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2010 DIGILAW 559 (GAU)

Kshitish Nandi v. Manada Dhar

2010-08-10

UTPALENDU BIKAS SAHA

body2010
JUDGMENT U.B. Saha, J. 1. The instant application under Article 227 of the Constitution of India read with Section 151 of the Code of Civil Procedure is filed for quashing/cancelling and/or setting aside the order dated 11.5.2010 passed in Case No. Ex.(T) 18/2001 arising out of a decree passed in Title Suit No. 10/1979 whereby and where under the Executing Court refused to hear the application dated 5.5.2010 filed by the Petitioner-judgment debtor under Order XXI, Rule 16 even after an application filed on 10.5.2010 for hearing the aforesaid application dated 5.5.2010. 2. Heard Mr. K.N. Bhattacharjee, learned senior counsel assisted by Mr. S. Acharjee, learned Counsel for the Petitioner-judgment debtor as well as Mr. A.M. Lodh, learned senior counsel assisted by Mr. M. Dutta, learned Counsel for the Respondents. 3. As agreed to by the learned Counsel for the parties, the instant revision petition is taken up for disposal at this admission stage. 4. Brief facts need to be discussed for disposal of the instant revision petition are as follows: - 5. The Respondents filed a suit being TS 10/1979 before the learned Civil Judge, (Senior Div.) North Tripura, Dharmanagar for recovery of possession of the suit land described in the Schedule to the plaint, inter alia, the suit land is situated in Mouja-Dharmanagar town. It is now recorded in the name of Defendant under Khatian No. 2741, Dag No. 6027, Area 0.19 acres from the present Petitioner-judgment debtor. Upon hearing the parties, the suit was ultimately decreed by the, Area learned Civil Judge, (Senior Div.) and consequent thereto the present judgment debtor filed appeal before the learned District Judge and thereafter on dismissal of the said appeal the Petitioner judgment debtor filed a second appeal before this Court which has also been dismissed being the decree of the court below became final with the seal of this Court in the second appeal. At the final decree, the decree-holder, Respondents herein, moved the court below for execution of the decree and accordingly a case was registered being Execution Case Ex.(T) 18/2001 and when the execution case was in progress the judgment debtor, Petitioner herein, on 17.9.2007 purchased a part of the decreetal land measuring 0.003 acres, i.e., the pathway, which was under his possession before filing the suit, from one of the decree-holders namely, Sri. Ajit Rn. Ajit Rn. Dhar @ Hira Dhar, Respondent No. 7 herein, by a registered sale deed at the price of Rs. 90,000 and being transferee of the decreetal land he steps into the shoes of a transferor-decree-holder and became a real decree-holder, so, that he cannot be deprived from using the path way. Thereafter, the Petitioner filed an application under Order XXI, Rule 16, Code of Civil Procedure on 5.5.2008 for considering the fact regarding the transfer of the decreetal land and to treat him as a decree-holder and dispose the execution case in accordance with law. 6. As the said petition under Order XXI, Rule 16 was not taken up he again filed an application on 10.5.2010 for hearing the aforesaid application dated 5.5.2008. On 11.5.2010 the Executing Court upon hearing the learned Counsel for the parties passed the impugned order stating, inter alia, that there is no scope for re-examining the issue raised by the judgment debtor in his application dated 5.5.2010 filed under Order XXI, Rule 16, Code of Civil Procedure on merit and accordingly the said application of the judgment debtor dated 10.5.2010 has been rejected. Being aggrieved by the aforesaid order of the Executing Court the Petitioner preferred this revision petition. 7. The decree-holder Respondents objected the prayer of the Petitioner for setting aside the impugned order, by way of filing objection. In their objection the decree-holders contended that admittedly the decree was not passed in favor of the Petitioner with the Respondents decree-holders and he allegedly purchased a portion of the decreetal land during the pendency of execution case from one of the decree-holders and even after alleged purchase he filed one after another revision petition before this Court and at last the present Petitioner earlier filed a revision petition being No. CRP 21/2010 before this Court which was disposed of on 30.4.2010 wherein it is stated, inter alia, that since there is an order of status quo passed by the learned Civil Judge. Jr. Div. the learned Executing Court is directed to maintain the status quo as regards the possession of the suit property till the Misc. Case 22/2010, i.e., application seeking injunction arising out of Title Suit (P) 05/2010 is disposed of. The learned Civil Judge, Jr. Div. was also directed to decide the said injunction application filed in the suit on 7.5.2010, i.e., the date fixed for consideration. Case 22/2010, i.e., application seeking injunction arising out of Title Suit (P) 05/2010 is disposed of. The learned Civil Judge, Jr. Div. was also directed to decide the said injunction application filed in the suit on 7.5.2010, i.e., the date fixed for consideration. It is further stated that it is needless to say that the Executing Court depending upon the order that may be passed by the learned Civil Judge, Jr. Div. may proceed with the execution proceeding. 8. Mr. Bhattacharjee while praying for setting aside the impugned order would contend that the Executing Court failed to apply its mind properly on the application filed by the Petitioner under Order XXI, Rule 16, Code of Civil Procedure as well as the order of this Court dated 30.4.2010 in CRP 21/2010. He further contended that this Court nowhere in its order stated that the Executing Court is debarred from considering an application filed under Order XXI, Rule 16 of the Code of Civil Procedure being that was not the subject-matter before this; court in the earlier revision petition. Rather this Court while disposing the revision petition left the matter before the Executing Court for passing an order depending upon the order that may be passed by the learned Civil Judge, Jr. Div. in Misc. Case 22/2010, i.e., injunction petition filed by the present Petitioner in TS (Partition) 05/2010. He finally contended that the Executing Court also failed to consider the object of Order XXI, Rule 16 of the Code of Civil Procedure. Rule 16 of Order XXI prescribes that a judgment debtor can be a transferee of a decree-holder in view of the transfer of the decreetal land to the judgment debtor and in the instant case admittedly Respondent No. 7, one of the decree-holders transferred his share to the present Petitioner. Hence, the Petitioner-judgment debtor became a transferee decree-holder and created rights in his favour to file an application under Order XXI, Rule 16 and the Executing Court is bound to dispose of the same on merit, unless prohibited either by a provision of the statute or by a court of law higher in side. In the instant case, none of the aforesaid conditions existed while the Executing Court passed the order. Hence, on that count also the Executing Court failed to exercise the jurisdiction vested on it. In the instant case, none of the aforesaid conditions existed while the Executing Court passed the order. Hence, on that count also the Executing Court failed to exercise the jurisdiction vested on it. Finally, he submits that it is the admitted position that the present Petitioner purchased land measuring 0.003 acres from one of the decree-holder and, thus, the decree itself is a joint decree and the present Petitioner became a transferee decree-holder and admittedly filed a partition suit, and as a result till the partition is disposed of the Executing Court is barred to proceed with the execution proceeding in question. In support of his aforesaid contention he placed reliance on a decision of the Apex Court in Jagdish Dutt and Anr. v. Dharam Pal and Ors. (1999) 3 SCC 644 . 9. Per contra, Mir. Lodh, learned senior counsel for the Respondents while resisting the contention of Mr. Bhattacharjee, contended that in view of the order of this Court dated 30.4.2010 in CRP 21/2010 the Executing Court rightly refused to hear the aforesaid application dated 10.5.2010 under Order XXI, Rule 16 and the subsequent petition for hearing of the application as this Court in its order specifically mentioned that the Executing Court depending upon the order in Misc. Case 22/2010 may proceed with the execution proceeding meaning thereby the Executing Court was given liberty to proceed with the execution case. 10. Mr. Lodh again submits that as the decree having not passed jointly, the petition, under Order XXI, Rule 16 has no application, more so, even if for argument sake it is admitted that the Petitioner purchased a part of the decreetal land then also the execution of the decree as a whole cannot be stalled as the total decretal land is more than the alleged purchased portion of the decretal land by the Petitioner and on that count also the present revision petition is not maintainable. 11. Mr. Lodh further submits that the judgment of the Apex Court in Jagdish Dutt and Anr. 11. Mr. Lodh further submits that the judgment of the Apex Court in Jagdish Dutt and Anr. (supra) has no bearing so far the instant executing proceeding is concerned as the Petitioner in his petition under Order XXI Rule 16 nowhere mentioned regarding the filing of the partition suit and the court below also did not get any opportunity to consider the said aspect and until and unless the Petitioner in his petition places the facts relating to the partition suit before the Executing Court, the Executing Court cannot be blamed for not deciding the said issue while refusing to consider the application under XXI, Rule 16. 12. Having heard the learned Counsel for the parties and on going through the records available before this Court including the provisions of law and the law report cited, it appears that the Petitioner-judgment debtor allegedly purchased a portion of the decreetal land measuring 0.003 acres from one of the joint decree-holders, Respondent No. 7 herein, and is entitled to file an application under Order XXI, Rule 16 as he allegedly purchased a part of decreetal land which is the subject-matter of the Execution Case. There is no doubt that the right of transferee-decree-holder cannot be equated with the transferor decree-holder relating to remaining decreetal land except the portion transferred. It further appears that the objection filed by the Respondents is on the ground that the decree as not passed jointly, not with clear denial that the Petitioner did not purchase a part of the decreetal land. However, it would not be proper for this Court to make any observation whether a part of the decreetal land purchased by the present Petitioner from the Respondent No. 7 or not as the said fact will be decided either by the Executing Court or by the court below with whom the partition suit being No. TS (P) 05/2010 is pending. 13. This Court by it Order dated 30.4.2010 in revision petition No. 21/2010 nowhere stated that an application filed by the judgment debtor alleged to be a transferee decree-holder is not entitled to file an application under Order XXI, Rule 16, Code of Civil Procedure and the same also cannot be considered by the Executing Court. Rather this Court left the matter to the Executing Court stating, inter alia, the Executing Court depending upon the order in Misc. Rather this Court left the matter to the Executing Court stating, inter alia, the Executing Court depending upon the order in Misc. Case 22/2010 passed by the learned Civil Judge, Jr. Div. may proceed with the Execution proceeding. 14. Admittedly, against the order passed by the learned Civil Judge, Jr. Div. in Misc. Case 22/2010 arising out of TS (P) 05/2010 the present Petitioner filed a miscellaneous appeal before the Addl. District Judge, Dharmanagar which was also dismissed and a partition suit between the Petitioner and the Respondents is pending before the learned Civil Judge, Jr. Div. Therefore, it cannot be said that the Petitioner is fully barred from getting a hearing on an application filed under Order XXI, Rule16 of the Code of Civil Procedure. 15. Order XXI, Rule 16 postulates first that a decree has been passed and consequently that the decree has been transferred (i) by assignment in writing, or (ii) by operation of law. Not only that, the conditions for execution by the transferee of a decree are that transfer must be made by assignment in writing or by operation of law and the application must be made to the court which passed the decree and in the case of transfer by assignment and not by operation of law, the Executing Court is to issue notice to the transferor being Rule 16 is for the protection of right of transferee as he steps in to the shoes of the decree-holder transferor and is entitled to execute the decree relating to the alleged purchase of the decretal land unless some other person shows that he has a better right over the land than the right of the transferee. 16. In Jagdish Dutt and Anr. 16. In Jagdish Dutt and Anr. (supra) the Apex Court, while considering a suit relating to ejectment as was instituted by the Appellants therein on the grounds of arrears of rents and sub-lettings by Respondents Dharam Pal and Sat Pal, noted that the case of Sant Lal Jain v. Avtar Singh (1985) (2) SCC 332 will not be of any assistance to the Appellants of the said case as in that case during the term of tenancy or in the suit for recovery of possession thereof, after termination of such tenancy the tenant cannot be set up title in himself and he has to surrender possession on tenancy being terminated and he has to seek his remedy separately in case he acquires title subsequent to the decree through some other person and that he need not do so if he had acquired title to the property from the lessor or someone claiming through him in which case there would be a merger of two rights. It is also noted that in Sant Lal Jain (supra) the original owner had leased the property which was held by the licensee through the lessee; that a sale had been effected in favour of the licensee but the lease in favour of the original lessor was continued; that his interest was different from that of the original owner which was transferred to the licensee and, thus, there would be no merger of interests. 17. In para 7 of Jagdish Dutt and Anr. (supra) the Apex Court noted that "when a decree is passed in favour of a joint family the same has to be treated as a decree in favour of all the members of the joint family in which event it becomes a joint decree. Where a joint decree for actual possession of immovable property is passed and one of the coparceners assigns or transfers his interest in the subject-matter of the decree in favour of the judgment-debtor, the decree gets extinguished to the extent of the interest so assigned and execution could lie only to the extent of remaining part of the decree. Where a joint decree for actual possession of immovable property is passed and one of the coparceners assigns or transfers his interest in the subject-matter of the decree in favour of the judgment-debtor, the decree gets extinguished to the extent of the interest so assigned and execution could lie only to the extent of remaining part of the decree. In case where the interest of the coparceners is undefined, indeterminate and cannot be specifically stated to be in respect of any one portion of the property, a decree cannot be given effect to before ascertaining the rights of the parties by an appropriate decree in a partition suit" (emphasis supplied). It is no doubt true that the purchaser of the undivided interest of a coparcener in an immovable property cannot claim to be in joint possession of that property with all the other coparceners. However, in case where he is already in possession of the property, unless the rights are appropriately ascertained, he cannot be deprived of the possession thereof for a joint decree-holder can seek for execution of a decree in the whole and not in part of the property. A joint decree can be executed as a whole since it is not divisible and it can be executed in part only where the shares of the decree-holders are defined or those shares can be predicted or the share is not in dispute. Otherwise the Executing Court cannot find out the shares of the decree-holders and dispute between joint decree-holders is foreign to the provisions of Section 47, Code of Civil Procedure. Order XXI, Rule 15, Code of Civil Procedure enables a joint decree-holder to execute a decree in its entirety but if whole of the decree cannot be executed, this provision cannot be of any avail. In that event also, the decree-holder will have to work out his rights in appropriate suit for partition and obtain necessary relief thereto. 18. Order XXI, Rule 15, Code of Civil Procedure enables a joint decree-holder to execute a decree in its entirety but if whole of the decree cannot be executed, this provision cannot be of any avail. In that event also, the decree-holder will have to work out his rights in appropriate suit for partition and obtain necessary relief thereto. 18. In the instant case, it is the admitted position that a partition suit is filed by the Petitioner-judgment debtor, transferee decree-holder and the subject-matter relating to the decreetal land being pending in the civil court in partition suit, prima facie an application under Order XXI, Rule 16can be filed by a transferee like the Petitioner-judgment debtor but what would be the fate of the said application is a separate issue, more so, it would be improper to express any opinion regarding the facts relating to the partition suit by this provisional court being those are not the subject-matter of this revision. But obviously when the order impugned is challenged and the learned Counsel for the parties make submission regarding partition suit, the court has to take note of that fact and for that reason those facts are discussed in brief herein. 19. Fact remains, the impugned order passed by the court below is not supported by any law as prescribed and was not passed after proper application of mind and also misinterpreted the judgment of this Court. Not only that the court also denied to exercise the powers vested in it, as a result a justice seeker was denied justice. 20. In view of the above, this Court is constrained to hold that the impugned order not sustainable in the eye of law and is liable to be set aside. Accordingly, the same is set aside and the learned Executing Court is directed to hear the application dated 5.5.2008 filed by the present Petitioner under Order XXI, Rule 16 Code of Civil Procedure on merit for doing substantial justice as the said provision is prescribed by the Legislature to protect the right of a transferee, like the Petitioner-judgment debtor herein. 21. While disposing of the application under Order XXI, Rule 16 Code of Civil Procedure the Executing Court should also take note of the fact that the present Petitioner filed a partition suit relating to the part of the decreetal land which is pending before the learned Civil Judge, Jr. Div. 21. While disposing of the application under Order XXI, Rule 16 Code of Civil Procedure the Executing Court should also take note of the fact that the present Petitioner filed a partition suit relating to the part of the decreetal land which is pending before the learned Civil Judge, Jr. Div. Dharmanayar. It is made clear that while considering the aforesaid application, the Executing Court should not be influenced by this order, it should pass order on application dated 5.5.2008 in accordance with law, and till the order is passed in the said application, the execution proceeding so far as relating to the alleged purchased decreetal land measuring 0.003 acres, which is the subject-matter of the aforesaid petition, shall remain stayed. 22. In the result, the instant revision petition is allowed. Petition allowed