process of the court. In the instant case, the property in suit is well defined and well considered by the Trial Court and hence on that score there is no problem in the executability of the decree. 9. The petitioner has raised the objection that the trial court lacked the jurisdiction to pass the decree which is under execution. No doubt the Hon'ble Apex Court in case of Sunder Das Vs. Ram Parkash reported in A.I.R. 1977 Supreme Court 1201 and other decisions has laid down that the validity of a decree can be challenged in execution proceeding only on the ground that the Court, which passed the decree, was lacking in inherent jurisdiction. However, the sense of lacking inherent jurisdiction was illustrated as when the Court could not have seisin of the case because the subject matter was wholly alien to its jurisdiction. A court lacks inherent jurisdiction when the subject matter is wholly foreign to its ambit and is totally unconnected with its recognized jurisdiction. If the Court has power to entertain a cause of a particular category or nature the Court cannot be said to lack jurisdiction inherently. In this case, the learned Subordinate Judge or the learned Additional District Judge, who had passed the judgments and decree in the suit and appeal, definitely had the jurisdiction to decide the suit and appeal for eviction under the Act and hence it cannot be legally and validly said that the courts passing the decree under execution lacked the jurisdiction inherently. 10. In any view of the matter, the same very question is pending for decision of this High Court in Second Appeal No. 333 of 2005 filed by the petitioners themselves as their claim up to the title appeal stage has been rejected. 11. 10. In any view of the matter, the same very question is pending for decision of this High Court in Second Appeal No. 333 of 2005 filed by the petitioners themselves as their claim up to the title appeal stage has been rejected. 11. In the said circumstances, this Court does not find any illegality or jurisdictional error in the impugned order and, accordingly, this Civil Revision is dismissed.