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2023 DIGILAW 1236 (CAL)

K. Hydroos v. P. K. Hassan Ali

2023-07-26

RAJA BASU CHOWDHURY

body2023
JUDGMENT : Raja Basu Chowdhury, J. 1. The present application under Article 227 of the Constitution of India has been filed challenging the order no. 26 dated 10th February, 2023 passed in Misc. Judicial Case no. 3 of 2021, inter alia, on the ground of jurisdictional error committed by the executing Court in failing to adjudicate the rights of the petitioners. 2. Shorn of unnecessary details the facts of the case are that the opposite party had instituted the suit being TS No. 59 of 2007 against the petitioner nos. 2 and her husband, Haider Ali. As would appear from the copy of the plaint the opposite party as a plaintiff had claimed for a decree for eviction of the defendants from the suit property. During the pendency of the aforesaid suit at the instance petitioner no. 1, on the basis of an application filed by him for addition of party under Order 1 Rule 10 of the Code of Civil Procedure that the learned Court was pleased to add him as a party-defendant to the suit. 3. Records would reveal by judgement and decree dated 7th September, 2015 the learned Civil Judge, Junior Division at Port Blair was, inter alia, pleased to decree the said suit thereby directing eviction of the defendants from the suit property. 4. Being aggrieved, an Appeal was filed by the petitioners herein along with Shri. Haider Ali, who was a co-defendant in the said suit and the same was registered as Tittle Appeal No. 3 of 2017. 5. On contest by a judgement and decree dated 31st December, 2018 the First Appellate Court was, inter alia, pleased to modify the said decree by directing the eviction of the petitioner no. 2 and one Haider Ali, thereby excluding the petitioner no. 1. 6. Although, a Second Appeal was filed challenging the aforesaid judgement and decree this Court has been informed by the parties that such challenge did not succeed and by the judgement and decree dated 23rd December, 2019 this Hon’ble High Court was, inter alia, pleased to dismissed the said appeal on contest thereby, affirming the Judgment and Decree of the First Appellate Court. 7. 7. The opposite party has since, put the aforesaid decree into execution and on being resisted, has filed an application under Order 21 Rule 97 of the Code of Civil Procedure, inter alia, praying for police assistance and for handing over possession. The aforesaid application was contested by the petitioner no. 2 and her husband Haider Ali. By an order dated 10th February, 2023 the learned Judge was, inter alia, pleased to allowed the said application. 8. Mr. Jayapal, learned advocate representing the petitioner submits that the learned Trial Judge while passing the aforesaid order overlooked the fact that no decree for eviction had been passed against the petitioner no. 1 as such no execution proceeding could be maintained against the petitioner no.1. According to him the bailiff having found the petitioners in the suit property, the learned Court ought not to have allowed the said application thereby directing eviction of the petitioner no.1 from the suit property inasmuch as no decree for eviction was passed against the petitioner no1. 9. It is still further submitted that the aforesaid order was passed by ignoring the partition decree which is binding between the parties. According to the petitioners, the petitioner no. 1 was a co-sharer and had interest in the suit property, the Learned First Appellate Court had duly considered such aspect and proceeding on the premise that a co-sharer cannot be evicted, had refused to pass any eviction decree against the petitioner no.1. The learned executing Court did not adjudicate the right of the petitioner no.1 in the context of the partition suit. He submits that in the guise of the aforesaid execution proceedings the petitioner no. 1 cannot be evicted, especially when no decree for eviction has been passed against the petitioner no1. 10. Per contra, Ms. Nag learned advocate representing the opposite party submits that since, the petitioner no. 2 and her husband were found to be the in possession of the suit property and were in illegal occupation thereof, the Title Suit being TS no. 59 of 2007 was filed. She, however, acknowledges the fact that when the Title Suit was filed the property was not partitioned. 2 and her husband were found to be the in possession of the suit property and were in illegal occupation thereof, the Title Suit being TS no. 59 of 2007 was filed. She, however, acknowledges the fact that when the Title Suit was filed the property was not partitioned. However, during pendency of the aforesaid suit a partition suit which was registered as TS (R) 6 of 2005, then, pending before the Court of learned Civil Judge, Senior Division at Port Blair, had been disposed of by passing a final decree dated 5th September, 2012. According to Ms. Nag the aforesaid suit property had been allotted to the opposite party, which fact had also been noted by the learned First Appellate Court. 11. It is submitted that the opposite party did not include the petitioner no. 1 in the array of defendants since, the petitioner no. 1 was never in possession of the suit property. In fact, it was the petitioner no. 1 who had applied for being added as party in the aforesaid suit since, he claimed to be a co-sharer, having an interest in the suit property. By drawing attention of this Court to the decree passed by the learned First Appellate Court she submits that the learned First Appellate Court by taking note of the factual aspect that the defendant no. 3, being the petitioner no.1 herein, was not in physical possession of the suit property, did not pass any decree for eviction against him. Unfortunately, when the decree was put into execution an obstruction was put up by the petitioner no. 2 through petitioner no. 1, which prompted the opposite party to file an application under Order 21 Rule 97 of the Code of Civil Procedure. She submits that the petitioner no. 1 had never approached the executing Court, nor had he been able to setup or establish any independent right in respect of the suit property, as such the learned executing Court cannot be faulted for having allowed the application under Order 21 Rule 97 read with section 151 of the Code of Civil Procedure. She submits that the scope of an application under Order 21 Rule 97 is wide enough to include any person who obstructs the delivery of possession. The learned judge has rightly allowed the application. The present application has been filed with the object, to delay the execution of the decree. She submits that the scope of an application under Order 21 Rule 97 is wide enough to include any person who obstructs the delivery of possession. The learned judge has rightly allowed the application. The present application has been filed with the object, to delay the execution of the decree. The application does not merit consideration, the same deserves to be dismissed with cost. 12. Heard the learned advocates appearing for the respective parties and considered the materials on record. 13. Records would reveal that the petitioner no. 1 was not arrayed as a defendant when the suit was originally filed. It is the petitioner no. 1 who had applied for being added as party to the suit. Although, by the judgement and decree dated 7th September, 2015 the learned Civil Judge, Junior Division at Port Blair was, inter alia, pleased to decree the said suit by directing eviction of the defendants, on an appeal preferred by the petitioners along with Haider Ali, the husband of the petitioner no. 2, the aforesaid decreed was modified. It would appear form the judgement and decree dated 31st December, 2018 that the learned First Appellant Court, by taking note of the decree for partition, inter alia, including conferment of exclusive title on the opposite party by the partition decree and on the basis of the stand taken by the petitioner no.1 who was the defendant no. 3 in the said suit, inter alia, including his admission during cross-examination that he was not in possession of the suit property, was pleased to modify the decree, thereby, directing eviction of the petitioner no. 2 and Haider Ali who are the defendant nos. 1 and 2 respectively, in the suit. 14. Although, the petitioner no. 2 along with her husband had challenged the said appellate decree, by filing a second appeal which was registered as SAT No. 3 of 2019, by judgement and decree dated 23rd December, 2019 the same was dismissed on contest. As would appear from the judgement and decree dated 23rd December 2019, this Hon’ble Court by taking note of the aforesaid partition decree and the allotment of the suit property in favour of the opposite party was pleased to dismiss the same. As would appear from the judgement and decree dated 23rd December 2019, this Hon’ble Court by taking note of the aforesaid partition decree and the allotment of the suit property in favour of the opposite party was pleased to dismiss the same. The decree has since, been put into execution and in connection therewith the order dated 10th February, 2023 has been passed under Order 21 Rule 97 read with section 151 of the Code of Civil Procedure. I find that although, it has been strenuously argued by Mr. Jayapal, learned advocate representing the petitioners that the executing Court did not take note of the partition decree, I am afraid the partition decree does not support the petitioners. 15. It must be borne in mind that an executing Court is not permitted to travel behind the decree. Admittedly, the decree passed by learned Civil Judge, Junior Division which merged with the decree passed by the First Appellate Court took note of the partition decree. Thus, on the basis of the finding returned by the First Appellate Court that the petitioner no. 1 was not in possession of the suit property that the decree passed by the trial Court was modified. Once, the partition suit was decreed and the property was partitioned by metes and bound, the petitioner no. 1 could no longer claim to be a co-sharer in the suit property. Since, the petitioner no. 1 could no longer be considered to be a co-sharer and since, the suit property had been allotted to the opposite party, the aforesaid defense that he cannot be evicted from a joint property, can no longer be available to the petitioner no.1 as the property had been partitioned. 16. It is also not the case of the petitioner no.1 that the petitioner no.1 or the petitioners were attempting to resist the execution of the decree on the basis of any independent right or interest not decided in the suit. On the contrary, it would appear from the order impugned that the learned executing Court upon arriving at a finding that the petitioners had not been able to establish or show any right to continue in the suit property, had allowed the application under order 21 rule 97 read with section 151 of the Code of Civil Procedure. 17. On the contrary, it would appear from the order impugned that the learned executing Court upon arriving at a finding that the petitioners had not been able to establish or show any right to continue in the suit property, had allowed the application under order 21 rule 97 read with section 151 of the Code of Civil Procedure. 17. The petitioners have, however, invoked the plenary powers of this Court to question the order passed by the executing Court, inter alia, on the ground that it had failed to exercise jurisdiction and or adjudicate upon the rights of the petitioners, especially the petitioner no.1. In the peculiar facts as noted herein above and on being invited by the petitioners this Court has examined the matter in detail. 18. It is noticed that the executing Court has duly determined and has adjudicated the rights of the petitioners and has concluded that the petitioner no. 1 could not establish any right to continue in possession of the suit property. Insofar as the petitioner no. 2 is concerned the petitioner no. 2 is the judgement debtor and also a party to the suit and as such is bound by the said decree. It is well within the powers of the executing Court to enforce execution of the decree and in doing so on the basis of the enquiry conducted by him, had allowed the application under order 21 rule 97 read with section 151 of the Code of Civil Procedure. 19. Having regard to the aforesaid, in my view, there is no irregularity on be part of the learned Judge in allowing the application under Order 21 Rule 97 of the Code of Civil Procedure. The petitioners have also not been able to identify any procedural irregularity far less any jurisdictional error committed by learned Judge, in passing the order impugned. The learned judge after due enquiry had allowed the aforesaid application. As such no interference under Article 227 is called for. The aforesaid application is accordingly dismissed. 20. There shall be no order as to costs. 21. Urgent Photostat certified copy of this order if applied for be made available to the parties upon compliance of all formalities.