Representatives Alo Rani Das & Ors vs Ashok Chatterjee
2022 Latest Caselaw 2124 Cal

20.04.2022 (D/L-6-9) Ct.-18 (Susanta)

C.O. 159 of 2021 With I.A. No. CAN 1 of 2021 (Disposed of) And C.O. 160 of 2021 With I.A. No. CAN 1 of 2021 (Disposed of) With C.O. 161 of 2021 With I.A. No. CAN 1 of 2021 (Disposed of) With C.O. 162 of 2021 With I.A. No. CAN 1 of 2021 (Disposed of)

Sri Santosh Chandra Das, since deceased, his substituted heirs and legal representatives Alo Rani Das & Ors.

-Vs-

Ashok Chatterjee

Mr. Sardar Amjad Ali, Mr. Probal Kumar Mjkherjee, Ms. Sucharita Ray, Ms. Jhuma Sen, Mr. Masroom Ali, .... For the Petitioners.

Ms. Suchitra Saha, Mr. Niranjan Maity, Ms. Sharmila Basu, Ms. Priyanka Das, .... For the Opposite Party.

The revisional applications are arising out of

the self-same execution case, as such, they are

taken up for analogous hearing and disposal.

Re: C.O.159 of 2021 & C.O. 160 of 2021

The predecessor-in-interest of the petitioners

suffered an ex-parte decree for specific

performance of an agreement for sale of the suit

property in Title Suit No. 174 of 1994 passed by

the then 5th Assistant District Judge at Alipore

District. 24 Parganas (Undivided) now designated

as 5th learned Civil Judge (Senior Division) at

Alipore, District. 24 Parganas (South).

The said decree was put into execution

giving rise to connected Title Execution Case No.

06 of 1887.

In the said execution case, the petitioners

filed two applications under Section 47 of the

Code of Civil Procedure being Misc. Case no. 11

of 2008 and Misc. Case no. 35 of 2008.

In Misc. Case no. 11 of 2008, the judgment-

debtor alleged that the decree under execution

was obtained by practicing fraud as no

agreement for sale was intended to be executed

rather it was a loan transaction.

In Misc. Case No. 35 of 2008 the judgment-

debtor alleged that the decreetal property since

has been vested with the State of West Bengal

the decree cannot be executed.

The decree-holder by a common application

prayed determination of the maintainability of

the said two misc. cases.

The Executing Court by the order impugned

in CO. 159 of 2021 and C.O. 160 of 2021 dated

December 05 of 2020 has dismissed both the

said misc. cases.

Investigation whether the said decree was

obtained by practicing fraud upon the judgment-

debtor or the agreement for sale whether was for

the purpose of loan is beyond the scope of an

application under Section 47 of the Code as such

the Executing Court has rightly dismissed the

said Misc. Case No. 11 of 2008.

However, the question raised in Misc. Case

No. 35 of 2008 prima facie affects the execution

discharge and satisfaction of the said decree as

such needs to be answered, the order impugned

does not reflect that such exercise was carried

out by the Executing Court in dismissing the

said misc. case.

Moreover, dismissal of the said misc. case as

time barred requires a bit clarification which is

lacking in the order impugned.

In consequence whereof the dismissal of

Misc. Case No. 11 of 2008 is hereby affirmed but

the dismissal of Misc. Case No. 35 of 2008 is

hereby set aside.

The impugned order dated December 05,

2020 is modified to the extent indicated above.

The Executing Court is requested to dispose

of the said Misc. Case No. 35 of 2008 as

expeditiously as possible preferably within a

period of three available effective working months

of his Court from the date of communication of

this order and in doing so shall not entertain the

prayer of the parties for any unnecessary

adjournment.

Ms. Suchitra Saha, learned counsel for the

decree-holder/opposite party submits that the

Executing Court may be directed to consider the

pending application for recalling of her client as

witness as he wants to demonstrate that there is

no such vesting of the suit property as alleged.

The decree-holder is entitled to such an

opportunity therefore, if such an application is

pending the Executing Court while deciding the

said Misc. Case No. 35 of 2008 shall consider the

same in accordance with law.

C.O. 159 of 2021 and C.O. 160 of 2021 are

disposed of with the above terms, without any

order as to costs.

Re: C.O. 161 of 2021

The orders dated December 14 of 2020,

December 22 of 2020 and December 24 of 2020

passed in the said Title Execution Case No. 06 of

1997 are under challenge in the present

revisional application.

The order dated December 14 of 2020 and

December 24 of 2020 are mere procedural orders

passed in the said execution case as such not

open to challenge in an application under Article

227 of the Constitution of India.

The Executing Court by the order dated

December 22, 2020, inter alia, has directed the

bailiff to deliver the peaceful possession of the

suit property to the decree-holder.

The Executing Court has acted with material

irregularity in directing so, inasmuch as the said

direction appears to have been passed on the

oral prayer of the learned advocate for the

decree-holder.

Ms. Suchitra Saha, learned counsel for the

decree-holder although submits that pursuant to

the execution of the deed of conveyance by the

Executing Court an application for possession

possibly is on record but the order impugned

does not reflect that the said direction for

possession was passed on the basis of any

application or after affording opportunity to the

judgment-debtor to contest the said prayer of the

decree-holder.

The order impugned dated December 22,

2020 therefore suffers from material irregularity

as such is not sustainable and is accordingly set

aside.

However, liberty is granted to the decree-

holder to pray for the same relief on the

application if already on record and if no such

application is on record, the decree-holder is at

liberty to file an application for similar relief. The

Executing Court is requested to dispose of the

said application immediately after the disposal

of the Misc. Case No. 35 of 2008.

C.O. 161 of 2021 is thus disposed of,

without any order as to costs.

Re: C.O. 162 of 2021

In the instant revisional application under

Article 227 of the Constitution of India the orders

dated January 04, 2021 and January 05, 2021

passed in the said execution case are under

challenge.

The order dated January 04, 2021 is an

order recording filing of an application under

Section 151 of the Code of Civil Procedure by the

judgment-debtor, challenge to such an order is

misconceived.

The judgment-debtor by the said application

prayed for recalling of the order dated December

05, 2020 whereby the Executing Court dismissed

the Misc. Case No. 11 of 2008 and Misc. Case

No. 35 of 2008.

The Executing Court by the impugned order

dated January 05, 2021 has dismissed the said

application.

In view of the order passed in C.O. 159 of

2021 and C.O 160 of 2021 challenge to the order

dated January 05, 2021 has become infructuous.

However, Sardar Amjad Ali, learned senior

advocate for the petitioners submits that

executing court by the latter part of the order

dated January 05, 2021 has transgressed the

jurisdiction of an executing Court by directing

demolition of the alleged illegal construction over

the suit property.

Record discloses that the Executing Court

by the said order dated January 04, 2021 had

fixed January 05, 2021 as the date for hearing of

the application filed by the judgment-debtor

under Section 151 of the Code only, therefore, on

the said date such a direction ought not to have

been passed by the Executing Court that too

without giving any opportunity to the judgment-

debtor to contest the said prayer of the decree-

holder.

In view of such position of the record, the

aforesaid submission of Mr. Ali, although

deserves consideration, need not be gone into at

this stage.

The latter part of the order dated January

05, 2021 therefore is set aside.

Ms. Saha, submits that the decree-holder

has filed an application for demolition of the

illegal construction over the suit property, she

prays the said application may also be disposed

of expeditiously.

If such an application is pending, this order

shall not stand in the way of its disposal in

accordance with law but the maintainability of

such an application is kept open.

C.O. 162 of 2021 is disposed of with the

above terms without any order as to costs.

Urgent photostat certified copy of this order,

if applied for, be supplied to the parties upon

compliance with all requisite formalities.

(Biswajit Basu, J.)