Research › Search › Judgment

Calcutta High Court · body

2010 DIGILAW 800 (CAL)

Parbati Charan Dey v. Surendra Kumar Kapoor

2010-07-14

KANCHAN CHAKRABORTY

body2010
Judgment :- Kanchan Chakraborty, J: 1) The Challenge in this revision application under Article 227 of the Constitution of India is to the order No. 67 dated 13.3.2006 passed by Shri S. B. Mitra, learned Judge, 11th Bench, City Civil Court at Calcutta in Title Execution Case No. 55 of 1995 by Parbati Charan Dey, one of the decree holders. The facts leading to this revision application are stated below, in short : a) The petitioner Parbati Charan Dey and others obtained a decree for recovery of possession against the Judgment Debtors (opposite party no. 18) by decree dated 16.3.1978 in Title Suit no. 202 of 1972 passed by the learned Judge 11th Bench City Civil Court at Calcutta on the ground of expiry of lease. The said decree was confirmed by the Hon’ble High Court by Judgement dated 18.11.1987 in appeal from original decree no. 457 of 1978. The petition Parbati Charan Dey and some other Decree Holders jointly put that decree in execution being Title Execution case no. 55 of 1995 in the Court of learned Judge 11th Bench City Civil Court at Calcutta under Order 21 Rule 15 of the Civil Procedure Code. The present Opposite parties no. 1 and 2, i.e., Kapoors filed another Execution Case being Title Execution case No. 133 of 1999 under Order 21 Rule 15 of the Code of Civil Procedure on the ground that they were in possession of part of the suit premises since before the institution of the suit and that they also purchased 10/28th share of the suit premises from some of he Decree Holders and thereby they became joint decree holders. The Title Execution Case No. 55 of 1995 and Title Execution case No. 133 of 1999 are being proceeded with analogously in the Court of learned Judge 11th Bench City Civil Court at Calcutta. b) The opposite parties no. 1 and 2 i.e., the Kapoors filed an application under Section 151 of Civil Procedure Code in Title Execution No. 55 of 1995 on 12.12.2005 and prayed for Execution of the decree of recovery of possession evicting the tenants leaving aside their actual possession, over 10/28th share in the suit premises, and for appointment of an Engineer Commissioner to construe the actual area of possession of the tenants. That application was opposed by the present petitioner who filed a written objection against that petition. That application was opposed by the present petitioner who filed a written objection against that petition. c) The learned Judge 11th Bench City Civil Court at Calcutta heard the application and vide order no. 67 dated 13.3.2006 allowed the prayer of the present opposite party no. 1 and 2 holding, inter alia, that both the Execution cases being Title Execution case no. 55 of 1995 and Title Execution No. 133 of 1999 be proceeded leaving aside the actual possession of the Opposite parties no. 1 and 2 being the coowners of the suit premises to the extent of 10/28th share therein. d) Being dissatisfied with and aggrieved by the said order dated 13.3.2006, this revision application has been filed challenging the correctness, legality and propriety of the order. The petitioner raised many points but the main thrust was that the Execution case initiated by the opposite parties 1 and 2 being Execution case no. 133 of 1999 was not maintainable under Order 21 Rule 15 of the Civil Procedure Code since the said Execution case was not filed by them for the benefit of all the Decree Holders but for securing their possession only in the suit premises which is not allowed under the provision of law. 2) Mr. Kashinath De, the learned Advocate appeared on behalf of the petitioner contended that the Kapoors i.e., opposite parties no. 1 and 2 obviously have stepped into shoes of the some of the Decree Holders by virtue of purchase by 10/28th share of the suit premises and acquired a right to put the decree in execution by invoking the provision under Order 21 Rule 16 of the Civil Procedure Code. But, they can not and must not keep their purchased share intact outside the scope of execution of the decree already drawn in respect of the entire suit property. He has drawn my attention to the page 5 of the judgement under challenge passed by the learned Judge 11th Bench City Civil Court at Calcutta and submitted that the learned Judge observed clearly that the Kapoors have the equal right with the other co-owners of the suit premises to execute the decree jointly and wholly. If, so, there was no reason for the learned Judge to allow the prayer of Kapoors for leaving aside their actual possession in the portion of the suit premises outside the purview of execution of the decree. If, so, there was no reason for the learned Judge to allow the prayer of Kapoors for leaving aside their actual possession in the portion of the suit premises outside the purview of execution of the decree. Mr. Dey referred to the decision of the Apex Court in Jagdish Dutta and others Vs. Parimal Pal and others, reported in (1999) 3 Supreme Court Cases 644 and an old decision of the Madras High Court reported in AIR 1929 Madras 599 in support of his contention. 3) Mr. Mitra, learned Counsel appeared on behalf of the opposite parties 1 and 2 contended that the petition filed by the Kapoors was under Section 151 Civil Procedure Code not under Order 21 Rule 16 of the Code. The learned Trial Court exercised its inherent power and found it justified to keep to 10/28th share of Kapoors outside the scope of execution. There was no illegality or incorrectness in such order. 4) Before discussing further, It would be expedient to look at the relevant provisions of law – Order 21 Rule 15 says :- “R. 15 Application for execution by joint decree-holder- (1) Where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or, where any of them has died, for the benefit of the survivors and the legal representatives of the deceased. (2) Where the Court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interests of the persons who have not joined in the application. R. 16. (2) Where the Court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interests of the persons who have not joined in the application. R. 16. Application for execution by transferee of decree – Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it; and the decree may be executed in the same manner and subject to the same conditions as if the applications were made by such decree holder: Provided that, where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor, (C,GAU) and the decree shall not be executed until the Court has heard their objections (if any) to its execution (OR, P) Provided also that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the others (B, G), (Explanation – Nothing in this rule shall affect the provisions of Section 146, and a transferee of rights in the property, which is the subject-matter of the suit, may apply for execution of the decree without a separate assignment of the decree as required by this rule).” 5) The unequivocal language of the Order 21 Rule 15 and Rule 16 of the Code leaves no room of doubt that a purchaser of decreetal property or part of it is competent to put the decree in execution. In fact, the Kapoors initiated one Execution Case being No. Title Execution Case No. 133 of 1999 under Order 21 Rule 15 of the Code which is being proceeded analogously with Title Execution Case No. 55 of 1995 initiated by some other decree holders. 6) A conjoint reading of Rule 15 and Rule 16 of Order 21 makes it abundantly clear that whenever one of the several decree holders puts the decree in execution, it should be for the execution of the whole decree for the benefit of all the decree holders. 6) A conjoint reading of Rule 15 and Rule 16 of Order 21 makes it abundantly clear that whenever one of the several decree holders puts the decree in execution, it should be for the execution of the whole decree for the benefit of all the decree holders. The Code does not provide such a decree holder to get the decree executed keeping his share intact outside the scope of execution at the detrimental to the interest of the Co-decree holders. 7) The decree in question has already been drawn in respect of the portion under possession of the Judgement Debtor JhunJhunwala which is the subject matter of the suit. That portion is owned by several persons including Kapoors who purchased some of its shares for some Co-decree holders. The decreetal property is indivisible as the shares of decree holders therein have not been apportioned. It is not at all clear whether or not the decree holders who alleged to have sold some portion of the decreetal properties to Kapoors actually had right to sell that much share in the suit property. The decree drawn up by the Trial Court would be of no use if it is executed partly by keeping Kapoors undivided and undetermined interest/share outside its scope. 8) It is settled principle of law that the executing Court can neither travel beyond the decree not it can create a new decree by way of changing the nature and character of the decree. The Kapoors are not Judgement Debtors. It was JhunJhunwala who have not purchased the share of disputed property and wanted to put the decree in execution. Kapoors have not also purchased the shares of Judgement Debtor Jhunjhunwala. In the facts above, the proposition of Mr. De finds support from the decisions of Apex Court and the Madras High Court referred to earlier. 9) It appears to me that there was no scope for the learned Court to exercise inherent power under Section 151 Civil Procedure Code in such a circumstance where there is specific provision and remedy for a third party purchaser to put the decree in execution under Order 21 rule 16 of the Code. I unable to accept the contention of Mr. Mitra in this respect. I unable to accept the contention of Mr. Mitra in this respect. 10) The learned executing Court in the order under challenge observed – “ The order No. 36 dated 4.6.2001 passed by my learned predecessor declaring that both Title Execution Case No. 55 of 1995 and Title Execution Case No. 133 of 1999 to be heard analogously also clarified the confusion and removed the ambiguity as there can not be any confusion further with the petitioners being the transferee decree holders by virtue of purchase of 10/28th part of the suit property, they have the equal right with that of the co-owners of the suit premises to execute the decree jointly and wholly.” 11) It transpires from the observation above of the learned executing Court that the Kapoors being transferee decree holders have equal right with other co-owners of the suit premises to execute the decree jointly and wholly. But, in fact, Kapoors have filed the petition under Section 151 of the Code praying for executing the decree keeping their 10/28th purchase share in the decreetal property outside the scope of execution. Therefore, the observation of the learned executing Court and prayer under Section 151 of the Code are found contradictory to each other. 12) In the premises above, I am of the opinion that the learned Court erred in allowing the prayer under Section 151 Civil Procedure Code. 13) Accordingly the revision application succeeds. The order No. 67 dated 13.3.2006 in Title Execution No. 55 of 1995 is set aside. No order as to cost is passed. Urgent Photostat certified copy of the judgment, if applied for, be handed over to the parties on compliance of necessary formalities.