High Court
Case Details
CRP 411/2008 BEFORE HON’BLE MR. JUSTICE S. TALAPATRA Heard Mr. M.U. Mahmud, learned counsel appearing for the petitioners as well as Mr. M.H. Ahmed, learned counsel for the respondent No.1. 2. All these Civil Revision Petitions are clubbed together for disp osal by a common judgment and order since an identical issue of law is involved in all these petitions. 3. It appears from the record and also from the impugned order date d 14.11.2008 as passed by the Munsiff, Bongaigaon that the petitioner namely, Sr i Dulal Chandra Dey was impleaded in the execution proceeding being Title Execut ion Case Nos. 02/2002, 01/2003, 02/2003, 01/2004 and 04/2004 in pursuance to the order dated 07.06.2007 as passed by this Court in CRP No.158/2007, CRP No.169/2 By the order dated 07.06.2007, this Court held as under :
Legal Reasoning
007, CRP No.170/2007, CRP No.171/2007 and CRP No.172/2007. 4. (cid:28)The above narration and the facts those have emerged from the pleadings and oth er materials available before me disclose that suit in question was for declarat ion of right, title and interest relating to the suit property which claimed by the respondent No.1 on the basis of a sale deed executed by some relatives of th e original owner late Tilarupa Malia/Devi which is also the subject matter of th e T.S.(P) No.23/01, and is pending before the learned District Judge, Bongaigaon and the decree holder/respondent has presently impleaded as a party respondent No.3 in the said probate suit. Admittedly, the petitioner is enjoying the suit l and by realizing the rents and other profits from the tenants existing thereon. The decree holder respondent has got decree passed in the aforesaid title suit a gainst the respective tenants and he is now pressing for execution of the decree by filing the related execution cases to take possession of the decreetal land. In such a situation petitioner filed petition for impleadment to file objection under order 21 CPC. In my considered opinion, in the background of the facts na rrated above, he is entitled to stay before the Executive Court more particularl y in view of the fact that the decree holder has already been impleaded as a par ty in the probate case filed by the petitioner. In the above view of the matter, I hold that the learned Executing court was not justified in rejecting the prayer of the petitioner to implead him as a party to the execution case and to shut his mouth from raising his defences aga inst the process of execution. Accordingly, the impugned order dated 31.3.07 pas sed in the above noted execution cases stands set aside and quashed. The executi ng court shall implead the petitioners as party in the execution case and also s hall be allowed to file their objection therein. (cid:29)
Legal Reasoning
5. The petitioner appearing before all the execution cases, submitt ed the objection and asserted that the judgments and decrees as passed in the su its being Title Suit Nos. 22/1995, 31/1995, 32/1995, 17/1996 and 16/1998 have be en obtained by exercise of fraud on the court. By filing the objection, the peti tioner who was impleaded by then as the party in the execution proceedings, cont ended that the said execution cases shall be recalled holding that the decrees a s obtained by the decree holder namely, Sri Prafulla Chandra Roy are inoperative and void since those were vitiated by fraud. 6. Mr. M.U. Mahmud, learned counsel appearing for the petitioner su bmitted that on misconception of law the Munsiff, Bongaigaon has passed the impu gned orders holding that the executing court has no jurisdiction to entertain su ch objection and decide the same on merit. 7. On the other hand, Mr. M.H. Ahmed, learned counsel appearing for the respondent No.1 submitted that the executing court does not have any power to examine the issue that has been raised in the objections by the petitioner. H e submitted that the power of the executing court is restricted to see whether t he decree is executable and it is bound by the terms of the decree. No supplemen tal powers lie with the executing court. 8. On consideration of the contentions as advanced, this court is o f the opinion that the executing court has such power to examine the issue that has been raised by the petitioner. For this purpose, reference is required to be made to Section 47 of the Code of Civil Procedure, where it has been categorica lly provided that all questions arising between the parties to the 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 exec uting the decree and not by a separate suit. It has been further elaborated in s ub-section (3) of Section 47 of CPC as under : (cid:28)(b) All questions relating to the delivery of possession of such property to su ch purchaser or his representative shall be deemed to be questions relating to t he execution, discharge or satisfaction of the decree within the meaning of this section (cid:29). Apart that, in Order 21 Rule 101 of CPC it has been provided tha t all questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under r ule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstandin g anything to the contrary contained in any other law for the time being in forc e, be deemed to have jurisdiction to decide such questions. Indubitably this question is related to the title and appropriat 9. ion of the title, alleged to have been made by fraud, this Court is inclined to hold that the impugned orders are not sustainable. Accordingly, the impugned ord ers are set aside. The Munsiff, Bongaigaon is directed to decide the objections in the manner as the issues are decided in a civil proceeding providing all oppo rtunities to the petitioner and other parties to lead their evidence in support of their respective claims. 10. Accordingly, all the Civil Revision Petitions being CRP No.407/2 008, CRP No.408/2008, CRP No.409/2008, CRP No.410/2008 and CRP No.411/2008 respe ctively stand allowed and disposed of.