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2016 DIGILAW 1202 (ORI)

Brahmananda Sahu v. Laxman Kumar Saha

2016-12-06

D.DASH

body2016
JUDGMENT The petitioner by filing this application under Article 227 of the Constitution seeks quashment of an order dated 25.08.2016 passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack in C.M.A. No. 82 of 2015 under Annexure-4 in the matter of a petition under Order 6 Rule 17 of the Code of Civil Procedure (hereinafter in short “Code”) filed by the petitioner-judgment debtor (defendant) for amendment of his original petition under Section 47 of the Code in the Execution Case No. 38 of 2009 initiated by the opposite parties-decree holders (Plaintiffs) for execution of the judgment and decree passed in C.S. No. 537 of 2007 standing confirmed by this Court in the appeal under Section 96 of the Code in R.F.A. No. 171 of 2009. 2. Facts necessary for the present purpose may be stated hereunder:- The opposite parties as the plaintiffs had filed the above noted suit for eviction of the petitioner (defendant) from the suit premises and for recovery of the arrear house rent as also damages. The trial Court decreed the suit by its judgment dated 28.03.2009 followed by drawal of necessary decree in that light. The petitioner being the unsuccessful defendant suffering from the said judgment and decree, then carried the first appeal before this Court. the said appeal stood dismissed by judgment dated 22.01.2015 followed by the decree, wherein the findings recorded by the trial Court being affirmed the judgment and decree passed by the trial Court have been confirmed. The opposite parties-decree holders (plaintiffs) then pursued the execution proceeding filed earlier which was remaining stayed during the first appeal. Let us now come straight to the matter in hand. This petitioner-judgment debtor in the said execution proceeding filed a petition under Section 47 of the Code which stood numbered as CMA No. 82 of 2015. When this was pending for hearing, he filed another petition under Order 6 Rule 17 of the Code for amendment of the said petition for introduction of certain other new averments therein. The Court in seision of the execution proceeding upon hearing allowed the prayer for amendment in part and rejected that part seeking introduction of the facts as narrated in the paragraph as 10(E), 10(F) and 10(g) of the petition. The petitioner-judgment debtor (defendant) then approached this Court with an application under Article 227 of the Constitution giving rise to CMP No. 1396 of 2016. The petitioner-judgment debtor (defendant) then approached this Court with an application under Article 227 of the Constitution giving rise to CMP No. 1396 of 2016. This Court found the order of rejection part to be without assigning any reason and to be a non-speaking one. So, for that the matter stood remitted to the execution Court for hearing that application for amendment as prayed for by the petitioner-judgment debtor (defendant) for decision afresh. For proper appreciation the relevant portion of the order of this Court is reproduced herein below:- “Perused the impugned order. Considering the rival contentions of the learned Counsel appearing for the respective parties and after perusing the observation made by the trial Court in the impugned order, this Court finds that there is no application of mind in deciding an application under Order 6, Rule 17, CPC in as much as there is no assignment of reason discarding certain paragraphs of the amendment application so far it relates to rejecting a portion of the amendment application, for which this Court finds the impugned order is a non-speaking one. Under the circumstances, while remitting the matter back to the trial Court, this Court directs the Civil Judge (Senior Division), First Court, Cuttack to rehear the application under Order 6, Rule 17, CPC, so far it relates to the rejecting part is concerned involving in a proceeding under Section 47, CPC and take a fresh decision after giving opportunity of hearing to the learned Counsel for both parties.” In view of above direction the executing Court having again heard the matter as directed by this Court; rejected those portions of amendment sought to be introduced in the petition under 47 of the Code by the petitioner-judgment debtor (defendant) as paragraph 10(E), 10(F) and 10(G). For which the second round of approach is now to this Court with this application under Article 227 of the Constitution of India. 3. Heard learned counsel for the petitioner and the opposite parties. Perused the orders passed by the trial Court on both the occasion; judgment of the trial Court in the suit as also this Court in the first appeal. 4. 3. Heard learned counsel for the petitioner and the opposite parties. Perused the orders passed by the trial Court on both the occasion; judgment of the trial Court in the suit as also this Court in the first appeal. 4. At the outset, it is felt necessary to answer and address a question which though appears to be most fundamental and important for the purpose in hand yet has gone without being touched with that importance being attached in that light and discussed. Therefore, I accordingly proceed to delve into that aspect of law first. 5. The point is whether a petition under Order 6 Rule 17 of the Code is maintainable with a prayer for amendment of a petition under Section 47 of the Code. It be borne in mind that a decree put to execution can be refused to be so executed on arriving at a satisfaction on any of the three aspects which concern with (i) execution, (ii) satisfaction, and (iii) discharge. 6. The above questions first of all must arise between the parties or the purchaser of the property or their representatives but not in relation to any other. The simple reason is that when the decree is going to be executed against that person, who is the judgment debtor or anyone claiming through him, at least he is given the scope to either show that for some legal/factual reason/reasons, the decree is no more executable or that there has been discharged or that the decree has achieved its satisfaction. So here the provision of law as enshrined in Section 47 provides that the questions on the above aspects concerning the decree put to execution may be raised for decision. 7. At this stage, it may be stated that determination of any of the above questions by the executing Court prior to the coming into force of the Code Amendment Act No. 104 of 1979 with effect from 1.2.77 was within the definition of ‘decree’ as provided under Section 2 (2) of the Code. But by the above Amendment Act, such decision in respect of any of the question raised under Section 47 of the Code is no more treated as a decree and therefore, no appeal lies against such an order which was the earlier available recourse in law. But by the above Amendment Act, such decision in respect of any of the question raised under Section 47 of the Code is no more treated as a decree and therefore, no appeal lies against such an order which was the earlier available recourse in law. The order is now revisable under Section 115 of the Code standing to satisfy al the required legal parameters which lies not as a remedy but for exercise of the discretion vested in the Court to correct the error. 8. In the instant case, the petitioner being the judgment debtor has sought for amendment of the original petition filed under Section 47 of the Code raising the question with regard to the executeability of the decree put to execution by the opp.party-decree holders. It may be stated here that the decree is one for eviction, realization of arrear rent and damages which had been passed in the suit filed by the opp.party-decree holders as plaintiffs laying foundation upon the fact that the petitioner-judgment debtor (defendant) was a tenant under their vendor and they having purchased the property have stepped into the shoes of the original landlord with all the rights and liability of the transferor landlord in respect of subsisting tenancy. 9. Raising of questions as provided under Section 47 of the Code gives rise to a proceeding in an execution case and certainly since the Court is required to decide the above questions which definitely concern with further progress of the execution proceeding for its culmination either by delivering the fruits under the decree to its holder or showing that very decree-holder the exit door to return empty handed. Further progress of the execution proceeding in that direction is dependant upon said decision on those questions as raised. So, a party to the suit is permitted to raise certain question in the execution proceeding concerning the above three aspects as stated above having fatal affect over progress of the execution proceeding. Any such question being answered in affirmative brings an end to the execution proceeding denying the decree holder from getting any such fruit under the decree thus giving a good bye to it for ever. 10. Any such question being answered in affirmative brings an end to the execution proceeding denying the decree holder from getting any such fruit under the decree thus giving a good bye to it for ever. 10. If we now glance at the provision of Order 6 Rule 17 of the Code, the provision refers to the power of the Court to allow either party at any stage of a proceeding to alter or amend the pleadings. This word “proceeding” as finds mention in Order 6 Rule 17 of the Code, in my considered view cannot to be taken to be referring to a proceeding under Section 47 of the Code, if the very intent of the legislature from the beginning is taken into consideration in their proper perspective as also the subsequent amendments as stated above are accordingly viewed together with the legislative intent. It of course has to be taken to be referring to a proceeding where the right, title, interest or the competing claims between the parties are involved for decision. Those are the suits, the proceedings initiated at the instance of the third party as provided under different rules of Order 21 for establishment of their right, title, interest and possession etc. which are required to be finally disposed of looking at the pleadings, the evidence let in by the parties by recording answers to the issues emanating from the pleadings. Provision of Order 6 generally refers to pleadings which mean plaint or written statement which are required to be there for the purpose of stating the materials facts relating to and for determination of the real questions in controversy between the parties. The proceedings which arise out of a execution case at the instance of the third party certainly stand to be decided as like a suit and appeal lies against such decision as those decisions are deemed to be decrees ultimately expressing the adjudication by conclusively determining the right of the parties with regard to all or any of the matters in controversy in said proceedings which are decided as like suits with all other legal incidents to follow. Therefore, this Court is of the considered view that the very application of Order 6 Rule 17 of the Code made by the petitioner-judgment debtor (defendant) in the execution proceeding for amending his application under Section 47 of the Code is not maintainable in the eye of law. This aspect having been raised before the executing Court, it has been found to be not holding water in view of the provision of Section 141 of the Code in the first order dated 31.10.2015. But as it appears that is again by overlooking the above settled position of law that such proceeding with regard to suit as provided in Section 141 of the Code is never applicable to execution of proceeding and a proceeding arising from the execution case in raising the questions as provided in Section 47 of the Code to thwart the execution of a decree squarely remains under the umbrella of an execution proceeding and not an independent one having the existence of its own unlike other proceedings initiated at the instance of the third party for determination of their independent right, title and interest over the subject matter of the execution proceeding and thus to be not affected by the decree and caused with sufferance by way of such execution. Those proceedings have their independent existence and identity, like a counter claim under Order 8 Rule-6A of the Code or cross appeal under Order 41 Rule 23 of the Code which proceed in accordance with law for their disposal notwithstanding the dismissal or withdrawal of the execution proceeding, suit or appeal as the case may be. These questions are not relating to adjudication of real questions in controversy between the parties which stage being ever, its now only relating to the execution, satisfaction and discharge when those answers on real questions in controversy between the parties being formally expressed in the decree is put to its execution in delivering the fruit under it to the decree holder or one claiming through him. Above legal position having not been kept in mind, the executing Court with a completely erroneous view point of law, has entertained the petition under Order 6 Rule 17 of the Code for amendment of the petition under Section 47 of the Code and allowed it in part while rejecting the other part holding those to be beyond the scope of the execution proceeding for being answered. In wake of the above discussion, this Court in exercise of power under Article 227 of the Constitution in order to keep the Court below within the bounds of its authority hereby declares that the very petition under Order 6 Rule 17 of the Code filed by the petitioner-judgment debtor (defendant) is not entertainable and not maintainable in the eye of law and thus all such orders passed therein in may considered view are nonest in the eye of law. The executing Court therefore is under legal obligation to proceed with the execution proceeding only on the basis of the original petition under Section 47 of the Code for a decision on the questions raised therein and after answering the questions in accordance with law the Court is to further proceed in the matter for culmination of the execution proceeding as per law. 11. With the aforesaid, let me also touch upon the matter on merit. These two paragraphs which are sought to be introduced by amendment of the petition under Section 47 of the Code filed by the petitioner-judgment debtor (defendant) raises the question no. (1) the opp.party-decree holders (plaintiffs) has no right over the property in question on the basis of a void sale deed dated 26.6.95 under Ext. 8 which is the foundation for the suit. The reason is that the lease of the vendor being valid till 31.3.73 and there being no renewal of the same thereafter the entire property have become the property of the State by way of expiry of lease hold right in view of the provision of sub-Section 4 of Section 3 of Orissa Government Land Settlement Act, 1962 (in short called as the OGLS Act). The other paragraph sought to be introduced by amendment raising question no. (2) also in essence refers to that very question no. The other paragraph sought to be introduced by amendment raising question no. (2) also in essence refers to that very question no. (1), although in an elaborative from that the above provision of law coming to the substituted in the OGLS Act by amendment giving a valuable right for settlement of Govt. land with the person who is in occupation of such land for a period of at least three years prior to the appointed date subject to payment of such amount to the Government as may be prescribed on permanent basis with the explanation providing the meaning to the word ‘lease’ a statutory right has accrued in favour of the petitioner-judgment debtor (defendant) to get the suit land settled in his favour. In view of the above standing provision in the OGLS Act, it is stated that whatever rights the opp.party –decree holders (plaintiffs) had over the property has stood extinct by operation of law as aforesaid. Therefore, it is stated that the petitioner-judgment debtor (defendant0 has now got the valuable statutory right to get the land settled in his name permanently which is pending for consideration and for that reason the Civil Court was not competent to pass the order of eviction and that therefore the decree of eviction is not executable and there cannot be evicting of the petitioner-judgment debtor (defendant) by virtue of that decree which for the purpose has not value now even worth the paper written on. 12. The position of law is no more res integra that the execution Court cannot go behind the decree. However, if the decree is nullity, it is well within the jurisdiction to refuse to execute the decree holding the decree to be nullity. The executing Court has to be satisfied that it had been so passed by the Court having no inherent jurisdiction but not merely for erroneously passing the decree or there remaining an error while passing the decree. The decree in order to be said to be nullity is to be understood in the sense that it is ultra virus of the Court passing the decree. The decree in order to be said to be nullity is to be understood in the sense that it is ultra virus of the Court passing the decree. If a decree passed by the Court without jurisdiction on the subject matter or on the grounds on which the decree made which goes to the root of its jurisdiction or lacks inherent jurisdiction in a coram non-judice, said decree passed by such Court is a nullity and is nonest whose invalidly can be set up whenever it is sought to be enforced or it is acted upon as a foundation for a right even at the stage of execution or in collateral proceeding. The defect of jurisdiction strikes at the very authority of the Court to pass the decree which cannot be cured by consent or waiver of the party. 13. The legal position is also well settled that by virtue of a legislation coming to govern the field in respect of the subject matter of the decree extinguishing the right of the decree holder over the subject matter, the decree is rendered unenforceable and practically looses it legal existence for the purpose of its execution in accordance with law which can be taken into account by the executing Court by refusing to execute the decree. 14. Coming to the facts of the case at the risk of repeatation, it may be stated that the suit being filed in the year 2007, it came to be decided on 28.3.09 when the above referred provision of law under the Orissa Government Land Settlement Act, 1962 was already in force including by Amendment with effect from 26.2.09 i.e. prior to the conclusion of the hearing of the suit. No such step has been taken from the side of the petitioner-judgment debtor (defendant) to raise the said question. Be that as it may, when he filed the first appeal under Section 96 of the Code, no such ground has been raised. The suit is for eviction, arrear house rent and damage founded upon the relationship between landlord and tenant between the vendor of the opp.party-decree holders (plaintiffs) and the petitioner-judgment debtor (defendant); the opp.parties stepping into the shoes of the said landlord by virtue of purchase of the property under registered sale deed and attornment by operation of law. The suit is for eviction, arrear house rent and damage founded upon the relationship between landlord and tenant between the vendor of the opp.party-decree holders (plaintiffs) and the petitioner-judgment debtor (defendant); the opp.parties stepping into the shoes of the said landlord by virtue of purchase of the property under registered sale deed and attornment by operation of law. The trial Court has answered the issue holding the relationship as above and that has been affirmed in the first appeal which having no more been challenged, said finding has attained its finality besides the judgment and decree passed therein. In the execution proceeding when the said decree for eviction passed being based upon that finding as also other reliefs granted being put to execution, the objection as it appears by introduction of the above two paragraphs by amendment of the petition under Section 47 of the Code which has been refused by the execution Court, the petitioner-judgment debtor seeks to question the right of the opp.party-decree holders (plaintiffs) over the subject matter of the decree as standing extinct by the provision of law under Section 3(4) of the OGLS Act raising further claim that it has created a right of settlement of the subject matter in favour of the petitioner-judgment debtor (defendant). 15. Learned counsel for the petitioner contends that the petitioner has got extremely good points in support non-executability of the decree and therefore on the above grounds are required to be heard and decided by the Court instead of being thrown aside at the threshold. Thus, when it is raised the Court is to answer the same and there is no justification for not accepting it as a ground for answering before putting a decree to execution. For the purpose, he strongly relies upon the decision of the Apex Court in case of “Sabitiri Dei and others vs. Sarat Chandra Rout and others”; (1996) 3 SCC 301 . Learned counsel for the opp.parties contends that even factually such aspects do not surface; there has been renewal of the lease prior to the sale and then it been purchased by the opp.party-decree holders (plaintiffs) and thus he submits that the provision of Section 3 (4) of the Act has no application in the facts and circumstances of the instant case. He also submits that such question is not open for being raised in the execution case both in fact and law. 16. On the above rival contention, there arises the need for finding out the position of law settled in the backdrop of factual settings in the cited case. In case of Sabitri Dei and others (supra), the suit had been filed on the basis of the proprietary right of the plaintiffs. It was not a suit for eviction founded upon the relationship of the landlord and tenant between the parties. The settled position of law is that notwithstanding the ownership of the property in question, a person can very well be found to be the landlord of the same in so far as the other person is concerned who has been inducted as a tenant in respect of that property by him. It is also the settled position of law that a tenant is stopped from questioning the title for the landlord under Section 116 of the Evidence Act. Law is also settled that if a landlord has tenanted the premises to another tenant; the purchaser from landlord steps into the shoes of the landlord and there is attornment by virtue of operation of law as provided in Section 109 of the Transfer of Property Act. For all these as discussed, the very foundational facts attraction of the position law enunciated in case of Sabitri Dei and others (supra) do not surface in the instant case and are non-existent. 17. That was a suit for recovery of possession filed in the year 1953. The plaintiff had claimed the propriety right over the suit property. However, in view of the notification dated 27.4.63 in exercise of power under Section 3(1) of the Orissa Estate Abolition Act (in short called as the OEA Act) the suit property which was admittedly and intermediary estate stood vested with the State. The execution case was filed long thereafter in the year 1981. There the question arose that when the decree holder’s right over the property stood extinct by virtue of the notification as provided under the statue and the subject matter having vested with the State, the decree was no more executable. The executing Court refused to execute the decree. The execution case was filed long thereafter in the year 1981. There the question arose that when the decree holder’s right over the property stood extinct by virtue of the notification as provided under the statue and the subject matter having vested with the State, the decree was no more executable. The executing Court refused to execute the decree. But the High Court held that notwithstanding with the vesting under the Act, the question whether the right of the decree holder had been exstinguished or is not open to be raised in the execution proceeding being barred by the principles of constructive res judicate as the Civil Court had the jurisdiction to decide the suit for recovery of possession and the provision of Section 39 of the OEA Act which ousts the jurisdiction of the civil Court was existing at the time of passing of the decree. 18. The Apex Court held that on issuance of notification under Section 3(1) of the OEA Act, the estate has vested free from all encumbrances in the State Govt. so the pre-existing rights shall cease to exist and new rights have been created by such legislation followed by notification as mandated under the Act. Admittedly in that case, by virtue of Section 6, the homesteads of the intermediaries and buildings together with lands on which buildings stand in the possession of intermediaries and used as golas, factories or mills to be retained by them on payment of rent. But the pre-conditions in a deemed settlement for fixation of rent as contemplated under Section 6 must be satisfied namely the land must be in possession of the intermediary and the same must be in use as golas, factories or mills. Under sub-Section (3) of Section 8-A if no claim is filed within the specified period then the right of possess the land or building or structure, as the case may be, stands vested in the State Govt. by operation of law and thereupon the right to make any such claim by the intermediary stands extinguished. Under sub-Section (3) of Section 8-A if no claim is filed within the specified period then the right of possess the land or building or structure, as the case may be, stands vested in the State Govt. by operation of law and thereupon the right to make any such claim by the intermediary stands extinguished. The Court found it to be the admitted case that the intermediary has not filed any claim in that case within the stipulated period and there was no settlement of rent with the intermediary under Section 6 of the Act and in the fact of the case such a settlement could not have been made as the judgment debtor was in possession of the land. In that view of the matter, the Court held that on and from the date of issuance of notification under Section 3(1) of the Act i.e. 27.4.63, the Civil Court lost its jurisdiction in so far as the disputed property is concerned by virtue of the provision of Section 39 of the Act. So the decree was held to be a nullity. Then applying the settled position of law that where a decree is nullity, the principle of constructive res judicata does not come into play and its invalidly can be set up at any later stage either in execution or in any collateral proceeding wherever it is pressed into service. The decree in that view of the matter was finally held as not executable. 19. The case in hand is completely different and distinguishable. If we look from the very beginning, the case as set up in the plaint and the reliefs sought for, the decision on the controversial issue of relationship between the parties has attained its finality. So by virtue of the provision of Section 3(4) of the Act even if we assume for a moment negating the claim of the opp.party-decree holders (plaintiffs) that there was the renewal of the lease. Etc, the suit property having not been permanently settled with the opp.party-decree holders (plaintiffs) as required under Section 3(4) of the Act as he has not followed the procedure prescribed in Section 3(4) (b), they are liable to be evicted and the lease is to be resumed. On the other hand the petitioner judgment-debtor (defendant) has merely the right to get the suit land permanently settled in his name which has not yet been done. On the other hand the petitioner judgment-debtor (defendant) has merely the right to get the suit land permanently settled in his name which has not yet been done. So these facts have absolutely no fatal affect on the decree in question and do not legally render the decree put to execution a nullity being without jurisdiction. Furthermore, the objection as it appears on this count sprints from erroneous construction of the provision of law as referred to therein i.e. 3(4) of the OGLE Act. The property in question by virtue of such provision of law has not vested with the State Govt. Even in case of non-renewal, it only empowers the State Govt. to evict the person and resume the land which admittedly have not been done. For the aforesaid discussion even on merit such objections with the reasons described in support of those sought to be raised against the executability of the decree that it is nullity and without jurisdiction is wholly unsustainable in the eye of law. 20. While parting, I feel its worthwhile to quote the observation of the Privy Council in case of (The General Manager of the Raj Durbhanga under the Court of Wards vs. Maharajah Coomar Ramaput Singh) as pointed out with further expression of anxiety in case of [Kuer Jang Bahadur vs. Bank of Upper India Ltd., Lucknow [AIR 1925 Oudh 448]. “The difficulties of a litigant begin when he obtains a decree. It is necessary to remember that succession a suit means nothing to a party unless he gets the relief. Therefore, to be really meaningful and efficient, the scheme of the Code should enable a party not only to get a decree quickly, but also to get the relief quickly. This requires a conceptual change regarding civil litigation, so that the emphasis is not only on disposal of suits, but also on securing relief to the litigant.” Courts in India have to be careful to see that process of the Court and law of procedure are not abused by the judgment-debtors in such a way as to make Courts of law instrumental in defrauding creditors, who have obtained decrees in accordance with their rights. Above observations have also taken note in case of Shub Karan Bubna alias Shub Karan Prasad Bubna vs. Sita Saran Bubna and Ors; (2009) 9 SCC 689 as under:- “In the present system, when preliminary decree for partition is passed, there is no guarantee that the plaintiff will see the fruits of the decree. The proverbial observation by the Privy Council is that the difficulties of a litigant begin when he obtains decree. It is necessary to remember that success in a suit means noting to a party unless he gets the relief. Therefore, to be really meaningful and efficient, the scheme of the Code should enable a party not only to get a decree quickly, but also to get the relief quickly. This requires a conceptual change regarding civil litigation, so that the emphasis is not only on disposal of suits, but also on securing relief to the litigant.” The Apex Court again in case of Satyawati vs. Rajinder Singh and Another : 2013(II) CLR (SC) 238 has gone to express:- Xxx xxx xxx Xxx xxx xxx “As stated by us hereinabove, the position has not been improved till today. We strongly feel that there should not be unreasonable delay in execution of a decree because if the decree holder is unable to enjoy the fruits of his success by getting the decree executed, the entire effort t of successful litigant would be in vain.” For the aforesaid, in view of the delay already occasioned I conclude with the hope and trust that the Executing Court will do the needful as directed hereunder as expeditiously as possible. 21. In the wake of aforesaid, this application under Article 227 of the Constitution is disposed of with a direction to the executing Court to proceed to decide the original unamended application under Section 47 of the Code as filed by the petitioner-judgment debater (defendant) and accordingly to further proceed with the execution of the decree for its culmination in accordance with law.