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2009 DIGILAW 931 (CAL)

Chitra Roy Chowdhury v. Parbati Saha

2009-12-22

JYOTIRMAY BHATTACHARYA

body2009
Judgment :- (1.) The propriety of an order being no.114 dated 16.4.2008 passed by the learned Executing Court in Misc. Case no.144 of 2006 arising out of Ejectment Case No.14 of 2003, is under challenge in this application under Article 227 of the Constitution of India at the instance of the judgment debtor/petitioner. By the said order the petitioners application under Section 47 of the Code of Civil Procedure was rejected by the learned Executing Court on contest. (2.) Heard Mr. Chatterjee, learned Advocate appearing for the petitioner and Mr. Banerjee, learned Senior Counsel appearing for the decree holder/opposite party. For proper appraisal of the merit of this revisional application, following facts are required to be taken note of :- a) The decree holder/opposite party filed a suit for eviction against his admitted tenant namely Bhusan Mohan Roy since deceased. b) The said Bhusan Mohan Roy died intestate during the pendency of the said suit. Some of his heirs were substituted in the suit within the prescribed period. c) Pursuant to a direction passed by the learned Trial Judge, on 20th September, 1989, the substituted heirs of the deceased defendant disclosed the names and addresses of the two daughters of the original defendant who were not substituted in the said suit on the death of the original defendant. The said two daughters were Smt. Hira Das and Smt. Sonamoni Roy Chowdhury. d) On such disclosure, the plaintiffs added them as defendants in the said suit. e) Notice of the said suit was also served upon them but they did not come forward to contest the said suit. f) The said suit was ultimately dismissed by the leaned Trial Court on 9th September, 1992. g) Being aggrieved by and dissatisfied by the judgment and decree of the learned Trial Judge, the opposite party herein preferred an appeal being F.A. No.17 of 1995 before this Honble Court. The said appeal was allowed ex-parte. Thus, a decree for eviction was passed against the substituted heirs of the original defendant. An application for review was filed by one of the heirs of the original defendant but the said review application being RVW No.2918 of 2004 was also dismissed. h) Thereafter an execution case was filed by the decree holder/opposite party as the judgment debtors did not vacate the suit premises in compliance of the said eviction decree. An application for review was filed by one of the heirs of the original defendant but the said review application being RVW No.2918 of 2004 was also dismissed. h) Thereafter an execution case was filed by the decree holder/opposite party as the judgment debtors did not vacate the suit premises in compliance of the said eviction decree. i) Then the judgment debtors started making successive attempts to frustrate the said execution proceeding by filing several application severally. Initially an application under Section 47 of the Code of Civil procedure was filed by the son of the original defendant. The said application which was registered as Misc. Case no.59 of 2006 was rejected by the learned Executing Court on 17th November, 2006 vide Order No.90. j) Another application under Section 47 of the Code of Civil Procedure, which was filed by the present petitioner being Misc. Case No.144 of 2006 was also dismissed on contest by the learned Executing Court by the same order being No.90 dated 17th November, 2006. k) For challenging the rejection of those two applications under Section 47 of the Code of Civil Procedure as aforesaid, two revisional applications were filed by the said judgment dectors separately. The revisional application which was filed by the son being C.O. No.904 2007 was rejected by this Court on contest on 14th January, 2008. But the revisional application which was filed by the petitioner herein being C.O. No.358 of 2007 was allowed by Honble Justice Somadder on 20th February, 2008. His Lordship was pleased to set aside the impugned order as the learned Executing Court did not supply any reason in support of his conclusion in the order impugned therein. The said Misc. Case was, thus, remanded back to the learned Executing Court for fresh disposal. l) Apart from filing of the said application under Section 47 of the Code of Civil Procedure, the petitioner herein also filed another Misc. Case being Misc. Case no.343 of 2005 under Order 21 Rule 101 of the Code of Civil Procedure. The said Misc. Case was also rejected on contest on 27th January, 2006 by the learned Executing Court vide Order No.58. The order passed in the said proceeding has attained its finality. The petitioner herein could not establish her independent right in the suit property. Case no.343 of 2005 under Order 21 Rule 101 of the Code of Civil Procedure. The said Misc. Case was also rejected on contest on 27th January, 2006 by the learned Executing Court vide Order No.58. The order passed in the said proceeding has attained its finality. The petitioner herein could not establish her independent right in the suit property. m) The petitioners application under Section 47 of the Code of Civil Procedure which was remanded back to the learned Executing Court for reconsideration, was again rejected on contest by the impugned order. The instant revisional application is directed against the said order. (3.) Mr. Chatterjee, learned Advocate appearing for the petitioner submitted that while rejecting the petitioners said application after remand, the learned Executing Court again has not given any reason in support of his conclusion. By referring to the points of objection mentioned in the petitioners application under Section 47 of the Code of Civil Procedure, Mr. Chatterjee submitted that not a single objection raised by his client therein, was considered by the learned Executing Court, while passing the impugned order. Non-consideration of the specific objections raised by his client, according to Mr. Chatterjee, is very serious in the said case, as according to him, any order passed in disregard of the order of remand can not be retained on record. (4.) Mr. Chatterjee also made his submission with regard to the merit of this clients application under Section 47 of the Code of Civil Procedure. Certain irregularities in the proceedings in the suit were pointed out by Mr. Chatterjee. He pointed out that instead of adopting the procedure contained in Order 22 of the Code of Civil Procedure, his client was added as defendant in the said suit under Order 1 Rule 10(2) of the code of Civil Procedure. According to Mr. Chatterjee, the trial of the said suit was vitiated by such irregularity. (5.) This Court, however, cannot accept such submission of Mr. Chatterjee as it is well settled that if some of the heirs are left out at the time of effecting substitution of the other heirs of a deceased party, the left out parties can be subsequently added in the suit under Order 1 Rule 10(2) of the Code of Civil Procedure. As such, this Court does not find any substance in such contention of Mr. As such, this Court does not find any substance in such contention of Mr. Chatterjee, particularly when the names and addresses of those left out heiresses were not disclosed by the substituted heirs in the suit on their own volition but such disclosure was made after their substitution was effected in the suit and only when they were compelled to do so, under order of the Court. (6.) Mr. Chatterjee further contended that addition of his client in the said suit on 2nd January, 1990 after the suit got abated against her on 29th May, 1985, is also illegal and as such the said decree being an illegal one, is not binding upon his client. This Court also does not find any substance of such submission of Mr. Chatterjee as the suit cannot abate when the estate of the deceased defendant was duly represented by some of his heirs who were substituted in the said suit within prescribed period limitation. As such, addition of the other left out heirs after the period of limitation cannot in any way be declared as illegal and thus, this Court finds no reason to declare that the trial of the suit was vitiated for such alleged irregularities. This Court, thus, does not find any substance in such contention of the petitioner. (7.) Mr. Chatterjee further contended that his client Smt. Chitra Roy Chowdhury, the petitioner herein was and/or is not known as Sonamoni Roy Chowdhury. He pointed out that Chitra Roy Chowdhury was never added in the suit as a party. One Sonamoni Roy Chowdhury who was added as a party in the said suit was not the daughter of the original defendant. According to him when Chitra Roy Chowdhury and Sonamoni Roy Chowdhury were not identical persons, the decree passed against Sonamoni Roy Chowdhury is not binding on Chitra Roy Chowdhury, the petitioner herein. (8.) Mr. One Sonamoni Roy Chowdhury who was added as a party in the said suit was not the daughter of the original defendant. According to him when Chitra Roy Chowdhury and Sonamoni Roy Chowdhury were not identical persons, the decree passed against Sonamoni Roy Chowdhury is not binding on Chitra Roy Chowdhury, the petitioner herein. (8.) Mr. Chatterjee, thus, contended that when a dispute was raised as to whether Sonamoni Roy Chowdhury was the legal representative of the original defendant or Chitra Roy Chowdhury was the legal representative of the deceased defendant in the said miscellaneous case, it was the duty of the learned Executing Court to resolve the said dispute as per the provision contained in contentions under Section 47(3) of the Civil procedure Code and since the learned Executing Court rejected the petitioners said application without deciding the said issue, the order passed on the petitioners said application cannot be retained on record. In support of such submission Mr. Chatterjee relied upon the following decisions of the Honble Court :- 1. In the case of Jnanendra Nath Sanyal Vs- Girish Chandra Lahiri and Ors. reported in 39 CWN page 313. 2. In the case of Sachindra Kumar Vs-Rahamaddin and Ors. reported in 51 CWN page 186. (9.) Though, on perusal of the petitioners application under Section 47 of the Code of Civil Procedure, this Court does not find that the said objection was specifically raised therein but still then when Mr. Chatterjee raised the said issue before this Court, this Court thinks it necessary to consider the substance of such submission of Mr. Chatterjee in the facts of the instant case. Before going into details in the aforesaid contention of Mr. Chatterjee, this Court wants to keep a part of the petitioners pleading in her application under order 21 Rule 101 of the Code of Civil Procedure on record as the admission made by the petitioner therein will help the Court to resolve the above dispute. Before going into details in the aforesaid contention of Mr. Chatterjee, this Court wants to keep a part of the petitioners pleading in her application under order 21 Rule 101 of the Code of Civil Procedure on record as the admission made by the petitioner therein will help the Court to resolve the above dispute. Accordingly paragraph 2 of the said application is set out hereunder :-"Para 2: That the said Bhusan Mohan Roy died in the year 1985 and thereafter as per the application under order 22 Rule 4 of the Civil Procedure Code filed by the plaintiff the decree holder/petitioner herein, 7 the plaint had been amended incorporating the names of the legal representatives of the said original defendant and in which the nick name of the third party/objector/petitioner herein had been incorporated namely Smt. Sonamoni Roy Chowdhury being substituted defendant no.1(b) but no copy served to your third party/objector/ petitioner." (10.) If the said part of the petitioners pleading is considered carefully then, this Court has no hesitation to hold that Sonamoni Roy Chowdhury is the nickname of Chitra Roy Chowdhury. Thus, this Court can safely conclude that Sonamoni Roy Chowdhury and Chitra Roy Chowdhury are same and identical person. That apart, this Court finds from the cause title of the petitoners application under Section 47 of the Code of Civil Procedure that the petitioner viz., Chitra Roy Chowdhury was described therein as the wife of Ranjit Roy Chowdhury residing at 11/1, Sovabazar Street, Kolkata 700 005. The cause title of the plaint also discloses that Sonamoni was described therein as the wife of Ranjit Roy Chowdhury residing at 11/1, Sovabazar Street, Kolkata 700 005. It is not the case of the petitioner that Ranjit Roy Chowdhury had two wives namely one Sonamoni and another Chitra. It is also not the case of the petitioner that there were two persons both named as Ranjit Roy Chowdhury residing at the same premises. Thus, considering the aforesaid facts, this Court holds that Sonamoni and Chitra are identical persons and the nickname of Chitra is Sonamoni and Chitra alias Sonamoni being the daughter of original defendant was the legal representative of the said defendant and the said legal representative was on record in the suit and as such, the trial of the suit was not vitiated for not describing Sonamoni as Chitra therein. (11.) Thus, this Court does not find any substance in the aforesaid submission of Mr. Chatterjee. (12.) Mr. Chatterjee further contended that when the postal receipt was conspicuously absent in the records relating to the said ejectment suit, the learned Executing Court ought to have disbelieved the service of summons of the said suit upon the petitioner. Mr. Chatterjee contended that no conclusion can be arrived at regarding service of summons upon the petitioner by relying upon the acknowledgement card containing the purported signature of the petitioner by nickname in the absence of the postal receipt. Thus, Mr. Chatterjee wanted to impress upon this Court that the decree which was passed against his client without due service of summons upon her is an invalid decree so far as she is concerned and as such, she cannot be evicted in execution of such invalid decree. (13.) This Court also does not find any substance in the submission of Mr. Chatterjee as Executing Court, while executing the decree, cannot go behind the decree. In fact, the Executing Court has no jurisdiction to post mortem the decree to find out any flaw in it. That apart, the petitioner never applied for setting aside the said decree by complaining non-service of summons upon her. The petitioner, however, made an identical challenge in her application under Order 21 Rule 101 of Code of Civil Procedure but ultimately failed to succeed therein. The learned Executing Court while dismissing the petitioners said application vide order No.58 dated 27th January, 2006 came to a positive conclusion regarding due service of summons upon the petitioner and such finding having attained its finality cannot be challenged in any subsequent proceeding arising out of the same execution case because of the principle of res judicata which is also applicable in the execution proceeding as per the explanation (VIII) added to Section 11 of the Civil Procedure Code. Thus, this Court also does not find any substance in such contention of Mr. Chatterjee. (14.) Mr. Chatterjee also contended that since the said suit was filed beyond the prescribed period of limitation, the decree passed in the said suit is a nullity and as such, the said decree is incapable of execution. To elaborate such submission, Mr. Thus, this Court also does not find any substance in such contention of Mr. Chatterjee. (14.) Mr. Chatterjee also contended that since the said suit was filed beyond the prescribed period of limitation, the decree passed in the said suit is a nullity and as such, the said decree is incapable of execution. To elaborate such submission, Mr. Chatterjee contended that the eviction notice dated 15.2.1973 which was served on the original defendant became effective from 1st April, 1973 but the instant eviction suit was filed on 13th September, 1976 i.e. beyond three years five months after the cause of action of the said suit arose. According to Mr. Chatterjee Article 113 of the Limitation Act which governs limitation for such suit, prescribes the limitation of three years from the time when the right to sue accrues. (15.) Thus, Mr. Chatterjee contended that when the suit was barred by limitation, the decree passed in such suit is a nullity and as such, the decree is in-executable. Mr. Banerjee, learned Senior Counsel refuted such submission of Mr. Chatterjee by submitting that the said Article 113 of the Limitation Act does not govern the suits of this nature where the landlord files a suit to recover possession from a tenant inasmuch as, eviction suit by the landlord against his tenant is governed by Article 67 of the Limitation Act which prescribes 12 years time from the date when the tenancy is determined. (16.) In support of such submission, Mr. Banerjee relied upon a decision of the Honble Supreme Court in the case of Shakuntala S. Tiwari Vs-Hem Chand M. Singhania reported in (1987)3 SCC 211 wherein it was held that Article 67 of the Limitation Act is applicable in such suit and Article 113 of the Limitation Act has no application in such suits. Mr. Banerjee further contended that even if any decree is passed in a suit which is barred by limitation, such decree cannot be treated as a nullity. In support of such submission Mr. Banerjee relied upon a decision of the Honble Supreme Court in the case of Ittyavira Mathai Vs. Varkey Varkey and Anr. reported in AIR 1964 SC 907 . (17.) By relying upon another decision of Honble Supreme court in the case of Balvant N Viswamitra and Ors. Vs. Yadav Sadashiv Mule and Ors. reported in (2004)8 SCC 706 , Mr. Banerjee relied upon a decision of the Honble Supreme Court in the case of Ittyavira Mathai Vs. Varkey Varkey and Anr. reported in AIR 1964 SC 907 . (17.) By relying upon another decision of Honble Supreme court in the case of Balvant N Viswamitra and Ors. Vs. Yadav Sadashiv Mule and Ors. reported in (2004)8 SCC 706 , Mr. Banerjee submitted that since the jurisdiction of the Court which passed the decree, to try such a suit was not challenged by the petitioner, the decree passed by such Court, even if irregular and/or erroneous but, still then, such decree cannot be treated as void decree. Relying upon the said decision Mr. Banerjee contended that even execution of an erroneous decree can not be challenged by the judgment debtor. Mr. Banerjee, thus, contended that Mr. Chatterjees contention is devoid of any substance. (18.) In my judgment Mr. Banerjee is absolutely correct in pointing out that Article 67 of the Limitation Act is applicable in such suit for eviction filed by the landlord against his tenant. Since admittedly the suit was filed within 12 years from the date of determination of his tenancy, the suit was well within the period of limitation. As such, this Court cannot hold by accepting the submission of Mr. Chatterjee that the suit was barred by limitation. Though this Court is not required to consider the objection regarding executability of an erroneous decree and/or of a decree passed in a time barred suit, as the decree in the present case does not fall under any of the aforesaid categories but, still then, this Court on consideration of the aforesaid submission of Mr. Banerjee holds that Mr. Banerjee is right in submitting that even executability of a decree passed in a time barred suit and/or of an erroneous and/or illegal decree passed by a Court having jurisdiction, cannot be challenged in the execution proceeding. This Court also does not find any substance in the contention of the petitioner that the decree is a nullity as the learned Trial Judge held that the plaintiff was the owner of such property even though the original title deed through which he was claiming title in the suit property, was not produced in the suit. (19.) Though Mr. This Court also does not find any substance in the contention of the petitioner that the decree is a nullity as the learned Trial Judge held that the plaintiff was the owner of such property even though the original title deed through which he was claiming title in the suit property, was not produced in the suit. (19.) Though Mr. Chatterjee has not made any submission on the said point but since the said objection was taken as a ground in the application under Section 47 of the Code of Civil Procedure, this Court thinks it necessary to consider the said ground also herein. It is well settled that a suit for eviction between the landlord and tenant can not be regarded as a regular suit for title. As such, the landlord need not prove his absolute title in the suit property, in a suit for eviction on the ground of reasonable requirement. If the landlord succeeds in proving his better title in the suit property, the Court can pass a decree for eviction against the tenant on the ground of reasonable requirement subject to the proof of other requirements. As such, this Court holds that even in the absence of original title deed the Court can very well come to the conclusion relying upon other documents such as mutation certificate etc. that the plaintiff has a better title in the suit property. By relying upon the decision of the Honble Supreme Court in the case of Balvant N. Biswamitra and Ors. (supra) this Court still holds that executability of such a decree cannot be challenged in the execution proceeding, even if any infirmity is found in it. That apart, when such finding regarding ownership of the plaintiff has attained its finality in the appeal, the said issue cannot be reagitated in the execution proceeding by the judgment debtor. (20.) As such, this Court does not find any substance in the aforesaid contention of the petitioner. (21.) Lastly, Mr. Chatterjee contended that in a suit for eviction all the heirs of the deceased defendant are required to be impleaded as parties and the doctrine of representation cannot save such a suit filed by the landlord to evict the heirs of the deceased contractual tenant when some of the heirs are not made parties. To support such contention Mr. Chatterjee contended that in a suit for eviction all the heirs of the deceased defendant are required to be impleaded as parties and the doctrine of representation cannot save such a suit filed by the landlord to evict the heirs of the deceased contractual tenant when some of the heirs are not made parties. To support such contention Mr. Chatterjee relied upon a Division Bench judgment of this Court in the case of Jaharlal Saha Vs. Pradip Saha reported in 2006 Vol.1 CHN 513. (22.) In this regard reference may be made to the decision of the Honble Supreme Court in the case of Shkuntala Vasant Pahadi Vs. Purushottam Vasant Pethe reported in (2007)3 SCC 123 wherein it was held by a Bench of three Judges that in the absence of any allegation against the judgment debtor of having colluded with the landlord or of mala fide having neglected the interest of the other co-tenants who were not joined, there was no ground for reopening the trial at the instance of the non-impleaded heirs. (23.) Though the aforesaid point was not taken as a ground in the application under Section 47 of the Code of Civil procedure but since Mr. Chatterjee addressed this Court on the said point, this Court considers the same in the present context. (24.) This Court holds that the said point is absolutely irrelevant for the present purpose as I have already indicated above that it is not the case where some of the heirs of the original defendant were not joined in the suit. Rather it is a case where all the heirs of the deceased defendant including the petitioner were impleaded in the suit after the death of the original defendant but the said petitioner failed to contest the same in spite of due service. As such, objection regarding defect of party due to non-joinder of necessary party in the suit cannot be urged in this proceeding. Thus, this Court need not consider the applicability of theory of representation in the facts of the instant case. (25.) In the facts as stated above, this Court does not find any justification to interfere with the impugned order as this Court agrees with the ultimate conclusion drawn by the learned Executing Court in the impugned order. But since Mr. Thus, this Court need not consider the applicability of theory of representation in the facts of the instant case. (25.) In the facts as stated above, this Court does not find any justification to interfere with the impugned order as this Court agrees with the ultimate conclusion drawn by the learned Executing Court in the impugned order. But since Mr. Chatterjee was very much allergetic to the impugned order as the objections raised by his client in the application under Section 47 of the 13 Code of Civil procedure were not dealt with by the learned Executing Court specifically, this Court supplies the reasons with regard to the specific objections raised by the judgment debtor in his said application, hereinabove. (26.) The revisional application, thus, stands rejected with cost of Rs.20,000/- to be paid by the petitioner to the decree-holder/opposite party. (27.) The learned Execution Court is directed to complete the said execution proceeding forthwith. (28.) Urgent xerox certified copy of this judgment, if applied for, be supplied expeditiously after complying with all necessary formalities. In view of the disposal of this revisional application, no further order need be passed on the petitioners application being CAN No.5506 of 2009. The said application is, thus, disposed of.