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2021 DIGILAW 174 (ORI)

Bishnu Charan Mohanty v. Manju @ Manjusa Mohanty

2021-04-06

K.R.MOHAPATRA

body2021
JUDGMENT K.R. Mohapatra, J. - Heard Mr. Ramakanta Mohanty, learned Senior Advocate being assisted by Mr. Imran Khan, learned counsel for the petitioners and Mr. Prafulla Kumar Rath, learned counsel for the decree holders-opposite party Nos.1 to 3. 2. This CMP has been filed assailing the order dated 01.03.2021 (Annexure-1) passed by learned Civil Judge (Senior Division), 2nd Court, Cuttack in Execution Case No.11 of 2016 (arising out of CS No.2 of 2007). 3. Short narration of facts necessary for proper adjudication of the CMP are as follows:- 3.1 Civil Suit No.2 of 2007 was filed with a prayer for declaration that the plaintiffs along with the defendants have community interest and unity of possession over the suit land as well as for permanent and mandatory injunction. The suit was decreed in part vide judgment dated 22nd December, 2012 directing as under:- "The suit be and the same is decreed in-part on contest against the defendants No.1 to 8 but with no cost. It is hereby declared that, the plaintiffs and defendants No.1 to 6 have community of interest and unity of possession over the suit land. The defendants No.1 and 2, their servants and agents are permanently restrained from raising any kind of construction and blocking the common passage. The defendants No.1 and 2 are directed to remove the construction made over the suit land within a period of two months failing which the same will be done by the Court and the cost will be realised from them. Further the defendants No.1 and 2 are directed to allow the plaintiffs to use the suit land as passage for approaching the main road." 4. Assailing the above judgment and decree, the defendants filed RFA No.13 of 2013 under Section 96 of CPC. The said appeal was allowed vide judgment dated 30.07.2015. Accordingly, the judgment and decree passed in the suit was set aside. Being aggrieved, the plaintiffs preferred RSA No.327 of 2015, which was allowed restoring the judgment and decree passed in the Civil Suit. Although the defendants moved the Hon'ble Supreme Court in SLP(Civil) No.11522 of 2016, but the same was dismissed. Accordingly, the plaintiffsdecree holders filed a petition for execution of the decree in CS No.2 of 2007, which was registered as Execution Case No.11 of 2016. Although the defendants moved the Hon'ble Supreme Court in SLP(Civil) No.11522 of 2016, but the same was dismissed. Accordingly, the plaintiffsdecree holders filed a petition for execution of the decree in CS No.2 of 2007, which was registered as Execution Case No.11 of 2016. The Execution Petition was filed against the present petitioners for removal of construction over the suit land, which is a passage. The said proceeding has a chequered career. Earlier, the plaintiffs-DHrs. had moved this Court in CMP No.1304 of 2016 against the order passed under Section 47 CPC. The said CMP was disposed of directing the Executing Court to proceed with the execution case keeping in mind the observation made by the Hon'ble Supreme Court in the case of Bhavan Vaja and others vs.- Solanki Hanuji Khodaji Mansang, (1972) AIR SC 1371. When the matter stood thus, learned Executing Court passed an order carving out 50% share of the petitioners-JDrs. in the suit property, against which the DHrs.-opposite party Nos. 1 to 3 filed CMP No.1180 of 2017, which was disposed of on 22.12.2019 with the following direction as under:- "In such view of the matter and looking to the clear direction in C.M.P. No.1304 of 2016 read with the nature of direction involving the suit sought to be executed, this Court finds the deputation of Commissioner should confine only to demarcate the passage to be enjoyed by both the parties herein following the decree in C.S. No.2/2007. As a consequence, this Court interferes with the order at Annexure-1 which is modified to the extent that Commissioner if at sent will confine to measure and identify the common passage to be utilized by both parties. Accordingly sets aside. Commissioner shall be deputed forthwith who will submit his report within a period of one month and the execution proceeding may also be concluded within a period of one month thereafter. The C.M.P. stands disposed of with the above interfere and direction made hereinabove." Accordingly, learned Executing Court deputed a Amin Commissioner to carve out the suit passage, who accordingly submitted his report. The JDrs-petitioners filed an application to cross-examine the Amin Commissioner, which was allowed and the Amin Commissioner was cross-examined at length by the Petitioners-J.Drs. The C.M.P. stands disposed of with the above interfere and direction made hereinabove." Accordingly, learned Executing Court deputed a Amin Commissioner to carve out the suit passage, who accordingly submitted his report. The JDrs-petitioners filed an application to cross-examine the Amin Commissioner, which was allowed and the Amin Commissioner was cross-examined at length by the Petitioners-J.Drs. At the time of argument on acceptability of the report of the Amin Commissioner, the petitioners raised three contentions by filing their written note of submission, which are as follows:- 1) All the parties to the suit have not been noticed; 2) The Amin Commissioner has taken the fixed point as pointed out by the parties without finding out a fixed point of his own; 3) Although the writ was issued for measurement of the passage of 100 links x 7 links. Amin Commissioner measured 330 links x 7 links, which has vitiated the entire report. 5. Learned Executing Court, while taking into consideration the argument with regard to issuance of notice to the parties, held that since the JDrs have been noticed and they have participated in the demarcation process of the passage, they are in no way prejudiced. Thus, notice to all the parties to the suit was not required to be issued. 6. Learned Executing Court answering the contention that although a fixed point, namely, 'Mustkil Chhanda' (fixed point) was available in the village, but the Commissioner has not taken measurement from the said fixed point and measured the passage by taking fixed point as identified by the parties, held that when both parties (JDrs and DHrs) have identified the fixed point, the Commissioner has done no mistake in measuring the suit passage. 7. So far as the contention raised by the Petitioners with regard to measurement of excess land for which the Commissioner was not authorised, learned Executing Court held that although the Amin Commissioner has measured the area more than the decreed passage, but there is no impediment in executing a decree for 100 links x 7 links out of 330 links x 7 links. 8. Thus, the objections raised by the petitioners-JDrs at the time of argument were over ruled and the impugned order has been passed. 9. Mr. Mohanty, learned Senior Advocate relying upon the case law in Labanya Devi and others Vs. 8. Thus, the objections raised by the petitioners-JDrs at the time of argument were over ruled and the impugned order has been passed. 9. Mr. Mohanty, learned Senior Advocate relying upon the case law in Labanya Devi and others Vs. Govind Malik and others, 1959 25 CLT 532 submitted that all the parties to the suit should have been noticed when a measurement is undertaken by the Commissioner under Order XXVI Rule 9 CPC. In paragraph-4 of the said judgment in Labanya Devi (supra), it has been observed as under:- 4. Besides, on the facts of this particular case, it is apparent that though all the defendants have the common interest of resisting the claim of Golak Behera but their interests inter se were different in that they each were interested in getting from the Commissioner correct identification of their own respective plots and the measurement thereof. This separate interest of each of the defendants could not be served by the presence of Lahanya'a father alone. Mr. G. G. Das contended that this point, not having been taken at an earlier stage of the proceedings before the lower court and no question having been put to the witnesses in cross-examination suggesting their alleged grievances for alleged nonintimation by the Commissioner, this point cannot be taken in revision before this Court. In my opinion, the petitioners can rightly make, a grievance of the fact of the Commissioner not giving sufficient opportunity to the parties to present their respective cases." He also relied upon the decision of this Court in the case of Chaitan Das Vs. Smt. Purnabasi Pattnayak and others, 1987 63 CLT 680 , paragraph-4 of which reads as follows:- 4. Rule 9 of Order 26 empowers a court to depute a eivil court commissioner for local investigation in a suit if he deems it requisite or proper for the purpose of elucidating any matter in dispute. Rule 18(1) of Order 26, which is relevant for the purpose of discussion is quoted below for easy reference :-- "Where a commission is issued under this Order, the court shall direct that the parties to the suit shall appear before the commissioner in person or by their agents or pleaders." This rule has been interpreted in several decisions of different High Courts. In , Modalvalasam Latchan Naidu v. Rama Krishna Ranga Rao Bahadur Bobbili Samasthnam, (1934) AIR Madras 548, Cornish, J. held that Rule 38 is mandatory, and is intended to ensure that the parties have notice of the appointment of the commissioner and that they must attend his investigation. In AIR 1953 Mad 717 , In Re P. Moosa Kutty, Ramaswami, J. held that Rule 18 of Order 26 enjoins upon the court at the time the commission is issued to direct that the parties to the suit shall appear before the commissioner in person or by their agents or pleaders. In , Mahant Narayana Dossjee Varu v. The Board of Trustees, (1959) AIR A.P. 64, The Tirumalai Tirupati Devasthanamas, K. Subba Rao, C.J. speaking for the court held that the information gathered by the commissioner behind the back of the parties is not evidence in the case. In , Labanya Debi v. Govinda Malik Barman, (1960) AIR Orissa 66 J. held that according to Rule 18 of Order 26, all the parties must be given individually an opportunity to make representation of their respective cases by issuing notices to them. In , Pedda Seetharamappa v. Pedda Appaiah, Manohar Pershad, (1962) AIR A.P. 84 J. held that it is mandatory by reason of Order 26, Rule 18 on the court after issue of the commission to direct the parties to appear before the commissioner. He went to the extent of observing that notice issued by the commissioner is not sufficient compliance with Rule 18 and where local investigation is made behind the back of the defendant, no reliance can be placed on the report given by the commissioner. In , Sm. Mandera Mukherjee v. Sachindra Chandra Mukherjee,1962 AIR Patna 213 Anant Singh, J. went to the extent of holding that where the court has not directed the parties to appear before the commissioner, any notice by the commissioner himself to the defendant would not validate the appointment of the commissioner. The order of the court appointing a commissioner without notice to the defendant is obviously without jurisdiction. In , Maroli Achuthan v. Kunhipathamma, (1968) AIR Kerala 28 a Division Bench held that the presence of parties is imperative under Order 26, Rule 18. The order of the court appointing a commissioner without notice to the defendant is obviously without jurisdiction. In , Maroli Achuthan v. Kunhipathamma, (1968) AIR Kerala 28 a Division Bench held that the presence of parties is imperative under Order 26, Rule 18. Hence there must be a direction by the court of which notice has to he given to the parties or, at least the commissioner should issue notice to the parties calling upon them to appear for investigation. In , Jamil Ahmed Taban v. Must. Khair-Ul-Nisa, (1970) AIR Delhi 205 a Division Bench observed that in case of noncompliance of mandatory provisions of Rule 18 of Order 26, the appointment of the local commissioner is without jurisdiction and the report resulting from his inspection cannot be read as evidence. In , Suraj Pal v. Smt. Meera alias Merhia, (1973) AIR Allahabad 148 an identical view was taken and it was held that even if the court does not give notice to the parties in terms of Rule 18 of Order 26, if the commissioner issues notice to them, it would be deemed to be sufficient compliance. In view of the principle enunciated in these decisions, law is well settled that Rule 18 of Order 26 is mandatory. It is the duty of the court to direct that the parties to the suit shall appear before the survey knowing commissioner in person or by their agents or pleaders at the time of local investigation. In the absence of notice by the court, notice issued by the commissioner to the parties shall be deemed to be sufficient compliance. If no notice is served on any of the parties to the suit to appear before the survey knowing commissioner at the time of local investigation, the result of such local investigation, namely, the report and the map, cannot be accepted as evidence." He, therefore, submitted that admittedly notice to all the parties to the suit being not issued at the time of identification of decreed passage the measurement is per se illegal and is vitiated. 10. He further submits that it is the duty of the Amin Commissioner to find out the fixed point of the village and measure the land from the fixed point only. 10. He further submits that it is the duty of the Amin Commissioner to find out the fixed point of the village and measure the land from the fixed point only. In the instant case, a fixed point is available in the village which is known as "Mustkil Chhanda", but the Commissioner without taking the same to be the fixed point, took another point, i.e., 'A'-'B' ('Trimedha' and 'Choumedha') of the field report as identified by the parties to the execution case. The parties to the execution case are not technical persons. Since the measurement was done by a technical person, he should not have been swayed away by the suggestions made by parties to the execution case and should have found out a fixed point of his own to measure the passage. That having not been done, the measurement and identification of the decreed passage cannot be held to be proper and justified. 11. He further submits that the Commissioner has exceeded his jurisdiction by measuring a larger area than of the suit passage by measuring an area of 330 links x 7 link, when he was required to measure and indentify only 100 links x 7 link, i.e. the suit passage. Thus, the Commissioner has exceeded his jurisdiction. 12. These materials aspects were not taken into consideration by learned Executing Court, which makes the impugned order vulnerable being vitiated. As such, the impugned order under Annexure-1 is liable to be set aside. 13. Mr. Rath, learned counsel for the DHrs opposite party Nos.1 to 3 submits that Odisha Amendment of Order XXI Rule 22 CPC prescribes as follows:- "22. Notice to show cause against execution in certain cases (1) "Where an application for execution is made in writing under Rule 11 (2), the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him." (2) Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice. "(3) Proceedings held in execution of decree shall not be invalid solely by reason of any omission to issue or failure to serve a notice under subrule (1) or to record reasons where such notice is dispensed with under sub-rule (2) unless the judgment-debtor has sustained injury thereby." 14. Thus, the parties to the execution proceedings are only to be noticed. It is not in dispute that the petitioners-J.Drs. having encroached the suit passage have only been directed to be evicted in the decree put to execution. Thus, they are only made parties to the execution case and have been noticed. They have also participated all throughout in the measurement of the suit passage. As such, there is no requirement to issue notice to all the parties to the suit for measurement of the suit passage, more particularly when they are not parties to the execution proceeding. All other parties to the suit have common interest with that of the plaintiffs. As such, the petitioners-J.Drs. can no way be aggrieved by non-issuance of notice to other parties to the suit, which is not otherwise required. 14. Refuting the submission of Mr. Mohanty, learned Senior Advocate with regard to fixation of the fixed point, Mr. Rath, learned counsel submits that although the Commissioner has taken the fixed point as per the suggestion made by the parties to the execution proceeding, but he had followed all technical formalities and by making a field verification and comparing with the settlement map, treated the same to be the fixed point for identification of the suit passage. Since the petitionersJ.Drs. have pointed out the fixed point and have never raised any objection during the course of measurement and identification of the suit passage with regard to the fixed point, they cannot raise any objection to the same subsequently. It is his submission that even no objection to the report of the Amin Commissioner has been filed disputing the fixed point. 15. He, further submits that the Commissioner has not committed any error or exceeded his jurisdiction as alleged, by measuring an area of 333 link x 7 link. In order to find out the exact topography of the suit passage, it was necessary for the Commissioner to measure 330 link x 7 link. 15. He, further submits that the Commissioner has not committed any error or exceeded his jurisdiction as alleged, by measuring an area of 333 link x 7 link. In order to find out the exact topography of the suit passage, it was necessary for the Commissioner to measure 330 link x 7 link. The Commissioner being a technical person is better equipped with techniques to identify the suit passage and no objection to the same can possibly be raised by a common man, more particularly when no dispute with regard to identification of the suit passage has been raised. 16. It is his submission that this Court, while exercising jurisdiction under Article 227 of the Constitution of India, should be slow in interfering with the orders passed by the civil court, unless it satisfies the requirements laid down the case of Radhey Shyam and another -v- Chhabi Nath and others, (2015) 5 SCC 423 , wherein, at paragraph-24, the Hon'ble Supreme Court held as follows:- "24. The difference between Articles 226 and 227 of the Constitution was well brought out in Umaji Keshao Meshram v. Radhikabai,1986 Supp.SCC 401. Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamount to overstepping the limits of jurisdiction." 17. It is submitted that the suit was filed in the year 2007 and the decree was passed in the year 2012. Thereafter, the plaintiffs-D.Hrs. It is submitted that the suit was filed in the year 2007 and the decree was passed in the year 2012. Thereafter, the plaintiffs-D.Hrs. are fighting out litigation in different courts of law for asserting their right, but due to the unnecessary objections raised by the petitionersJ.Drs., who are encroaching upon the decreed passage, the decree could not be executed, as yet. He relied upon a decision in the case of Satyawati v- Rajinder Singh and another, (2013) 9 SCC 491 , wherein at paragraphs-12 and 13, the Hon'ble Supreme Court held as follows: "12. It is really agonizing to learn that the appellant- decree holder is unable to enjoy the fruits of her success even today i.e. in 2013 though the appellant- plaintiff had finally succeeded in January, 1996. As stated hereinabove, the Privy Council in the case of The General Manager of the Raj Durbhnga under the Court of Wards vs. Maharajah Coomar Ramaput Sing had observed that the difficulties of a litigant in India begin when he has obtained a Decree. Even in 1925, while quoting the aforestated judgment of the Privy Council in the case of Kuer Jang Bahadur vs. Bank of Upper India Ltd., Lucknow, (1925) AIR(Oudh) 448], the Court was constrained to observe that: "Courts in India have to be careful to see that process of the Court and law of procedure are not abused by the judgment-debtors in such a way as to make Courts of law instrumental in defrauding creditors, who have obtained decrees in accordance with their rights." 13. In spite of the aforestated observation made in 1925, this Court was again constrained to observe in Babu Lal vs. M/s. Hazari Lal Kishori Lal & Ors., (1982) 1 SCC 525 in para 29 that: "Procedure is meant to advance the cause of justice and not to retard it. The difficulty of the decree holder starts in getting possession in pursuance of the decree obtained by him. The judgment debtor tries to thwart the execution by all possible objections ..." 18. He, therefore, submits that raising a dispute with regard to the description and identification of the suit schedule property or a dispute with regard to the boundary of the suit schedule property is an abuse of process of Court and to delay the eviction, which has been adopted by the petitioners-J.Drs. He, therefore, submits that raising a dispute with regard to the description and identification of the suit schedule property or a dispute with regard to the boundary of the suit schedule property is an abuse of process of Court and to delay the eviction, which has been adopted by the petitioners-J.Drs. Hence, he prays for dismissal of the CMP being devoid of any merits. 19. Heard learned counsel for the parties and perused the materials on record. Perusal of Rule 22 of Order XXI CPC (Odisha Amendment) makes it abundantly clear that party against whom the execution is applied for is only to be noticed in the execution proceeding. The petitioners being the J.Drs in the execution case, were only served with the notice and they are diligently participating in the execution proceeding. Since the opposite party Nos.1 to 3-D.Hrs are not seeking execution against other parties to the suit, and they have no conflicting interest with them, they need not be made parties and be noticed in the execution proceeding. There is no dispute to the ratio decided in the case of Labanya Devi (supra) and Chaitan Das (supra), relied upon by Mr. Mohanty, learned Senior Advocate. Both the case laws are relating to demarcation under Order XXVI Rule 9 CPC in a suit. Thus, the parties to the said suit were required to be noticed to have their say in demarcation of the suit land. Applying the principle settled therein, the J.Drs., who are parties to the execution proceeding have been noticed and are participating in the said proceeding. The intent and object of Rule 22 is to serve notice on the J.Dr. to have his say in the matter. In the instant case, the J.Drs. having been noticed, the requirement of Rule 22 is satisfied. 20. Fixation of a fixed point is a technical issue and is within the domain of the Commissioner to take a decision in that regard. In this case, although the parties have suggested a fixed point, the Commissioner did not accept it blindly. On the other hand, he made a field inquiry following the technical procedure and compared it with the settlement map and thereafter accepted the same to be the fixed point. Parties to the said demarcation have also signed on the demarcation sheet without any objection. On the other hand, he made a field inquiry following the technical procedure and compared it with the settlement map and thereafter accepted the same to be the fixed point. Parties to the said demarcation have also signed on the demarcation sheet without any objection. No written objection to the report of the Commissioner has been filed in spite of opportunity provided to the petitioners-J.Drs. On the other hand, the petitioners filed petition to cross-examine the Commissioner, which was allowed. No material could be brought out from the mouth of the Commissioner to doubt the correctness of the report. This being the factual position, the J.Drs. cannot possibly raise any objection to the fixation of the fixed point by the Commissioner. It also appears from the case record that the Commissioner has taken all possible precautions while measuring the decreed passage. In that view of the matter, the objection raised by Mr. Mohanty, learned Senior Advocate with regard to fixation of fixed point holds no water. 21. Measurement of a larger area by the Commissioner while identifying the suit passage has been taken exception by the J.Drs. Mr. Mohanty, learned Senior Advocate submits that the Commissioner has exceeded his jurisdiction by measuring an area beyond the writ issued to him. Thus, the measurement is without jurisdiction and is vitiated. For identification of a particular area or to find out the topography of the suit passage, the Commissioner being a technical person may adopt procedure to make his report flawless. In the instant case, although an objection has been raised with regard to measurement of a larger area by the Commissioner, the petitioners-J.Drs. have not pointed out as to how the identification of the suit passage has become erroneous or ambiguous adopting such procedure. On the other hand, by measuring a larger area of which this suit passage is a portion, the Commissioner has discharged his duties vis- -vis direction issued to him by the executing court in identifying the decreed passage. 22. In that view of the matter, I find no infirmity in the impugned order under Annexure-1. Resultantly, the CMP being devoid of any merit stands dismissed. 23. 22. In that view of the matter, I find no infirmity in the impugned order under Annexure-1. Resultantly, the CMP being devoid of any merit stands dismissed. 23. This being an execution proceeding of 2016, learned executing court shall do well to give a logical end to it as expeditiously as possible, preferably within a period of three months from the date of production of an authenticated copy of this order, following due procedure of law. 24.1 As restrictions due to the COVID-19 situation are continuing, learned counsel for the parties may utilize a soft copy of this order available in the High Court's website or print out thereof at par with certified copy in the manner prescribed, vide Court's Notice No.4587 dated 25th March, 2020.