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2017 DIGILAW 1408 (GAU)

Swapan Ch. Das v. Ramawatar Agarwala

2017-11-07

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Heard Mr. K.K. Mahanta learned Senior Counsel assisted by Mr. K.M. Mahanta learned counsel appearing for the petitioners and also Mr. S.K. Kejriwal learned counsel for the respondent. 2. At the outset the learned counsel for the respondent No.1 has referred to the order dated 07.03.2014 and 09.04.2014 passed in this application, requiring the matter to be heard on the maintainability of the present revision application. Therefore, in view of the said order, this Court has proceeded to hear the parties on the said issue raised by the learned counsel for the respondent No.1. 3. The petitioners have filed an application under Article 227 of the Constitution of India, challenging the order dated 11.09.2012 passed by the learned Civil Judge, Nagaon in M.J. Case No. 5/2011, arising out of Title Execution No. 12/2010, by which the objection filed by the respondent before the learned Executing Court i.e. Court of Civil Judge, Nagaon under Order XXI Rule 97 CPC was allowed by holding that the said petition filed by the respondent No.1 herein was maintainable, further holding that the decree dated 27.11.2008 passed in Title Suit No.53/2005 in favor of the petitioners herein is not executable and the possession of the respondent No.1 herein over the suit land was protected in view of the decree passed in Title Suit No.16/2007. Consequently, the execution proceeding in Title Execution Case No.12/2010 pending before the said learned Court was also closed. 4. Owing to the nature of grievances raised, the pleadings of parties is not reflected herein and the truncated facts involved in the present case is that the land measuring about 38 Bighas belonged to one Late Mohan/Molan Chandra Sarma, who was the recorded pattadar. On his death, the properties were inherited by his two daughters. One of the daughters died without any issue and therefore, such properties which was devolved upon her through her parents was inherited by the legal heirs of the other sister. However, the said land came to be mutated in the name of the nephew of the husband of the deceased sister who sold the part of the suit land to one purchaser vide the sale deed No. 188/184/2004 dated 19.05.2004. The said purchaser is the petitioner herein. However, the said land came to be mutated in the name of the nephew of the husband of the deceased sister who sold the part of the suit land to one purchaser vide the sale deed No. 188/184/2004 dated 19.05.2004. The said purchaser is the petitioner herein. The petitioner, namely, Shri Swapan Chandra Das instituted T.S. No. 53/2005 along with three other plaintiffs namely Shri Dilip Chandra Das, Shri Suklal Das and Shri Premlal Das. The defendants in the said suit are Shri Rudra Kanta Baruah, Smt. Chandra Prova Baruah, Smt. Podumi Baruah, Shri Babul Baruah, Shri Mina Orang Baruah, Shri Prasanta Baruah, Smt Manubal Baruah, Shri Pradip Baruah, Smt Anima Baruah, Shri Jyoti Baruah, Smt Anjana Das, Shri Mohandra Lohar and Shri Parmananda Sharma. The said suit was decreed on 27.11.2008. 5. During the pendency of the suit, the legal heirs of the second surviving daughter of the original pattadar namely Shri Akhil Borthakur, Shri Chitra Borthakur, Shri Chandan Borthakur and Shri Moni Borthakur, are all the sons of Dimbeswar Borthakur. They sold the suit land measuring about 12 Bigha-4 Katha-7 Lechas, covered by Dag No. 34, 41, 42 and 276 of PP No.111 of village Rangagarh Kissam under Rangagarah Mouza, District Nagaon to the respondent herein, namely Ramawatar Agarwala, vide sale deed No. 2030/06 dated 30.10.2006. 6. In the meanwhile, the Deputy Commissioner, vide order dated 20.03.2006, cancelled the mutation of the names of Shri Parmananda Sarma and Shri Pranab Sarma in respect of the entire land measuring about 38 Bighas and the matter was remanded to the Circle Officer. By order dated 16.09.2006, mutation was granted in favor of the above named vendors of the respondent. 7. There was another suit filed in respect of the suit properties involved in the present suit, being Title Suit No.16/07. The said suit was instituted before the Court of Civil Judge, Nagaon by Shri Chitra Borthakur, Shri Chandra Borthakur and Shri Moni Borthakur (since dead) against Shri Akhil Borthakur, Shri Ramawatar Agarwala (the respondent), Shri Jala Ahmed, Shri Kailash Agarwala and Smt. Munna Kaur. The said suit was decreed on compromise by joint compromise decree dated 11.06.2010 and the terms and conditions of the settlement as mentioned in petition No.1116/10, was treated as part of the decree. 8. The said suit was decreed on compromise by joint compromise decree dated 11.06.2010 and the terms and conditions of the settlement as mentioned in petition No.1116/10, was treated as part of the decree. 8. On the strength of such decree, the present respondent No.1 had filed an objection in respect of decree passed in Title Suit No. 53/2005, which was put to execution vide Title Execution Case No. 12/2010. As already indicated above the objection was filed by the respondent No.1 in the said execution proceeding, which had culminated in the impugned order dated 11.09.2012. As the respondent No.1 has raised a preliminary issue, this Court required the learned counsel for the respondent No.1 to start/open the arguments. 9. By referring to the provisions of Order XXI Rule 97, 98, 101 and 103 the learned counsel for the respondent No.1 submits that the order passed by the learned Civil Judge, Nagaon which is impugned herein, is an appealable order within the meaning of Order XXI Rule 103 CPC. It is submitted that as the order which is impugned herein is appealable, the present application under Article 227 of the Constitution of India is not maintainable. 10. In support of his arguments, the learned counsel for the respondent No.1 has referred to the case of Sameer Singh and anr Vs. Abdul Rab, (2015) 1 SCC 379 (paras 8, 11, 13 to 17, 19 to 21). It is further submitted that in the said decision, it has been laid down that a revision under Article 227 will only lie only if the learned Executing Court had expressed its inability to adjudicate on the ground that it lacks jurisdiction. It is submitted that in the present case in hand, as the learned Executing Court had decided the matter on merit, and therefore, such an order is required to be challenged only by a way of an appeal. 11. Per contra, the learned Senior Counsel appearing for the petitioners has heavily relied on the provisions of Order XXI Rule 102 CPC, which provides that nothing in Rule 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment debtors has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person. 12. 12. It is submitted that a subsequent suit i.e. Title Suit No.16/07 was filed subsequent to the filing of Title Suit No. 53/2005. And the said subsequent suit was decreed on 11.06.2010, which was much after Title Suit No.53/2005 was decreed on 27.11.2008. It is submitted that although the sale deed was executed by the vendors named above, it is an admitted possession that the respondent No.1 got possession of the suit land from one Rudra Kanta Baruah, who was defendant No.2 in Title. Suit No.53/2005 and, as such, the present respondent was a transferee pendente lite. 13. By relying on the case of Sameer Singh (Supra) (paras 15 and 26), it is projected that if resistance or objection to a decree is taken, the order determines the right of the parties, it partakes the form of the decree and therefore, such objection is required to be decided as a judgment in the suit and the rights of the parties are required to be determined as if it was a decree and, as such, the learned Executing Court while deciding the application under Order XXI Rule 97 CPC was required to formulate issues for trial and for hearing the parties for final adjudication of the right, title and interest in the immovable property under execution. It is further submitted that had the Executing Court referred to the provision of Order XXI Rule 102 CPC, it would not have even entertained the objection as to the execution filed by the respondent No.1 and therefore, the non-consideration of the said provisions of law amounted to jurisdictional error for which the present revision was maintainable. 14. It is further submitted that the manner in which the impugned order was passed i.e. without framing any issues and without deciding whether the decree was valid and sustainable or not. 15. It is submitted that it was required for the Executing Court to execute the lawful decree passed by the competent Court and it could not have been lightly held to be not executable. The Executing Court had a duty to not protect the decree passed in T.S. No.16/07, which was instituted and decreed later on point of time. 16. The learned Senior Counsel for the petitioners has further referred to the case of Rajen Haloi and another Vs. Jagen Nath Bhattacharya, 2009 (4) GLR 573 (para 16). 17. The Executing Court had a duty to not protect the decree passed in T.S. No.16/07, which was instituted and decreed later on point of time. 16. The learned Senior Counsel for the petitioners has further referred to the case of Rajen Haloi and another Vs. Jagen Nath Bhattacharya, 2009 (4) GLR 573 (para 16). 17. This Court has perused the copy of the sale deed No.2030/06 dated 30.10.2006. As stated herein before, it was executed by Shri Akhil Borthakur, Chitra Borthakur, Shri Chandan Borthakur and Shri Moni Borthakur. These persons/vendors are not the parties in T.S. 53/2005. Therefore, merely because the possession was allegedly handed over by Shri Rudra Kanta Baruah, who was defendant No.2 in T.S. No. 53/2005, it does not make such transfer of land to be a transfer pendente lite of T.S. No.53/05, because it is not anybody’s case that Rudra Kanta Baruah (defendant No.2 in T.S. No.53/05) was in any way either the owner of the suit land or the vendor thereof. 18. In the case of Sameer Singh (Supra), the Executing Court had declined to adjudicate the issues raised before it on the ground that it has become functus officio after passing of the decree and declined to adjudicate the matter. Under the circumstances it was held that the issue could be raised before the High Court under Article 227 of the Constitution of India as per the principle laid down in Surya Dev Rai Vs. Ram Chander Rai and others (2003) 6 SCC 675 . 19. It was further held in the said case that the High Court had fallen into an error by opining that the decision rendered by the Executing Court is a decree and therefore, the appeal should have been filed, and resultantly allowed the appeal and set aside the impugned order and it was held that had the Executing Court apart from expressing the view that it had become functus officio, had adjudicated the issues on merit, the question would have been different, for in that event there would have been an adjudication. Thus, thereby it was meant that if the issues were decided on merit, the appeal would have been maintainable, but because the Court had refused to adjudicate the matter, the application under Article 227 of the Constitution of India was held to be an appropriate remedy. 20. Thus, thereby it was meant that if the issues were decided on merit, the appeal would have been maintainable, but because the Court had refused to adjudicate the matter, the application under Article 227 of the Constitution of India was held to be an appropriate remedy. 20. This Court finds that in the present case in hand, the learned Executing Court had decided the issues raised by the objection of the respondent No.1. Under such circumstances, the impugned order dated 11.09.2012 would be appealable under Order XXI Rule 103 CPC by considering the same as a decree. It is further held that the provisions of Order XXI Rule 102 CPC is not applicable in the present case as the vendors to the Sale Deed No. 2030/2006 dated 30.10.2006 were not the judgment debtors in T.S.No.53/05 or Title Execution Case No.12/2010. 21. Having held that the impugned order is appealable, this Court is not inclined to adjudicate the issues raised in the present revision under Article 227 of the Constitution of India because alternative efficacious remedy is available to the petitioners by way of an appeal. Therefore, it would be open for the petitioners to file an appeal, if so advised. It would be open to the petitioners to raise any other relevant issue in such an appeal, as may be permitted by law. 22. As the petitioners are agitating their grievances before this Court under Article 227 of the Constitution of India, it is provided that in the event the petitioners file an appeal before the competent Court within the outer limit of 1 (one) month from today, the period of limitation for filing the said appeal shall stand extended and they would be entitled to the benefit of section 14 of the Limitation Act, 1963. 23. The Registry may permit the petitioners to withdraw the certified copy of the impugned order by furnishing the attested photocopy thereof for the record. 24. Resultantly, this preliminary objection raised by the respondent No.1 is accepted. Consequently, this revision stands dismissed on the said preliminary issue of maintainability. There shall be no order as to cost. 25. The observations made herein above are only for the purpose of deciding the present issues and therefore, the appeal filed before the learned Appellate Court shall not be influenced by the observation made herein and shall decide the issues raised before it in accordance with law. There shall be no order as to cost. 25. The observations made herein above are only for the purpose of deciding the present issues and therefore, the appeal filed before the learned Appellate Court shall not be influenced by the observation made herein and shall decide the issues raised before it in accordance with law. 26. The LCR may be returned forthwith.