High Court of Orissa
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Feb-2024 18:03:05 HIGH COURT OF ORISSA: CUTTACK CMP NO.1551 OF 2023 (In the matter of an application under Article 227 of the Constitution of India, 1950) ******* SK. Liaquat Ali and another … Petitioners -versus- SK. Khalil Ahamad … Opposite Party Advocate for the Parties For the Petitioners : Mr. Swarup Kumar Patnaik, Advocate
Legal Reasoning
For Opp. Party : Mr. Ajit Chandra Mohapatra, Advocate CORAM: JUSTICE KRUSHNA RAM MOHAPATRA -----------------------------------------------------------------------------------
Decision
Heard and disposed of on 16.02.2024 --------------------------------------------------------------------------------- JUDGMENT 1. 2. This matter is taken up through hybrid mode. Petitioner in this CMP seeks to assail the order dated 18th November, 2023 (Annexure-9) passed by learned District Judge, Kendrapara in Civil Revision No.07 of 2023, whereby dismissing the revision, it confirmed the order dated 15th September, 2023 (Annexure-8) passed by learned Civil Judge (Senior Division), Kendrapara in IA No.398 of 2023 (arising out of Execution Case No.01 of 2022) rejecting an application under Section 47 CPC. CMP NO.1551 OF 2023 Page 1 of 7 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Feb-2024 18:03:05 // 2 // 3. Mr. Patnaik, learned counsel submits that the Defendants- JDrs. are the Petitioners in this CMP. TS No.36 of 1999 was filed by the Opposite Party for injunction simplicitor. The suit was disposed of vide judgment dated 22nd February, 2006 (Annexure-2) and decree dated 9th March, 2006 with the following order: “The suit of the Plaintiff be and the same is decreed on contest against both the defendants but in facts and circumstances without cost. The the defendants are permanently restrain from entering upon the suit land and from creating any disturbances in the possession over it until he is ousted from the possession of the suit land in due process of law, by any person or institution after establishment of valid right, title and interest over the suit land. The pleaders fee be assessed at contested scale.” 3.1 The said judgment and decree was never challenged and attained its finality. Alleging interference in peaceful possession, the Plaintiff-Opposite Party filed Execution Case No.01 of 2022. An application under Section 47 CPC was filed therein by the Petitioners stating that Civil Court lacked jurisdiction to entertain the suit in view of Section 85 of the Waqf Act, 1995, as the property involved is admittedly a Waqf property. Learned counsel for the Petitioners also relied upon the Notification (Annexure-7 series) declaring the suit land to be Waqf property. Hence, he submits that learned trial Court, being incompetent to decide the suit, the decree passed is not executable. He also placed reliance on the case of Asma Lateef and another -v- Shabbir Ahmad and others, reported in (2024) SCC OnLine SC 42, wherein it is held as under: “27. Our real task is to ascertain whether the decree drawn up on the basis of the order dated 5th August, 1991 and put to execution by the appellants could have been objected to by the respondents 1 to 3 as inexecutable under section 47, CPC. Section 47, CPC, CMP NO.1551 OF 2023 Page 2 of 7 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Feb-2024 18:03:05 // 3 // being one of the most important provisions relating to execution of decrees, mandates that an executing court shall determine all questions arising between the parties to the suit or their representatives in relation to the execution, discharge, or satisfaction of the decree and that such questions may not be adjudicated in a separate suit. 28. Reference to a couple of authorities on the scope and nature of section 47, CPC, at this stage, would not be inapt. 29. In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman, this Court was considering the scope of objection under section 47 of the CPC in relation to the executability of a decree. Therein, it was laid down that only such a decree could be the subject-matter of objection which is a nullity and not a decree which was erroneous either in law or on facts. Law was laid down in the following terms: “6. A court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties. it the 7. When a decree which is a nullity, for instance, legal is passed without bringing where representative on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a court which has no inherent jurisdiction to make objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction...." (underlining ours, for emphasis) 30. In Dhurandhar Prasad Singh v. Jai Prakash University, this Court further expounded the powers of a court under section 47, CPC in the following words: CMP NO.1551 OF 2023 Page 3 of 7 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Feb-2024 18:03:05 // 4 // "24. The exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus, it is plain that executing court can allow objection under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and a nullity, apart from the ground that the decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after its passing...." (underlining ours, for emphasis) 31. The legality of the order of the High Court, together with the order of the Executing Court that the former went on to uphold, has to be tested having regard to the settled position of law as noticed above and bearing in mind that the powers of an executing court, though narrower than an appellate or revisional court, can be exercised to dismiss an execution application if the decree put to execution is unmistakably found to suffer from an inherent lack of jurisdiction of the court that made the same rendering it a nullity in the eye of law.” 3.2 It is his submission that a specific plea that the suit property vested in the Waqf Board was taken in the written statement. Learned trial Court, while adjudicating the suit neither framed any issue of jurisdiction nor recorded any finding to that effect. He also made elaborate submission on the merits of the judgment and decree put to execution. 3.3 It is further submitted by learned counsel for the Petitioners that in view of the Section 85 of the Waqf Act, 1995, Civil Court has no jurisdiction to try the suit. Accordingly, he prays for setting aside the impugned orders under Annexures-8 and 9 and to hold that the Execution Case as not maintainable. 4. Mr. Mohapatra, learned counsel for the Plaintiff-Opposite Party vehemently objects to the above. It is his submission that Section 85 of the Waqf Act, 1995 is not applicable to the instant case, CMP NO.1551 OF 2023 Page 4 of 7 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Feb-2024 18:03:05 // 5 // as the Tribunal constituted under Section 83 of the Waqf Act is not competent to adjudicate the matter in dispute in the suit. The suit was filed for permanent injunction. The land in question stands recorded in the name of the Petitioners. Even if it is held by the trial Court that the Petitioners have no right, title and interest over the suit property, but a trespasser can maintain a suit for injunction against another trespasser. Learned trial Court, while adjudicating the matter, was conscious of the fact that the property might belong to Waqf Board, and has passed the order as quoted above. 5. It is his submission that the Petitioners have not raised any objection with regard to the jurisdiction of the learned Civil Court to try the suit at the time of its adjudication. Thus, the question of jurisdiction cannot be raised at a subsequent stage that too in an execution proceeding by filing an application under Section 47 CPC. Hence, he prays for dismissal of the CMP. 6. Taking note of the submissions made by learned counsel for the parties and on perusal of the record, it appears from the judgment (Annexure-2) passed in learned civil Court that the Defendants-Petitioners had taken a plea that the property belongs to Waqf Board, but no objection with regard to jurisdiction of the civil Court was raised. It further appears that no issue to that effect was also framed. Neither of the parties also raised any objection regarding non-framing of an issue with regard to jurisdiction of civil Court to adjudicate the suit. In Rahul S. Shah vrs. Jinendra Kumar Gandhi and others, reported in (2021) 6 SCC 418 it is observed that; “42.8. The court exercising jurisdiction under Section 47 or under Order 21 CPC, must not issue notice on an in a application of third-party claiming rights CMP NO.1551 OF 2023 Page 5 of 7 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Feb-2024 18:03:05 // 6 // mechanical manner. Further, the court should refrain from entertaining any such application(s) that has already been considered by the court while adjudicating the suit or which raises any such issue which otherwise could have been raised and determined during adjudication of suit if due diligence was exercised by the applicant”. (emphasis supplied) 6.1 Further, in the case of Asma Lateef and another (supra), it is observed that powers of an executing Court though narrower than an appellate or revisional Court, can be exercised to dismiss an execution application in the decree put to execution is unmistakably found to suffer from inherent lack of jurisdiction of the Court that made the same rendering a nullity in the eye of law. While arriving at such a conclusion, Hon’ble Supreme Court has taken note of the observation made in Vasudev Dhanjibhai Modi vrs. Rajabhai Abdul Rehmanand others, reported in (1970 )1 SCC 670, in which, it is held that “where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction...." 7. Thus, an objection of jurisdiction of the Court which requires adjudication, if not raised during trial, cannot be called in question in an application under Section 47 CPC. From the judgment (Annexure-2) passed in the suit, it appears that the Plaintiff-Opposite Party filed the suit against the Defendants for permanent injunction. Learned trial Court held that the Plaintiff did not have right, title and interest over the suit property, but in the facts and circumstances of the CMP NO.1551 OF 2023 Page 6 of 7 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Feb-2024 18:03:05 // 7 // case, granted relief of permanent injunction restraining the Defendants-Petitioners from disturbing possession of the Plaintiff- Opposite Party over the suit property and evicting him without due process of law by any person or institution establishing its valid right, title or interest over the suit land. Law is well-settled that a trespasser can maintain a suit for injunction against another. Admittedly, the suit is not filed claiming relief against the Waqf Board. The Waqf Board has also not been impleaded as a party to the suit. Thus, without adjudication, it cannot be said that learned trial Court lacked inherent jurisdiction to try the suit. In the instant case, the issue with regard to jurisdiction of the civil Court to try the suit, which is raised for the first time in the petition under Section 47 CPC filed by the Petitioners, needs adjudication by receiving evidence. 8. In view of the above, this Court unhesitatingly holds that the question of jurisdiction raised under Section 47 CPC cannot be adjudicated by the learned executing Court. Hence, neither learned trial Court nor learned District Judge, Kendrapara has committed any error in rejecting the prayer made by learned counsel for the Petitioners. 9. Hence, this CMP, being devoid of any merit, stands dismissed. Issue urgent certified copy of this judgment on proper application. High Court of Orissa, Cuttack Dated 16th February, 2024/ Rojalin (K.R. Mohapatra) Judge CMP NO.1551 OF 2023 Page 7 of 7