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2018 DIGILAW 271 (GAU)

Dilip Kr. Dey v. Alo Rani Nag

2018-02-13

A.K.GOSWAMI

body2018
JUDGMENT & ORDER : Arup Kumar Goswami, J. Heard Mr. P. Upadhyay, learned counsel for the petitioners. Also heard Mr. D. Mazumdar, learned senior counsel, appearing for the respondents. 2. By this application under section 115 of the Code of Civil Procedure, 1908, the petitioners are challenging an order dated 04.11.2016 passed by the learned Munsiff No.1, Darrang at Mangaldai passed in Misc. (J) Case No.5/2015 arising out of Title Execution Case No.5/2014. 3. The petitioners are the judgment-debtors. A suit was filed by the respondents as plaintiffs, which was registered as Title Suit No.53/2006 in the Court of the learned Munsiff No.1, Darrang at Mangaldai. Copy of the plaint is not annexed with this petition but from a perusal of Paragraph-1 of the present petition, it appears that the plaintiffs/respondents claimed easementary right over a plot of land measuring 6 Ft. X 73 Ft. covered by Patta No.242 and Dag No.532 of Ward No.5, Mangaldai Town under Rangamati Mouza in the district of Darrang. The suit was dismissed by the learned Munsiff No.1, Darrang vide judgment & decree dated 04.11.2008. As against the said judgment & decree, an appeal was preferred being Title Appeal No.18/2008 in the Court of the learned Civil Judge, Mangaldai. The learned appellate Court reversed the judgment of the learned Munsiff No.1 and allowed the appeal by judgment & decree dated 25.10.2011. The said judgment & decree was challenged by filing a second appeal being RSA No.34/2012 and this Court, by judgment dated 03.06.2013, dismissed the said appeal. 4. A perusal of the judgment rendered in RSA No.34/2012, which is annexed in this petition, goes to show that the defendants (petitioners herein) had taken a plea of existence of an alternative path, which the plaintiffs had been using from 1978. This Court extracted Paragraph-13 of the first appellate Court, which reads as under:- "13. Moreover, in para 23(1) or real fact of the written statement specifically stated that a private path i.e. the alternative path was constructed by Harendra Mandal, Bankim Dey, Haricharan Bhowmick, Madhu Saha and Bipul Dey, as so the burden lies on them to prove the same. But none of the above persons has been examined by the defendant side to establish their claim that the same was public path used by the plaintiffs as path since long." 5. But none of the above persons has been examined by the defendant side to establish their claim that the same was public path used by the plaintiffs as path since long." 5. A perusal of the judgment rendered in RSA No.34/2012 further goes to show that this Court noted that the first appellate Court had chosen to disbelieve the plea of alternative path raised as persons from both sides of the road in question had not been examined. 6. Thereafter, the decree-holders started an execution case being Title Execution Case No.5/2014 in the Court of the learned Munsiff No.1, Mangaldai. The judgment debtors filed an application under section 47 CPC stating that the judgment & decree dated 25.10.2011 is not executable on the grounds that reliefs granted had not been specified in the judgment & decree dated 25.10.2011 and that there is extinguishment of easement of necessity. In Paragraph-4 of the application, it is stated as follows:- "4. That the decree was passed by the Learned First Appellate Court as the judgment debtor failed to prove the existence of alternative path for the decree holder. Now the situation has changed. The decree holder has got alternative path from his land. The alternative path originates from the North-West corner of the land of decree holder and the same runs towards the North and ultimately merges with the municipal road on the North. The said alternative path is 5/6 wide in breadth. The decree holder as well as his western boundary man Sri Dulal Dey and Northern boundary man Sri Bongkim Dey have been using the said alternative path for their egress and ingress. The judgment debtor has taken the photograph of the said alternative path. The photograph clearly shows the alternative path which originates from the land of decree holder. The said alternative path is fully described in the schedule below and hereinafter referred to as schedule-B path." 7. There is no averment when this alternative path came into being and from when allegedly the persons named therein were using the said path. The photograph is not enclosed with this petition. The alternative path was described in Schedule-B to the application. On the east of the path, the names of, apart from others, Harendra Mandal, Bongkim Dey and on the west, apart from others, Bipul Dey, Haricharan Bhowmik, Madhu Sudan Saha, appear. The photograph is not enclosed with this petition. The alternative path was described in Schedule-B to the application. On the east of the path, the names of, apart from others, Harendra Mandal, Bongkim Dey and on the west, apart from others, Bipul Dey, Haricharan Bhowmik, Madhu Sudan Saha, appear. The same very names were also mentioned at Paragraph 23.1 of the written statement stating that they had been using an alternative path since 1978, which was disbelieved. 8. Mr. Upadhyay has submitted that as easement of necessity has extinguished in view of the existence of an alternative path, the decree cannot be executed. He has further submitted that as the reliefs granted had not been specified in the decree, the decree is not executable in law. In this connection, he has placed reliance on the judgments of the Supreme Court in the case of Hero Vinoth (Minor) v. Seshammal, reported in (2006) 5 SCC 545 , more particularly on Paragraph-29 as well as in the case of Rameshchandra Bhikhabhai Patel v. Maneklal Maganlal Patel & Anr., reported in AIR 1978 Gujarat 62. 9. Mr. Mazumdar has submitted that there is no merit in this revision petition and the plea of an alternative path is a bogey raised by the judgment-debtors in order to deprive the decree-holders from the fruit of the decree. He has further submitted that all the prayers made in the suit were granted by the first appellate Court, which was not interfered with in second appeal and, therefore, this is too late in the day for the petitioners to contend that reliefs granted were not specified. The learned senior counsel further submits that the scope of an application under section 47 CPC is very limited and he relies upon on a judgment of the Supreme Court in the case of M/s Brakewel Automotive Components (India) Private Limited v. P.R. Selvam Alagappan, reported in (2017) 5 SCC 371 . 10. In Hero Vinoth (Minor) (supra), the Supreme Court laid down that an easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement. 10. In Hero Vinoth (Minor) (supra), the Supreme Court laid down that an easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement. When an alternative access becomes available, the legal necessity of burdening the servient Owner ceases and the easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognized in section 41 of the Easements Act, 1882. 11. In Rameshchandra Bhikhabhai Patel, the question that came up for consideration is as to whether the easement of necessity survives after an alternative outlet is available and the question was answered in the same lines as has been held by the Supreme Court in the case of Hero Vinoth (Minor) (supra). 12. The proposition advanced by Mr. Upadhyay on easement of necessity is firmly entrenched and there cannot be any dispute on the same. However, the petitioners had failed to prove the plea of an alternative path after having taken such a plea categorically in the written statement. The petition under Section 47 on the subject of alternative path is also ambiguous and ambivalent. During the pendency of the second appeal, no application was filed that another alternative path had come up. In the context of the case where such a plea of alternative path had been negated, if really such a path had come up, the onus was on the judgment-debtors to clearly and with accuracy describe the path so as to invite the attention of the Court to make further investigation. Sadly, this is lacking in the instant case. 13. With regard to the plea of the petitioners regarding non-executability of the decree on the touchstone of relief’s not being made specific, it is seen from the order under challenge that in Schedule-Ka, decree-holders had specifically mentioned the Dag number, Patta number, length and breadth of the path along with its boundary and, therefore, it cannot be termed as vague. 14. Law is well settled that a decree suffering from illegality or irregularity of procedure cannot be termed in-executable by the executing Court and the remedy of a person aggrieved by such a decree is to have it set aside in duly constituted legal proceedings or by a superior Court failing which he must obey the command of decree. 14. Law is well settled that a decree suffering from illegality or irregularity of procedure cannot be termed in-executable by the executing Court and the remedy of a person aggrieved by such a decree is to have it set aside in duly constituted legal proceedings or by a superior Court failing which he must obey the command of decree. A decree passed by Court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in an incidental proceeding. All questions relating to fact or law which had been raised or could have been raised and decided during trial, appeal or revision cannot be reopened in an execution proceeding. 15. In M/s Brakewel Automotive Components (India) Private Limited (supra), the Supreme Court held that a decree of Court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof. The purview of scrutiny under section 47 of the CPC is limited to objections with regard to its executability on the ground of jurisdictional infirmity and voidness. It was observed as follows:- "A Court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in an appeal or revision, a decree even if it is erroneous is still biding between the parties." 16. It was reiterated that the exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole and an executing Court can allow objection to the executability of the decree if it is found that the same is void ab initio and is a nullity. 17. The executing Court on the basis of the contextual facts held that the order for appointing commission at that stage was superfluous. In view of the above discussions, I have no reason to take a different view. Correspondingly, the revision petition fails and is dismissed. No costs.