Research › Search › Judgment

Jharkhand High Court · body

2012 DIGILAW 872 (JHR)

Ramesh Kumar Jaiswal v. Kapoor Chand Jain

2012-06-27

P.P.BHATT

body2012
ORDER By this Court - Heard the learned counsel for the parties. 2. The present writ petition has been filed under Article 227 of the Constitution of India for quashing the order dated 30.6.2011 (Annexure-6) passed by the learned Subordinate Judge-I, Chatra in Execution Case No. 1/1968, whereby and whereunder, the learned court below has rejected the petitioner's application filed under Section 47 of the Code of Civil Procedure. 3. The learned counsel for the petitioner submitted that the court below has not properly considered the submissions made before it and more particularly the scope of the Section 47 of the Code of Civil Procedure as well as the judgment delivered in the Case of Jagdish Dutt and Another Vs. Dharam Pal and Others reported in (1999) SCC 644. Learned counsel for the petitioner further submitted that the petition of the judgment debtor was submitted before the Executing Court but the said application has not been properly considered by the court below and therefore this matter is required to remit back to the court below concerned for de novo consideration of the entire suit. 4. As against this, learned counsel for the respondents submitted that the court below has properly considered the entire issue and passed the reasoned order and therefore no interference is called for under Article 227 of the Constitution of India. It is further submitted that the decree of the year 1968 and the present petitioner has made attempt only with a view to obstruct and delay in execution proceeding only on this ground that the petitions preferred by the present petitioner have been rejected. 5. Learned counsel for the respondents further submitted that in similar situation another petition being WPS No. 4631 of 2010 (Manohar Kumar Jaiswal & Anr. Vs. Kapur Chand Jain and Ors.) was preferred before this Court but the said petition after careful consideration of the facts and circumstances involved in the matter, was dismissed vide order dated 14.12.2010 . It is further submitted that in the said case the decision rendered in the case of Jagdish Dutt and Anr. Vs. Dharam Pal & Ors, reported in AIR 1999 (3) SCC 644 was also decided and the matter is properly considered by the court below. It is further submitted that in the said case the decision rendered in the case of Jagdish Dutt and Anr. Vs. Dharam Pal & Ors, reported in AIR 1999 (3) SCC 644 was also decided and the matter is properly considered by the court below. It is further submitted that the petitioner by way of filing this petition has made an attempt just to delay the matter on frivolous ground and therefore this petition may be dismissed. 6. Considering the aforesaid rival submissions and from perusal of the order impugned passed by the court below, it appears that the judgment debtors have purchased part of the property from the decree holders, as stated in para 9 of the petition. It also appears that the list of documents were also produced before the executing court along with the sale deed but the court below while considering the submissions made before it, has failed to consider the scope of Section 47 CPC as well the judgment delivered in the case of Jagdish Dutt and Anr. Vs. Dharam Pal & Ors, reported in AIR 1999 (3) SCC 644 . Para 6 and 7 of the judgment, reported in (1999) 3 SCC 644 has been referred to and relied upon for the purpose of deciding this case and the same are as follows:- 6. We need not examine the scope of Section 111(d) of the Transfer of Property Act inasmuch as respondent 2 is held to be trespasser and not a lessee. We have to find out the effect of the purchase of undivided interest of some of the coparceners in the family of the decree-holder in respect of the property which is the subject matter of execution. 7. 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 n 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 n 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. 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 CPC. Order XXI Rule 15 CPC 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 an appropriate suit for partition and obtain necessary relief thereto. Various decisions cited by either side which we have referred to do not detract us from the principle stated by us as aforesaid. Therefore, a detailed reference to them is not required. 7. From perusal of order dated 14.12.2010 passed in WPC No. 4631 of 2010, referred to and relied upon by the respondent, it appears that the judgment of the Apex Court rendered in the case of Jagdish Dutt and Anr. Vs. Therefore, a detailed reference to them is not required. 7. From perusal of order dated 14.12.2010 passed in WPC No. 4631 of 2010, referred to and relied upon by the respondent, it appears that the judgment of the Apex Court rendered in the case of Jagdish Dutt and Anr. Vs. Dharam Pal & Ors, (supra) was referred before this Court but from perusal of the said order, it also appears that the ratio laid down therein has not been discussed and dealt with by this Court while deciding the said petition. It also appears that the said case was filed by one of the judgment debtor but the status with regard to said judgment debtor, as to whether they were purchaser of the property in question from the decree holder or not is not becoming clear from the order itself. Under the circumstances it can not be said that the petitioner in the said petitioner and the present petitioner are similarly situated person and the facts of the case are also similar. Each case is required to be decided on the basis of facts and circumstances of the case. Over and above the said fact, it appears that the ratio laid down in the aforesaid judgment of Jagdish Dutt and Anr. Vs. Dharam Pal & Ors (Supra) as well as the scope of Section 47 of the CPC have not been properly considered by the court below. From perusal of the order passed by the learned court below, it appears that the court below is required to deal with and decide the issue raised before it in light of certain important facts and circumstances of this case. 8. Therefore having regards to the facts and circumstances of the case, this court is of the view that the order dated 30.6.2011 (Annexure-6 of this petition) is required to be quashed and set aside and the matter is remitted back to the court below concerned for de novo consideration of the petition/applications (Annexures 1 and 2 of this petition) submitted by the Judgment Debtor (Petitioner herein) after hearing the learned counsel for the parties. The court below shall also deal with and decide the objection within six months from the date of this order. Since the decree is of the year 1968, it is expected from the parties that they will cooperate in the proceeding of the court below. 9. The court below shall also deal with and decide the objection within six months from the date of this order. Since the decree is of the year 1968, it is expected from the parties that they will cooperate in the proceeding of the court below. 9. With the above observation and direction, this writ petition stands disposed of. Petition disposed of.