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2012 DIGILAW 251 (ORI)

Nityananda Ghosh v. Sirish Chandra Dutta

2012-05-16

B.N.MAHAPATRA, V.GOPALA GOWDA

body2012
JUDGMENT B.N. Mahapatra, J. This writ appeal has been filed with a prayer to set aside the judgment dated 07.07.2011 passed by the learned Single Judge in dismissing W.P.(C) No. 17538 of 2011 in which the legality and validity of order dated 28.03.2011 passed by the learned Civil Judge (Sr. Division), Jaleswar in Execution Case No.3 of 2010 was challenged. 2. Before the learned Single Judge challenge was made to the order dated 28.03.2011 passed by the learned Civil Judge (Sr. Division), Jaleswar passed in Execution Case No.3 of 2010/Execution Case No.1 of 1988. In the said case, from order sheet dated 14.02.2011 it transpires that the Decree Holder (Dhr.) had filed an application under Order 21, Rule 22 of C.P.C. It further transpires that in the aforesaid execution application, it is averred that since the Judgment Debtor (Jdr.) did not execute the Registered Sale Deed in favour of the Dhr., prayer was made to the Court for a direction to execute the Registered Sale Deed in favour of Dhr. and to deliver possession of the suit land to the Dhr. through Court at the cost of the Dhr. It further reveals that the learned Civil Judge (Sr. Division) has directed execution of the Registered Sale Deed No.4021 dated 20.09.2007 in favour of the Dhr. as per the decree passed in the suit. The Dhr. has deposited the Commissioner’s fees, process fees as well as drumer’s fees on 05.01.2002, 15.01.2002 and 04.02.2002 respectively vide P.C.R. No.546 and 630. On the basis of these materials, learned Civil Judge allowed the petition of the Dhr. for execution of the decree as well as delivery of possession of the suit land to Dhr. A writ was issued for appointment and deputation of a Civil Court Amin Commissioner for delivery of possession of the suit land to the Dhr. The Dhr. was directed to supply necessary documents in respect of the suit land to the Civil Court Amin Commissioner for this purpose. Order dated 28.03.2011 passed by the Civil Judge (Sr. Division), Jaleswar reveals that the DHR has filed PCR of Rs.150/-vide PCR No.138/10-11 dated 28.03.2011 showing deposit of cost towards special peon cost. The learned Civil Judge directed to issue writ to appoint Amin Commissioner Sri Srustidhar Sahu and the matter was adjourned to 25.04.2011 awaiting Commissioner’s report. 3. Mr. Order dated 28.03.2011 passed by the Civil Judge (Sr. Division), Jaleswar reveals that the DHR has filed PCR of Rs.150/-vide PCR No.138/10-11 dated 28.03.2011 showing deposit of cost towards special peon cost. The learned Civil Judge directed to issue writ to appoint Amin Commissioner Sri Srustidhar Sahu and the matter was adjourned to 25.04.2011 awaiting Commissioner’s report. 3. Mr. R.C. Sarangi, learned counsel appearing for the appellant-defendant submitted that the learned Single Judge has failed to appreciate that the decision making process by the Court of learned Civil Judge (Sr. Division), Jaleswar in Execution Case No.3 of 2010/Execution Case No.1 of 1988 is not just and correct as the learned Civil Judge has passed various orders behind back of the Judgment-Debtor (JDR) without any notice to him. Petition filed under Section 47 of C.P.C. by the appellant was also disposed of behind his back. The writ was issued for delivery of possession behind the back of the appellant. It was further argued that though the record was transferred from the Court of the learned Civil Judge (Sr. Division), Balasore to the Court of learned Civil Judge (Senior Division), Jaleswar, no fresh notice has been issued and served on the appellant. Mr. Sarangi, submitted that the action of the learned Civil Judge is violative of the principles of natural justice. 4. It was further argued that the decree has been satisfied long since 1996 when the sale deed was executed by the Executing Court to satisfy the decree. There was no prayer for delivery of possession by the plaintiff-respondent in the original suit. So the Executing Court could not go beyond the decree to issue the writ of delivery of possession. In fact, possession has not yet been delivered and the present appellant is still in cultivating possession. The plaintiff-respondent filed a suit claiming to be in possession much earlier and as such he was not entitled to prosecute the execution case claiming possession over the self same land and to get possession in execution of decree. Execution Case No.1 of 2010 which was earlier pending in the court of learned Civil Judge (Sr. Division), Balasore has been dismissed due to default of decree holder on 24.08.2004. Execution Case No.1 of 2010 which was earlier pending in the court of learned Civil Judge (Sr. Division), Balasore has been dismissed due to default of decree holder on 24.08.2004. Said order of dismissal was set aside by the Executing Court in CMA No.46 of 2005 by condoning the delay in exercise of power under Section 151, C.P.C. which is challenged before different Courts and finally in W.A. No.103 of 2010 which is pending before this Court. The plaintiff-respondent having been failed to execute the decree within the specified time, his right under the same is barred and the plaintiff-respondent is not entitled to claim anything on that basis. In the meantime, plaintiff-respondent has instituted suit being C.S. Nos.1133/489/2008/2010 before the learned Civil Judge (Sr. Division), Jaleswar claiming right, title and possession over the self-same property and the said claim is yet to be decided. Thus, the plaintiff is prosecuting two proceedings before the same Court for the self-same relief and has suppressed the fact of one in other. Once the execution case is dismissed or dropped for any reason separate suit for self-same prayer is not maintainable. This order of the learned Civil Judge was challenged before the learned Single Judge in W.P.(C) No.17538 of 2011 basically on the ground that the order dated 28.03.2011 passed in Execution Case No.3 of 2010/Execution Case No.1 of 1988 is patently illegal, arbitrary and untenable as the said proceeding is non-est in the eye of law and more particularly, dispute as regards right, title and possession between parties is sought to be decided in the suit being C.S. No.1133/489/2008/2010, now pending before the learned Civil Judge (Sr. Division), Jaleswar. Placing reliance on the decision of the Hon’ble Supreme Court in the case of Ram Kumari Barnwal Vs. Ram Lakhan (dead), reported in 2007(54) AIC 52 (SC) it was submitted that the learned Single Judge should have taken into consideration the subsequent facts and events which have come into existence. The various contentions of the appellant have not been taken into consideration by learned Single Judge on the ground that the petition under Section 47 of C.P.C. filed by the JDR was rejected by the Executing Court and the same has not been challenged. 5. Mr. The various contentions of the appellant have not been taken into consideration by learned Single Judge on the ground that the petition under Section 47 of C.P.C. filed by the JDR was rejected by the Executing Court and the same has not been challenged. 5. Mr. U.K. Mohanty, learned counsel appearing for the plaintiff-respondent submitted that there is no illegality or infirmity in the impugned order dated 07.07.2011 passed by the learned Single Judge in W.P.(C) No.17538 of 2011 as well as the order passed by Civil Judge (Senior Division), Jaleswar in Execution Case No.3/2010/ Execution Case No.1/1988. 6. On the rival contentions advanced by the parties, the following questions fall for consideration by this Court: (i) Whether order dated 28.03.2011 passed by the learned Civil Judge (Sr. Division), Jaleswar in Execution Case No.3 of 2010 /Execution Case No.1 of 1988 is legally sustainable? (ii) Whether the learned Single Judge is justified to uphold the order dated 28.03.2011 passed by the learned Civil Judge in the aforesaid execution cases? 7. Since both the questions are interlinked, they are dealt with together. 8. The facts which are not in dispute are that the plaintiff-respondent filed suit being O.S. No.111 of 1976 for specific performance and the same was decreed with a specific direction to the appellant to execute the sale deed. Pursuant to the said decree, the plaintiff-respondent instituted Execution Case No.1 of 1988 before the learned Civil Judge (Sr. Division), Baleswar which was subsequently transferred to learned Civil Judge (Senior Division), Jaleswar. On 04.08.2000, Advocate for the Dhr. filed a petition praying to give possession. On 24.08.2004, the said execution case was dropped for non-appearance of either parties. However, vide order dated 16.12.2009 passed in CMA No.46 of 2005, the execution case was restored to file. The said order of restoration dated 16.12.2009 is under challenge in separate W.A. No.103 of 2010. In the meantime, the plaintiff-respondent has instituted suit being C.S. No.1133/489/2008/2010 before the learned Civil Judge (Sr. Division), Jaleswar claiming right, title and possession over the selfsame property and the said claim is yet to be decided. 9. The said order of restoration dated 16.12.2009 is under challenge in separate W.A. No.103 of 2010. In the meantime, the plaintiff-respondent has instituted suit being C.S. No.1133/489/2008/2010 before the learned Civil Judge (Sr. Division), Jaleswar claiming right, title and possession over the selfsame property and the said claim is yet to be decided. 9. On the above undisputed fact, we are of the view that the order of the Civil Judge dated 28.03.2011 passed in Execution Case No.3/2010/Execution Case No.1/1988 as well as the impugned order of the learned Single Judge dated 07.07.2011 passed in W.P.(C) No.17538 of 2011 are not sustainable in law for the following reasons: (i) Pursuant to the decree passed in O.S. No.111 of 1976, Execution Case No.1 of 1988 was filed. The said execution case was dropped vide order dated 24.08.2004 for non-appearance of both plaintiff and defendant. Subsequently, the execution case was restored to file vide order dated 16.12.2009 passed in C.M.A. No.46 of 2005 which is under challenge in W.A. No.103 of 2010 before this Court. This Court referring to Rules 105 and 106 of Order XXI and the judgment of the Hon’ble Supreme Court in the case of Damodaran Pillai and others v. South Indian Bank Ltd. reported in 2005 (II) CLR (SC)-554 has held that the order of the learned Civil Judge (Sr. Division), Balasore dated 16.12.2009 passed in CMA No.46 of 2005 is not sustainable in law. In view of the above, all subsequent orders including orders dated 14.02.2011 and 28.03.2011 passed in Execution Case Nos.03/2010/Execution Case No.01/1988 are not sustainable in law. (ii) In the meantime, C.S. No.1133/489/2008/2010 has been filed by the plaintiff-respondent claiming title and possession over the disputed land and the same is pending before the learned Civil Judge. While the above Civil Suit is pending, the Civil Judge (Senior Division), Jaleswar is not justified to pass the impugned order dated 14.02.2011 allowing the prayer of the Dhr. for delivery of possession of the suit land and issue writ to the Civil Court Amin Commissioner for that purpose. However, we express no opinion about the maintainability and merit of the aforesaid Civil Suit. 10. In view of the above, the order of the learned Civil Judge (Sr. for delivery of possession of the suit land and issue writ to the Civil Court Amin Commissioner for that purpose. However, we express no opinion about the maintainability and merit of the aforesaid Civil Suit. 10. In view of the above, the order of the learned Civil Judge (Sr. Division), Jaleswar dated 28.03.2011 passed in Execution Case No.3/2010/Execution Case No.1/1988 as well as the impugned order of the learned Single Judge dated 07.07.2011 passed in W.P.(C) No.17538 of 2011 are set aside. 11. In the result, the writ appeal is allowed, but without any order as to costs.