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2009 DIGILAW 220 (CAL)

Madhusudan Saha v. Rebati Rani Mukherjee

2009-03-13

JYOTIRMAY BHATTACHARYA

body2009
Judgment : JYOTIRMAY BHATTACHARYA (1) This is a unique instance where the machinery of the executing Court was manipulated fraudulently by the decree holder/opposite party herein in recovering possession of the suit property from the judgment debtor in a very hush hush manner. (2) Let me now give a brief background of the execution process hereunder. The plaintiffs suit for eviction on the ground of reasonable requirement was decreed on contest on 26th September, 2006. (3) Since the petitioner/judgment debtor was not satisfied with the said decree, he preferred an appeal being Title Appeal No.127 of 2006 before the learned First Appellate Court. During the pendency of the said first appeal, an execution case was filed by the decree holder/opposite party herein for recovery of possession of the suit property from the petitioner herein in execution of the eviction decree passed by the learned Trial Judge. The process of the said execution case was, however, stalled on account of an order passed by the learned First Appellate Court staying all further proceeding of the said execution case. The said appeal was ultimately dismissed on contest by the learned First Appellate Court on 31st March, 2007. Thereafter the process of execution again stood revived on the prayer of the opposite party herein. (4) Being aggrieved by and dissatisfied with the said judgment and decree of the learned First Appellate Court, a second appeal was preferred by the petitioner before this Court. After admission of the said appeal an interim order of stay of further proceeding of the said execution case was passed by this Court. As a result, the process of execution remained stayed during the pendency of the said second appeal. (5) The said second appeal which was registered as S.A. No.591 of 2007 was ultimately dismissed on contest by this Court on 24th December, 2008. Thus, the decree of eviction which was passed initially by the learned Trial Judge was affirmed in appeal upto this Honble Court. Trouble started after the dismissal of the said second appeal. The judgment was delivered by this Court in the said second appeal on the last working day before the X-Mas vacation of this Court in 2008. The executing Court remain closed with effect from 24th December, 2008 on account of X-Mas vacation. The executing Court reopened on 2nd January, 2009 after the X-Mas vacation was over. The judgment was delivered by this Court in the said second appeal on the last working day before the X-Mas vacation of this Court in 2008. The executing Court remain closed with effect from 24th December, 2008 on account of X-Mas vacation. The executing Court reopened on 2nd January, 2009 after the X-Mas vacation was over. (6) On the very day when the executing Court reopened after the X-Mas vacation, i.e. on 2nd January, 2009, the opposite party herein served a copy of the petition upon the learned Advocate of the petitioner in the executing Court indicating therein that the said petition will be moved on 3rd January, 2009 at 10.30 A.M. In the said petition the opposite party prayed for revival of the execution proceeding in view of the dismissal of the said second appeal. (7) Interestingly, the said petition was not moved on 3rd January, 2009 by the opposite party herein, before the learned executing Court. Instead of moving the said petition before the learned executing Court on 3rd January, 2009, the said petition was filed in the executing Court long thereafter on 13th January, 2009 and, in fact, the said petition was also moved on the very same date before the learned executing Court without either filing or moving any put up petition, though no date was fixed in the execution proceeding on the said day. The next date for passing necessary order in the said execution case was fixed on 28th April, 2009 as per Order No.17 dated 22nd December, 2008. (8) It appears from the order being no.18 dated 13th January, 2009 passed in the said execution proceeding that while moving the said petition, an impression was given to the learned executing Court that the opposite parties intention to move the said petition was intimated to the learned Advocate-on-record of the petitioner in the executing Court. Since the learned executing Court found that the petitioner remained absent in spite of such notice, the learned executing Court considered the opposite parties said petition ex parte and fixed 7th February, 2008 for verification and for passing further order. The learned executing Court was of the view that in view of the dismissal of the said second appeal, there was no impediment on the part of the executing Court to proceed with the execution case. The learned executing Court was of the view that in view of the dismissal of the said second appeal, there was no impediment on the part of the executing Court to proceed with the execution case. In fact, the next date which was fixed for verification and for passing further order was not even communicated to the petitioner and/or to his learned Advocate in the executing Court, though all such orders were passed ex parte on off date, i.e. before the normal returnable date of the said execution proceeding which was fixed on 28th April, 2009. (9) Thus, the petitioner had no occasion to ascertain the further progress of the execution case even in February, 2009 as I have already indicated above that the execution case remained adjourned till 28th April, 2009 vide order no.17 dated 22nd December, 2008. Though a copy of the petitioners application wherein the petitioner prayed for 12 weeks time for bringing stay order from the Honble Supreme Court was served upon the learned Advocate of the opposite party in the executing Court on 6th February, 2009 and the same was filed in Court on 7th February, 2009, but the opposite party, without making any whisper about the said application, filed an affidavit before the learned executing Court stating inter alia that since the second appeal has been dismissed and further since no order was passed staying the execution proceeding, the executing Court should proceed with the execution case forthwith. The learned Advocate of the opposite party made an endorsement on the said petition to the effect that the learned Advocate for the petitioner refused to accept a copy of the said affidavit when a copy thereof was tendered to her. A copy of the said affidavit was also filed in the record of the said execution proceeding. The learned Advocate of the opposite party made an endorsement on the said petition to the effect that the learned Advocate for the petitioner refused to accept a copy of the said affidavit when a copy thereof was tendered to her. A copy of the said affidavit was also filed in the record of the said execution proceeding. (10) The learned executing Court without making any effort to ascertain as to whether copy of the said affidavit was, in fact, tendered to the learned Advocate for the petitioner or not, believed the statement of the learned Advocate for the opposite party about such tender and/or refusal thereof and ultimately passed an ex parte order for issuance of the writ of possession without even passing any direction upon the petitioner to collect the copy of the said affidavit from the records and also without directing the office to intimate the learned Advocate of the petitioner about the further progress of the execution proceeding. Even the filing of the petitioners application for stay of the execution case, was not recorded in the order sheet. In the order being no.19 dated 7th February, 2009 it was categorically mentioned that khas possession of the decreetal property will be delivered to the decree holder in execution of the writ on 20th February, 2009 and the writ will be returned by 26th February, 2009. By the said order, the process server was also permitted to break open the padlock of the decreetal property, if necessary, without creating any disturbance to the party. (11) The aforesaid order, thus, makes it clear that the execution of the writ of possession was fixed on 20th February, 2009 but in spite thereof it was mentioned in the writ of possession that execution of the said writ could be made within 20th February, 2009. This Court has no hesitation to hold in this background that even the writ of possession was not prepared in consonance with the order passed by the learned executing Court on 7th February, 2009 vide order no.19. This Court has no hesitation to hold in this background that even the writ of possession was not prepared in consonance with the order passed by the learned executing Court on 7th February, 2009 vide order no.19. (12) As a matter of fact, on the strength of the said writ of possession which was not issued in conformity with the aforesaid order dated 7th February, 2009, the petitioner was dispossessed from the decreetal property in execution of the said illegal writ of possession on 11th February, 2009 i.e. at least ten days before the date which was fixed for execution of the said writ of possession vide order no.19 dated 7th February, 2009. By this process the petitioner was dispossessed from the decreetal property. As such, the petitioner is aggrieved. (13) Mr. Ganguly, learned Advocate appearing for the opposite party tried to support his client by initially submitting that his client had no hand in the process of such execution. He submitted that since the possession was delivered to his client by the process server, his client simply received the same. Thus, he pleaded his clients innocence. (14) Mr. Ganguly further contended that when it was mentioned in the writ of possession issued by the learned executing Court that the said writ could be executed within 20th February, 2009, no illegality was at all committed by the process server in executing the said writ on 11th February, 2009. (15) Mr. Ganguly further submitted that Order 21 Rule 24 sub-rule 3 makes it clear that the executing Court may fix a date within which execution can be carried out. By referring to the expression "on or before" used in Order 21 Rule 24 sub-rule 3 of the Civil Procedure Code, Mr. Ganguly submitted that the expression "on or before" indicates the ultimate date fixed for such execution within which writ can be executed. According to Mr. Ganguly even though the said expression "on or before" was not used in the order being no.19 dated 7th February, 2009 but, still then, in view of the provision contained in Order 21 Rule 24 sub-rule 3 of the Civil Procedure Code, the expression on 20th February, 2009 which is used in the order dated 7th February, 2009 should be read as "on or before" 20th February, 2009 meaning thereby within 20th February, 2009. By relying upon a decision of the Honble Supreme Court in the case of Smt. Mathri and Ors. -Vs- the State of Punjab reported in AIR 1964 SC page 986 Mr. Ganguly tried to support the action of the executing Court in executing the said writ of possession on a day which was before the date, fixed for execution of the writ of possession. (16) Having heard the learned Advocates of the parties, this Court has no hesitation to hold that the judgment of the Honble Supreme Court which was cited by Mr. Ganguly, has no application in the facts of the instant case as it was not a case where the Honble Supreme Court held that the writ of possession can be executed on any date which is not even fixed by the executing Court for its execution. It was also not held therein that even if the writ is executed ten days before the date which is fixed for such execution, such execution can be regarded as valid and due discharge of the provision contained in Order 21 Rule 24 sub-rule 3 of the Civil Procedure Code. (17) This Court, thus, holds that when a specific date was fixed by the learned executing Court, the said writ of possession ought not to have been executed on any day prior to the date which is fixed for its execution for the simple reason that when a particular date for execution of the writ is fixed, it should be presumed that the possession of the judgment debtor will not be disturbed till the day preceding the date fixed for such execution. Fixation of a particular date for execution suggests that the judgment debtor, if he so chooses, can remove his articles from the decreetal property within any time before the fixed date so that he can protect his articles lying in the decreetal property and can save himself from humiliation before the public at the time of execution of the writ of possession. (18) That apart, issuance of the writ of possession mentioning therein that such writ can be executed within 20th February, 2009 was also illegal as the said writ was not issued in conformity with the order passed on 7th February, 2009 wherein it was categorically mentioned that the writ will be executed on 20th February, 2009. (18) That apart, issuance of the writ of possession mentioning therein that such writ can be executed within 20th February, 2009 was also illegal as the said writ was not issued in conformity with the order passed on 7th February, 2009 wherein it was categorically mentioned that the writ will be executed on 20th February, 2009. (19) This Court also cannot appreciate the approach of the learned executing Court in rejecting the petitioners prayer for 12 weeks time for enabling him to move a special leave petition before the Honble Supreme Court for challenging the propriety of the decree passed by this Court in the second appeal, even though the petitioner approached the learned executing Court with such a prayer even before issuance of the writ of possession. (20) Rejection of the petitioners prayer for stay in the aforesaid circumstances is contrary to the provision of Order 21 Rule 26 of the Civil Procedure Code which empowers the executing Court to stay the further proceeding of the execution case for enabling the judgment debtor to bring stay order from the superior Court. (21) In my view, the learned executing Court ought not to have shown so much overenthusiasm for executing its own decree simply because of the fact that the said decree was upheld up to the Honble High Court, particularly because of the fact that the remedy for challenging the said decree in different forums including in the execution proceeding, is not exhausted with the dismissal of the second appeal by the Honble High Court. (22) Thus, when the judgment debtor has shown his sincerity for challenging the judgment and decree passed by this Court in the second appeal before the Honble Supreme Court, the executing Court should not have shown its overenthusiasm in proceeding with the execution case by rejecting the judgment debtors prayer for stay of the execution case. (23) Thus, in the peculiar facts and circumstances, this Court finds no other alternative but to appoint Mr. Sibasish Ghosh, an Advocate of this Court as Special Officer who will receive possession of the decreetal property from the decree holder/opposite party on 17th March, 2009 and will deliver the possession thereof to the judgment debtor/petitioner herein on the very same day. Sibasish Ghosh, an Advocate of this Court as Special Officer who will receive possession of the decreetal property from the decree holder/opposite party on 17th March, 2009 and will deliver the possession thereof to the judgment debtor/petitioner herein on the very same day. The decree-holders are also directed to deliver the articles of the judgment-debtor, which are in their custody, to the learned Special Officer, who is also directed to deliver thereof to the judgment-debtor against proper receipts. (24) The Officer-in-charge of the local Police Station is also directed to render all necessary assistance to the learned Special Officer for implementation of this order. The petitioner is directed to pay 300 Gems to the learned Special Officer towards his remuneration for the time being. The learned Special Officer is, thus, directed to submit his report before this Court on 19th March, 2009. (25) Thus, all the orders passed in the execution proceeding from 13th January, 2009 upto 12th February, 2009 including any order of recording satisfaction of the decree, if there be any, stand set aside. (26) The further proceeding of the said execution case will remain stayed for a period of one month from date for enabling the petitioner to move a special leave petition before the Honble Supreme Court for challenging the judgment and decree passed by this Court in the second appeal and for bringing stay order from the Honble Supreme Court. In the event the petitioner fails to produce any stay order from the Honble Supreme Court, before the learned executing Court within one month from date, the learned executing Court will proceed with the said execution case in accordance with law. (27) Let a copy of this order along with the records relating to the execution case be sent down to the learned executing Court immediately by special messenger at the cost of the opposite party herein. Such cost should be put in within a week from date. (28) Let a xerox plain copy of the operative part of this order duly countersigned by the Assistant Registrar (Court), be handed over to the parties as well as the learned Special Officer immediately and the learned Special Officer as well as the Police Authorities are directed to act on the plain copy of this operative part of this order of the Court. (29) The parties and their respective learned Advocate-on-record are also directed to render all co-operation to the learned Special Officer of this Court at the time of execution of this order. Urgent xerox certified copy of this order, if applied for, be given to the parties, as expeditiously as possible.