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2016 DIGILAW 1068 (CAL)

Kamini Kapoor v. Punjab National Bank

2016-12-23

I.P.MUKERJI

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JUDGMENT : I.P. Mukerji, J. There is a building numbered as 9, Ezra Street, Kolkata-700 01. The owner leased out the ground floor to two lessees. The lease was granted by two separate deeds of lease, but the demised premises was not separated. The two lessees held them jointly. One of the lessees was Kamini Kapoor, the plaintiff. 2. By two separate sub leases each of the lessees underlet the undivided demised portion to Punjab National Bank, the judgment debtor. 3. I now come to the facts of the case in detail. At one point of time, premises No. 9, Ezra Street, Kolkata-1 was owned by Smt. Chandramukhi Devi Poddar, Devashish Poddar, Anupam Poddar and Seth Laxman Prasad Urmila Poddar Girl’s Foundation Charitable Trust. By four several registered Deeds of Lease all dated 14th November, 1983, the owners demised 638.71 sq. ft. of this premises to Prakash Narayan Kapoor 865.89 sq.ft. to Kamini Kapoor, 701.08 sq. ft. to Damodar Nandlal Chawla and 958.20 sq. ft. to Kavita Chawla. The total demised area was 3163.88 sq. ft. Although each of the lease deeds mentioned the area of the property demised, there was no division or demarcation of it into four separate units. The entire demised land, on 1st February, 1984 was sub-leased to New Bank of India which subsequently became Punjab National Bank. Each of the lessees granted a sub-lease of his or her interest in the parent lease in favour of New Bank of India, subsequently the judgment debtor bank. Kamini and Prakash executed the sub-lease in respect of 1504.60 sq.ft. area. On 13th January, 2008 Kavita Vyapaar Private Limited purchased the residuary interest of the owners or lessors of the property. They say that after 13th November, 2002 the lessees were not paying any rent or occupation charges to the owners. According to Kavita Vyapaar Private Limited, the applicant in this court (G.A. 3335 of 2014), referred to later the four head leases expired on 13th November, 2002 and that the lessees whose leases had expired were wrongfully realizing rent from the bank. The plaintiff, Kamini Kapoor filed a present suit (C.S. 39 of 2012) against the judgement debtor bank claiming possession of the 1504.40 sq.ft. demised area on the ground floor of said premises and for mesne profit. On 23rd April, 2013 the suit was decreed in favour of the plaintiff. 4. The plaintiff, Kamini Kapoor filed a present suit (C.S. 39 of 2012) against the judgement debtor bank claiming possession of the 1504.40 sq.ft. demised area on the ground floor of said premises and for mesne profit. On 23rd April, 2013 the suit was decreed in favour of the plaintiff. 4. The plaintiff put the decree to execution by filing on application (E.C. No. 292 of 2013). At the first stage of that application, this court on 23rd July, 2013 appointed a Special officer to take symbolic possession of the suit premises. Such possession was apparently taken. In the execution application, the plaintiff did not want plain and simple execution but also wanted something neither pleaded in the plaint nor obtained by her in the decree. It seems that she wanted to convert the undemarcated demised premises into a demarcated one with an exclusive door for entrance. 5. Now, the two leaseholds of which sub leases were granted to the bank were undivided properties having access through a door. The plaintiff wanted a partition wall with another door in her portion for exclusive egress and ingress. She wanted to shut a window and erect that door in her portion of the premises contending that the door was always there and that the window was constructed when the judgement debtor bank was inducted. It is in those circumstances that owner Kavita Vyapaar private Limited rushed to this court by filing the application G.A. 3335 of 2014 on or about 27th October, 2014 to say inter alia that their rights were being encroached upon. On 30th October, 2014 this court passed an order in the execution application asking the Special officer, appointed earlier to demarcate 1504.40 sq.ft. area and handover the same to the plaintiff decree holder. On 5th November, 2014 the Special officer visited the premises, demarcated the said area and handed it over to the plaintiff. But he noted that there was only one entrance to the two leaseholds outside the demarcated area. According to the minutes of the Special officer, the bank would allow her to use this entrance for only a month. On 13th November, 2014, the executing court passed the following order:- “The Court: In order to give effect ton the decree, it is necessary that a wall be raised on the demarcated line so that the possession of the respective parties are into disturbed. On 13th November, 2014, the executing court passed the following order:- “The Court: In order to give effect ton the decree, it is necessary that a wall be raised on the demarcated line so that the possession of the respective parties are into disturbed. The petitioner shall apply before Kolkata Municipal Corporation for necessary permission including seeking a permission to remove a window and to erect a door for ingress and egress in terms of the original plan as submitted before this Court by Mr. Jishnu Saha, learned senior counsel, representing the decree- holder. These actions are subject to the result of the application filed by the owners of the premises and without prejudice to the rights and contentions of the owners in the pending application. The petitioner is directed to approach Kolkata Municipal Corporation within a week from date and the municipality shall consider and decide the matter within three weeks from the date of making of such application seeking permission. The matter is made returnable two weeks after the Christmas Vacation. The Receiver shall be entitled to a further remuneration of 700 GM to be paid by the decree-holder. Urgent certified website copies of this order, is applied for, be supplied to the parties subject to compliance with all requisite formalities.” 6. It is said by the applicant superior lessor that the window is not part of the suit property and that the court cannot open or shut a window or create a door or a route for egress and ingress outside the suit property which area belongs to them. A door never existed at the site of the said window, at any point of time according to them. Furthermore, the plaintiff in the execution application is asking for prayers which are beyond the decree. 7. Before proceeding further with this matter it is necessary to acquaint ourselves with the law on the subject. The application of Kavita Vyapaar Private Limited (GA 3335 of 2014) cannot be said to be one under section 47 of the Code of Civil Procedure. This provision relates to resolution of disputes between the parties to the suit, or their representatives, after the decree. The dispute should be confined to the execution, discharge or satisfaction of the decree. The applicant was not a party to the suit. This provision relates to resolution of disputes between the parties to the suit, or their representatives, after the decree. The dispute should be confined to the execution, discharge or satisfaction of the decree. The applicant was not a party to the suit. Hence, it cannot be said that the disputes that they raise on the execution of the decree are between the parties to the suit. They are between a party and a third party. Therefore, how does the applicant maintain this application in a suit between Kamani Kapoor and Punjab National Bank. The provisions of Order XXI of the Code of Civil Procedure provide an answer to the problem. Order XXI rule 97 says that when the holder of a decree for the possession of an immovable property is resisted or obstructed by any person claiming possession of the property, he can apply to the Court complaining of the said acts. Under Order XXI rule 97(2) the Court is required to adjudicate on the issue. Similarly, under Order XXI rule 99 when a person other than the judgment debtor is dispossessed from an immovable property by the holder of a decree for possession of such property, he may make an application to the Court complaining of it. Under Order XXI rule 99(2) the Court is required to adjudicate upon the dispute. Order XXI rules 98, 100 and 101 provide that these questions are to be determined by the Court passing the decree on an application and not by a separate suit and that while adjudicating the application, the Court could allow the applicant to be put back into possession and pass enabling orders. Mr. Ghosh for the applicant conceded that Order XXI rule 97 would not apply because it conceived of the decree holder applying to the Court complaining of obstruction in the execution of the decree by a third party. This applicant’s application was not by the decree holder but by a third party. He said that Order XXI rule 99 would govern the application made by his client. He added that although the rule provided that a person dispossessed of an immovable property could apply, on a fair construction of the rule a third party apprehending dispossession at the time of the execution of the decree also had the right to apply. He said that Order XXI rule 99 would govern the application made by his client. He added that although the rule provided that a person dispossessed of an immovable property could apply, on a fair construction of the rule a third party apprehending dispossession at the time of the execution of the decree also had the right to apply. He submitted that his client’s application was necessitated by the application made by the plaintiff decree holder (GA 907 of 2015) seeking the assistance of the Court in the following manner to execute the decree. The decree holder wanted possession of the keys to the main entrance to the ground floor of the said premises. The judgment debtor was to be directed to hand them over to the plaintiff. 8. On my interpretation of Order 21 rule 97 and Order 21 rule 99 of the Code, it does not really matter who makes the application but when a third party feels that his possessory rights in a property are being affected by the execution process, either he or the decree holder may apply to the court to adjudicate the dispute. Formal dispossession of the applicant from the property is not a condition precedent to maintaining the application. An apprehension is enough (see Babulal v. Rajkumar & ors. reported in AIR 1996 SC 2050 ). What is the duty and power of the court in execution? The opening words of Section 51 of the court provide an answer. Under Section 51(a) the court may on an application by the decree holder, order execution of the decree by inter alia ordering delivery of any property specifically decreed. The usage of the word “specifically decreed” tends to suggest that if the decree is for delivery of an immovable property, which must be specific, the court will execute it by ensuring its delivery to the decree holder. The suit premises is quite specifically described in the plaint as well as in the schedule to the decree as follows:- “Schedule of the property ALL THAT 1504.60 square feet demised portion of the suit pre4mises No. 9E, Ezra Street, Kolkata-700 001, butted and bounded as under:- On the North: Shops abutting India Exchange Place On the South: 8, Ezra Street On the East: partly by 8 Ezra Street and partly by 11, Ezra Street On the West: Shops and godown abutting Ezra Street.” 9. This schedule is incorporated in the decree. Therefore, the plaintiff is entitled to possession of 1504.60 sq.ft. area which is part of the subject matter of the said demise in premises No. 9 Ezra Street, Kolkata-700 001. The decree obtained by Kamini Kapoor in this suit on 23rd April, 2013 grants her vacant possession of the said premises. Now, the court in execution can only deliver the suit premises to the decree holder and nobody else. The schedule to a decree or the schedule to a plaint on which a decree is claimed never specifies the means of egress from and ingress into the suit property. Access to a property may be part of the rights in the property or easement rights. When a court passes a decree it is normally presumed that whatever means of egress and ingress there are to and from the premises will also be enjoyed by the decree holder. Say, if the property had no access and the suit property was an island, the decree granting such property could not create access to it. The decree holder would only get this island and would have to seek rights of access to it in an appropriate proceeding. As far as the said premises is concerned the right of access was through one door only. This was the only access to the two undivided leased portions on the ground floor. In my view, if the plaintiff wants possession she will only get possession of what she had together with the existing means of access only, that is, through that door. The court cannot rewrite the decree by converting a window into a door, on the ground that it existed before. In that case this additional access had to be provided in the decree. Neither can the court effect execution of a decree by trenching upon the applicant’s property which was not the property specifically decreed to be delivered to the plaintiff. Therefore, on the basis of my above findings the order passed in the execution proceeding directing Kolkata Municipal Corporation to consider sanctioning a door to provide access to the plaintiff was made on a wrong submissions, at the prima facie stage. The said order dated 13th November, 2014 will not be further acted upon. Prayer-(d) of the Master’s Summons in the application taken out by the applicant (GA 3335 of 2014) is granted. 10. The said order dated 13th November, 2014 will not be further acted upon. Prayer-(d) of the Master’s Summons in the application taken out by the applicant (GA 3335 of 2014) is granted. 10. The application taken out by the plaintiff (G.A. 907 of 2015) is partially allowed by passing orders in terms of prayer-(b) (c) and (e) of the Master’s Summons except that the Kolkata Municipal Corporation will have no role to play in the matter. I further order that a duplicate set of keys will be prepared by the Receiver appointed by this court and handed over to the other sub lessee, so that both the plaintiff and the other sub lessee can have common access to their respective demised portions. Since the Receiver has already identified and demarcated the suit premises, and handed over possession to the plaintiff decree holder by consent of the parties, the said act is ratified by this court. The two general applications are hereby disposed of. Other reliefs not granted may be sought by either party in an appropriate forum. In this connection, I observe that the execution application (EC 292 of 2013) was not assigned to me. The applications (G.A. 3335 of 2014 and GA 907 of 2015) are disposed of. Certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.