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2011 DIGILAW 341 (CAL)

Rajdeo Ram v. Gita Rani Sarkar

2011-03-09

DIPANKAR DATTA

body2011
JUDGMENT : 1. Journey of the judgment debtor/petitioner undertaken right from the first appellate Court till the Supreme Court to have the decree for eviction passed by the Trial Court against him on March 31, 1995 on a suit instituted in 1991 failed to yield any fruitful result. In the meanwhile, the decree-holder/opposite party put the decree into execution giving rise to Title Execution Case No.6 of 2002. After dismissal of the petition for special leave, the judgment-debtor/petitioner did not accept the decree with grace. His indomitable desire to continue to remain in possession of the suit property resulted in presentation of a petition under Section 47 of the Civil Procedure Code (hereafter the Code) dated July 29, 2006 before the executing Court, giving rise to Misc. Case No.27 of 2006. It was claimed therein that only on July 15, 2006, he came to learn that the decree-holder/opposite party was not the owner of the suit property; it was the State Government that owned the same. An order was thus prayed to declare the decree a nullity and thus not executable. 2. The decree-holder/opposite party filed his objection contending that the petition under Section 47 of the Code was nothing but a ploy of the judgment-debtor/petitioner to drag the execution proceeding. 3. The decree-holder/opposite party also filed a petition before the executing Court to decide the maintainability of the Section 47 petition filed by the judgmentdebtor/ petitioner on February 2, 2008. The said petition was taken up for consideration by the executing Court and by an order dated August 19, 2010, the Section 47 petition was dismissed on contest. 4. This order is under challenge in this application under Article 226 of the Constitution. 5. Learned advocate for the judgment-debtor/petitioner reiterated the contention raised before the executing Court to the effect that since the decree-holder/opposite party is not the owner of the suit property, the decree that he obtained is a nullity. It was further contended that the executing Court acted illegally in the exercise of its jurisdiction by dismissing the Section 47 petition without receiving evidence. It was further contended that the executing Court acted illegally in the exercise of its jurisdiction by dismissing the Section 47 petition without receiving evidence. Referring to the order sheet, it was pointed out by the learned advocate that the petition filed by the decree-holder/opposite party questioning maintainability of the Section 47 petition on the ground of limitation was taken up for consideration on August 19, 2010 and in dismissing the Section 47 petition not on the ground of limitation, but on merits, the executing Court deprived the judgment debtor/petitioner reasonable opportunity to place his version. 6. It was also contended that the plaint that was filed before the trial Court did not contain any schedule describing the suit property and there being no proper identification of the suit property, the plaint itself was liable to be rejected. The trial Court ought not to have passed the decree in respect of the property in occupation of the judgment-debtor. 7. He, accordingly, prayed for setting aside of the impugned order and for direction on the executing Court to consider the Section 47 petition on merits. 8. Learned advocate for the decree-holder/opposite party vehemently opposed this application. He contended that the Court ought not to encourage a litigant like the judgment debtor/petitioner who has been successful in thwarting a decree from being executed during the last 15 years of its existence by raising frivolous pleas one after the other. According to him, not only the Section 47 petition was barred by limitation, the same was not also not maintainable on the principles of tenant’s estoppel and constructive res judicata as enshrined in Section 116 of the Evidence Act and Explanation IV of Section 11 of the Code respectively. 9. He referred to various decisions in support of his contention that the executing Court did not commit any illegality in the exercise of its jurisdiction in dismissing the Section 47 petition and appealed to this Court to dismiss this application with exemplary costs. 10. I have beard learned advocates for the parties and perused the order impugned. The order impugned has to be tested keeping in mind the settled position of law that exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. 11. 10. I have beard learned advocates for the parties and perused the order impugned. The order impugned has to be tested keeping in mind the settled position of law that exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. 11. In the case of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman, reported in AIR 1970 SC 1475 , the Supreme Court was considering the scope of objection under Section 47 of the Code in relation to the executability of a decree and it was laid down that only such a decree can be the subject-matter of objection which is a nullity and not a decree which is erroneous either in law or on facts. Hon’ble J.C. Shah, J. (as His Lordship then was), speaking for himself and on behalf of Hon’ble K.S. Hegde and Hon’ble A.N. Grover, JJ. (as Their Lordships then were), laid down the law which runs thus: “6. A court executing a decree cannot go behind the decree between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties. 7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.” 12. As noticed above, after suffering the decree the judgment-debtor/petitioner pursued all the remedies the Code and the Constitution provided to him, albeit unsuccessfully. With the dismissal of the petition for special leave to appeal, the only remedy open to him was to take recourse to Section 47 of the Code. Like a drowning man latching on to the last straw, he did what was expected of him. The Section 47 petition was presented before the executing Court, wherein a factual issue was raised in respect of ownership of the suit property by the State. It was not the plea of the judgment-debtor that the trial Court lacked inherent jurisdiction to decide the contentious issues and, therefore, the decree passed by it was a nullity and thus not executable. It was open to the judgment debtor/petitioner to set up a plea before the Trial Court as well as the superior Courts that the decree holder is not the owner of the suit property and, therefore, no decree for eviction could have been passed against him at the instance of the decree holder. Such contention does not appear to have been raised. It matters little that the judgment-debtor/petitioner allegedly learnt about ownership of the suit property by the State on July 15, 2006. The executing Court has rightly observed that reopening of this issue would amount to going behind the decree, which is impermissible in law. 13. In this connection, it would be pertinent to refer to a decision reported in AIR 1993 Orissa 251 (Jai Raut vs. Sabitri Dei). Hon’ble B.L. Hansaria, C.J. (as His Lordship then was) while considering a similar plea had the occasion to observe that the plea of the judgment debtors in their petition under Section 47 of the Code because the property had vested in the State Government was not really available on the principle of constructive res judicata. It was observed as follows : “*****This point was thus not taken not only before the trial Court, but in the first appellate Court as well as before this Court in Civil Revision No.252 of 1974. It was observed as follows : “*****This point was thus not taken not only before the trial Court, but in the first appellate Court as well as before this Court in Civil Revision No.252 of 1974. To allow this point to be taken for the first time in the executing Court could almost be a travesty of justice and would give a very long scope to judgment-debtors who after failing at all levels during trial put up pleas of non-executability which was very much available at the time of trial, which would be totally against larger interest of the society, because a litigation fought to the end at the trial stage would be set at naught by taking pleas available earlier and not taken either knowingly or even unknowingly. If constructive res judicata were not to be applied in such a case, very few decrees would attain finality and decrees would remain paper tigers, which cannot be allowed to happen.” 14. I am convinced that the judgment-debtor/petitioner has obviously left no stone unturned to prolong the litigation and by remaining in unlawful possession of the suit property. The decree that the decree-holder/opposite party has obtained cannot be allowed to be defeated at the execution stage by going behind the decree. Even though the petition under Section 47 may not have been posted for hearing on the day it was rejected, it appears that the learned advocate for the judgment-debtor/petitioner was duly heard on its merits and the executing Court was of the view that the grounds stated in the petition were vague and baseless and it was misconceived. It was further ruled that the petition under Section 47 had been filed only to drag the execution proceeding. There is, therefore, no reason to interfere. 15. In so far as the contention raised before me regarding non-description of the suit property in the form of a schedule appended to the plaint, it is found that the suit property was fully described in paragraph 1 of the plaint and, therefore, there was sufficient compliance of Order 7 Rule 3 of the Code. 16. This application stands dismissed. The judgment-debtor/petitioner shall bear costs of this proceeding assessed at Rs. 5,000/- to be paid to the decree-holder/opposite party within a fortnight from date. 17. 16. This application stands dismissed. The judgment-debtor/petitioner shall bear costs of this proceeding assessed at Rs. 5,000/- to be paid to the decree-holder/opposite party within a fortnight from date. 17. The decree-holder/opposite party has indeed suffered for quite some time by not being able to reap the benefits of the decree. In exercise of my power conferred by Article 227, I direct the executing Court to expedite the execution of the decree. If necessary, the judgment-debtor/opposite party may be ousted from unlawful possession of the suit property and possession thereof restored to the decree-holder/opposite party by directing police assistance. 18. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties upon compliance with requisite formalities.