Vishnu Narayan Kashyap And Anr vs M/S. Nano Properties
2023 Latest Caselaw 1302 Cal/2

                   IN THE HIGH COURT AT CALCUTTA
                 ORDINARY ORIGINAL CIVIL JURISDICTION
                            ORIGINAL SIDE

THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE

                             IA NO : G.A./1/ 2022
                                EC/373/2022
                     Vishnu Narayan Kashyap and anr.
                                      VS
                             M/S. Nano Properties

For the decree-holder    :      Mr. Mainak Das, Adv.,

                                Mr. Anirudha Sinha, Adv.



For the Judgment debtor :      Mr. Sukrit Mukherjee, Adv.,

                                Mr. Meghnad Dutta , Adv.,

                                Mr. Arindam Paul, Adv.


Hearing concluded on     :     19.05.2023

Order dated              :      08.06.2023



      Order :-

1.    The present application being G.A. 1 of 2022 has been assailed under

section 47 of the Code of Civil procedure, 1908 (hereinafter called as CPC)

before this Executing court, inter alia for declaration that the judgment and

decree, dated 5th April in respect of which present execution case has arisen

is a nullity, since the court passed the decreed lacked inherent jurisdiction

and as such said decree is not executable.

2.    Decree-holders' case in brief is as follows:-
                                         2

The decree-holder Vishnu Naryan Kashyap along with three others

instituted a Suit being C.S No 623 of 1984 against one Shyam Sundar

Company, the original defendant, inter alia, for a decree for possession of a

godown at premises no 539, Rabindra Sarani Kolkata-3.            Subsequently

upon death of two co-shares their entire share in the said godown devolved

upon the decree-holder Mr. Kashyap and Bhagwan          Das Jaiswal. Certain

pending interlocutory applications filed by judgment debtor were disposed

of by a single order   dated July 26th, 2010.    Against that order original

defendant Shyam Sunder Company preferred appeal before the Division

Bench of this court being numbered as A.P.O 26 of 2011. Subsequently said

Shyam Sundar Company did not appear and the present judgment

debtor/applicant M/S Nano Properties continued to contest the said appeal

as against the decree-holder. By a judgment and decree dated April 05,

2023, Division Bench disposed of the said appeal as well as the said suit,

recording the terms of the judgment, with a direction upon decree-holder

and said M/S Nano Properties to file their respective Affidavits incorporating

the terms of the settlement as mentioned in the said judgment.

            In the said judgment, it is recorded that the parties agreed on

certain terms and accordingly the suit and appeal were disposed of.

Relevant portion of said judgment runs as follow:

      "The parties agree as follows:-

      (i)   The appellant would pay rent to the respondent for the month of

November, 1977 to September, 1984 at the rate of Rs. 770/- per

month.

(ii) There would be corresponding increase at the rate of 10% with

three years interval for the period September, 1984 to July,

2010 being the period when the matter was pending before the

learned Single Judge.

(iii) During the period August, 2010 to March, 2013 when the issue

was pending before the Division Bench the rent would be at the

rate of one rupee per sq. ft.

(iv) April, 2013 onwards the rent would be at the rate of Rs.3/- per

sq. ft.

(v) The appellant would clear all the arrears in three years' time by

36 equal monthly installments payable on the 15 th day of each

English calendar month commencing from May, 2013 until it is

fully paid off.

(vi) In case of default in making payment of any one monthly

installment, the same would carry interest at the rate of 9% per

annum until it is actually paid off. In such event, the

respondents would be entitled to put this order into execution.

(vii) The appellant would be permitted to install an industrial lift

and/or any other scientific device to have smooth loading and

unloading operation in the godown. The landlord would

cooperate and render all necessary assistance for the said

purpose.

(viii) Future increase if rent would be made at the rate of 10% with

three years interval.

(ix) The tenancy would be in the names of Anup Jaiswal and Anil

Jaiswal as partners of M/S Nano Properties.

(x) Mr. Shyamal Kumar Kundu and Mr. Ashok Kumar Awasthi, the

respective Advocates on record would act as joint receivers to do

the following job:-

(a) The appellant would deposit a sum of Rs. 10 lakhs with the

joint receivers either in one go or in phases. Upon such

deposit being made, the joint receivers would effect repair

that would be needed as per the advice of the experts

appointed for the said purpose the cost would be borne out

of the deposit.

(b) The joint receiver would also make an actual measurement

of the godown through a competent surveyor, being a civil

engineer selected from the panel of the Registrar, original

Side, of this Court. The cost would also be borne out of the

sum deposited for the purpose. The joint receiver would be

entitled to an initial remuneration of Rs.20,000/- each to be

shared equally by the parties.

We do not give any specific direction with regard to the

statutory outgoing that would be paid by the parties strictly

in accordance with law, and in terms of the Kolkata

Municipal Corporation Act, 1980. If there is any arrear, the

parties must clear it.

The parties are directed to file affidavits incorporating their

consent and approval to this settlement by annexing a copy

of the order to be a part of the same. Such affidavits must be

filed within a period of two weeks from date.

Appeal and the suit are all disposed of without any order as

to costs."

3. It is submitted on behalf of the decree-holder that said judgment and

decree dated April 5th , 2013 was passed in presence of both the parties i.e.

decree-holder and the applicants herein, as is appearing from the said order.

Not only that said judgment, dated April 5th , 2013 was clarified by the

Division Bench by another subsequent order dated April 17th , 2013

specifying that M/S Nano Properties, who is substituted in place of the

original tenant i.e. Shyam Sundar company would clear of the arrear dues

as directed in the aforesaid judgment dated April 5th, 2013 thereby making

the said order of April 17th , 2013 as part of the judgment and decree,

dated April 5th , 2013. Said M/S Nano Properties was duly represented

through it's Advocates when the said order of April 17 th , 2013 was

passed.

4. Learned Counsel for the decree-holder further submits that

subsequently the original defendant i.e. Shyam Sundar Company took out

an application for recalling of the judgment dated April 5th , 2013 and the

order dated April 17th , 2013 being G.A 1380 of 2013 in connection with

aforesaid A.P.O No. 26 of 2011 but said G.A 1380 of 2013 was

dismissed by an order dated May 8th 2013, whereby it has also been

recorded by the Bench that M/S Nano Properties agreed to pay the revised

rent in the open court when the said judgment dated April 5th , 2013 was

passed and the respective parties were present in court when such

judgment was passed. In the said order of May 8th , 2013, the Bench

observed that the Court failed to appreciate, how the order passed in a

disposed of appeal, that too by consent of parties, in presence of

authorized representative, could be varied.

5. The said order of May 8th , 2013 was challenged by the said Shyam

Sundar Company before the Hon'ble supreme court of India by filling

Special Leave to Appeal which was dismissed as withdrawn with liberty to

file a review application before this Court. However no such review

application has been made. Thereafter present execution proceeding being

E.C No 373 of 2022 has been instituted to execute the decree. In the above

backdrop the applicants being partners of M/S Nano Proprieties has come

up with the present application under section 47 of the CPC in the said

execution proceeding.

6. Mr. Mukherjee learned counsel on behalf of the judgment debtor

submits that the court passing the decree lacks jurisdiction or competence

to try the case and such defect goes to the very root of the matter. In this

context he relied upon the case of Hiralal Patni Vs Sri Kali Nath reported

in AIR 1962 SC 199. He contended that the suit was between plaintiff and

one Shyam Sundar Company as defendant and said company was also

shown as Appellant in the appeal. Present applicant were substituted in

place and stead of the original defendant Shyam Sundar Company only on

January 17th , 2022. Even the order dated 17th , January 2022 was obtained

by the decree-holders/plaintiffs in an intervening application being G.A 4 of

2021 upon notice only to Shyam Sundar Company/defendant and not to

the applicant herein. Therefore he submitted that the applicant herein were

not parties to the lis and that the decree passed by the court was not in

seisin of the applicants as on the date of passing of the judgment and

decree dated 5th April 2013.

7. Mr. Mukherjee further contended that the language of order XXIII

Rule 3 of the CPC is clear and unambiguous and relying upon the case of

Gurpreet Singh Vs Chatur bhuj Goel reported in (1988) 1 SCC 270, he

contended that as it now stands, it mandatorily required that such, an

agreement to be in writing and signed by the parties and that such

requirement cannot be dispensed with and further that courts must insist

upon the parties to reduce the terms in writing. In the present case, the

order dated 5th April, 2013 specifically recorded that the parties are directed

to file affidavits incorporating their consent and approval of the settlement

by annexing a copy of the order to be a part of the same. On the next

occasion i.e. on 17th April 2013 the parties had jointly prayed for extension

of time to file such affidavits. From the record it does not appear that any

such affidavits were filed. He further contended that the contention of the

decree-holder that such affidavit is formal in nature, which could be

dispensed with, is quite contrary to the view expressed by the Apex Court in

Gurpreet Singh Case (Supra).

8. Relying upon the case of Srimathi Kaushalya Devi & others Vs.

Sri K.L. Bansal reported at (1969) 1 SCC 59, Mr. Mukherjee further

contended that non compliance with mandatory statutory provisions as laid

down in order XXIII Rule 3, in passing the decree, tantamount to the

decree being a nullity. In fact without the said affidavit and approval by the

parties, the so called judgment and decree has no legal force. Said

judgment and decree has not been born, since no affidavit or approval was

given by Shyam Sundar Company or M/S Nano Properties or the Jayswals

and as such there is no judgment or decree in the eye of law, in respect of

which present execution case can proceed.

9. Mr. Mukherjee's second limb of argument is that the purported

judgment and decree put into execution, could not have been passed

because the plaintiff Vishnu Narayan Kashyap has not obtained probate of

the Will of Bhagaban Das Jaiswal, under which the decree-holder is

claiming right of the property in question. Furthermore the Jaiswals

happen to be the co-sharers of the premises in question having undivided

8.89% sharers which they have inherited from their predecessors. In this

connection a suit for declaration and partition being C.S No 411 of 1981 is

pending before this court. In this context relying upon the case in Sunder

Dass Vs. Ram Prakash reported in (1977) 2 SCC 662, he contended that

the executing court can go beyond the decree, if it is pleaded that the

decree was nullity by reason of the court passing it, lacking inherent

jurisdiction to pass it. In the present case the Appellate Court lacked

jurisdiction to pass a compromise decree under order XXIII Rule 3 CPC

until and unless the concerned parties file their consent affidavit before the

Court. In the absence of consent affidavit, the Appellant court lacked

jurisdictional power or authority to pass a compromise decree under order

XXIII Rule 3 CPC. He further contented that section 38 read with order XX1

Rule 10 of the CPC categorically provide that applications for execution are

to be filed before the Court who passed the decree. Accordingly the

execution of judgment and decree dated April 5th, 2013 cannot be had

before the present Bench in as much as, the decree was passed at the first

instance by the Division Bench of this court and for which also the

execution proceeding is not maintainable, before this court.

10. Mr. Das Learned counsel appearing on behalf of the decree-holder in

reply submits that M/S Nano Properties have filed present application under

section 47 of CPC mainly on two grounds.

(i) The judgment and decree dated 5th, April 2013 is a nullity

having no legal force on the ground that no affidavit as directed

in the said judgment was filed by either of the parties.

(ii) There exists no judgment or decree dated 5th April, 2013 in the

eye of law, since the decree-holder has not obtained probate of

the will of Bhagawan Das Jaiswal, father of the decree holder.

11. Mr. Das in this context submits that if the first prayer of the instant

application is taken into consideration then it is apparent that the

applicants who are partners of Mr. Nano properties being the judgment

debtor have accepted the judgment and decree, otherwise there could be no

situation to declare the said judgment and decree a nullity. Unless there

exist a decree there cannot be an order for declaration of the same being

nullity. As such the first prayer is contradictory to the second prayer. He

further contended that the present application is frivolous in view of the

fact that the decree-holder has challenged the decree which is affirmed by

the Hon'ble Supreme Court of India, when the Hon'ble Supreme court

dismissed the Special Leave Petition filed by the original

defendant/appellant Shyam Sundar Company. Even the decree being tested

in the recalling application before the Division Bench of this Court where

said decree has not been set aside and thereby affirmed the said decree

and for which there remains no scope to make any assertion as to the

judgment and decree. It is not correct to say that the decree was passed

behind the back of the judgment debtor/applicant. In fact said Judgment

and decree dated May 08th , 2013 was passed not only in presence of the

learned advocates of the parties but also in presence of the parties. In this

context he submits that non-filing of the affidavit by the judgment debtor or

original defendant/appellant does not negate the judgment and decree

dated April 5th , 2013, rather it constitutes violation of the direction as

contained in the said judgment by the judgment debtor and/or the original

defendant/appellant. He further contended that the provisions of the Order

XXIII, Rule 3 of the Code of Civil Procedure is not mandatory in nature and

as such the argument advanced by the applicant in the instant application

as to the non compliance of the order XXIII, Rule 3 of the C.P.C renders the

decree non-est, does not find any leg to stand.

12. In so far as the applicants argument as to non filing of probate of will

of Bhagwan Das Jaiswal or the application of section 213 of the Succession

Act 1925, is concerned it is submitted by the decree-holder that the

provisions of section 213 is attracted only when the decree-holder obtains

the decree and his successor in interest initiates or proposes to continue

the execution proceedings but the same is not the case here. The decree-

holder himself was one of the original plaintiffs in the suit. He being

substituted in place of original parties to the suit and by virtue of terms

contained in the will of Tulsiram Shaw (father of Bhagwan Das Jaiswal and

grandfather of decree-holder) where under the decree-holder became owner

of 80% share in the suit property. So far as the rest 20% is concerned , the

decree-holder has already made an application for obtaining probate of the

last will and testament dated October 6th , 1975 of Bhagwan Das Jaiswal in

this court though such obtainment of probate is not necessary to carry out

the instant execution proceedings as the decree-holder is one of the

original plaintiffs and not a substituted plaintiff under the will of Bhagwan

Das Jaiswal. Accordingly he prayed for dismissal of the application filed by

the judgment debtor under section 47 of the code.

13. I have considered submissions made by both the parties.

14. It is not in dispute that the scope of section 47of the C.P.C Procedure,

1988 is microscopic and executing court cannot travel beyond the decree

unless the decree is found to be null and void. In fact the decree becomes

in-executable only when the court passing it lacks inherent jurisdiction. The

grounds shown by the judgment debtor in his application under section 47

do not depict that the court lacked jurisdiction in passing the decree.

15. The contention that in terms of the judgment, Judgment debtor did

not file any affidavit or that the decree-holder has not obtained probate of

the will executed by Bhagwan Das Jaiswal do not suggest that the court

passing the decree has lacked jurisdiction. The arguments advanced by the

applicant that since no affidavit has been filed interms of the judgment, so

there does not exist any judgment or decree in the eye of law, does not find

support in view of the fact that the proviso to Order XXIII Rule 3 empowers

the court passing a decree to decide question of compromise. If a party has

to deny a compromise recorded by the court, he is to urge that point

before the court passing the decree upon which the court is to adjudicate

and determine such issue prior to passing a decree. In the present case no

such assertion was made by the applicant though original

defendant/appellant Shyam Sundar Company by way of recalling

application made an attempt to raise such issue but the same was turned

down by the Hon'ble Division Bench and thereafter by the Supreme Court.

Even before the Supreme Court Judgment debtor took leave to file review

application which they did not dare to file before the High Court. In fact the

provisions for filing written agreement signed by both the parties has been

subsequently incorporated in Rule 3 of order XXIII, in order to advance the

cause of justice and not to defeat it. Construction of rule or procedure which

promotes justice and prevents miscarriage of justice has to be preferred.

Furthermore Rule 3 makes it palpably clear that it is for the court to satisfy

itself whether there is any compromise or agreement. It is for the court to

determine to its satisfaction that a really valid agreement or compromise

has been entered into between the parties to the suit. In the present case

the court itself records such agreement as it appears from the judgment

and decree dated 5th April, 2013 which shows that the judgment and decree

has been recorded only after the court satisfied that the parties to the suit

had agreed to such compromise who were present and represented in the

court and now they cannot be allowed to overturn such judgment and

decree on the ground of their intentional non compliance of filling affidavit

to that effect.

16. Order XXIII rule 3 of the C.P.C does not specify the consequence of

not filing a written document as to compromise or agreement and as such

said provision does not dilute the provisions empowering the court to pass

the judgment and decree under order XX of the Code of Civil Procedure. The

averments in this record as contained in paragraph 20 of the affidavit in

opposition in the instant application have not been controverted by the

applicant in their affidavit in reply as appearing from paragraph 12 of the

affidavit in reply.

17. The case of Gurpreet singh (supra) indicates that the whole object of

adding the words "in writing and signed by the parties" is to prevent false

and frivolous comprise.

18. The words "where it is proved to the satisfaction of the court, that a

suit has been adjusted wholly or in part" as used in Rule 3 of order XXIII

clearly shows, that the court has power to decide, whether as a fact, the

alleged agreement of compromise was made and if it is satisfied that the

agreement was made, the court must record it. Thus where the court finds

that the compromise is not false or frivolous and passed the judgment and

decree on the basis of compromise on consent of the parties, non-

compliance of filing affidavit as ordered by court, cannot prevent the

executing court to execute the decree on the ground that decree is a nullity.

Even if one party retracts and refuse to file affidavit then such non-filing of

affidavit in terms of Compromise leading to decree can at best be considered

as decree suffering from irregularity or illegality in terms of procedure, but

that irregularity or illegality in procedure cannot make the decree

inexecutable by the Executing court on the ground that the court passed the

decree lacked inherent jurisdiction to pass the decree. The remedy of a

person aggrieved by such a decree is to have it set aside in a duly

constituted legal proceedings or by a superior court, failing which he must

obey the command of the decree. Since the executing court cannot go

beyond the decree nor can it question its legality or correctness save and

except, where the decree sought to be executed is nullity or suffering from

lack of inherent jurisdiction by the court passing it, which is not the case

here, the application under section 47 filed by the judgment debtor is liable

to be rejected. In this context reliance has been placed upon the principle

laid down by Apex Court in Rafique Bibi Vs. Sayed Waliuddin & others

reported in (2004) 1 SCC 287.

19. The Apex Court and High Courts have in its unequivocal terms

reiterated that any attempt to linger the process of execution should be

dismissed so that the decree-holder should not be prevented from enjoying

the fruits of the decree. The other judgments referred by Judgment debtor

reported in (1977) 2 SCC 662, AIR 1954 SC 340 had dealt with an issue

where the lack of inherent Jurisdiction was a matter in issue and as such

said cases are factually distinguishable.

20. The other limb of argument that the decree is not executable for non-

filing of the probate of the will of Bhagwan Das Jaiswal, the decree-holder

has made categorical averments that he became the owner of 80% share of

the suit property and in respect of the rest 20% the decree-holder has

already made an application for obtaining probate which has not been

controverted. Moreover since the decree-holder is one of the original

plaintiffs and not substituted plaintiff, under the will of Bhagwan Das

Jaiswal the aforesaid contention of the judgment debtor appears to have no

leg to stand in the eye of law. The judgment debtor's argument that the

present court has got no jurisdiction to execute the decree as the decree is

to be executed through the Appellate Court, who passed the decree and not

otherwise is absolutely without merit. If a suit is filed and Trial Court

refused to pass decree and if appeal is preferred and Appellate Court passes

a decree, then also the decree of Appellate Court is to be executed by the

court where the suit was filed unless the decree is transmitted to the

another court. The executing court cannot enter into issue as to whether the

applicants are the co-sharers of the godown as sought to be raised by the

applicants because this is an application under section 47 and executing

court is to restrict itself to the decree only and cannot travel beyond the

decree. In view of above, the instant application is devoid of any merit and

is liable to be dismissed.

21. Accordingly, judgment debtor's application under section 47 C.P.C

being GA 1 of 2022 is hereby dismissed on contest but without costs.

Urgent Photostat certified copy of this judgment, if applied for, be supplied

to the parties upon compliance with all requisite formalities.

Let the case being EC/373/2022 be placed before The Hon'ble The Chief

Justice for assignment before appropriate Bench having determination.

(AJOY KUMAR MUKHERJEE, J.)

Later:

After passing the order, learned counsel on behalf of the judgment debtor

prayed for stay of the order. Learned counsel appearing on behalf of the

decree-holder opposed such prayer.

Considering the submissions, the prayer for granting stay for limited period

is rejected.

(AJOY KUMAR MUKHERJEE, J.)