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2010 DIGILAW 436 (CAL)

Sumitra Bhattacharyya v. Maya Majhi

2010-04-26

DEBASISH KAR GUPTA

body2010
JUDGMENT: 1. THIS revisional application is directed against an order dated February 6, 2010 passed by the learned Civil Judge (Junior Division) 3rd Court at Howrah in Title Execution Case No. 15 of 2009. By virtue of the impugned order the learned Court below postponed the verification for that date. 2. THE decree holder/petitioner filed a Title Suit No. 204 of 1996 against the judgment debtor/opposite party for his eviction before the learned Civil Judge (Junior Division) 3rd Court at Howrah. THE above suit was decreed on July 17, 2008. THE opposite party preferred an appeal bearing Title Appeal No. 165 of 2008 before the learned District Judge at Howrah and the same was dismissed on May 30, 2009 affirming the judgment and decree passed by the learned trial Court. THE petitioner put the decree into execution being Title Execution Case No. 15 of 2009 on July 18, 2009. During the pendency of the above execution proceeding the Second Appeal bearing S.A.T. No. 439 of 2009 preferred by the opposite party was dismissed on September 4, 2009. THE opposite party filed an application under Section 47 of the Code of Civil Procedure in the above execution proceeding for rejection of execution case on the ground that there were serious of discrepancies in identifying the scheduled noted property. Necessary to mention here that no discrepancy was mentioned specifically in the above application in support of the above claim by the opposite party. It is submitted by the learned Counsel appearing for the decree holder/petitioner that the matter reached its finality after dismissal of the Second Appeal bearing S.A.T. No. 439 of 2009 preferred by the opposite party. It was not open for the opposite party to stand in the way of executing the above decree by way of filing an application under Section 47 of the Code of Civil Procedure on frivolous ground. He further submits that the legality of the decree cannot be challenged in execution of the, proceeding /on the ground of bar of constructive res judicata in view of the explanation (Vii) added to Section 11 of the Code of Civil Procedure. 3. He further submits that the legality of the decree cannot be challenged in execution of the, proceeding /on the ground of bar of constructive res judicata in view of the explanation (Vii) added to Section 11 of the Code of Civil Procedure. 3. THE learned Counsel relies upon the decisions of Sardar Estates v. Atma Ram Properties (P) Ltd., reported in (2009)6 SCC 609 ; Haryana Vidyut Parasaran Nigam Ltd. v. Gulshan Lal, reported in (2010)1 ICC 151 and Anil Kumar Biswas v. Subodh Chandra Paul, reported in (2010)1 Cal HN 50. 4. IT is submitted by the learned Counsel appearing on behalf of the opposite party that in the event of discrepancy in identifying or in substance of the schedule property, an application under Section 47 of the Code of Civil Procedure has to be disposed of before putting the decree to execution. IT is submitted by him that the direction may be given for expeditious disposal of the above application of the opposite party before executing the decree under reference. In support of the above submissions, the learned Counsel appearing for the opposite party relies upon the 'decisions of Jai Narain Ram Lundia v. Kedar Nath Khetan and Ors. reported in AIR 1956 SC 359 , Brahmdeo Chaudhury v. Risikesh Prasad Jaiswal, reported in AIR (1997)3 SCC 694 , Mr. P/7/a/v. P.K.U. Naidu and Ors., reported in AIR 1968 MAD 433 and Moot Chand Yadav and Anr. v. Raja Buland Sugar Co. Ltd, Rampur and Ors. reported in (1982)3 SCC 484 . 5. HAVING heard learned Counsel appearing for the respective parties and after taking into consideration the facts and circumstances of this case I find that the eviction suit under reference was decreed as back as on July 17,2008. The appeal bearing Title Appeal No. 165 of 2008 preferred by the judgment debtor was dismissed on August 19,2008 affirming the judgment and decree passed by the learned trial Court. It is also not in dispute that the Second Appeal bearing S.A.T. No. 439 of 2009 was also dismissed under Order 41 Rule 11 of the Code of Civil Procedure by a Division of this Court on September 4, 2009. Admittedly, the issue involved in this application filed by the opposite party was not raised at any of the aforesaid stage. Admittedly, the issue involved in this application filed by the opposite party was not raised at any of the aforesaid stage. It is also not in dispute that in the application filed by the opposite parry under Section 47 of the Code of Civil Procedure no specific discrepancy with regard to the identity of the schedule property was raised. 6. THE only point of law which is to be decided in this revisional application is the propriety of the impugned order in not to proceed with the execution case during the pendency of an application filed by the judgment debtor/opposite party under Section 47 of the Code of Civil Procedure for rejection of the execution case. I find substance in the submissions made on behalf of the petitioner that in view of the Explanation (vii) added to Section 11 of the Code of Civil Procedure, the principles of res judicata is applicable in execution proceeding. There was no objection raised at the earlier stages with regard to the alleged discrepancy of identification of the suit property. Therefore, at the time of execution of the decree of a suit the execution proceeding cannot be delayed for consideration of such an objection. Reference may be made to the decision of Anil Kumar Biswas (Supra). 7. RELIANCE may be placed in this regard with regard to the settled principles of law in the matter of Haryana Vidyut Parasaran Nigam Ltd. v. Gulshan Lal, reported in (2010)1 ICC 151 and the relevant portion of the above decision is quoted below : "4s indicated hereinbefore, lor the purpose of allowing an objection filed on behalf of a judgment debtor under Section 47 of the Code of Civil Procedure, it was incumbent on him to show that the decree was ex facie nullity. For the said purpose, the Court is precluded from making an indepth scrutiny as regards the entitlement of the plaintiff with reference to not only his claim made in the plaint but also the defence set up by the judgment - debtor. As the judgment of the Trial Court could not have been reopened, the correctness thereof could not have been put to question. It is also well known that an Executing Court cannot go behind the decree. If on a fair interpretation of the Judgment, Order and decree passed by a Court having appropriate Jurisdiction in that behalf, the reliefs sought for. It is also well known that an Executing Court cannot go behind the decree. If on a fair interpretation of the Judgment, Order and decree passed by a Court having appropriate Jurisdiction in that behalf, the reliefs sought for. by the plaintiff appear to have been granted, there is no reason as to why the Executing Court shell deprive him from obtaining the fruits of the decree." 8. THE decisions of Jai narain Ram Lundia v. Kedar Nath Khetan and Ors. reported in AIR 1956 SC 359 , Brahmdeo Chaudhury v. Risikesh Prasad Jaiswai, reported in AIR (1997)3 SCC 694 ; Mr. .Pillai v. P.K.U. Naidu and Ors., reported in AIR 1968 MAD 433 and Mool Chand Yadav and Anr. v. Raja Buland Sugar Co. Ltd., Rampur and Ors. reported in (1982)3 SCC 484 are not applicable in this case in view of the distinguished facts and circumstances of this case as discussed hereinabove. In view of the above, the impugned order dated February 6,2010 stands quashed and set aside. The learned Court below is directed to proceed with the execution case expeditiously. 9. THIS revisional application stands disposed of. 10. THERE will be, however, no order as to costs. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.