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2020 DIGILAW 195 (CAL)

Biswanath Ghosh v. Tarun Pradhan

2020-02-11

BISWAJIT BASU

body2020
ORDER : Biswajit Basu, J. 1. The suit filed by the petitioners for declaration of title and permanent injunction being Title Suit No. 92 of 2000 subsequently re-numbered as Other Suit No. 18 of 2007 was decreed on January 28, 2011 by the learned Civil Judge, (Junior Division), Additional Court, Tamluk, District Purba Medinipur. 2. The said decree was put into execution giving rise to Tide Execution Case No. 05 of 2013. 3. The petitioners are seeking two fold reliefs in the said execution case, firstly for recovery of possession of the suit property wherefrom they have allegedly dispossessed by the judgment debtors in violation of the decree of permanent injunction and secondly Civil Prison of the judgment debtors for willful violation of the said decree. 4. The opposite party Nos. 1 and 2 filed written objection to the said application for execution. The said objection was treated as an application under Section 47 of the Code and was registered as J. Misc. Case No. 10 of 2014 before the executing Court. 5. The executing Court by the order impugned being Order No. 113 dated February 05, 2019 has allowed the said J. Misc. Case No. 10 of 2014 and dismissed the said execution case. 6. The executing Court held that judgment debtor Nos. 10 and 11 were neither party to the suit nor it has been shown that they are agent of other judgment debtors. 7. The executing Court further held that the decree holder also failed to show that the judgment debtors have violated the decree of injunction with notice or knowledge. 8. Mrs. Chakraborty, learned advocate appearing on behalf of the petitioners submits that the father of the said judgment debtor Nos. 10 and 11, opposite party Nos. 1 and 2 herein, was the defendant No. 5 in the suit; therefore, the decree of permanent injunction binds the opposite party Nos. 1 and 2 also. 9. 8. Mrs. Chakraborty, learned advocate appearing on behalf of the petitioners submits that the father of the said judgment debtor Nos. 10 and 11, opposite party Nos. 1 and 2 herein, was the defendant No. 5 in the suit; therefore, the decree of permanent injunction binds the opposite party Nos. 1 and 2 also. 9. She further submits that the petitioners have put the decree into execution for recovery of possession of the suit property as well as for the punishment of the judgment debtors for willful violation of decree of injunction, the said decree was not within the knowledge of the judgment debtors may be a good defence to avoid the said punishment but the judgment debtors are not aware of the said decree cannot be a ground to restore the possession of the decree holders over the suit property in execution of the said decree. 10. Mr. Bhattacharyya, learned advocate appearing on behalf of the opposite party Nos. 1 and 2 submits that his clients have not violated the decree of injunction as would be appearing from the materials on record. 11. I have heard the submissions of the learned advocate for the parties. 12. On perusal of the decree under execution it appears that by the said decree the title of the petitioners over the suit property has been declared and by the decree of permanent injunction the defendants of the said suit have been permanently restrained from disturbing the peaceful possession of the petitioners over the suit property. The said decree was passed on contest against the defendant No. 5 who happened to be the father of the opposite party Nos. 1 and 2. 13. I am at one with Mrs. Chakraborty, that the said decree is binding upon the opposite party Nos. 1 and 2. 14. The decree was put into execution for the purpose of restoration of possession of the suit property which has allegedly been taken away from the petitioners by the judgment-debtors in violation of the said decree of permanent injunction. 15. Therefore, merely because of the failure of the decree holders to prove that the judgment debtors have willfully violated the said decree will not entail the dismissal of the entire execution case. In all, the reasons ascribed by the learned executing Court in dismissing the said execution case are not sustainable. 16. The order impugned is therefore set aside. 17. Therefore, merely because of the failure of the decree holders to prove that the judgment debtors have willfully violated the said decree will not entail the dismissal of the entire execution case. In all, the reasons ascribed by the learned executing Court in dismissing the said execution case are not sustainable. 16. The order impugned is therefore set aside. 17. The Additional Court of learned Civil Judge, (Junior Division), Tamluk, District Purba Medinipur is directed to decide the Title Execution Case No. 05 of 2013 along with J. Misc. Case No. 10 of 2014 afresh in accordance with law. 18. In view of the age of the said execution case the executing Court is requested to dispose of the same expeditiously, preferably within a period of eight months from the date of communication of this order. With the above, C.O. 2172 of 2019 is disposed of. No order as to costs. 19. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.