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2013 DIGILAW 565 (JHR)

Krishna Kumar Agrawal v. Droupadi Devi Modi

2013-04-30

P.P.BHATT

body2013
ORDER 1. The petitioner, by way of the present petition, under Article 227 of the Constitution of India has prayed for issuance of an appropriate writ/order/direction for quashing and setting aside the order dated 16th January, 2013 (Annexure-6), whereby the petition of the Judgment Debtor dated 11.06.2012 (Annexure-4) filed under Section 47 of the Code of Civil Procedure has been rejected at the time of admission. 2. Heard the learned counsel for the petitioner as well as respondent. 3. Perused the impugned order as well as other materials placed on record. 4. The learned counsel for the petitioner submitted that the application filed under Section 47 of the Code of Civil Procedure before the executing court was maintainable as the inherent jurisdiction for passing a decree was questioned by the petitioner. According to the learned counsel for the petitioner, the suit was filed under Section 11 (1) (e) of the Bihar Building (Lease, Rent and Eviction) Control Act and there is no provision for recovery of possession of fixture, fittings and furnitures, provided under Section 14 of the Bihar Building (Lease, Rent and Eviction) Control Act and therefore, special procedure prescribed under Section 14 of the Bihar Building (Lease, Rent and Eviction) Control Act is not applicable to the relief, which has been sought in the suit. According to the learned counsel for the petitioner, the court below failed to appreciate this aspect of the matter and thereby rejected the application filed under Section 47 of the Code of Civil Procedure. The learned counsel for the petitioner by referring Section 47 of the Code of Civil Procedure further submitted that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit and therefore, it was the duty of the executing court to entertain the said application and decide the same in accordance with law. It is further submitted that the said application was not registered as a Miscellaneous case and without registering the said application as a Miscellaneous case, the court below dismissed the same and therefore, such cause is not open to the court below under Section 47 of the Code of Civil Procedure. It is further submitted that the said application was not registered as a Miscellaneous case and without registering the said application as a Miscellaneous case, the court below dismissed the same and therefore, such cause is not open to the court below under Section 47 of the Code of Civil Procedure. It is further submitted that the application filed under Section 47 of the Code of Civil Procedure cannot be rejected in limine without registering it as a miscellaneous case. The learned counsel for the petitioner in support of his contentions, has referred to and relied upon the following case laws : - (i) AIR 1951 Patna 372; (ii) (1973) 2 SCC 474 ; (iii) AIR 1990 Punjab & Haryana 92. The learned counsel for the petitioner further submitted that the application filed under Section 47 of the Code of Civil Procedure can not be summarily dismissed. It is always open to the Court to which a petition is presented to consider it on its own merit at the time of presentation. In this context, the learned counsel for the petitioner has also placed reliance upon one Circular, issued by the Patna High court, which was also referred by the learned counsel for the Respondent. 5. As against that, the learned counsel for the respondent supported the order passed by the court below and submitted that the court below has rightly and properly rejected the application filed under Section 47 of the Code of Civil Procedure. It is further submitted that the suit was filed by the plaintiff for a decree for eviction of the defendant from the suit premises described in Schedule 'A' and 'B'. The learned counsel for the respondent by referring the averments made in the Eviction (Title) Suit No. 10 of 2006, submitted that in paragraph-2, specific averments were made to that effect. The learned counsel for the respondent also referred to the judgment and decree passed by the court below (Annexure-A to the counter affidavit) and by referring paragraph 8 of the said judgment, it is submitted that the suit was decreed in favour of the plaintiff in respect of the suit premises described in Schedule 'A' and 'B'. It is further submitted that the furnitures, fixtures and fittings are the part of the building and the Eviction from the building is presupposes the inclusion of furnitures, fixtures and fittings. It is further submitted that the furnitures, fixtures and fittings are the part of the building and the Eviction from the building is presupposes the inclusion of furnitures, fixtures and fittings. It is further submitted that the petitioner has not preferred any revision against the said judgment and now before the executing Court, the petitioner is questioning the legality and validity of the judgment and decree passed by the court below, which is not open and permissible, as there was no jurisdictional error committed by the court below. The learned counsel for the respondent in support of his submissions has placed reliance on the following case laws : - (i) 1998 (1) P.L.J.R. 341 ; (ii) AIR 2001 SC 1387 ; (iii) AIR 1970 SC 1475 ; (iv) 2009 (1) CCC 50 (SC); (v) (2013) SCCR 178. The learned counsel for the respondent has also referred to and relied upon the guidelines issued by the Registrar of the Patna High Court to show that the general guidelines were issued by the Patna High Court as to how the application filed under Section 47 of the Code of Civil Procedure are required to be dealt with. According to the learned counsel for the petitioner, there is no mandatory provision under Section 47 of the Code of Civil Procedure that the application filed under Section 47 of the Code of Civil Procedure is required to be registered as a Miscellaneous case. If there is no substance in such application, such application can be disposed of at an initial stage without registering it as a miscellaneous case. The learned counsel for the respondent further submitted that the point regarding jurisdiction was never raised by the petitioner before the court below at any point of time and now after passing of the judgment and decree, it is not open for the petitioner to raise such an issue before the executing court by filing the application under Section 47 of the Code of Civil Procedure, when the judgment and decree passed by the court below was not challenged by way of filing revision. The learned counsel for the respondent further submitted that leave to contest the suit was also refused by the court below and being aggrieved and dissatisfied with the said order, the petitioner has approached this Court by way of filing W.P. (C) Nos. The learned counsel for the respondent further submitted that leave to contest the suit was also refused by the court below and being aggrieved and dissatisfied with the said order, the petitioner has approached this Court by way of filing W.P. (C) Nos. 6778 of 2007 with W.P. (C) No. 6785 of 2007 and the case was remanded to the court below for de novo hearing of the matter and thereafter, the court below passed an order in accordance with law and thereby declined to grant leave to defend to the petitioner and being aggrieved and dissatisfied with the said order, the petitioner preferred W.P. (C) No. 3394 of 2010 and the said petition was came to be dismissed by order dated 30th November, 2010. It is further submitted that against the said order, no appeal was preferred by the petitioner till date. 6. Considering the aforesaid rival submissions and on perusal of the materials placed on record, it appears that the petitioner is aggrieved by the rejection/dismissal of the application filed U/s 47 of the Code of Civil Procedure. The arguments advanced by the learned counsel for the petitioner referred hereinabove, cannot be accepted for the simple reason that there is no mandatory provision U/s 47 that the application filed U/s 47 of the Code of Civil Procedure is required to be registered as a miscellaneous case and only thereafter, it can be disposed of. The guidelines issued by the Patna High Court U/s 47 of the Code of Civil Procedure, based on the Division Bench judgment reported in AIR1951 Patna 372 also does not indicate to that effect. The judgment and decree passed in eviction (Title) Suit No. 10 of 2006 was never challenged by the petitioner by way of filing revision. It also appears that the question with regard to jurisdiction was never raised by the petitioner during the pendency of the suit and therefore, the court below after taking into consideration all the relevant materials placed before it rejected the application filed U/s 47 of the Code of Civil Procedure as there was no merit in the said application. It also appears that the question with regard to jurisdiction was never raised by the petitioner during the pendency of the suit and therefore, the court below after taking into consideration all the relevant materials placed before it rejected the application filed U/s 47 of the Code of Civil Procedure as there was no merit in the said application. The contention raised by the learned counsel for the petitioner that the court below has not properly considered the powers vested with it U/s 47 of the Code of Civil Procedure cannot be accepted as the order passed by the court below clearly indicates that the court below, after careful consideration of all the relevant facts and circumstances involved in the matter and after careful examination of the evidences including the proposition of law, which is provided U/s 47 of the Code of Civil Procedure, has dealt with and decided the said application. I have also perused the judgment referred to and relied upon by the counsel for the petitioner in the case of Dasrathi Rai Chaudhury Vs Kali Charan Ghosh reported in AIR 1951 Patna 372, in Para – 18 provides as under:- “18. ……………There is no authority for the proposition that an application under S. 47 should not be summarily dismissed. It is always open to a Court to which a petition is presented to consider it on its merits at the time of the presentation. If it is clear that the contentions raised in the petition have no merits, it is not right that public time and money should be wasted and the opposite party harassed and put to additional expense by deferring the passing of orders until both parties have been heard at length. It is necessary, however, that the party filing the application should have a full hearing on the points raised and, where necessary, should be given an opportunity of establishing them. So far as an objection concerns a pure matter of law, it is possible that the matter may be so clear that the Court will have no difficulty in coming to a decision on the point at once. ………………………………” The above referred case law clearly provides that there is no authority for the proposition that an application U/s 47 should not be summarily dismissed. Therefore this judgment does not help to the petitioner’s case. ………………………………” The above referred case law clearly provides that there is no authority for the proposition that an application U/s 47 should not be summarily dismissed. Therefore this judgment does not help to the petitioner’s case. The learned counsel for the petitioner has also cited a judgment in the case of M/s Woolways, Shop-cum-Office, Chandigarh & Ors. Vs. Central Bank of India Chandigarh & Ors. reported in AIR 1990 Punjab & Haryana 92 and relied upon para – 4 of the said judgment which provides as under:- “4. ……………Under S.47 of the Code of Civil Procedure, all objections relating to execution, satisfaction and discharge of a decree have to be decided by the Court executing the decree and not by a separate suit. The objections under S.47 of the Civil Procedure Code should not have been disposed of summarily. The executing Court is not enjoined by the statute to frame issues and dispose of the same in the same manner as a suit, nevertheless the executing Court is under obligation to decide the dispute in a judicial manner. If the parties want to lead evidence, he ought to have allowed them an opportunity………………” The above referred case law also doesn't help to the petitioner's case as it is held in the aforesaid decision that the executing court is not enjoined by statute to frame issue and dispose of the same in the manner as a suit. The only requirement/obligation cast upon the Court is to decide the dispute in a judicial manner and that has been done in the present case. But in view of the facts and circumstances discussed hereinabove, the said judgments have no bearing and application to the facts of the present case and they are of no help to the petitioner. I have also perused the judgments which has been referred to and relied upon by the learned counsel for the respondent and the ratio laid down in the said judgment is relevant and applicable to the facts and circumstances of the case. Para 7 of the judgment of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman reported in (1970) 1 SCC 670 provides as under:- “7. Para 7 of the judgment of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman reported in (1970) 1 SCC 670 provides as under:- “7. …………Again, when the decree is made by a court which has no inherent jurisdiction to make 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. …………………” I have also perused the judgment in the case of Shri Vishwanath Sharma-versus-Sheo Prasad Sah and ors. reported in 1998 (1) PLJR 341 which has been referred to and relied upon by the learned counsel for the respondent and the ratio laid down in the said judgment is relevant and applicable to the facts and circumstances of the case. The relevant portion of Paras 7 and 8 of the judgment, which is relevant for the present case, are as under: - “7. ………………To resolve the controversy it is necessary to examine the relevant provisions under the Act. Section 2 (b) of the Bihar Control Act deals with the definition of building which reads as follows : - 2 (b) 'building' means any building, or hut or a part of the building or hut, let or to be let separately for residential or non-residential purposes, and includes- (i) the garden, grounds, and outhouses, if any appertenant to such building or hut or part of such building or hut; and (ii) any furniture supplied by the landlord for use in such building or hut or part of a building or hut; 8. The Bihar Control Act has been enacted not only to control the rents of the buildings but also to prevent unreasonable eviction of the tenant therefrom. The Bihar Control Act deals with not only residential buildings but also non-residential building and it includes the garden, ground and outhouses, if any appertenant to such building or hut or part of such building or hut. The Bihar Control Act deals with not only residential buildings but also non-residential building and it includes the garden, ground and outhouses, if any appertenant to such building or hut or part of such building or hut. It also includes any furniture supplied by the landlord for use in such building or hut or part of the building or hut. It is, therefore, reasonable to infer that the intendment of the Act is to confer wide amplitude on the word building.” 7. In view of above mentioned facts and circumstances of the case as also position of law discussed above it appears that the learned court below after careful consideration of the relevant facts and provision of law decided the application filed by the petitioner U/s 47 of the Code of Civil Procedure. The order passed by the learned court below is in accordance with law and therefore intervention of this Court under Article 227 is not warranted. Accordingly, this writ petition is ordered to be dismissed.