Calcutta High Court (Appellete Side)
M/S Kusum Agency vs Gopi Kishna Jhunjhunwala & Anr on 1 December, 2021
06. 01.11.2021
Ct. No.21
A.B.
C.O. 2021 of 2021
M/s Kusum Agency
-Versus-
Gopi Kishna Jhunjhunwala & Anr.
(Through Video Conference)
Ms. Manju Agarwal
Mr. Bajrang Manot
...for the Petitioner.
Mr. Aniruddha Chatterjee
Mr. Vikas Baisya
Mr. Saptarshi Kr. Mal
...for the Opposite Parties.
The petitioner/Judgment Debtor being aggrieved by
order passed by the Ld. Judge, Presidency Small Causes
Court, 3rd Bench, in Misc. Case No. 18 of 2017 arising
out of Ejectment Execution Case No. 140 of 2016 on
17.11.2021 has preferred the present revisional
application praying for setting aside the impugned order
and for stay of the said order.
The brief fact of the case is that Opposite Parties
being the landlord/owner of the disputed property filed
an Eviction Suit being no. 519 of 2012 against M/s
Kusum Agency before the ld. Court below. Such suit was
decreed ex parte on 08.09.2016. Then such decree was
put in to execution by filling Execution Case No. 140 of
2
2016 on 08.12.2016. In such execution case the decree
holders have filed a petition under Order XXI Rule 97
read with section 151 of the Code of Civil Procedure,
1908 and under Rule 208 of Civil Rules and Orders for
execution of the decree with the help of police and which
has been registered as Misc. Case No. 18 of 2017. The
Ld. Court below by passing the impugned order has
been pleased to allow the Misc. Case filed by the decree
holder/Opposite Parties.
Now, by filling the present application the petitioner
has alleged when the exparte decree of eviction was
passed on 08.09.2016, Sampat Mal Surana, the
proprietor of M/s Kusum Agency was dead as he died on
17.11.2021
. Therefore, decree in question having passed
against a dead man is null and void and not executable.
Further, it has been alleged the petitioner was not
allowed to adduce any evidence in Misc. Case under
Order XXI Rule 97 read with section 151 C.P.C. and
Rule 208 of C.R.O filed by Opposite Parties by Ld. Court
below and thereby deprived the petitioner the right of
being heard.
The description of the suit property given in the
schedule of the petition is incorrect. The decree has been
obtained by practicing fraud and alleged impugned order
suffers from illegality and materials irregularities and
liable to be set aside.
Ld. advocate for the petitioner submitted what is
stated above at the time of hearing.
On the other hand Ld. Lawyer for the Opposite
Parties contended that no revision lies against impugned
order passed under Order XXI Rule 97CPC. He submits
an order passed under Order XXI Rule 97CPC is
considered to be a deemed decree and against which
only Appeal lies. He further submits that Order XXI Rule
97 has be to read conjointly with Order XXI Rule 101,
Order XXI Rule 98 and Order XXI Rule 103 C.P.C. and
order under challenge is deemed to be a decree as laid
down by Order XXI Rule 103 C.P.C. and would be
appealable before appropriate appellate forum. Thus he
contended present Revision is not maintainable and
liable to be dismissed.
First, let me see whether Ld. Court below ignoring
about the nullity of decree acted illegally in passing the
impugned order?
The answer is "NO" in view of well settled principle of
law that an executing court cannot go behind the decree.
It must take the decree as it stands and execute it
according to its terms. It has no power to vary or modify
the terms. It has no power to question its legality or
correctness. The decree remains executable so long the
same is not set aside by a competent court. Any question
that does not relate to the execution, discharge or
satisfaction of decree is not within the jurisdiction of the
executing court. The decree howsoever may be defective
the ld. Court below is bound to execute the decree.
In the instant case, the petitioner could have availed
remedies available to it under Order IX Rule 13 to set
aside the ex parte decree with the aid of Section 5 of the
Limitation Act, in case there was delay in filing such
application or could have filed an Appeal against the
exparte decree by taking the plea the decree having
passed against a dead man the same is null and void
and not executable, but I find the petitioner has failed to
do so.
Therefore, I do not find any illegality being committed
by Ld. Court below for not taking into consideration the
plea of nullity taken by the petitioner while considering
the petition under Order XXI Rule 97 CPC filed by the
Opposite Parties.
Be that as it may, from the impugned order it reflects
when the court bailiff had gone to execute the decree in
question he was prevented by Samir Sarkar an employee
of the Judgement Debtor. And apprehending breach of
peace and tranquility in the locality he had returned the
writ of possession without executing.
Therefore, the decree holders finding obstruction in
execution of the decree by the employee of the petitioner
and also apprehending such obstruction later at the
time of execution have prayed for police help to get the
decree executed by filing an application U/O XXI Rule
97 CPC. Ld. Court below was pleased to allow such
prayer of the Decree holders and passed the impugned
order.
Now, let me delve on the issue, whether the
impugned order is appealable deemed decree or
interlocutory order against which revision lies?
On conjointly reading the Provisions of Order XXI
Rule 97 with Order XXI Rule 101, Order XXI Rule 98
and Order XXI Rule 103 Civil Procedure Code, it is seen
order of removal of obstruction is said to be passed
under Order XXI Rule 98 sub rule (2) while determining
a question under Order XXI Rule 101 in respect of an
application Order XXI Rule 97. Therefore, an order of
removal obstruction with the help of police and recovery
of possession thereof is a deemed decree under Order
XXI Rule 103 CPC. Hence, this court is of view only
remedy available to the petitioner/ Judgment debtors is
to prefer an Appeal before an appropriate appellate court
against such deemed decree and as such no Revision is
maintainable against the impugned order.
Further, it has been contended by Ld. Advocate for
the petitioner, while determining the concerned Misc.
Case Ld. Court below has failed to adhere to the
principal of natural justice, by denying the petitioner's
right to adduce oral evidence.
Perused certified copy of order sheets of Misc. Case
No.18/17 and from where it is seen while granting the
prayer of the present petitioner for stay of the operation
of the ex parte decree, the Ld. Court below had directed
it to pay occupational charge 25,000/-per month within
15 days of each succeeding English calendar month
from the date of decree and in the event of failure stay
stands automatically vacated. It further appears from
the order dated 31.08.21, that on the failure of the
petitioner to comply such order and also on failure of the
Judgement Debtor to file written objection and failure to
appear before the court, Ld. Court below decided to take
up the hearing of the Misc. Case by vacating the
conditional stay granted earlier.
From subsequent orders it appear the Judgment
Debtor failed to contest the Misc. Case by filling written
objection. Then court below proceeded with the hearing
of the Misc. Case by permitting the decree holders
adduce evidence of witnesses. On the day when the
decree holder examined their first witness on 20.09.21,
the court below permitted the Judgment Debtor to cross
examine the P.W.1 and whose further cross
examination was deferred on the prayer of the
judgement debtor and in between judgment debtor had
taken adjournment twice to complete the cross
examination of P.W.1.
It further appears the Judgment Debtor filed Written
Objection against the Misc. Case on the day when the
cross examination of P.W.1 was completed.
However, the evidence from the side of the Decree
holders was completed on 11.11.21 and thereafter the
Misc. Case was fixed for hearing argument.
Here, I like to take a pause and want to discuss the
procedure which is followed by the trial court. As per
procedural law it is the plaintiff/ petitioner who has to
adduce evidence of his/her /their witnesses in support
of their case and on closure of evidence from the side of
the plaintiff/petitioner, automatically defendant/
opposite party will get right to adduce evidence of
his/her /their witnesses to prove their defense, unless
defendant/ opposite party choose not to adduce
evidence.
In the instant case the order dated 11.11.21 reflects
the present petitioner had chosen not to adduce any
evidence and as such the case was fixed for hearing
argument on 17.11.21. The present petitioner on the
date of hearing of argument has come up with a petition
seeking leave to adduce evidence and which the ld, court
below by passing the impugned order rejected the prayer
and proceeded to pass order in respect of the Decree
holders' petition under Order XXI Rule 97 CPC.
The conduct of the Judgement debtor discussed
above reflects that it wants to get the execution of the
decree delayed by adopting all kind of tactics. Therefore I
hold the allegation brought against the court below for
not adhering the principal of natural justice to be
baseless.
Be that as it may, the order under challenge being
appealable, the present revision is not maintainable.
Accordingly, C.O. 2021 of 2021 is dismissed with
liberty to the petitioner to file an Appeal as per law. If
any Appeal is filed the Appellate Court shall decide the
same on merits in accordance with law.
Interim order, if any, stands vacated.
There will be no order as to costs.
All parties shall act in terms of the copy of the order
downloaded from the official website of this Court.
Urgent Xerox certified photocopies of this judgment,
if applied for, be given to the parties upon compliance of
the requisite formalities.
(Kesang Doma Bhutia, J.)
Later
The learned advocate for the petitioner prays for
return of the certified copy of the order of the Court
below, which has been annexed along with the revisional
application.
The prayer is allowed.
Let the certified copy of the order of the Court below
be returned to the learned advocate for the petitioner on
filing xerox copy of the same.
(Kesang Doma Bhutia, J.)
