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2017 DIGILAW 528 (GAU)

DILIP KUMAR GHOSH v. RAVINDRA DEB

2017-05-03

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Heard Mr. P.K. Kalita, the learned counsel for the petitioner and Mr. P.S. Deka, the learned counsel for the respondent. No.1. No one had appeared for the Respondent No.2 although the names of the learned Counsels appear in the cause list. Hence, the matter was heard ex- parte against the said respondent No.2. 2. The brief background of the case is that the respondent No.2, namely, Smt. Usha Reni Das is the plaintiff in TS No. 410/2004. The suit was filed against the petitioner herein, namely, Sri Dilip Kumar Ghosh, claiming relief of declaration of right, title, interest and for recovery of possession of the suit land described in Schedule-A of the plaint. The suit was initially filed before the Court of Civil Judge (Senior Division) No.1, Guwahati, but subsequently owing to enlargement of pecuniary jurisdiction of the Court of Munsiff, the suit was transferred to the learned Court of Munsiff No.3, Guwahati for disposal. The suit was allowed by judgment and decree dated 18.07.2007. The decree was put to execution and T.Ex. Case No. 4/2008 was registered. The decree was executed and possession of the suit land was delivered to Respondent No.2 herein on 18.07.2008. Thereafter, on 22.07.2008, the petitioner filed an application under Order IX Rule 13 of the Civil Procedure Code for setting aside the decree dated 18.07.2007 passed ex-parte against him, which was registered as Misc.(J) Case No. 422/2008. The said petition was not contested by the respondent No.2 herein and accordingly, the said Misc. (J) Case No. 422/2008 was allowed by order dated 10.02.2009. Resultantly, the suit was restored to file by setting aside the ex-parte decree, by directing the suit to proceed from the stage in which it was transferred. The suit as then fixed for cross examination of respondent No.2, but as she continued to remain absent, the plaintiff’s evidence was closed and in course of time, the suit filed by the respondent No.2 herein was dismissed by judgment and decree dated 09.12.2010. 3. After the ex parte decree was vacated, and during the pendency of the suit, the petitioner herein had filed a petition under section 144 of the Civil Procedure Code for restoration of the suit property described in Schedule-A back to the petitioner. The said petition was registered as Misc. 3. After the ex parte decree was vacated, and during the pendency of the suit, the petitioner herein had filed a petition under section 144 of the Civil Procedure Code for restoration of the suit property described in Schedule-A back to the petitioner. The said petition was registered as Misc. (J) Case No. 803/2009, which was also allowed by the learned Court of Munsiff No.3, Guwahati by order dated 09.12.2010. 4. The respondent No.2 filed a review application before the learned Court of Munsiff No.3, Guwahati against the judgment and decree dated 09.12.2010 passed in T.S. No. 852/06, which was registered as Misc. (J) Case No. 512/12. The said Misc. (J) Case No. 512/2012 was, thereafter, dismissed for non prosecution by order dated 20.01.2014. The respondent No.2 had also filed an application under Order IX Rule 9 read with section 151 of the Civil Procedure Code for setting aside order dated 20.01.2014 passed for dismissing Misc. (J) Case No. 48/2012. 5. Thereafter, by order dated 19.02.2014, a writ was issued by the learned Court of Munsiff No.3, Guwahati for restoration of possession of the suit land to the petitioner, fixing 19.03.2014 for report. As per the report dated 07.03.2014 given by the Civil Nazir, the suit land was restored to the petitioner, who acknowledged the receipt of the said land. 6. On 19.03.2014, the respondent No.2 again appeared in the court of Learned Munsiff No.3, Guwahati, and filed an application under Order IX Rule 9 read with section 151 of the Civil Procedure Code for recalling the order dated 20.01.2014 passed in Misc. (J) Case No. 512/12, which was registered as Misc. (J) Case No. 132/2014. Along with the said application, the respondent No.2 filed a separate petition under section 5 of the Limitation Act, 1963 for condoning the delay in filing Misc. (J) Case No. 132/14. On 19.03.2014, the respondent No.2 filed yet another application in the court of Learned Munsiff No.3, Guwahati under Order IX Rule 9 read with section 151 of the Civil Procedure Code for recalling the order dated 20.01.2014 passed in Misc. (J) Case No. 48/12, which was registered as Misc.(J) Case No. 133/2014. Similarly, a separate petition under section 5 of the Limitation Act, 1963 for condoning the delay in filing Misc. (J) Case No. 133/14. 7. (J) Case No. 48/12, which was registered as Misc.(J) Case No. 133/2014. Similarly, a separate petition under section 5 of the Limitation Act, 1963 for condoning the delay in filing Misc. (J) Case No. 133/14. 7. Now on 31.05.2014, the Respondent No.1, namely, Sri Rabindra Deb, who was a stranger to the suit, appeared before the Learned Court of Munsiff No.3, Guwahati and by filing a petition under section 151 of the Civil Procedure Code, submitted that he was dispossessed from his land, described in Schedule-B of the said petition, measuring about 4 lechas. The said petition was numbered as Petition No. 1500/14 dated 31.05.2014 and registered as Misc. (J) Case No. 278/2014.The petitioner herein contested the said misc. case by filing his written objection. In course of the proceeding, the respondent No.1 filed a petition bearing No. 2920/14 dated 28.08.2014 and prayed for summoning the 3 persons connected with Civil Nazir to ascertain how and in what mode the writ for re-possession of suit land to petitioner herein was executed. The learned Court of Munsiff No.3, Guwahati, by an order dated 27.10.2014, after hearing the learned counsel for the parties, allowed the said petition to summon the 3 persons named therein. The said order dated 27.10.2014, passed by the learned Munsiff No.3, Guwahati in Misc. (J) Case No. 278/14 is in challenge in the present revision. 8. The learned counsel for the petitioner submits that if the respondent No.1 herein is aggrieved by the execution, he being a third party, his only remedy is by filing an appropriate application under Order XXI Rule 99 of the Civil Procedure Code. It is submitted that as in the present case, the land in question was restored to the petitioner by way of restitution under section 144 of the Civil Procedure Code, the same amounts to a decree. In order to press this point, the learned Counsel for the petitioner relies on the case of (i)Tanzeen-E- Sufia V. Bibi Haliman & ors., (2002) 7 SCC 50 , and (ii) Silverline Forum Pvt. Ltd. V. Rajiv Trust & Anr., (1998) 3 SCC 723 . The learned counsel for the petitioner further submits that as per the ratio in Silverline Forum (supra), all questions raised under Order XXI Rule 99 becomes determinable by the executing court if such questions are relevant to the adjudication of the application. The learned counsel for the petitioner further submits that as per the ratio in Silverline Forum (supra), all questions raised under Order XXI Rule 99 becomes determinable by the executing court if such questions are relevant to the adjudication of the application. He submits that such determination becomes a decree within the meaning of Order XXI Rule 101 of the Civil Procedure Code. The learned counsel for the petitioner also refers to the case of PishuVasvani V. Kishan Chand Vasvani & ors., (2006) 1 GLR 81, to press his point that as there are specific provisions in the Code under Order XXI to deal with the matters arising out of execution proceedings, the inherent power of the Court under Section 151 of the Civil Procedure Code cannot be used to override the express provisions of the Code. 9. The learned Counsel for the respondent No.1, per contra, submits that the particular portion of the suit land, morefully described in Schedule-B of his petition under section 151 of the Civil Procedure Code was under his ownership and possession, which was delivered to the petitioner illegally on 07.03.2014 following an order of restitution passed under Section 144 of the said Code. He admitted that the Respondent No.1 was a third party to the suit and, as such, his land ought not to be taken from him by the Civil Nazir and handed over to the petitioner in the garb of restitution. He strongly submitted that the order passed in section 144 of the said Code cannot be equated with the execution proceedings initiated under Order XXI. The learned counsel for the respondent No.1 submits that in the present case, there was no formal execution proceeding within the meaning of Order XXI of the Civil Procedure Code and, as such, he cannot file any petition before the learned trial court under the provisions of Order XXI Rule 99 as argued by the learned Counsel for the petitioner. 10. The learned Counsel for the respondent No.1 further submits that the present challenge in this revision is the impugned order dated 27.10.2014, passed by the learned Court of Munsiff No.3, Guwahati in Misc. (J) Case No. 278/14. Therefore, this Court in exercise of revisional jurisdiction ought not to adjudicate whether the application filed by the respondent No.1 under section 151 was maintainable or not, as the said proceedings is not in challenge. 11. (J) Case No. 278/14. Therefore, this Court in exercise of revisional jurisdiction ought not to adjudicate whether the application filed by the respondent No.1 under section 151 was maintainable or not, as the said proceedings is not in challenge. 11. Having heard the rival contentions raised by the learned counsels for the petitioner and the Respondent No.1 and on perusal of the materials on record and the case cited by the learned counsel for the petitioner, this Court is of the considered view that the facts as unfurled from the materials on record is that it was during the pendency of the application under Order IX Rule 13 of the Civil Procedure Code filed by the petitioner herein, he had also filed a separate application for restitution under section 144 of the Code where he prayed for the restitution of the suit property back to him. In course of time, not only the suit filed by the respondent No.2 was dismissed by judgment and decree dated 09.12.2010, but the land described in Schedule-A of the plaint was ordered to be restored back to the petitioner by the learned Trial Court by passing a separate order dated 09.12.2010 in Misc.(J) Case No. 803/2009, and the said suit land described in Schedule-A of the plaint was purportedly restored. However, now the Respondent No.1 came to the learned Trial Court and by filing an application under Section 151 of the Civil Procedure Code, complained that in course of implementing the order for restitution, he was illegally disposed from his land, which is described in Schedule-B of the said petition. Thus, it is apparent that no execution case was registered before a Executing Court and therefore, no decree was executed by the learned Court below. Thus, all along it was not the Executing Court, but the Trial Court which was implementing the order of restitution. 12. This Court is inclined to the accept the argument forwarded by the learned counsel for the respondent No.1 that the maintainability of his application under Section 151 of the Civil Procedure Code is not the subject matter of this revision. Thus, this Court refrains from deciding the maintainability of the said application i.e. Misc.(J) Case No. 278/14 pending before the learned Court below as argued by the learned counsel for the petitioner. 13. Thus, this Court refrains from deciding the maintainability of the said application i.e. Misc.(J) Case No. 278/14 pending before the learned Court below as argued by the learned counsel for the petitioner. 13. Coming to the order impugned herein, the said order was passed on the prayer made before the court to summon 4 (four) Court staff, viz., Civil Nazir and three Process Servers for the purpose of examining them. As per the petition filed by the respondent No.1, their examination was required to find out how and in what mode writ was issued by the Court and was executed in respect of the land. This Court is of the view that a Civil Court has the inherent power under section 151 of the Civil Procedure Code, which can be used to find out the truth. In the present case in hand, injustice has been alleged and, as such, it becomes the duty incumbent upon the learned Trial Court to find out the truth. The procedural law is a hand-maid of justice. Without deciding the maintainability of the application filed under section 151 of the Code, this court is of the view that once the learned Court below had entertained such an application, it was quite natural for the court to proceed to find out the truth and, as such, this court does not find any infirmity in the said order. Thus, this court also does not find any reason why or how the petitioner will be prejudiced if the Court staff who had executed the order for restitution are examined by the Court. 14. In view of the above, this court is of the view that none of the three case laws cited above by the learned counsel for the petitioner are applicable in the facts and circumstances of the case, as those are not on the question whether the civil court has the power to allow examination of witness on an application filed under section 151 of the Civil Procedure Code. 15. As a result, the revision is dismissed. The parties are left to bear their own cost. 16. The parties are directed to appear before the learned Court of Munsiff No.3, Kamrup (Metropolitan), Guwahati on 15.05.2017, to seek further instructions from the said learned Court.