Execution Case No. 2 of 1988 · High Court
Case Details
CRP 352/2001 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT & ORDER This revision petition is directed against the order dated 27.08.2001 passed by the learned Civil Judge (Jr. Div.) No.2, Dhubri whereby and whereunder the learn ed trial court dismissed the execution petition being Title Execution Case No. 2 of 1988 arising out of the judgment and decree passed in Title Suit No. 242 of 1985 and thereby allowing the objection petition filed by the judgment debtor No .8 Assanullah Sheikh holding that the decree passed in Title Suit No. 242/1985 i s inexecutable and inoperative. 2. Since the facts of the case is quite complex, the Court has endeavoured to narrate the facts in a comprehensive manner for understanding the issues invo lved in this petition;- The petitioner herein is the plaintiff on the file of the learned Munsiff No.1 at Dhubri titled as Abdul Razzak Mondal -vs- Kobad Hussain Prodhani and 7 Others being Title Suit No. 242 of 1985 wherein the following reliefs have been soug
Legal Reasoning
ht for: - (a) For judgment and decree for Khas possession on the land described in th e Schedule below by evicting and removing the defendant and others holding that the land is the Touji land of Somser and the tenant under Surendra Chandra Dey and others and the plaintiff has acquired right, title and interest on the suit land by purchase; For correction of the Khatian by deleting the names of the defendants fr (b) om the suit land and entering the name of the plaintiff; (c) (d) y. Cost of the suit from the defendants; Any other relief to which the plaintiff may be entitled in law and equit The defendants contested the suit by filing written statement but remain 3. ed absent during the trial whereof the learned Court delivered the judgment and decree (Ex-parte decree) on 31.10.1987 and consequently thereon, on 28.01.1988 f iled the execution petition being Title Execution Case No.2 of 1988. The executi ng court on 08.01.1989 issued notices upon judgment debtors (in short ’JD’), how ever, the issuance of notices was subsequently suspended and warrant of possessi on was issued. The JD appeared on 28.02.1989 before the learned executing court and filed a petition contending inter alia that a Misc.(J) case No.5 of 1989 (a case under Order IX Rule 13 of the Code of Civil Procedure) is pending for final disposal and prayed for stay of the proceeding and on the same day the process server submitted his report by executing the warrant of possession. However, the learned executing court rejected the execution report on the ground of issuanc e of process against a dead man JD No.1 Md. Kobad Hussain Prodhani and thereby d irected to substitute the legal heirs of JD No.1 and accordingly, the execution was stayed. The Misc.(J) Case No.5 of 1989 was dismissed and the JDs took up the matter in appeal being Misc. Appeal No. 23 of 1993. The executing court allowed the substitution petition whereby the substitution was sought of JD No. 1 on 28 .06.1994. In the meantime, Misc. Appeal No. 25 of 1993 went against the JD where of a revision being civil revision No. 328 of 1996 was taken before this court a nd this court stayed the execution proceeding on 09.10.1996. The aforesaid civil revision was dismissed by this court on 23.02.1998. 4. After the dismissal of the revision petition by this Court, the executio n proceeding was started on 23.11.1998 and the JD No. 8 Assanullah Sk @ Hasan A li raised the following points challenging the executability of the decree whic h is summarized as follows:- (a) The decree passed in T.S. No.242/1985 is inexecutable because there was a decree passed earlier in favour of JD being T.S. No.97/1974 on 30.08.1974 for a plot of land measuring 7 Bighas including the suit land of T.S. No.242/1985 an d accordingly the record of rights of the said land including the suit land has been corrected and the decree passed earlier stands valid under the law; and (b) The decree passed in T.S. 242/1985 is inexecutable in view of the fact that the execution petition was filed against a dead man without impleading the legal heirs of JD No. 6 though the court allowed the decree holder (in short ’D H’) to correct the execution petition by substituting the legal heirs of JD No. 6 and issuance of notices upon the substituted heirs are yet to be taken and th e legal heirs of JD No. 6 are still not been made a party to the execution pro ceeding which disentitled the DH to execute the decree. The DH filed reply against the objection petition of JD contending that 5. the question of decree passed in T.S. No. 97/1974 was never raised in the writte n statement filed in T.S. No.242/1985 nor the question raised in the Misc. (J) C ase No.5 of 1989 and hence the plea is barred by limitation and other contention s made in other paragraphs are denied. 6. On the basis of the pleadings of the parties, the executing court framed the following points for proper adjudication of the case: - (A) (B) (C) Whether the petition u/s 47 CPC is barred by limitation? Whether the petition u/s 47 CPC is maintainable both in law and facts? If so, what reliefs the parties are entitled to get? 7. The learned executing court after hearing the parties at length and upon perusal of the entire records of the case has held that the petition under Sect ion 47 of the Code of Civil Procedure (hereinafter referred to as ’the Code’) is not barred by limitation in view of the fact that the JDs filed a petition unde r Order IX Rule 13 for setting aside the ex-parte judgment and decree passed in T.S. No. 242/1985 being Misc.(J)Case No.5/1989, which, however, was dismissed. A gainst the dismissal order, an appeal was taken being MA No.25/93 and on dismiss al of the same, a revision petition being Civil Revision No.328/1996 was filed b efore this Court. The said revision petition was dismissed on 23.02.1998 and the reafter, a petition under Section 47 of the Code was filed on 08.03.1999 raising the question of inexecutability of the decree which is within the period of lim itation and accordingly answered the point A in negative. Regarding the next question of maintainability of the petition under Sec 8. tion 47 of the Code, the learned executing court in determining the point brough t the case record of T.S. No. 97/1974 and made available to the court whereas th e record of T.S. No.242/1985 could not be found though called for and the DH fai led to furnish the copies of the plaint and WS of T.S. No.242/1985 to substantia te his claim of non taking the plea of decree of T.S. No.97/1974. However, the d ecree of T.S. No. 242/1985 relates to a plot of land measuring 4B 2K 10L out of land measuring 37B 0K 19L of village Srirampara (previous Masakpara) of Khatai n No. 2 of Dag No. 71 having the boundary of North: Land of Touji No. 2, South: Land of plaintiff Abdul Rahman, East: Land of plaintiff, West: Land of Khatain No.2 (as per the Schedule of the decree) whereas the schedule of the decree o f T.S. No. 97/1974 and the boundaries reads as follows: -
Legal Reasoning
Village - Srirampur under Khatian No. 2 Dag No. 71, area 7 Bigha within the land measuring 37B 0K 19L and bounded as North: Azahar Ali and Hasan, South: Abdul Rahman, East: Rajjak Mondal and West: Abdul Gafur and Haren Sarkar. There fore the Schedule of T.S. No.97/1974 and T.S. No.242/1985 appears to be same, sa ve and except the land in T.S. No.97/1974 relates to 7B and suit land in T.S. No . 242/1985 relates to 4B 2K 10L which is a part of T.S. No. 97/1974 and the fact s pleaded by JD has not been denied by the DH. The learned executing court refer ring the provisions of Section 47 of the Code has held that the petition filed b y the JD is maintainable. 9. In view of the findings arrived at by the executing court in point Nos.A and B in favour of JD and the decree having been passed in T.S. No.242/1985 aga inst a dead person including non-substituting the legal heirs of JD No. 6 in T.Ex. Case No.2/1988 makes the decree inoperative and inexecutable and thereby a nswered the point No.3 in favour of JD allowing the petition vide order dated 27 .8.2001, filed by JD by declaring the decree of T.S. No. 242/1985 as inexecutabl e and inoperative and hence, this revision petition challenging the order dated 27.8.2001 passed by the executing court. 10. Heard Mr. MA Sheikh, learned counsel appearing for the petitioner. Also heard Mr. N Dhar, learned counsel appearing for the respondents. Perused the mat erials available on record, including the impugned order. Questioning the legality and validity of the order dated 27.08.2001 pas 11. sed in T.Ex Case No.2/1988 by the executing court, Mr. Sheikh, learned counsel a ppearing for the petitioner would contend that the learned executing court has f ailed to exercise a jurisdiction so vested in it to determine the question as to whether the warrant of possession was issued and the report thereof by proces s server in execution of decree passed in T.Ex Case No. 2/1988 which materially affect the decision of the executing court require interference under revision al jurisdiction. 12. Mr. Sheikh would further contend that the executing court has exercis ed a jurisdiction not vested in it by law in not considering the question of the order passed by this Court in Civil Revision No.328/1996 vide judgment date d 23.02.1998 affirming the order of the decree passed in Misc. Appeal No.25/1993 whereof the delivery of possession was given in execution of decree against a dead person which had attained its finality and the executing court in exercise of power u/s 47 of the Code cannot go behind the decree of delivery of posse ssion which require interference under revisional jurisdiction, more so, when t he petitioner was not a party to the T.S. No.97/1974. 13. Countering the attack, Mr. Dhar, learned counsel representing the respon dents would contend that the decree passed in T.S. No.242/1985 was a nullity and the execution petition cannot stand in view of lack of substituting the legal h eirs of JD No. 6 and the question of delivery of possession of the Schedule lan d had been gone into by the executing court and the order passed in Civil Revisi on No.328/1996 can be gone into in execution proceeding and thereby supported th e judgment referred by the executing court. AIR 1982 Cal 178 The parties to the case has referred the following decisions in support 14. of their contentions, viz., 1. (Rasomay Mitra -vs- Smti. Lachumi Tode) 2. (Sundar Das -vs- Ram Prakash) 3. (Sabitri Dei and Others -vs- Sarat Chandra Rout & Others) 4. (Urban Improvement Trust, Jodhpur -vs- Gakul Narain (Dead) By LRs & Another) (1996) 4 SCC 178 (1977) 2 SCC 662 (1996) 3 SCC 301 15. Considered the submissions advanced by the learned counsel appearing for the parties. Perused the entire evidence on record and the order sheet passed b y the learned executing court along with the provisions of the Code relating to execution of the decree and Order XXII of the Code. Admittedly on 20.07.1988, th e executing court issued notices upon JD. On 04.01.1989 issuance of notice was s uspended and warrant of possession was issued. On 08.02.1989 JD appeared, filed a petition contending that Misc. (J) Case No.5/1989 is pending against the decre e praying for stay of the execution proceeding and on the same date the process server submitted his report by executing the warrant of possession. On 04.12.199 0, the execution report was rejected holding that the issuance of process agains t a dead man and execution thereof without impleading the legal heirs of JD No.1 , late Kobad Hussain Prodhani is a nullity and directed DH to take steps for su bstitution of legal heirs and in the meantime the execution proceeding was staye d whereof the DH admitted that before he took possession, JD No.1 Kobad Hussain Prodhani was dead, meaning thereby before execution, JD No.1 died and his lega l heirs were not substituted. This Court passed an order on 09.10.1996 staying t he execution proceeding in Civil Revision No.328/1996. On 23.02.1998, the Civil Revision Petition was dismissed and on 23.11.1998 the execution proceeding was s tarted. On 08.03.1999 JD No.8, Ashanullah Sheikh @ Hasan Ali filed the objection under Section 47 of the Code raising the question of inexecutability of the dec ree passed in TS No.242/1985 and accordingly the petition filed by JD is within the period of limitation and thus, the decision in Rasomay Mitra reported in AIR 1982 Cal 178 (supra) has no application in the instant case, wherein a single J udge of Hon’ble Calcutta High Court has held that Article 137 of the Limitation Act would govern an application under Section 47 of the Code. On the other hand, in the decisions, viz. Sunder Das, Sabitiri Dei and U rban Improvement Trust (supra) relied by Mr. Dhar, learned counsel appearing for the respondent, Hon’ble Apex Court has held that the question of nullity of a d ecree can be set up even at the stage of execution and section 47 of the Code em powers the executing court to deal with the objection regarding invalidity of th e decree sought to be executed at the execution stage. 16. A bare reading of Section 47 of the Code makes it abundantly clear that all questions arising between the parties to the suit in which the decree was pa ssed on their representations and relating to the execution, discharge or satisf action of the decree shall be determined by the court executing the decree and n ot by a separate suit. Sub-Section 3 and Explanation I and II along with (b) emp owers the executing court to decide the issues raised under section 47 of the Co de. In the instant case, the court has gone through the record of the T.S. 97/19 74 vis-à-vis the decree passed thereon along with the decree passed in T.S. No.2 42/1985 and the schedule of decrees of both the suit and has held that the decre e passed in T.S. No.97/1974 still remains operative and the schedule of the de crees passed in T.S. No.242/1985 falls within the schedule of the decrees pas sed in T.S. No.242/1985 and hence the decree passed in T.S. No.242/1985 is inexe cutable and inoperative. Thus it cannot be said that the executing court has exe rcised a jurisdiction not vested in it by law and the court is not inclined to i nterfere with the findings recorded by the executing court relating to execution of the decree holding that the decree passed in T.S. No. 242/1985 is inexecutab le. 17. Now the question remains to be answered as to whether the decree passed in T.S. No. 242/1985 is inexecutable in view of the fact that the legal represen tatives of JD No.6 were not brought in record in execution proceeding in spite o f the order of the court. A reading of section 2(II) along with order XXII Rule 1, 2, 3, and 4(4) makes it abundantly clear that the decree passed in T.S. No. 242/1985 was passed against the dead person i.e. Kobad Hussain Prodhani which is a nullity under the law. Moreover, the legal representatives of JD No. 6 Ajahar Ali were not substituted in spite of the order of the court for amending and/o r correcting the execution application by filing fresh application and issuance of notices upon the legal heirs of deceased JD No.6, yet no steps of notices we re taken and legal representatives of JD No. 6 is still not made a party to t he execution proceeding, hence, in their absence the execution proceeding canno t be allowed to continue and the decree became inexecutable in absence of th e legal representatives of JD No.6 and the findings arrived at by the learned Executing Court in the order dated 27.08.2001 passed in Title Execution Case N o.2/1988 do not require to be interfered with. 18. In the result, the Court holds that there is no merit in the revision pe tition. The revision petition is accordingly dismissed thereby affirming the ord er dated 27.08.2001 passed by the learned Civil Judge (Jr. Div.) No. 2 Dhubri in Title Execution Case No.2/1988. 19. 20. The parties are left to bear their own costs. Send down the lower court records.