Shri Satadal Ghosh vs Sri Sasanka Sekhar Dutta
2022 Latest Caselaw 7224 Cal

In the High Court at Calcutta Civil Revisional Jurisdication Appellate Side

Present:-

The Hon'ble Justice Subhasis Dasgupta.

C.O. No. 1547 of 2022 Shri Satadal Ghosh Vs.

                         Sri Sasanka Sekhar Dutta


For the Petitioner             : Mr. Saptangshu Basu,
                                 Mr. Susondip Pathak,
                                 Ms. Mrinalini Majumdar.

For the Opposite Party         : Mr. Debjit Mukherjee,
                                 Ms. Aditi Kumar,
                                 Mr. Supratim Barik,
                                 Mr. A. Mukhopadhyay.

Heard On                       :29.08.2022, 29.07.2022.

Judgment                       : 30.09.2022.

Subhasis Dasgupta, J:-

The order impugned, dated 7th May, 2022, passed in Misc. Case No.

52 of 2022, arising out of Title Execution Case No. 1 of 2017 by learned

Civil Judge (Senior Division), 10th Court at Alipore, declining to grant

mandatory injunction at an interlocutory stage for the purpose of

restoring back the possession of subject property, under reference, to

petitioner, thereby simultaneously granting order, restraining alienation of

the subject property and/or encumbering the said property (decretal

property) till the disposal of the Misc. Case, is under challenge in this

case.

Adverting to order dated 04.04.2022, disclosed in the order

impugned, Mr. Saptangshu Basu, learned senior advocate appearing for

the petitioner submitted that when the court below itself was satisfied to

observe that the Execution Case had been disposed of at the behest of

opposite party/decree holder, who suppressed material facts to persuade

the court below to obtain possession of the suit property illegally, there left

no impediment before the court below to order for restoration of

possession to petitioner.

Mr. Basu further submitted that possession of the suit property

should have been put back to the petitioner even in an interlocutory stage,

because possession had been obtained practicing fraud upon the court

below.

Reliance was placed by Mr. Basu on a decision reported in (2003) 3

SCC 319, delivered in the case of Ram Chandra Singh Vs. Savitri Devi

& Ors. to contend that a fraud and collusion would vitiate, the entire

proceeding relatable to the delivery of possession, upon executing an ex

parte decree, obtained in connection with a suit for specific performance of

contract.

Mr. Basu further contended that while executing decree for specific

performance of a contract, all the steps/stages disclosed in Order 21 Rule

34 of Code of Civil Procedure, in particular Rule 1 to Rule 4 had to be

necessarily complied with, and there could not be any departure allowed

to take place, while delivering possession of decretal property to decree

holder.

Mr. Basu referring to the text of the ex parte decree submitted that

there were two parts in the decree, which could be reproduced

hereinbelow:

"The defendant is directed to execute the sale deed in favour of the plaintiff in respect of the suit flat within two months from the date of passing of this order and on depositing remaining consideration amount.

The defendant is further directed to deliver khas possession of the suit premises immediately after execution of sale deed in favour of the plaintiff, in default the plaintiff is at liberty to execute the decree in accordance with law."

According to Mr. Basu failure to comply the first part of the decree

being subject to the deposition of remaining consideration amount, in a

suit for specific performance of contract, the second part of the decree,

being a product of default clause, would not automatically come into

operation, so as to execute the ex parte decree for giving delivery of

possession of decretal property to the opposite party/decree holder.

While making elaboration of such issue, Mr. Basu contended that

there left nothing in the record that judgment debtor committed failure to

ensure due compliance of first part of the decree so as to pave the way for

the later part of the decree, being default clause, to execute the decree

upon delivering the possession of the decretal property to the decree

holder, as the decree had been executed against a dead man, being

judgment debtor, without bringing on record, the legal representatives,

assignees or anybody else having interest in the decretal property.

Reliance was placed on such issue by Mr. Basu on a decision,

reported in 2022 SCC OnLine SC 270 delivered in the case of Rajbir Vs.

Suraj Bhan & Anr. to contend that the executing court below would be

diligent enough in the matter of execution of decree, that formalities

contemplated in regard to registration of a deed had already been

complied with, giving more and more emphasis to the sub-rule (1) to rule

(4) of Order 21 Rule 34 C.P.C.

While elaborating such issue Mr. Basu submitted that the provision

of Sub-Rule (1) to sub-rule (4), as envisaged under Order 21 Rule 34

C.P.C. could not be allowed to be diluted making any departure, because

there would be deleterious consequences to follow, not merely qua the

parties in question, but also persons, who come to deal with those parties

in future.

It is thus submitted by Mr. Basu that provisions of sub-rule (1) to

rule (4), while executing a decree for specific performance of contract have

to be necessarily followed, otherwise parting with possession of decretal

property to the decree holder would be against the sanction of law.

Mr. Basu also contended that when ex parte decree obtained in a

suit for specific performance, had been executed upon delivering

possession of decretal property to opposite party/decree holder, making

departure of the provisions available under Order 21 Rule 34 C.P.C.,

which the court itself was cognizant about the perpetration of fraud being

committed, while obtaining possession of decretal property, sufficiently got

mentioned in the order impugned, the court below was under bounden

duty to correct its own mistake, because no question of any acquiescence,

waiver, estoppel against a party would arise, where error was committed

by the court itself.

On this issue, reliance was placed by Mr. Basu, on a decision

reported in (1993) 2 SCC 470 delivered in the case of Devidayal Rolling

Mills Vs. Prakash Chimanlal Parikh & Ors. to contend that the court

below could have corrected its own mistake upon restoring the possession

back to the petitioners without waiting for the decision to come in the

Misc. Case.

Mr. Basu also submitted referring a decision reported in AIR 1985

Calcutta 248 delivered in the case of Indian Cable Company Limited

Vs. Smt. Sumitra Chakraborty that restoration of possession even in an

interlocutory stage could be granted in aid of mandatory injunction in a

case, when a person had been unlawfully dispossessed, and which the

court below had already taken notice thereof.

Mr. Basu strenuously argued that when there had been nothing to

reveal about deposition of balance consideration money in connection with

an ex parte decree granted in a suit for specific performance of contract, in

compliance of the first part of the decree, the right of the decree holder

would only mature, when there had been valid deposition of balance

amount, otherwise the ex parte decree could not have been executed. Thus

parting with possession of the decretal property to decree holder would be

against the spirit of law.

Reliance was placed on such issue, by Mr. Basu, on a decision

reported in (2000) 10 SCC 636 delivered in the case of A. Abdul Rashid

Khan (dead) & Ors. Vs. P.A.K.A. Shahul Hamid & Ors.

Incidental to addressing the core issues involved in this case, Mr.

Basu, taking resort to a decision reported in (2018) 18 SCC 165 delivered

in the case of Kohinoor Transporters Vs. Sate of Uttar Pradesh

submitted that the executing court below would have to execute the

decree as it stands without adding anything to it.

While making elaboration of such issue, Mr. Basu submitted that

when there had been nothing to disclose regarding compliance of the first

part of the decree, as revealed in the ex parte decree granted in a suit for

specific performance, straightway jumping to the second part of the decree

to execute the decree for parting with the possession of decretal property

would absolutely exceed the jurisdiction of the executing court below, for

making contravention of Section 47 of C.P.C.

Upon advancing such submissions, Mr. Basu submitted that

restoration of possession granting mandatory injunction could have been

accorded by the court below even in an interlocutory stage, when there

had been sufficient materials disclosing perpetration of fraud being

committed so as to part with possession of subject property to opposite

party/decree holder, in violation of the conspicuous direction contained in

the decree itself.

Mr. Debjit Mukherjee, learned advocate appearing for the opposite

party, disputing with the submissions advanced by Mr. Basu, replied that

the order impugned would not call for any interference in the instant case

on the ground that the order granting ex parte decree in a suit for specific

performance of contract, being Title Suit No. 16573 of 2012, had not been

challenged. More so, the order granting delivery of possession in

Execution Case No. 1 of 2017 also remained unchallenged before higher

forum. The order dated 4th April, 2012, passed in Misc. Case No. 52 of

2022, however, could not be assailed in any higher forum.

Taking recourse to a decision reported in (2016) 9 SCC 44 delivered

in the case of Anita International Vs. Tungabara Sugar Works

Mazdoor Sangh & Ors., Mr. Mukherjee submitted that until an order

passed by competent court was set aside, would be binding upon the

parties, as the same would have the force of law.

The settled proposition of law, according to Mr. Mukherjee, would be

that a party to the lis or a third party, who considers an order passed by

court as void or non est, must approach a court of competent jurisdiction

to have the said order set aside on such grounds, as available in law, and

unless the said order is set aside, it would have the binding effect to the

parties.

The instant Misc. Case No. 52 of 2022 being relatable to an

application under Order 21 Rule 99 read with Sections 144 and 151 of

C.P.C., and analogous provisions relating thereto, a mere claim of putting

back in possession of subject property, under reference, on the strength of

a purchase, being a subsequent purchaser, in violation of the provision of

Section 52 of Transfer of Property Act, would not automatically help the

petitioner to enforce his claim of repossession, without making

adjudication of his independent claim of right, title and interest in the

subject property.

Reliance was placed by Mr. Mukherjee in this regard on a decision

reported in (2019) 17 SCC 279 delivered in the case of Shamsher Singh

& Anr. Vs. Lieutenant Colonel Nahar Singh (dead) Through Legal

Representatives & Ors. to contend that for putting back in the

possession on an application under Rules 100 and 101 of Order 21 C.P.C.,

an applicant has not only to prove that he is in bona fide possession,

rather he has to prove his right, title or interest in the property.

Therefore, according to Mr. Mukherjee, whether the decree had been

executed against a dead person without making impleadment of the

parties having interest to the decretal property, and that too upon

practicing alleged fraud by not adhering to the sub-rule (1) to sub-rule (4)

of Order 21 Rule 34 C.P.C., as emphasized by Mr. Basu, would not matter

much in a claim for putting back in possession, which is always subject to

the determination and/or adjudication of right, title and interest of the

petitioner, even in a case based on claim for restoration of possession.

Adverting to observation of the court below, made in the order

impugned, vide Para-8, Mr. Mukherjee submitted that the court below

simply declined to put back in possession of the subject property to the

petitioner in the concerned Misc. Case at an interlocutory stage, pending

determination of all questions relating to right, title and interest in the

decretal property, which according to court below, in the event of

mandatory injunction being granted, simply to restore the possession of

the suit property to petitioner, would be to prejudge the pending Misc.

Case, but granted, however, injunction restraining alienation of the

subject property and/or encumbering the same in any manner whatsoever

till the disposal of the Misc. Case.

Reliance was placed by Mr. Mukherjee on a decision reported in

(2004) SCC 478 delivered in the case of Metro Marins & Anr. Vs. Bonus

Watch Co. (P) Ltd. & Ors. to contend that the case presented before the

court below, being not alike to one of the exceptions curved out in the case

of Dorab Cawasji Warden Vs. Coomi Sorab Warden & Ors. reported in

(1990) 2 SCC 117, order granting mandatory injunction to put back in

the possession of the decretal property to petitioner, what is presently in

the possession of the opposite parties/decree holders, had been rightly

refused by the court below.

In context with the submissions advanced by the both the parties to

this case, this Court is only to address the issue, whether mandatory

injunction can be granted at an interlocutory stage to put back the

petitioner in possession of subject property involved in Misc. Case No. 52

of 2022, under Order 21 Rule 99 read with Sections 144 and 151 of C.P.C.

and analogous provisions connected thereto, containing a prayer for

granting a decree for recovery of khas possession of the suit property, by

evicting the opposite party from the subject property, under reference.

Admittedly, the opposite party got an ex parte decree in a suit for

specific performance of a contract, vide T.S. No. 16573 of 2012, against

one, Dr. Sanat Kumar Banerjee. That suit for specific performance of

contract was instituted in the year 2012.

Ex parte decree in the suit for specific performance of contract was

granted on 4th December, 2013. During the pendency of suit for specific

performance of contract the defendant, Dr. Sanat Kumar Banerjee

transferred the subject property in favour of his wife by registered deed of

gift. In turn, after the ex parte was granted, the wife of defendant/Dr.

Sanat Kumar Banerjee transferred the same suit property, vide registered

deed of conveyance in favour of the petitioner, seeking restoration of

possession of the subject property by way of granting mandatory

injunction.

The main thrust of this revisional application is against non-

adherence to the provisions available under Order 21 Rule 34 C.P.C. to

execute the decree, while parting with possession of decretal property.

Failure of the first part, as contained in the decree itself ex facie,

would pave the way to seek for execution of the decree subject to

deposition of balance consideration amount, in a suit for specific

performance of a contract.

The first and foremost contention of the petitioner is that the

opposite party got the decree executed making suppression of facts

against a dead man (Jdr.), without impleading the legal heirs of the Jdr. or

assignee, or anybody else having interest in the subject property.

The court below by the order impugned observed that it was

conscious about the alleged suppression of material facts to get the decree

executed, but in spite of being consciously posted with such alleged

perpetration of fraud practiced in the execution proceeding, declined to

pass any mandatory injunction to put back in possession, without making

effective adjudication of right, title and interest of petitioner, if there be

any, in connection with the subject property; as the petitioner had

purchased the property, consequent upon alienation of subject property

during the pendency of suit for specific performance of contract, making

violation of the provision available under Section 52 of Transfer of

Property Act.

However, the court below protected the interest of petitioner, if there

be any, with respect to the subject property, under reference, granting an

order restraining alienation of the subject property and/or encumbering

the same in any manner whatsoever, till the decision of the Misc. Case.

Therefore, this is not a simpliciter case of unlawful dispossession of

a property by deceitful means, for which the petitioner has sought for

restoration of possession. The claim of restoration of possession in the

given facts and circumstances of this case is subject to the determination

of independent right, title and interest of petitioner, if there be any, in the

subject property, as per provisions mentioned in Order 21 Rules 100 and

101 C.P.C.

Thus by simply proving the fact that petitioner was in possession,

prior to being unlawfully dispossessed by decree holder/opposite party,

petitioner may not to be allowed to be put back in possession of the

subject property, pending adjudication of right, title and interest, to be

reached in the concerned Misc. Case, as invited by the petitioner himself

with a prayer for recovery of possession.

The allegation of alleged fraud, would not automatically entitle the

petitioner to seek for restoration of possession, pending adjudication of his

right, title and interest, if there be any, connecting the subject property

under reference.

The settled proposition of law is that in an appropriate case being

made out or established, there may be mandatory injunction granted to

recover possession in a case of unlawful dispossession, but in the instant

case, proof of possession alone, without adjudication of independent right,

title, interest of the petitioner in context with Order 21 Rules 100 and 101

C.P.C., there may not be any mandatory injunction granted in aid of

putting back in possession.

Since, granting of such injunction to a party is based on sound

exercise of judicial discretion, in the order impugned there left nothing

suggestive of erroneous exercise of judicial discretion, vested to the court

below.

The case thus presented before the court below, while seeking

mandatory injunction, was not sufficient enough to make out exceptional

circumstances, needing immediate action, failure of which would cause

great injustice or irreparable harm to petitioner.

When the court below upon due exercise of discretion declined to

grant mandatory injunction to put back in possession of subject property,

pending adjudication of independent right, title, interest of the petitioner,

such discretion, in the given facts and circumstances of this case, being

lawfully and reasonably exercised, would remain uninterfered with.

The findings thus reached, while making rejection of the prayer for

mandatory injunction at an interlocutory stage, in any case may not be

branded to be a perverse one.

The revisional application fails.

However, the pending Misc. Case be expedited, so that logical

conclusion of Misc. Case may be reached at an early date.

With this observation/direction, the revisional application stands

disposed of.

Parties are directed to make communication of this order to the

learned court below.

Urgent photostat certified copy of this order, if applied for, be given

to the parties, upon compliance of all formalities, on priority basis.

(Subhasis Dasgupta, J.)