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2020 DIGILAW 191 (CAL)

Arati Sikdar v. Staya Ranjan Kundu

2020-02-11

BIBEK CHAUDHURI

body2020
JUDGMENT Bibek Chaudhuri, J. - Legality, validity and propriety of an order being order No.20 dated 24th December, 2019 passed by the learned Civil Judge (Senior Division), Small Causes Court at Sealdah in Misc Case No.30 of 2018 arising out of Title Execution Case No.1 of 2016 is challenged by the legal heirs and representatives of defendant No.7, since deceased invoking the jurisdiction of this Court under Article 227 of the Constitution of India. 2. Suffice it to say that the opposite parties as plaintiffs instituted a suit for eviction, recovery of khas possession and also for mesne profit against the defendants in the court of the learned Civil Judge (Senior Division) at Sealdah which was registered as Title Suit No.183 of 2010, since renumbered as Title Suit No.14 of 2015. The said suit was filed against 16 numbers of defendants. It was alleged by the plaintiffs that they became the owners of the suit land with a kutcha tin shed structure thereon. The defendants took forcible possession of the said kutcha tin shed structure in or about March 2009. It was alleged by the plaintiffs that the defendants were in wrongful possession of the suit property and accordingly they were liable to be evicted. The suit was decreed on contest against the defendants on 8th February, 2016. The said decree was put in execution which was registered as Title Execution Case No.1 of 2016. During the pendency of the suit it was pointed out to the opposite parties that the defendant No.7 died long ago and consequently the opposite parties filed an application for substitution under Order 22 Rule 4 of the Code of Civil Procedure along with an application for condonation of delay. The said application was registered as Misc Case No.13 of 2011. However, the opposite parties did not press for hearing of the said application and it was dismissed by the learned trial court vide order No.55 dated 9th December, 2014. Ultimately, in the execution case, the legal heirs and representatives of the said deceased defendant No.7 filed an objection against the executability of the decree under Section 47 of the Code of Civil Procedure contending, inter alia, that the decree is inexecutable and nullity being passed against a dead person, viz defendant No.7. 3. Ultimately, in the execution case, the legal heirs and representatives of the said deceased defendant No.7 filed an objection against the executability of the decree under Section 47 of the Code of Civil Procedure contending, inter alia, that the decree is inexecutable and nullity being passed against a dead person, viz defendant No.7. 3. The said application under Section 47 of the Code of Civil Procedure was registered as Misc Case No.30 of 2018 by passing the impugned order dated 24th December, 2019 the learned Judge in the executing court rejected the application under Section 47 of the Code of Civil Procedure on contest and dismissed the Misc Case. 4. It is submitted by Mr. Kushal Chatterjee, learned Advocate for the petitioners that decree in Title Suit No.183 of 2010 was passed against 16 defendants including defendant No.7 whose is dead. Practically defendant No.7 died before the institution of the suit and the petitioners are in occupation of the suit property. Since the decree was passed against the defendant No.7 after his death without impleading his legal heirs and representatives in the suit, decree is nullity and inexecutable. The learned Judge in the executing court failed to consider such aspect of the matter that a decree cannot be executed when it is passed against a dead person. He also failed to appreciate that such a decree is nullity. 5. Mr. Ashok Banerjee, learned Senior Counsel on behalf of the opposite parties, on the other hand, submits that the judgment debtors were illegal and forcible occupiers of some tin shed structures standing on the suit land. The opposite parties as plaintiffs filed the suit praying for eviction in the year 2010. The defendant No.7 died sometimes in 2004, long before institution of the suit. Therefore, the plaintiffs/opposite parties were under no obligation to substitute deceased defendant No.7 by his legal heirs and representatives, he died before the institution of the suit. The question of substitution comes into play only when a party to the suit dies during the pendency of the suit. If a suit is filed against a dead person and it is decreed ex-parte, such a decree may at best be held to be unenforceable, but not a nullity. The question of substitution comes into play only when a party to the suit dies during the pendency of the suit. If a suit is filed against a dead person and it is decreed ex-parte, such a decree may at best be held to be unenforceable, but not a nullity. Inexecutability of the decree due to the death of a party to the suit arises only when at the time of filing of the suit, a party is living and he dies during the pendency of the suit. In the instant case the petitioner died long before institution of the suit. 6. It is further pointed out by Mr. Banerjee that the suit was filed against 16 defendants for eviction from the suit property. The decree passed in the said suit is divisible and enforceable against each of the defendants/judgment debtors separately. In other words, the judgment debtors are severally liable to the decree. Therefore, the decree is executable against all the judgment debtors except defendant No.7 who died before the institution of the suit. 7. Mr. Bajernee next draws my attention to Section 47 of the Code of Civil Procedure. Section 47 reads thus:- "47. Questions to be determined by the Court executing decree.-(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit." 8. The learned Senior Counsel for the opposite parties has urged that all questions arising between the parties to the suit or their representatives, in which the decree was passed can be determined by the executing court relating to the execution, discharge or satisfaction of the decree. The petitioners are neither the parties to the suit nor the representatives of a party to the suit because defendant No.7 cannot be treated as a party to the suit as he died before the institution of the suit. 9. Under such circumstances, Mr. Banerjee submits that the learned Judge in executing court committed no illegality or material irregularity in passing the impugned order. 10. 9. Under such circumstances, Mr. Banerjee submits that the learned Judge in executing court committed no illegality or material irregularity in passing the impugned order. 10. Having heard the submission made by the learned Advocates for the petitioners and the opposite parties and on perusal of the impugned order as well as other materials on record, I like to state at the outset that 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 in facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties. 11. When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree is sought to be executed, an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record. Where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction. 12. In the instant case admittedly, defendant No.7 died in the year 2004. Suit for eviction was filed in 2010 impleading defendant No.7 as a living person. Since defendant No.7 died prior to institution of the suit, the plaintiffs/decree holders had no obligation to implead his legal heirs and representatives. I have already stated that the decree was passed against 16 defendants holding them, inter alia, that they were illegal and unlawful occupation of the suit property. The decree is binding against all the defendants except defendant No.7 who died prior to institution of the suit. 13. I have already stated that the decree was passed against 16 defendants holding them, inter alia, that they were illegal and unlawful occupation of the suit property. The decree is binding against all the defendants except defendant No.7 who died prior to institution of the suit. 13. For the reasons stated above, I do not find any merit in the instant revision and the same is liable to the dismissed. 14. Accordingly, CO 228 of 2020 is dismissed on contest, however without cost. 15. The order dated 24th December, 2019 passed by the learned Judge in executing Court in Misc Case No.30 of 2018 arising out of Title Execution Case No.1 of 2016 is affirmed. 16. Let a copy of this order be sent to the learned Execution Court for information and necessary action.