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2014 DIGILAW 411 (TRI)

Subrata Debnath v. Pulin Behari Chakraborty

2014-12-05

S.C.DAS

body2014
JUDGMENT S.C. Das, J. 1. This is a petition filed under Article 226/227 of the Constitution of India challenging order dated 28.07.2009 passed by learned Civil Judge, Senior Division, South Tripura, Udaipur in Misc. Case No. 12 of 2009 arising out of Case No. Exe.(T) 02 of 2007. 2. Heard learned senior counsel, Mr. B. Das for the petitioners and learned senior counsel, Mr. S.M. Chakraborty, assisted by learned counsel, Mr. B. Banerji for the respondent. 3. It is submitted by learned senior counsel, Mr. Das that the petitioners moved an application under Order XXI Rule 97 to 102 of CPC before the learned Civil Judge, Senior Division, South Tripura, Udaipur on 01.06.2009 in connection with Execution Case No. Ex.(T) No. 02 of 2007 challenging execution of the decree on the ground that the petitioners were in possession of the decretal land and that they were not made party in the suit which was decreed in favour of the plaintiff-respondent. Since the decree was obtained without impleading the petitioners as party, the decree was not executable against the petitioners. It is also submitted by learned senior counsel, Mr. Das that the Court below rejected the prayer of the petitioners without assigning any reason and if the decree is executed the petitioners will be evicted from the decretal land and in that case they shall suffer irreparable loss. The executing Court was bound to adjudicate upon the dispute as a separate suit in respect of possession as claimed by the petitioners and since it has not been done the order passed by the execution Court is liable to be set aside. 4. Learned senior counsel, Mr. Chakraborty on the other hand has submitted that all the petitioners instituted respective separate suit challenging the decree and also claimed adverse possession but those particular suit of the petitioners, all were dismissed and thereafter they came before the execution Court with the petition under Order XXI Rule 97 to 102. That petition has been correctly disposed of by the execution Court and if the petitioners feel aggrieved by that order they would prefer a regular appeal as contemplated in Rule 103 of Order XXI of CPC. It is also contended by Mr. That petition has been correctly disposed of by the execution Court and if the petitioners feel aggrieved by that order they would prefer a regular appeal as contemplated in Rule 103 of Order XXI of CPC. It is also contended by Mr. Chakraborty, learned senior counsel that T.S. 18/1992 was decreed in favour of the plaintiff-respondent and the petitioners were never in possession of the suit land at the time when the suit was instituted and the petitioners have no right to challenge the decree passed in favour of the respondent-decree holder. He has also submitted that where alternative remedy is available as per the provisions of law, the present revisional application is not maintainable and is liable to be dismissed. 5. The present petition is filed under Article 226/227 of the Constitution. It is not understood why Article 226 has been mentioned in the petition while there is no allegation of violation of any fundamental or legal right. So in my considered opinion, Article 226 has been unnecessarily mentioned in the petition. 6. A revisional application under Article 227 of the Constitution may be filed challenging an order passed by any inferior Court or Tribunal if there is no other provision to address the relief sought in the petition. 7. Learned senior counsel referred Rule 58 and Rule 98 and 99 of Order XXI. Rule 58 relates to adjudication of claims to or objections to attachment of property. Here in the present case the petitioners filed an application under Rule 97 to 102 only contending that they were not a party in the suit and so the decree is not executable against them. So I cannot agree with the submission of learned senior counsel, Mr. Das that the provision of Rule 58 of Order XXI is applicable in the present matter. Rule 101 prescribes that all questions including questions relating to right title and interest in the property arising between the parties to a proceeding on an application under Rule 97 to Rule 99 shall be determined by the Court dealing with the application and not by a separate suit and for this purpose the Court shall notwithstanding anything to the contrary contained in any other law for the time being in force be deemed to have jurisdiction to decide the questions. The petitioners challenged the execution of the decree on the ground that they were not made party in the suit and so the decree is not executable against them. Such a question should be determined by the execution Court in accordance with law and any such decision shall be treated as a decree of the Court as prescribed in Rule 103 of Order XXI of CPC. So the impugned order passed by the learned Civil Judge, Senior Division shall be treated as a decree and therefore it should be challenged only by filing an appeal as per the provisions prescribed in Order XLI of CPC and not by a revisional application. 8. Learned senior counsel, Mr. Das referring the decision of K. Rudrappa v. Shivappa reported in : 2004 AIR SCW 5106 has submitted that technical objections should not come in the way of rendering justice and that particularly the High Court is not required to see the technicalities but to render substantive justice. Since the execution Court did not decide the issue as per rule, this Court is well empowered to set aside the order and remand the matter to the execution Court for decision afresh. In my considered opinion, the decision in the case of K. Rudrappa(supra) is on different context and the ratio cannot be applied in this case. No doubt, this Court is to render substantive justice but that does not mean that legal provisions prescribed in the procedural law should be ignored. The execution Court as I find has passed a reasoned order after hearing both side. The petition filed by the petitioners before the execution Court was registered as a separate Misc. case. There is nothing in the lower Court's record to show that the petitioners proposed to adduce any evidence or any other material for deciding their claim. Under such circumstances, while the execution Court has passed an order, the validity of that order, the petitioners would challenge as per Rule 103 of Order XXI of CPC and not otherwise. 9. In course of hearing, learned senior counsel, Mr. Das also referred the case of Ashan Devi v. Phulwasi Devi reported in : 2003 AIR SCW 6458. Under such circumstances, while the execution Court has passed an order, the validity of that order, the petitioners would challenge as per Rule 103 of Order XXI of CPC and not otherwise. 9. In course of hearing, learned senior counsel, Mr. Das also referred the case of Ashan Devi v. Phulwasi Devi reported in : 2003 AIR SCW 6458. But the fact of that case is found to be clearly distinguishable to that of the fact of the present case and hence I find no manner of application of the ratio of that decision in the present case. 10. In view of the discussions made above, the revisional application stands dismissed. Send back the L.C. records along with a copy of this judgment.