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2021 DIGILAW 330 (GAU)

Sambhu Kumar v. Kamal Kishore Soni

2021-03-31

SANJAY KUMAR MEDHI

body2021
JUDGMENT : 1. The present application has been filed under section 115 read with section 151 of the Civil Procedure Code, 1908 (‘CPC’) against an order dated 14.8.2019 passed in Misc. (J) Case No. 100 of 2015 arising out of Title Execution No. 5 of 2010 by the Court of the Munsiff No. 1, Kamrup (M). Though this case has been listed for motion, it was filed in the year, 2019 itself and the contesting respondents had entered appearance and it appears that as per an undertaking given on 1.10.2019, the connected executing proceedings is stayed. 2. A brief description of the facts of the case would be necessary to decide the issue raised in this petition. 3. The respondent No. 1 who is the decree holder had filed an Execution application being Title Execution Case No. 05 of 2010 before the learned Court of Munsiff No. 1, Kamrup. The decree in question dated 8.1.1999 passed in Title Suit No. 73 of 1998 was an ex parte one against the present petitioner, who is a Judgment-Debtor. It transpires that initially that an application was filed for setting aside the ex parte decree which was rejected against which the present petitioner had preferred an appeal. The Appellate Court, however, had allowed the same and had set aside the ex parte decree. Against the said Judgment of the Appellate Court, the present respondent had filed a civil revision petition before this court when the Judgment of the Appellate Court was interfered with and the ex parte decree of the year 1999 was upheld and it is this decree which has been put to execution resulting in passing of the impugned order dated 14.8.2019 which is the subject-matter of this petition. 4. I have heard Shri J. Deka, learned counsel for the petitioner. I have also heard Shri S.P. Roy, learned counsel for the contesting respondent No. 1, who has also filed an affidavit. 5. Shri Deka, the learned counsel for the petitioner has submitted that the impugned order dated 14.8.2019 is wholly unreasonable and has been passed without any application of mind. The rejection of the application filed under section 47 of the CPC on the ground of ‘constructive res judicata and ‘res judicata’ is absolutely unreasonable and suffers from legal infirmity. 5. Shri Deka, the learned counsel for the petitioner has submitted that the impugned order dated 14.8.2019 is wholly unreasonable and has been passed without any application of mind. The rejection of the application filed under section 47 of the CPC on the ground of ‘constructive res judicata and ‘res judicata’ is absolutely unreasonable and suffers from legal infirmity. Shri Deka, learned counsel has drawn the attention of this court to the first application filed under section 47 of the CPC in which petition No. 205/15 was also filed on 28.1.2015. In the said petition, apart from the legal grounds which were taken in the Misc. Case No. 654/2011, the factual aspects were narrated to demonstrate that the decree in question was not executable. The learned court, however, vide order dated 13.3.2015 had rejected the said Misc. Case 654/2011. The learned court had taken into consideration that in the peculiar circumstances, filing of 2 execution case was permitted as the records of the earlier execution case were missing. The categorical finding of the court was that in absence of any challenge to the decree, no fault can be attributed for filing the Execution Case No. 05/2010 as the record of the earlier Title Execution Case No. 07/1999 was found to be missing after an enquiry. Thereafter, the present petitioner had instituted another application under section 47 of the CPC which was registered as Misc. (J) Case No. 100/2015. The said miscellaneous case was objected to by the present respondents by filing written objection and the learned court vide the impugned order dated 14.8.2019 has rejected the said miscellaneous case on the principal ground that the same was barred by ‘constructive res judicata’ and ‘res judicata’. The learned court took into consideration the provisions of section 11 of the CPC, more particularly Explanation (iv) to the same. The learned court had come to the finding that the grounds which were mentioned in the said Misc. (J) Case No. 100/2015 challenging the executability of the decree are the ground which might and ought to have been made grounds of attack in the former Misc. (J) Case under section 47 of the CPC being Misc. (J) Case No. 654/2011. Shri Deka, learned counsel further submits that the reasons cited for passing of the impugned order dated 14.8.2019 are irrelevant and on the other hand, the relevant factors have not been taken into consideration. (J) Case under section 47 of the CPC being Misc. (J) Case No. 654/2011. Shri Deka, learned counsel further submits that the reasons cited for passing of the impugned order dated 14.8.2019 are irrelevant and on the other hand, the relevant factors have not been taken into consideration. He submits that the land purchased by the father of the petitioner is distinct and different and was prior in point of time and this aspect of the matter has not been considered at any point of time and in that view of the matter, execution of the present decree will not only cause immense prejudice to the petitioner but would also be absolutely difficult to be executed. Shri Deka, learned counsel fairly submits that though an Executing Court would normally not go behind the decree, the Executing Court has acted without any independent application of mind and executability of a decree which is one of the relevant considerations which an Executing Court needs to consider does not appear to have been done in the present case. 6. In support of his submissions, Shri Deka, the learned counsel for the petitioner relies upon the following decision:— 1. Bhavan Vaja v. Solanki Hanuji Khodaji Mansang, (1973) 2 SCC 40 . 2 Mustt. Kitabjan Bibi v. Ramlal Durgadutta, AIR 1984 Gau 44 . 3. Gloriao Rosario Futado v. Cathedral Chapter of the Archdiocese of Goa and Daman, 2016 (2) Mh. LJ. 4. Raja Venkateswarlu v. Mada Venkata Subbaiah, (2017) 15 SCC 659 . 5. Shivashankar Prasad Shah v. Baikunth Nath Singh, (1969) 1 SCC 718 . 6. Bankim Bihari Roy v. Halima Bibi, AIR 1962 Ori 54 . 7. Kamta Prasad v. IInd Additional District judge, Manipuri, AIR 1997 ALD 201. 8. Upendra Nath Bose v. Lall, AIR 1940 PC 222 . 7. The case of Bhavan Vaja (supra) has been cited in support of his submission that though it is true that an Executing Court cannot go behind the decree under execution, it does not mean that it has no duty to find out the true affect of a decree. The Supreme Court has further held that the omission to construe a decree is really an omission to exercise the jurisdiction vested by law. 8. This court in the case of Mustt. The Supreme Court has further held that the omission to construe a decree is really an omission to exercise the jurisdiction vested by law. 8. This court in the case of Mustt. Kitabjan Bibi (supra) has held that the Executing Court is not an automation and it can exercise (powers to properly construe the decree. 9. The case of Bombay High Court in Gloriao Rosario Furtado (supra) has been cited to bring home the fact that in case there is any dispute with regard to execution of the decree, the Executing Court is required to hold an enquiry and decide such dispute after hearing the parties. 10. The case of Raja Venkateswarlu (supra) has been cited in support of his submissions that it is the substance of a petition which needs to be examined rather than the provision of law under which the same has been filed. The said proposition has been advanced when the learned counsel was confronted as to why an application under section 1-15 of the CPC was filed and not an application under article 227 of the Constitution of India. 11. The case of Shivashankar Prasad Shah (supra) of the hon'ble Supreme Court has been cited to buttress the argument that when a petition disposed of without answering the same on merits, the principle of res judicata may not be applicable. 12. The Orissa High Court in the case of Bankim Bihari Roy (supra) has been cited to demonstrate that two objections are maintainable. It is, however, clear from the aforesaid decisions that the two objections were different from one another and raised at two different points of time. 13. The case of Allahabad High Court in Kamta Prasad (supra) has been pressed into service to contend that when an objection under section 47 is not decided on merits, the principle of res judicata is not attracted and also that an Executing Court has the power in jurisdiction to see whether the decree in question is executable. 14. In the case of Upendra Nath Bose (supra) the Privy Council has laid down that a court which declines jurisdiction cannot bind the parties by its reasons for declining jurisdiction. 15. 14. In the case of Upendra Nath Bose (supra) the Privy Council has laid down that a court which declines jurisdiction cannot bind the parties by its reasons for declining jurisdiction. 15. Shri S.P. Roy, learned counsel for the contesting respondent No. 1, on the other hand submits that even without going into the merits of the case, the present petition under section 115 of the CPC is not maintainable. The learned counsel by referring to the aforesaid provision of law submits that the exercise of jurisdiction by a Revisional Court is circumscribed and the said powers can be invoked only on certain situations involving exercise of jurisdiction not vested by law, failing to exercise jurisdiction vested by law or exercise of jurisdiction with illegality or material irregularity and none of the aforesaid conditions seem to have been fulfilled by the impugned order dated 14.8.2019. 16. On merits, the learned counsel for the respondents submits that the recourse to section 47 of the CPC cannot be taken repeatedly and in the instant case, the same has been grossly misused as after failing to have an order for setting aside the ex parte decree, separate entities have been filing petitions under section 47 which is in gross misuse and abuse of the powers. Shri Roy, learned counsel further submits that neither the original decree has been put to challenge in any appeal, nor the earlier order dated 13.3.2015 passed in Misc. (J) Case No. 654/2011 has been put to challenge by the petitioner and the same have attained finality. Emphasizing the settled law on the duties of an Executing Court that it cannot go beyond the decree, the learned counsel for the respondent submits that the present attempt is only to delay and drag the proceedings whereby the fruits of litigation have been denied to the decree holder. 17. In support of his submission Shri Roy, the learned counsel for the respondent has relied upon a decision of the Hon'ble Supreme Court in the case of R.P.A. Valliammal v. R. Palanichami Nadar, (1997) 10 SCC 209 . The said case has been cited to bring home the submissions that repeated applications under section 47 of the CPC is unwarranted. 18. The rival submissions of the learned counsel for the parties have been duly considered and the materials placed before this court carefully examined. 19. The said case has been cited to bring home the submissions that repeated applications under section 47 of the CPC is unwarranted. 18. The rival submissions of the learned counsel for the parties have been duly considered and the materials placed before this court carefully examined. 19. Before going into the merits of the case, this court would first like to deal on the aspect of maintainability of the petition. Section 115 of the CPC lays down 3 conditions for exercise of powers which has to be sparingly done and it is only in a case fulfilling any of the 3 conditions as observed above that such powers are required to be exercised. At this stage, this court would also like to refer to the proviso of section 115 of the CPC which lays an embargo upon the Revisional Court in exercise of powers which lays down that the order impugned, if decided in favour of the party applying for revision would have finally disposed of the suit or other proceedings. The aforesaid embargo also does not appear to have been fulfilled by the petitioner as in the event the present revision is allowed, not to talk about coming of the suit to be finally disposed of rather the same will lead to opening of further rounds in the litigation which is not the intention of the Legislature. 20. That apart, this court has noted that the order dated 14.8.2019 which has been impugned contains reasons which are relevant and germane to the issue and cannot be termed as irrelevant. A Revisional Court would not normally go into the adequacy of the reasons if the reasons cited in support of the order appears to be prima facie correct and reasonable. 21. This court has also noted that the petitioner had failed to avail the remedies available in law, firstly choosing not to challenge the legality and validity of the decree and secondly not to test the legality of the order dated 13.3.2015 passed in the first application Misc. (J) Case No. 654/2011 made under section 47 of the CPC. No explanations, whatsoever are forthcoming in the petition or otherwise for such inaction. 22. In that view of the matter, it appears that filing of the present Misc. (J) Case No. 100/2015 on 27.3.2015 just after passing of the order dated 13.3.2015 in the earlier petition Misc. (J) Case No. 654/2011 made under section 47 of the CPC. No explanations, whatsoever are forthcoming in the petition or otherwise for such inaction. 22. In that view of the matter, it appears that filing of the present Misc. (J) Case No. 100/2015 on 27.3.2015 just after passing of the order dated 13.3.2015 in the earlier petition Misc. (J) No. 654/2011 under section 47 of the CPC is only a dilatory tactic to drag the proceedings. 23. As regards the case laws relied upon by the petitioner, the same as observed above, are distinguishable on the facts of the case. Though an attempt has been made by Shri Deka, learned counsel to distinguish the case of R.P.A. Valliammal (supra) by contending that in the said case the title has already been lost and has become final, this court does not find any such valid distinguishing factor inasmuch as, the decree in the instant case has also attained finality. 24. Under the aforesaid facts and circumstances, this court is of the opinion that no case for interference by exercise of powers under section 115 of the CPC is made out and accordingly the revision petition stands dismissed. 25. The undertaking given by the learned counsel for the respondents not to go ahead with the execution till this matter is finally heard is discharged.