And Another vs Uco Bank And Another
2023 Latest Caselaw 5571 Cal

AD-26
Ct No.09
25.08.2023
TN
                            WPA No. 13440 of 2021
                             IA No: CAN 1 of 2023

                  Subha Raksha Kali Rice Mills Private Limited
                                and another
                                    Vs.
                           UCO Bank and another


             Mr. Jishnu Chowdhury,
             Mr. Ratul Das,
             Mr. Amar Dudhwewala,
             Mr. Pranav Sharma,
             Mr. Karan Dudhwewala
                                                    .... for the petitioners

             Mr. Arjun Mookherjee,
             Mr. Sourjya Roy
                                                    .... for the UCO Bank


                     The present writ petition has been filed in

             connection     with    a    disposed     of   writ   petition,

             unambiguously for execution of the order passed by a

             coordinate Bench, while disposing of WPA 13440 of

             2021,    whereby      the   respondent-UCO       Bank    was

directed to refund the money received from the writ

petitioners pursuant to the e-auction within a period

of eight weeks from that date along with interest at 8

per cent from the date on which the first amount was

paid till the date of realization.

Learned counsel appearing for the petitioner

places reliance on Rule 53 of the Rules under Article

226 of the Constitution of India in the Appellate Side

Rules of this court, where it is provided that save and

except as provided by the said Rules and subject

thereto, the provisions of the Code of Civil Procedure

in regard to suits shall be followed, as far as it can be

made applicable, in all proceedings under Article 226

and nothing in the Rules shall be deemed to limit or

otherwise affect the inherent power of this court to

make such orders as may be necessary for the ends of

justice or to prevent abuse of the process of the court.

Read in conjunction with the said Rule, learned

counsel places reliance on Section 36 of the Code of

Civil Procedure, which provides that the provisions of

the Code relating to execution of decrees, including

provisions relating to payment under a decree, shall,

so far as they are applicable, be deemed to apply to

execution of orders (including payment under an

order).

Learned counsel submits that Rule 53 of the

Rules, read with Section 36 of the Code, enable the

applicability of Order XXI Rule 11 of the Code of Civil

Procedure for executing the order of the writ courts as

well.

It is further contended that previously a writ

petition had been filed for implementation of the

order-in-question. However, subsequently the

petitioners were advised that instead of a writ petition,

a tabular statement should be filed along with a

proper application for execution, pursuant to which

advice the present application has been taken out.

Learned counsel places reliance on a coordinate

Bench judgment of this court in Bonbehari Roy and

others vs. Kolkata Metropolitan Development Authority,

reported at AIR 2004 Cal 254 as well as a judgment of

the Supreme Court passed in Food Corporation of

India vs. S.N. Nagarkar, reported at (2002) 2 SCC 475,

in support of his proposition.

Learned counsel for the respondent-Bank

submits that the present application is not

maintainable in law and in its present form. It is

contended that the only remedy before the petitioner

was probably to file a writ petition which, even after

being filed, was withdrawn in the present case. Even

in the order granting leave to withdraw the writ

petition, the petitioners' submission was recorded to

the effect that the petitioners were willing to file a

fresh writ petition with a tabular statement. However,

instead of filing a fresh writ petition, the present

application has been filed. It is submitted that, in the

present case, no contempt application has also been

filed.

Learned counsel submits that the writ court,

after passing its final order and disposing of the writ

petition, became functus officio and no further

interlocutory application can be entertained in

connection with the writ petition, apart from

applications in the nature of clarification/modification

or a regular review.

Learned counsel for the respondents places

reliance on a judgment rendered by the Supreme

Court in State Bank of India and others vs. S.N. Goyal,

reported at (2008) 8 SCC 92. In the said case, the

Supreme Court, inter alia, referred to the concept of

functus officio.

Learned counsel also places reliance on a

judgment of a learned Single Judge of the Delhi High

Court which is reported at 2016(165) AIC 577

(Shambhu Nath Das and Ors. Vs. Director of Education

and Ors.), in support of his proposition.

Lastly, it is argued that the present application

cannot be entertained and ought to be rejected at the

threshold.

Heard learned counsel for the parties.

It is an admitted position that an appeal has

been preferred against the order sought to be

implemented now, but no interim order has been

passed in connection therewith despite the pendency

of the appeal for some time. It is well-settled that mere

pendency of an appeal does not operate as a stay. As

such, there cannot be any fetter to the court

entertaining the present application on such score. In

any event, such objection has not also been taken by

the respondents.

The plinth of the objection of the respondents is

that the present application is not maintainable in law

and in its present form. It is argued that the

provisions of Section 36 of the Code of Civil Procedure

are not applicable, because those relate to a suit, as

opposed to the present writ petition.

A careful perusal of the judgment of the

coordinate Bench of this court cited by the writ

petitioners shows that the learned Single Judge was of

the opinion that an order passed by a writ court

cannot be executed by the civil court in the absence of

express power conferred on it for such purpose by

law.

In the said case, it was also observed that the

court had not decided the matter on merits and the

order passed therein shall not prevent the petitioners

therein from initiating a fresh proceeding for the same

relief before the competent forum. In the passing, it

was also observed that from the judgment cited in the

said case, that is, Food Corporation of India (supra), it

appeared that there the execution application was

made in the writ petition, that is to say before the writ

court which passed the order.

In Food Corporation of India (supra) as well, the

same proposition was laid down with regard to an

application for execution being maintainable in

connection with a writ petition.

Insofar as the judgments cited by the

respondent-Bank are concerned, the judgment passed

by the Supreme Court was rendered in an entirely

different context. The court, in the said case, was

deciding an issue whether the disciplinary authority

could revise/review/modify its own order after the

main consideration was over. In such context, the

court observed that the Judge becomes functus officio

when he passes the order, but only when the order

passed is "entered".

Apart from the fact that the consideration in the

said case before the Supreme Court was whether the

Judge could pass an order on merits or vary its own

order after becoming functus officio on deciding the

issue, the other question which fell for consideration

was whether the date on which the officer/Judge

becomes functus officio is the date of passing the order

or noting the order in a file but not

pronouncing/publishing or communicating it publicly.

The second question indicated above is not germane

in the present case at all. Insofar as the first aspect is

concerned, the present occasion which has arisen now

is not one where the petitioner is seeking a

review/modification/revision of the order of the writ

court but, in no uncertain terms, an enforcement of

the order of the writ court.

Hence, the ratio laid down in State Bank of India

(supra) is not applicable in the present case.

Insofar as the logic laid down in the Single

Bench judgment of the Delhi High Court, cited by

learned counsel for the respondents is concerned,

with utmost respect, I am unable to accept the said

views on any aspect of the judgment.

The court therein observed, inter alia, that a

final judgment in a writ petition is not a decree or

order which is capable of execution proceedings under

the CPC (Code of Civil Procedure). Such a judgment

was held to be enforced by invoking the contempt

jurisdiction of the court. It has been held time and

again, by much wiser brains than mine, that contempt

cannot itself be an alternative of an execution

proceeding. The domains of the contempt jurisdiction

and execution are entirely distinct and different from

each other. Whereas contempt is entirely on

penalizing the contemnor, execution pertains to

implementation of a decree by several modes, and not,

by any stretch of imagination, merely to penalize the

judgment debtor.

The second ratio which was laid down in the

Delhi High Court judgment was that execution

proceedings under CPC are with respect to decrees or

orders passed in proceedings governed by CPC, that

is, suits. The said fact is self-evident and need not be

distinguished. However, in the present case, the

determinant is not such proposition but the existence

of Rule 53 of the Appellate Side Rules as cited by the

petitioners. Coming to the said topic later, the third

proposition laid down by the Delhi High Court was

that final judgments of writ petitions, if not complied

with, cannot be treated as decrees for seeking the

execution in execution proceedings by applying CPC.

Although the CPC may not be applicable in

terms in the writ jurisdiction, the principles therein

have been borrowed in case of writ petitions as well.

Without devoting further time on consideration

of the judgments cited by the respondents, since those

have been distinguished in the light of the

observations above, let us now come to the relevant

provisions in respect of the Rules of our High Court.

Rule 53 of the Rules under Article 226 of the

Constitution, which is a part of the Appellate Side

Rules of this court, clearly delineate that save and

except as provided by the said Rules and subject

thereto, the provisions of the Code of Civil Procedure

in regard to suits shall be followed, as far as it can be

made applicable, in all proceedings under Article 226

and nothing in the Rules shall be deemed to limit or

otherwise affect the inherent power of this court to

make such orders as may be necessary for the ends of

justice or to prevent abuse of the process of the court.

The present application is maintainable on both

such counts. Taking the second proposition first, the

application is very much maintainable to ensure that

the ends of justice are subserved and the abuse of the

process of court by non-compliance of the court's

order by the Bank is prevented.

Even without going into such vague

consideration, the first part of Rule 53 has to be taken

in conjunction with Section 36 of the Code of Civil

Procedure.

Section 2(2) of the Code of Civil Procedure

clearly enumerates a decree to mean the formal

expression of an adjudication which, so far as regards

the court expressing it, conclusively determines the

rights of the parties with regard to all or any of the

matters in controversy in the suit.

It is well-known that the primary distinction

between a decree and an order passed by a court is,

although both are formal expressions of adjudications,

the decree conclusively determines rights of parties

with regard to the matters in controversy whereas an

order may or may not do so.

Section 36, in such context, provides that the

provisions of the Code relating to the execution of

decrees (including money decrees) shall, so far as the

they are applicable, be deemed to apply to the

execution of orders (including payment under an

order).

In the present case, there is an ingredient of

final adjudication of the matters-in-dispute and

controversy between the parties by the writ court, the

order which is sought to be implemented now.

However, the said order is not being termed as a

decree for the only reason that the same was not

passed in connection with a civil suit. Thus, there is

no reason why Section 36 does not apply, attracting

the provisions of execution of a decree in respect of

the final order passed by the writ court.

Read in such context, Order XXI Rule 11 is

squarely applicable to the present case as well.

That apart, the "functus officio" argument is not

applicable to the present case at all. It is not the

merits of the writ court's final order which is sought to

be reopened here in any manner whatsoever. Rather,

the petitioners clearly rely on such order and seek an

implementation of the same by way of the present

application.

It has been contended by the respondents that

there are several judgments which indicate that an

order of writ court can also be implemented by a

further writ petition.

There is no requirement of going into the

question of veracity of such proposition at the present

juncture. There is no quarrel between the said

proposition and the proposition now sought to be

advanced by the petitioners. The mere fact that a

further writ petition can be used to attract the

attention of the writ court and seek an

implementation of its previous order does not operate

as a bar or is not mutually exclusive with the power of

the writ court to implement its order, by whatever

name called.

"Implementation", "enforcement" (with special

reference to Section 36 of the Arbitration and

Conciliation Act, 1996) and "execution" (see the CPC)

are interchangeably used in Indian Jurisprudence.

Hence, there is no quarrel, as reiterated above,

between the proposition as sought to be advanced by

the respondents and a decree passed by a writ court

being executable in an application for execution.

Invoking such considerations and principles of

law as discussed above, there is no impediment in the

writ court invoking its inherent jurisdiction, read in

conjunction with Rule 53 of the Writ Rules of the

Appellate Side Rules of this court as well as Section

36 and Order XXI Rule 11 of the Code of Civil

Procedure, for enforcement of its own decree. The

petitioners are, thus, entitled to implementation of the

order passed by the writ court as per the prayer made

in the present application.

It is seen from the order of the coordinate Bench

dated July 14, 2022 passed in WPA 13440 of 2021,

that the writ court directed the respondent-UCO Bank

to refund the money received from the petitioners

pursuant to the e-auction within a period of eight

weeks from date along with interest at 8 per cent from

the date on which the first amount was paid till the

date of realization.

A perusal of Annexure-E annexed at pages-147

and 148 of the present application clearly indicates

that the petitioners (decree holders/holders of the

order of the writ court) have clearly enumerated the

exact amounts due to the petitioners from the

judgment debtor-Bank. The required break-up in

terms of the provisions as to execution of an order

under Order XXI Rule 11 of the Code of Civil

Procedure have also been disclosed in the tabular

statement. As such, there cannot be any bar in

allowing the application to implement the order of the

writ court.

In order to avoid unnecessary hassles for the

petitioners and keeping in view that the judgment

debtor is a nationalized Bank and has public duties

on a higher footing than the ordinary litigants, it is

deemed fit to bypass unnecessary paraphernalia and

to grant the relief sought in prayer (e) (ii) and (iii) of

the present application.

Accordingly, IA No: CAN 1 of 2023 is allowed on

contest. As suggested by the respondent-Bank and

not opposed by the petitioners, Mr. Sankarsan Sarkar

(Mobile No: 98300 60937), an Advocate and a member

of the Bar Library Club, is appointed as Receiver in

terms of the prayer (e) to the writ petition, who will

operate and withdraw monies from the bank accounts

of the respondent no.1/UCO Bank and make over the

same to the petitioners in pro tanto satisfaction of the

order dated July 14, 2022 in WPA 13440 of 2021, in

terms of the tabular statement annexed to the present

application.

A copy of the present application along with all

annexures and a server copy of this order be served

on the learned Receiver by the learned Advocate-on-

record for the petitioners within a week from date.

The Receiver shall thereafter comply with the order as

passed above and file a report of compliance in that

regard on the next returnable date.

The matter shall next be listed on October 05,

2023, fairly at the top of the list, for acceptance of the

report of the Receiver.

(Sabyasachi Bhattacharyya, J.)