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2018 DIGILAW 2442 (JHR)

Anwar Kamal Khan v. Ranjan Bhattacharya

2018-11-01

RAJESH KUMAR

body2018
JUDGMENT : I.A. No. 10116 of 2018 (in S.A. No. 166 of 2014) and I.A. No. 10117 of 2018 (in S.A. No. 167 of 2014) I.A. No. 10116 of 2018 (in S.A. No. 166 of 2014) and I.A. No. 10117 of 2018 (in S.A. No. 167 of 2014) have been filed for modification of the order dated 30.10.2018 wherein it has been ordered that several opportunities have been given by this Court, but the reasons best known to the counsel for the respondents, they are not represented. Accordingly, these matters are proceeded ex-parte. It has been submitted by the learned counsel for the respondent that inadvertently, counsel for the respondent could not appear before the Court. Learned counsel for the appellants has no objection so far as these I.As. are concerned. In view of the reasons stated in these I.As., both these I.As, are allowed and respondent is permitted to participate in the argument. S.A. No. 166 of 2014 S.A. No. 167 of 2014 S.A. No. 681 of 2016 With the consent of both the parties, let S. A. No. 681 of 2016 be de-tagged from the analogous cases as the same has not been admitted till date. 2. Heard Mr. Amar Kr. Sinha learned counsel for the appellants assisted by Mr. Sandeep Verma, learned counsel and Mr. Ayush Aditya learned counsel for the respondents. 3. Brief facts of the case is that Eviction Suit No. 06 of 1988 has been instituted by Rekha Bhattacharya (mother of the respondent herein) for eviction of Himansu Bhattacharya and others from the suit property on the ground of existence of landlord and tenant relationship and default in making payment of rent. The suit has been decreed. The Court has directed for eviction of Himansu Bhattacharya. Thus, the present respondent is decree holder of the Eviction Suit No. 06 of 1988. The decree of Eviction Suit No. 06 of 1988 has been confirmed by the First Appellate Court in Eviction Appeal No. 02 of 1999 vide judgment and decree dated 28.11.2002. The said decree has been approved by the Second Appellate Court in S.A. No. 366 of 2002 vide judgment dated 25.06.2004. Finally it has travelled upto the Apex Court, wherein SLP filed by the judgment debtor, Himanshu Bhattacharya has been withdrawn. 4. The said decree has been approved by the Second Appellate Court in S.A. No. 366 of 2002 vide judgment dated 25.06.2004. Finally it has travelled upto the Apex Court, wherein SLP filed by the judgment debtor, Himanshu Bhattacharya has been withdrawn. 4. For execution of the decree, Execution Case No. 05 of 1999 has been filed in which delivery of possession was issued on 10.12.2004. Objection has been raised by one of the objector namely Guru Ghosh under Order XXI Rule 97 of the CPC objecting the execution. On such objection, Misc. Case No. 14 of 2005 has been registered. In Misc. Case, it has been pleaded by the objector Guru Ghosh that the suit land has been purchased by him from decree holder Rekha Bhattacharya in the year 1952 by sada sale deed and the said premises has been rented to different tenants. 5. The registration of Misc. Case No. 14 of 2005 has been challenged by the present-respondent (successor of the decree holder) by filing writ petition, which was allowed vide order dated 24.11.2006 and the registration of the Misc. Case No. 14 of 2005 has been quashed. The rejection of Misc. Case No. 14 of 2005 by the High Court has been appealed before the Hon’ble Supreme Court being SLP No. 21739 of 2006, which was converted into Civil Appeal No. 1929 of 2008. After hearing of the parties, the Hon’ble Supreme Court, vide order dated 07.03.2008, allowed the Civil Appeal by directing the Executing Court to proceed with the Misc. Case No. 14 of 2005 and dispose of the same within one year. As per the direction of the Hon’ble Supreme Court, Misc. Case No. 14 of 2005 was proceeded and dismissed on 21.02.2009. 6. Being aggrieved, Guru Ghosh (objector) has filed an appeal being Misc. Appeal No. 08 of 2009, which has been dismissed vide judgment dated 05.09.2016, against which Second Appeal No. 681 of 2016 has been filed, which is pending for adjudication before this Court. The said case is yet to be admitted. 7. The brief facts are background of the dispute. The Second Appeal No. 166 of 2014 and Second Appeal No. 167 of 2014 are related with Misc. Case No. 08 of 2014 and Misc. Case No. 09 of 2014. The Misc. The said case is yet to be admitted. 7. The brief facts are background of the dispute. The Second Appeal No. 166 of 2014 and Second Appeal No. 167 of 2014 are related with Misc. Case No. 08 of 2014 and Misc. Case No. 09 of 2014. The Misc. Case No. 08 of 2014 has been filed by Anwar Kamal Khan, who himself has claimed to be the tenant of Guru Ghosh and in possession of some portion of the suit premises since 1994. Md. Nazir Ansari has been filed Misc. Case No. 09 of 2014 and he has also claimed to be tenant of Guru Ghosh and in possession of the some portion of the suit premises since 1994. Both are using the tenant premises for the purpose of business. Both the Misc. Cases i.e. Misc. Case No. 08 of 2014 and Misc. Case No. 09 of 2014 have been heard together and vide order dated 29.05.2014, the petition/objection filed by the applicant/objector was dismissed. Relevant portion of the order dated 29.05.2014 is quoted here-in-under: “In this case applicant/objector is not claiming independent right, title and interest over the suit property, rather he is claiming through Ghuru Ghosh, claiming himself as his tenant and his so called landlord earlier filed objection u/o 21 rule 97, which was already rejected by this court, hence present applicant/objector is bound by the order, passed by the court against his landlord. And as per above discussion, I find that question raised by the objector is not legally arisen between the parties, because he has no independent claim of the right, title interest over the suit property. It is well settled principle of law that the executing court is not competent to go into the merits, re-appreciate the facts and come to the conclusions different from that of trial court. The general rule is that an executing court cannot go behind the decree, it must take the decree as it is and must proceed to execute it. It cannot entertain an objection that the decree is incorrect in law or facts. As per above discussion, I come to the conclusion that objection filed by the applicant/objector is not maintainable as per provisions of order 21 rule 97 and also not legally arisen between the parties as per rule 101 of order 21. It cannot entertain an objection that the decree is incorrect in law or facts. As per above discussion, I come to the conclusion that objection filed by the applicant/objector is not maintainable as per provisions of order 21 rule 97 and also not legally arisen between the parties as per rule 101 of order 21. It also appears that this petition has been filed only to delay the execution proceeding. Hence, the petition/objection, filed by the petitioner is hereby dismissed.” 8. Being aggrieved, objectors had preferred Miscellaneous Appeals, which have been numbered as Misc. Appeal No. 08 of 2014 and Misc. Appeal No. 09 of 2014. Both the appeals have been heard together and have been dismissed vide order dated 13.08.2014 on the ground that the order passed in Misc. Case No. 08 of 2014 and Misc. Case No. 09 of 2014 is not an appeal able order. 9. Being aggrieved, objectors have preferred Second Appeal being Second Appeal No. 166 of 2014 and Second Appeal No. 167 of 2014 before this Court. Second Appeal No. 166 of 2014 has been admitted vide order dated 16.07.2015, in which following substantial question of law has been framed: “(1) Whether the learned court below has misconstrued the provisions contained under Order XXI Rule 103 of the Code of Civil Procedure while deciding the issues of maintainability of the appeal misconstruing and misinterpreting the provision contained in Order XXI Rule 98 of the Code of Civil Procedure? (2) Whether an order rejecting objection filed by the objector/appellant under Order XXI, Rule 97 of the Code of Civil Procedure and the findings of the learned court of appeal below dismissing the appeal at the stage of admission itself are wholly perverse and the same is against the mandate of law?” 10. Second Appeal No. 167 of 2014 has been admitted vide order dated 09.07.2015, in which following substantial question of law has been framed: “(1) Whether the learned court below has misconstrued the provisions contained under Order XXI Rule 103 of the Code of Civil Procedure while deciding the issues of maintainability of the appeal misconstruing and misinterpreting the provision contained in Order XXI Rule 98 of the Code of Civil Procedure? (2) Whether an order rejecting objection filed by the objector/appellant under Order XXI, Rule 97 of the Code of Civil Procedure and the findings of the learned court of appeal below dismissing the appeal at the stage of admission itself are wholly perverse and the same is against the mandate of law?” 11. After admitting both these appeals, the same have been tagged together as both appeals have been arisen from the common judgment passed in Misc. Appeal No. 08 of 2014 and Misc. Appeal No. 09 of 2014. Substantial question of law formulated in both these second appeals is same. 12. Respondent has filed Interlocutory Application being I.A No. 1998 of 2016 (in S.A. No. 166 of 2014) under Section 151 of the Code of Civil Procedure raising plea of non maintainability of these second appeals. Learned counsel for the respondent has relied upon the judgment rendered by the Apex Court in the case of Sameer Singh and Anr. Vs. Abdul Rab and Ors. reported in (2015) 1 SCC 379 and the judgment rendered by the Division Bench of Patna High Court in the case of Najbun Nisa @ Najmul Nisa Vs. Masrool Alam reported in (2008) 2 PLJR 308 , it has been contended by the present respondent that since adjudication made in Misc. Case No. 08 of 2014 and Misc. Case No. 09 of 2014 is not decree under Order XXI Rule 103 of the Code of Civil Procedure and as such, First Appeal itself was not appeal able and consequently the second appeal is also not maintainable. The above Interlocutory Application has been heard in detail and vide order dated 17.05.2016, it has been held by the Co-ordinate Bench of this Court that order passed in Misc. Case No. 08 of 2014 and Misc. Case No. 09 of 2014 amounts to decree in terms of Order XXI Rule 103 of the Code of Civil Procedure. Relevant portion of the order dated 17.05.2016 is quoted here-in-under: “From perusal of the order dated 29.5.2014 passed by the executing court on the objection petition under Order 21 Rule 97 filed by the appellant/objector it is evident that the executing court has considered the matter on merit and passed a speaking order adjudicating the matter on the facts. Relevant portion of the order dated 17.05.2016 is quoted here-in-under: “From perusal of the order dated 29.5.2014 passed by the executing court on the objection petition under Order 21 Rule 97 filed by the appellant/objector it is evident that the executing court has considered the matter on merit and passed a speaking order adjudicating the matter on the facts. Thus, the order is deemed to be a decree in terms of the provision of Rule 103 which stipulates that any order passed under Rule 98 or Rule 100 of Order 21 will have the same force and subject to the same condition as to an appeal or otherwise as if it were a decree and the appeal against the decree is maintainable under Section 96 of the C.P.C. Section 96 provides for appeal from the order passed under Order 21 Rule 98 or an order passed on a petition under Rule 97 or under Rule 100 of Order 21. Now when any order is passed under Section 96 in an appeal arising out of a Misc. Case, it is to be treated as a decree and the same is appealable like any other decree. On plain reading of Section 100 of C.P.C. it is abundantly clear that an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law, save and except the provisions otherwise expressly provided in the body of the code or by any other law for the time being in force. Thus in view of the provisions of law as enumerated above, it is held that there is no bar in maintainability of a second appeal against the order of an appellate court passed in appeal against the order on an objection petition under Order 21 Rule 97, 98 or 101. Before parting, it is relevant to point out that the appeal has been admitted after formulation of substantial question of law and the provisions of Section 100 of C.P.C empowers the High Court to re-formulate substantial question of law or formulate fresh question of law or hold that no substantial question of law is involved on the arguments advanced by the parties. Hence, at this stage it is held that the appeal is maintainable. 6. Hence, at this stage it is held that the appeal is maintainable. 6. Considering the facts of the case and the question of law so framed, the parties are directed to come prepared for hearing on the next date and it is made clear that no adjournment shall be granted to either of the parties. 7. Accordingly, I.A.No. 1998 of 2016 is hereby dismissed and put up on 29.7.2016 under the heading for “Hearing”.” 13. Thus, once it has been held by this Court that in these second appeals, order passed by the Executing Court in Misc. Case No. 08 of 2014 and Misc. Case No. 09 of 2014 amounts to decree in terms of Order XXI Rule 103 of the Code of Civil Procedure, nothing survives to be decided. The order dated 17.05.2016 remains unchallenged. Both the parties have accepted the order. 14. In view of order dated 17.05.2016 passed in these appeals, the point of law formulated has to be answered in favour of the appellants. Thus, the impugned order dated 13.08.2014 passed by the First Appellate Court in Misc. Appeal No. 08 of 2014 and Misc. Appeal No. 09 of 2014 is erroneous in law and accordingly, the same is, hereby, set aside. The matter is remanded back to the First Appellate Court to decide these appears on merits and in accordance with law. Accordingly, both these appeals are disposed of. 15. Since the litigation is very old one as the proceeding has been initiated in the year 1988, the Appellate Court is directed to conclude the same within a period of six months from today. 16. With the consent of the parties, let both the parties appear before the Court below on 06.12.2018. 17. In view of the disposal of both the Second Appeals, all the pending Interlocutory Applications stand disposed of.