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2011 DIGILAW 995 (CAL)

Dibakar Bhandari v. Nakul Manna

2011-07-29

SYAMAL KANTI CHAKRABARTI

body2011
JUDGMENT Syamal Kanti Chakrabarti, J. 1. IN the present revisional application order no. 16 dated 23.03.2007, order no. 17 dated 04.04.2007 and order no. 12 dated 13.02.2003 passed by the learned Civil Judge (Junior Division), Amta in Title Execution Case No. 3 of 2001 have been assailed. 2. IT is contended on behalf of the petitioners that the aforesaid Title Execution Case No. 3 of 2001 was filed for executing a final decree dated 09.02.2001 relating to a preliminary decree dated 29.06.1990 passed in Title Suit No. 152 of 1986 passed by the learned Civil Judge (Junior Division), Amta. By such preliminary decree the learned Court below directed the defendant/judgement-debtor to execute a deed of reconveyance of the property mentioned in the preliminary decree in favour of the plaintiff at the cost of the plaintiff ignoring the provisions of Order 21 Rule 34 Sub-rule 2 CPC allowing the decree holder to have the draft sale deed executed through Court. Thus the judgement-debtor/ petitioner was denied the statutory opportunities available to him to raise objection against the contents of the sale deed which are wholly incorrect and misleading. Therefore, the said deed is invalid in the eye of law. It is further contended that while the disputed property was sold to one Dibakar Bhandari, judgement-debtor/ petitioner by Narendra Nath Manna, predecessor-in-interest of the plaintiff/ decree holder in 1974, the property was delivered in Khas to the petitioner and the judgement-debtor was in common enjoyment of the tank and in joint possession of the other property described in the schedule to the extent of 1/3rd share and the petitioner is still in possession and common enjoyment of the property delivered to him. The property sold comprises tank, agricultural land measuring .47 2/3 acre. It is further contended by the petitioner that at no point of time during and in course of the pendency of the said execution proceeding the copy of the sale deed was ever sent or served upon the judgement-debtor/ petitioner as per provision of Order 21 Rule 34(2) CPC which is mandatory. As a consequence all the orders passed by the learned Executing Court dated 04.04.2007 and 23.03.2007 are illegal and not maintainable in law and inconsistent with the provisions of Order 21 Rule 34 CPC. As a consequence all the orders passed by the learned Executing Court dated 04.04.2007 and 23.03.2007 are illegal and not maintainable in law and inconsistent with the provisions of Order 21 Rule 34 CPC. Therefore, he has prayed for setting aside those orders and the entire execution proceeding recording satisfaction of the decree in full and to set aside the sale deed executed and registered through Court in favour of the decree holder. 3. LEARNED lawyer for the opposite party on the contrary has refuted the argument and contended, inter alia, that sufficient opportunities were given to the petitioner to participate in the execution proceeding but from his conduct it will be reflected that he has relinquished his claim and subsequently did not participate in the proceeding. Therefore, the learned Executing Court had no other alternative but to proceed ex parte against him. Since opposite party intentionally has allowed the Court to proceed ex parte with full knowledge of the consequences, he cannot claim any benefit of equity or blame the Court for depriving him of the opportunity of being heard which is generally done following the principles of natural justice. Moreover, by executing and registering a deed the right, title and interest of the executor only are transferred in favour of the other party and by such transfer no better title or interest can be transferred either by the executor or by the Court which has executed the deed on behalf of the judgement-debtor who was supposed to execute the deed as per Court’s order. Therefore, the remedy of the aggrieved party for recovery of excess land by such sale deed lies in filing separate suit seeking for setting aside or modification of such title deed but no such remedy can be granted by reviving the execution proceeding which has been lawfully proceeded with and disposed of finally by the learned Executing Court. 4. FOR the purpose of better appreciation the provisions of Order 21 Rule 34 CPC are quoted below: "34. Decree for execution of document, or endorsement of negotiable instrument.- (1) Where a decree is for the execution of a document or for the endorsement of a negotiable instrument and the judgement-debtor neglects or refuses to obey the decree, the decree-holder may prepare a draft of the document or endorsement in accordance with the terms of the decree and deliver the same to the Court. (2) The Court shall thereupon cause the draft to be served on the judgment-debtor together with a notice requiring his objections (if any) to be made within such time as the Court fixes in this behalf. (3) Where the judgment-debtor objects to the draft, his objections shall be stated in writing within such time, and the Court shall make such order approving or altering the draft, as it things fit. (4) The decree-holder shall deliver to the Court a copy of the draft with such alterations (if any) as the Court may have directed upon the proper stamp-paper if a stamp is required by the law for the time being in force; and the Judge or such officer as may be appointed in this behalf shall execute the document so delivered. (5) The execution of a document or the endorsement of a negotiable instrument under this rule may be in the following form, namely:- "C.D., Judge of the Court of (or as the case may be), for A.B., in a suit by E.F. against A.B.", and shall have the same effect as the execution of the document or the endorsement of the negotiable instrument by the party ordered to execute or endorse the same. (6)(a) Where the registration of the document is required under any law for the time being in force, the Court, or such officer of the Court as may be authorised in this behalf by the Court, shall cause the document to be registered in accordance with such law. (b) Where the registration of the document is not so required, but the decree-holder desires it to be registered, the Court may make such order as it thinks fit. (c) Where the Court makes any order for the registration of any document, it may make such order as it thinks fit as to the expenses of registration." In the above legal context the manner in which the execution proceeding was conducted may now be looked into. The following orders of the learned Executing Court are examined to place on record the conduct of the judgement-debtor. 5. LEARNED lawyer for the petitioner has drawn my attention to the contents of order no. The following orders of the learned Executing Court are examined to place on record the conduct of the judgement-debtor. 5. LEARNED lawyer for the petitioner has drawn my attention to the contents of order no. 12 dated 13.02.2003 to show that on that date the learned Executing Court passed an order to the effect that since the Hon’ble High Court dismissed the appeal in connection with SAT 168 of 1993 and no stay is pending there is no legal bar to allow the execution petition. As the decree-holder filed a draft deed of reconveyance, as required under Section 34(4) the learned Court directed that the said deed be executed and registered as per schedule of the petition. Obviously such direction was given without applying the mandatory provisions of sub-Rule (2) of Rule 34 or order 21 CPC as quoted above. It appears that the Court shall cause the draft to be served on the judgement-debtor together with a notice requiring his objection, if any, to be made within such time as the Court fixes in this behalf. 6. THEREFORE, the only point for consideration in this case is that whether non-compliance of sub-Rule (2) of Rule 21 CPC will render the entire subsequent action taken by the learned Executing Court as void and illegal. In this connection the provision for issuing notice in execution case on the basis of the application should be taken into account. The relevant provision of order 21 rule 22 CPC is accordingly quoted below: "Order 21 Rule 22. Notice to show cause against execution in certain cases.- (1) Where an application for execution is made, - (a) more than two years after the date of the decree, or (b) against the legal representative of a party to the decree or where an application is made for execution of a decree filed under the provisions of section 44A. Notice to show cause against execution in certain cases.- (1) Where an application for execution is made, - (a) more than two years after the date of the decree, or (b) against the legal representative of a party to the decree or where an application is made for execution of a decree filed under the provisions of section 44A. or (c) against the assignee or receiver in insolvency, where the party to the decree has been adjudged to be an insolvent, the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him: Provided that no such notice shall be necessary in consequence of more than two years having elapsed between the date of the decree and the application for execution if the application is made within two years from the date of the last order against whom execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgement-debtor if upon a previous application for execution against the same person the Court has ordered execution to issue against him. (2) Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice. " 7. FROM the aforesaid provisions it appears that after filing of the application for execution notice is to be served upon the judgement-debtor when it is made more than two years after the date of decree. In the instant case the decree was drawn up on 12.07.1990 and the application for execution was filed on 29.09.2001 and as such it requires service of notice to fulfil the essential requirements of order 21 rule 22(a) CPC. In this connection the action taken by the learned Executing Court may be quoted as under: "Order No. 3 dated 15.01.2002. Dhrs. File hazira. Verified the execution petition with that of the suit register Requisites U/or 21, Rule 22 put in. Issue the same accordingly. Fix 25.2.2002 for S/R of notice. Sd/- S. Chakraborty." "Order No. 4 dated 25.02.2002. Dhrs. In this connection the action taken by the learned Executing Court may be quoted as under: "Order No. 3 dated 15.01.2002. Dhrs. File hazira. Verified the execution petition with that of the suit register Requisites U/or 21, Rule 22 put in. Issue the same accordingly. Fix 25.2.2002 for S/R of notice. Sd/- S. Chakraborty." "Order No. 4 dated 25.02.2002. Dhrs. file hazira, S/R of Notice. Upon J dr. received service as per process server’s report. Jdr. Appears by filing power along with advocate’s letter and daily cause list (Zero copy) of high Court. Jdr. Also files a petition praying for stay the execution case on the grounds stated therein. Copy served. Obj. noted. Heard. Considered. The Jdr. Is directed to file stay order from Hon’ble High Court Calcutta by 22.4.2002. Sd/- S. Chakraborty." "Order No. 6 dated 04.06.2002. Dhr. Files hazira along with a searching sleep of SAJ 168/99. Jdr. Takes no step. Fix 20.07.2002 for hearing and order. Sd/- S. Chakraborty." 8. THUS, from order no. 4 dated 25.02.2002 it appears that upon receipt of the notice the judgement-debtor appeared by filing power along with advocate’s letter and prayed for stay of execution of the case on the grounds of filing an objection before the Hon’ble High Court. He was given opportunity to file stay order from the Hon’ble High Court by 22.04.2002. On that date further opportunity was given to him to bring certified copy of the stay order by 04.06.2006 but he failed to bring such stay order and abstained from attending the Court and to take part in the execution proceeding with effect from 04.06.2002. Suppressing this fact the judgement-debtor has challenged the legality and propriety of the order no. 12 dated 13.02.2003 while the executing Court was proceeding ex parte against him. Therefore, the question of prejudice for violation of any principles of natural justice will not be applicable in the facts and surrounding circumstances of the above case. Learned lawyer for the opposite party has contended that the Trial Court’s judgement dated 29.06.1990 was upheld in First Appeal on 22.07.1992 and also in the Second Appeal on 22.04.2002 and as such the decree has reached its finality. Learned lawyer for the opposite party has contended that the Trial Court’s judgement dated 29.06.1990 was upheld in First Appeal on 22.07.1992 and also in the Second Appeal on 22.04.2002 and as such the decree has reached its finality. In fact, after disposal of such Second Appeal the judgement-debtor has abandoned his claim in the execution proceedings which was disposed of ex parte in exercise of the discretionary power conferred upon the learned Executing Court under order 21 Rule 22(2) CPC. Under such circumstances the learned Executing Court was not bound to issue any further notice to the judgement-debtor for the purpose of execution and registration of the sale deed which ought to have been done by the judgement-debtor himself. The purpose of serving notice under order 21 rule 34 as well as under order 21 rule 22 CPC is to prevent the miscarriage of justice and to dispose of the execution proceedings in absence of due notice upon the parties. But if at the initial stage after receipt of notice issued under order 21 rule 22 (1)(a) CPC judgement debtor abundone his claim there is no legal necessity to issue fresh notice upon him for disposal of the execution proceedings because he will not be prejudiced thereby. In this connection the provisions of Section 99 CPC should be kept in view which runs as follows: "99. Dispossession by decree-holder or purchaser.- (1) Where any person other than the judgement-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. (2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained." 9. FURTHER, learned lawyer for the petitioner has drawn my attention to the principles laid down in 2002(1) Calcutta Law Times 179 (paragraph 12). In the said case the plaintiff/decree-holder filed execution case on 29.07.1988 praying for registration of a deed of conveyance through Court and 31.07.1988 was fixed for verification. Since the decree-holder did not take any step on 31.07.1988 the next date was fixed on 31.10.1988 for order after verification. In the said case the plaintiff/decree-holder filed execution case on 29.07.1988 praying for registration of a deed of conveyance through Court and 31.07.1988 was fixed for verification. Since the decree-holder did not take any step on 31.07.1988 the next date was fixed on 31.10.1988 for order after verification. On 03.10.1988 the decree-holder filed a petition along with a draft deed of conveyance and plan which was disposed of without serving notice upon the judgement-debtor at any stage of the proceedings. Therefore, such fact is distinguished from the facts of the present case in which due notice was served upon the judgement-debtor as indicated above. Similarly, learned lawyer for the petitioner has referred to and relied upon the principles laid down in AIR 1959 Andhra Pradesh 666 which is also distinguished and I hold that the same is also not applicable in the facts and circumstances of this case. 10. THEREFORE, from the spirit of such order it appears that in executing the decree the merit of the judgement in question has not been affected in any way and the learned Executing Court, in fact, has tried to implement the direction contained in the decree which was upheld by the appellate Courts consecutively. Accordingly, I hold that if after appearance in the execution case the judgement debtor relinquishes his claim and fails to participate in such proceeding issue of second notice under sub-Rule (2) of Rule 21 CPC is not mandatory and the learned Executing Court is quite at liberty to exercise his discretionary power under Order 21 Rule 22(2) CPC and to proceed ex parte at such subsequent stage till satisfaction of the decree. In absence of failure of justice I further hold that the petitioner is not entitled to claim any relief in the instant application which is devoid of any merit. Accordingly the revisional application is dismissed. Urgent certified photocopies of this order, if applied for, be supplied to the parties, on compliance of all requisite formalities.