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2008 DIGILAW 5 (CAL)

Mathur Sao v. Champaklata Sen

2008-01-08

BISWANATH SOMADDER

body2008
Judgment (1) THIS in an application under Article 227 of the Constitution of India filed by the defendant No. 1/petitioner primarily against the plaintiff/opposite party No. 1. The impugned order is an order dated 23rd July, 2007 passed by the learned Civil Judge (Junior Division), Purulia, rejecting the application of the defendant No. 1 filed under the provisions of Section 47 of the Code of Civil Procedure. Against the said impugned order the defendant No. 1/ petitioner has preferred the instant application and prays before this Court that the said order be set aside. (2) FROM the records it appears that the decree holder had filed a Title execution Case being No. 15 of 1986 to recover khas possession of the decretal property and earlier another miscellaneous case was filed by the judgment-debtor praying for dismissal of the execution case. (3) UPON perusing the order of the learned executing Court it appears that the application under Section 47 of the Code of Civil Procedure had been filed by the petitioner herein for dismissal of Title Execution Case No. 15 of 1986 along with another petition under Section 151 of the Code of Civil procedure for stay of all further proceedings. (4) FROM the records it appears that it is the case of the petitioner/judgment-debtor that the O.P. No. 1, Smt. Champaklata Sen, filed the Title execution Case No. 15/86 for execution of the decree dated 21.1.86 passed by the learned Assistant District Judge, Purulia in connection with Title Appeal no. 66 of 1985 and the Decree holder/o. P. No. 1 has prayed for khas possession of the decretal property by ejecting the petitioner/judgment-debtor therefrom. But during pendency of the Execution Case the OP. No. 1 has transferred the decretal property by virtue of a registered sale deed being No. 4989 for the year 2005 for a consideration of Rs. 4,60,000/- in favour of Purnima marketing Private Limited through its Managing Director Sri Ashok Kumar mahato and by the aforesaid transfer the O. P. No. 1 has lost her right, title and interest over the decretal property and, as such, she is not entitled to proceed with the Execution Case. 4,60,000/- in favour of Purnima marketing Private Limited through its Managing Director Sri Ashok Kumar mahato and by the aforesaid transfer the O. P. No. 1 has lost her right, title and interest over the decretal property and, as such, she is not entitled to proceed with the Execution Case. The O. P. No. 1 decree-holder obtained the decree on the basis of her Landlordship right coupled with proprietary right over the decretal property and by transferring the decretal property in favour of a 3rd party the O. P. No. 1 has lost her right to execute the decree which she obtained in respect of the decretal property and she is now stranger to the decretal property having no authority to obtain delivery of possession thereof. On the above grounds the petitioner prayed for dismissal of the Execution Case. (5) BEFORE the learned Court below the decree holder contested the petition under Section 47 of the Code of Civil Procedure and denied all allegations by filing written objection and contended specifically that the application under Section 47 of the Code of Civil Procedure was barred by limitation and as such the same was liable to be rejected. It was further stated by the decree-holder that though the property in dispute had been transferred to a private limited company, the decree had not been transferred and as such the decree holder had every right to proceed with the execution case and the petitioner could not raise any objection against it. It was further contended before the learned Court below that by transferring the decretal property in favour of another, the decree holder had not lost her right to execute the decree at her instance and the allegations made by the petitioner were absolutely unfounded, baseless and misconceived, and for that reason the decree holder prayed for rejection of the petition under Section 47 of the Code of Civil Procedure. (6) THE learned Court below after considering the fact and circumstances of the case and the submissions made formed an opinion that the petition filed by the judgment-debtor under Section 47 of the Code of Civil Procedure was not maintainable and the same could not be allowed and that the petition had been filed only to delay the execution proceeding. (6) THE learned Court below after considering the fact and circumstances of the case and the submissions made formed an opinion that the petition filed by the judgment-debtor under Section 47 of the Code of Civil Procedure was not maintainable and the same could not be allowed and that the petition had been filed only to delay the execution proceeding. Considering this aspect of the matter, the learned Court below proceeded to dismiss the application under section 47 of the Code of Civil Procedure and awarded cost of Rs. 2,000/- in favour of the decree holder. (7) LEARNED Advocate appearing on behalf of the defendant No. 1/ petitioner submitted that the decree-holder, by transferring the decretal property in favour of a third party, had lost her right to execute the decree which she had obtained in respect of the decretal property and that she is now a stranger to the decretal property, having no authority to obtain delivery of possession thereof. (8) THE learned Advocate also submits that the decree is in personam and that is also one of the reasons why the executing Court ought not to proceed with the execution application filed by the decree-holder. In this regard, learned advocate appearing on behalf of the defendant No. 1/petitioner, draws my attention to a judgment of the Orissa High Court in the case of Smt. Radhi Dei and Ors. v. Lalit Bihari Mohanty, reported in AIR 1991 Orissa 36. Relying on the aforementioned judgment, he submits that the executing Court could, in a given situation, refuse to execute a decree, holding that it had become not executable on account of change in law or some subsequent development. The learned advocate also submits that the executing Court in the facts of the instant case should have also taken note of the subsequent development, while considering the application under Section 47 of the Code of Civil Procedure. (9) ON the other hand, learned Advocate appearing on behalf of the plaintiff-opposite party No. 1 submits that the application under Section 47 of the Code of Civil Procedure was filed by the defendant No. 1 only for the purpose of stalling the execution proceedings. (9) ON the other hand, learned Advocate appearing on behalf of the plaintiff-opposite party No. 1 submits that the application under Section 47 of the Code of Civil Procedure was filed by the defendant No. 1 only for the purpose of stalling the execution proceedings. He further submits that for the purpose of execution of the decree, the executing Court, in the facts of the instant case, was bound to allow execution at the instance of the recorded decree holder, unless the transferee approached the Court under Order 21 rule 16 of the Code of Civil Procedure. In this regard, learned Advocate relies on a judgment of this Court rendered in the case of Mstt. Sarwari Begum v. Nazir Ahmed and Ors. reported in AIR 2003 Cal 230 . (10) AFTER considering the submissions made by the learned Advocates appearing on behalf of the respective parties, I am of the view that in the facts and circumstances of the instant case, even if the decretal property has been transferred by the decree-holder to a third party, she has not lost her right to execute the decree at her instance, if the decree itself had not been transferred. Moreover, the provisions of Order 21 Rule 16 of the Code makes it clear that it is open only to the transferee to approach the executing Court in the event the transferee seeks to execute a transferred decree (emphasis supplied by Court). Such is not the case here. The contention of the judgment-debtor, regarding the transfer of the decretal property, in my view, could not thus form the basis of his application under Section 47 of the Code of Civil procedure, in the facts of the instant case. The decision of this Court reported in AIR 2003 Cal 230 , is squarely applicable in the facts and circumstances of the instant case. (11) PARAGRAPH 14 of the said judgment is reproduced herein below: "14. The petitioner is not contending that the decree is not executable as invalid, but she contends that the decree was not executable by the named decree holders as they have transferred their right, title and interest in the decretal properties in favour of the third parties by registered deeds of conveyances. The point is no longer res integra. The petitioner is not contending that the decree is not executable as invalid, but she contends that the decree was not executable by the named decree holders as they have transferred their right, title and interest in the decretal properties in favour of the third parties by registered deeds of conveyances. The point is no longer res integra. A division Bench of this Court in the case of Sambhunath Auddy v. Taraknath Auddy, reported in AIR 1965 Cal 450 held that mere transfer of property was not a transfer of the decree. The executing Court was bound to allow execution at the instance of the recorded decree holders, unless the transferees should come in under Order 21, Rule 16 of the code of Civil Procedure. " (12) SO far as the Orissa High Court decision is concerned, the observations made in Smt. Radhi Dei and Ors. (supra) were rendered in an entirely different fact situation. In that case, the plaintiff/decree-holder had intermediary interest in the suit land which had been abolished under the provisions of the Orissa Estates Abolition Act, 1952 and the estate had vested in the State Government. In the year 1962-63, he had claimed title to the suit land on the basis of settlement of the land in his favour by the order of the tahasildar, holding that he was in khas possession of the land, on the date of vesting and therefore was entitled to remain in possession of it on payment of salami/rent to the State Government. Subsequently, the Tahasildar himself inquired into the matter and was convinced that ex-intermediary was not in possession of the land on the date of vesting and indeed, the predecessors-in-interest of the petitioners were in possession of it, prior to vesting of the estate. It was further held by the Tahasildar that the petitioners/their predecessors were tenants of the suit land and therefore they were entitled to continue as such, even after vesting of the estate in the State Government. The order of the Tahasildar was not challenged by the decree-holder before the competent revenue authority. The factual position held by the Tahasildar was neither assailed before the executing Court nor before the High Court at the time of hearing of that case. The order of the Tahasildar was not challenged by the decree-holder before the competent revenue authority. The factual position held by the Tahasildar was neither assailed before the executing Court nor before the High Court at the time of hearing of that case. (13) IT was in the aforementioned factual backdrop, the Orissa High court, in the case referred supra, observed that the decree passed by the learned Subordinate Judge was a nullity, being without jurisdiction, in view of the decision of the revenue authority (Tahasildar) and as such the said decree had become inexecutable in the altered position and therefore the executing court could refuse the said decree. (14) SINCE the aforementioned judgment of the Orissa High Court is not at all applicable, for reasons discussed above, the instant application of the defendant No. 1/petitioner stands dismissed following the ratio of the judgment of this Court in the case of Msstt. Sarwari Begum v. Nazir Ahmed and ore. reported in AIR 2003 Cal 230 .