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2021 DIGILAW 1075 (KER)

M. Kamaraj v. Tata Tea Ltd. , Kolkota

2021-11-24

A.BADHARUDEEN

body2021
JUDGMENT : This Original Petition has been filed under Article 227 of the Constitution of India by the 2nd Judgment debtor in E.P.48/2016 in O.S.No.103/96 on the file of the Execution Court/Munsiff Court, Devikulam. The original petitioner urged the following points specifically in the Original Petition to be decided in this case: (i) Can the execution Court proceed with the delivery of immovable property in a case where Exhibit-P2 decree is an inexecutable one on various aspects. (ii) Is not the execution Court bound to adjudicate application filed under Section 47 challenging the executability of a decree? (iii) Can the execution Court by-pass Order 21 Rule 23(2) of the Code of Civil Procedure? 2. Heard the matter in detail. 3. It is contended by the learned counsel for the petitioner, inter alia, that the petitioner suffered decree in O.S.103/1996 and the said decree was confirmed in A.S.No.55/2001 of Sub Court, Thodupuzha. According to the petitioner, though R.S.A.No.32/2004 was filed before this Court challenging the dismissal of A.S.No.55/2001, the same also was dismissed for default. The petitioner would contend further that the plaintiff/decree holder has no title to the schedule property and they have purchased the decree schedule building only during 2005 as borne out from Ext.P5 execution petition. It is submitted further that the Amin noted the number of the building, sought to be evicted, in deviation from the original building number shown in the decree schedule. This Original Petition was moved when delivery was ordered with aid of police, by the execution court to execute the decree passed in a suit of the year 1996. 4. It is not in dispute that the petitioner herein is none other than the 2nd judgment debtor in E.P.No.48/2016 and the 2nd defendant in the O.S.No.103/1996. Ext.P1 is the copy of E.P.No.48/2016 filed by Tata Tea Ltd., presently, Tata Global Beverages Ltd. Ext.P2 is the copy of decree in O.S.No.103/1996 wherein also the plaintiff is Tata Tea Ltd. Comparing Exts.P1 and P2, without much ado, it can be safely concluded that the plaintiff the Tata Tea Ltd. filed execution petition showing the present name of the company as Tata Global Beverages Ltd. Thus the contention raised by the learned counsel for the original petitioner that the decree holder in Ext.P1 E.P.No.48/2016, who is the subsequent purchaser of the property during 2005, has no legs to stand. 5. 5. It is true that in Ext.P3 report of the Amin, it has been stated that, building No.1/647 of Munnar panchayat stated in the decree, could not be found since house No.310 in ward No.5 of Devikulam Panchayat is the number presently affixed in the building. Based on this report, the learned counsel for the petitioner urged that the decree schedule building could not be identified and the decree holder is attempting to get eviction of a building different from the decree schedule item. In Ext.P3 report, Amin stated that delivery could not be effected as 2nd judgment debtor (the petitioner herein) objected the same. In Ext.P3 report the Amin specifically reported further that the decree schedule property was identified based on the boundaries shown by the decree holder in conformity with the decree schedule boundaries and it was thereafter the 2nd judgment debtor was directed to vacate the building. The above report of the Amin would go to show that the property has been identified properly based on the schedule description. But the building situated in the decree schedule property has been reported to be having a different number. I do not think that the number given by Devikulam Panchayat, now Munnar Panchayat, shall be always the same. It is judicially noticeable that the Panchayat would give new numbers to the building on completion of every 5 years and therefore the possibility of maintaining the number assigned during 1996 and 2001 is an outright impossibility. Therefore, the said reason cannot be found in favour of the petitioner to hold that the building was not properly identified, in the case on hand, where the Amin has specifically reported that the decree schedule property was well identified and eviction could not be effectuated as it was obstructed by the petitioner herein. Regarding identification of a decree schedule property along with a building, the identification of the decree schedule property based on schedule description alone is sufficient and the difference in the building number situated therein is of no consequence. 6. Ext.P4 is the objection filed by the petitioner/2nd judgment debtor incorporating the said grounds by asserting that the decree could not be executed. In fact, the objection does not contain anything to favour the contention raised by the original petitioner. 6. Ext.P4 is the objection filed by the petitioner/2nd judgment debtor incorporating the said grounds by asserting that the decree could not be executed. In fact, the objection does not contain anything to favour the contention raised by the original petitioner. Ext.P5 is an application filed by the petitioner to cancel the delivery proceedings when E.A.No.37/2021 was allowed to give police aid to the Amin to execute the order. Going by the averments in the application also, the difference noted in the number of the building has been highlighted to assert the contention that the decree could not be executed. In fact, the said contention cannot be appreciated as I have already pointed out. Thus it has to be held that point No.(i) urged by the learned counsel for the petitioner to the effect that Ext.P2 decree is not executable, cannot be found favour and the said point answered against the petitioner. 7. The second challenge raised in this Original Petition is whether the execution court is bound to adjudicate an application filed under Section 47 of Code Civil Procedure challenging the executability of decree? In this context, a glimpse on Section 47 of CPC is necessary. Section 47 of Code of Civil Procedure deals with questions to be determined by the court executing the decree. Section 47 provides as follows: “47. Questions to be determined by the Court executing decree:--(1) All questions arising between the parties to be 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. (2) xxx xxx xxx (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. [Explanation I:--For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. [Explanation I:--For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation II:--(a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and (b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.] Thus Section 47 mandates determination of all questions arising between the parties to the suit in which the decree was passed or their representatives in relation to execution, discharge or satisfaction of the decree. It is interesting to note that the 2nd judgment debtor filed a petition to cancel the delivery proceedings on 23.09.2021 when the Amin visited the spot for effecting delivery on 16.09.2021. Prior to this stage, no effective participation was made by the petitioner herein before the executing court. Though the petition was filed after the report of the Amin, nothing stated in the petition in order to canvass the position that the decree is not executable in any manner. 8. The learned counsel pointed out a decision reported in 2008 (4) KLT 761 , Babu Raj v. Vasantha Devi in support of this contention. When the above decision was gone through, in fact, the said decision was held not good law in a subsequent decision reported in 2011 (1) KHC 352 , Unnikrishnan & Ors. v. Kunhibeevi & Ors. by a Division Bench of this Court. On a perusal of the decree in consonance with the other materials, there is nothing to suggest that the decree is not an executable one and no dispute whatsoever to be adjudicated by exercising power under Section 47 of CPC is made out. Thus the 2nd question also answered in the negative. 9. Third question to be decided is: can the execution court by-pass Order 21 Rule 23(2) of the Code of Civil Procedure? Thus the 2nd question also answered in the negative. 9. Third question to be decided is: can the execution court by-pass Order 21 Rule 23(2) of the Code of Civil Procedure? It is true that Order 21 Rule 23(1) provides that where the person to whom notice is issued under Rule 22 does not appear or does not show cause to the satisfaction of the Court why the decree should not be executed, the Court shall order the decree to be executed. Order 21 Rule 23(2) provides that where such person offers any objection to the execution of the decree, the Court shall consider such objection and make such order as it thinks fit. In fact, Order 21 Rue 23 deals with the procedure to be followed after getting notice under Order 21 Rule 22. It is not in dispute that when there is a valuable objection, the Court is bound to consider the same. However, the said consideration to be bagged in a narrow compass when the objection does not contain any valid grounds or the objection appears to be as one filed during 2021, with intention to delay the execution of the decree of the year 1996. 10. The prayers in this petition are: (i) to set aside Ext.P1 execution petition and all further proceedings ended in Ext.P7 delivery order dated 05.11.2021 of the Munsiff Court, Devikulam; (ii) to direct the execution court Devikulam to consider and pass orders on Ext.P4 objection and P5 application. In this context, it is to be noted that Ext.P5 application was filed when police protection was ordered to effect delivery by allowing an application filed by the decree holder on 20.09.2021 when the petitioner herein/2nd judgment debtor obstructed delivery. On an overall discussion by addressing the points raised by the learned counsel for the petitioner, it has to be observed that the decree put in execution as per Ext.P1 is an executable decree and the contention raised by the petitioner to the effect that the decree is not an executable one is unsustainable. Coming to Ext.P4 objection and Ext.P5 application, in fact, no valid sustainable contentions could be gathered therefrom. Coming to Ext.P4 objection and Ext.P5 application, in fact, no valid sustainable contentions could be gathered therefrom. However, it cannot be said that the execution court would ignore the objections, if any merits therein, and for which no specific direction is warranted in the present case, where even breathing time not given to the execution court to consider the same, since stay was obtained in this matter just after filing the objection and petitions. It seems that the above objection filed at the fag end of delivery proceedings with intention to protract execution of a decree in a suit of the year 1996 and therefore, the Original Petition deserves no merit and is liable to be dismissed in the interest of justice. 11. Before parting as aforesaid, it is the need of the hour to conceive the ordeal faced by the decree holder in his thirst for enjoying the fruits of the decree. See this Original Petition pertains to execution of a decree in a Suit of the year 1996. Exactly telling, a decree passed in a Suit filed before 25 years till remains unexecuted. If this is the scenario, the confidence of the people in the system how to be maintained? In any view, in order to keep the efficiency and transparency of the system, petition of this nature should be closed at the threshold after considering its merits without any delay, otherwise the system will suffer. Accordingly, this Original Petition stands dismissed. It is specifically ordered that the interim stay granted by this Court is hereby vacated and the execution court is directed to expedite the execution proceedings as per law.