Calcutta High Court

Kusum Agarwala And Anr vs Binod Kumar Agarwal And Ors on 7 July, 2025

Author: Arijit Banerjee

Bench: Arijit Banerjee

O-3
                          ORDER SHEET

                         IA NO. GA/6/2025
                                  In
                           APO/504/1992
                 IN THE HIGH COURT AT CALCUTTA
                     Civil Appellate Jurisdiction
                           ORIGINAL SIDE


                    KUSUM AGARWALA AND ANR
                              Vs
                 BINOD KUMAR AGARWAL AND ORS


  BEFORE:
  The Hon'ble JUSTICE ARIJIT BANERJEE
                   AND
  The Hon'ble JUSTICE RAI CHATTOPADHYAY
  Date : 7th July, 2025.

                                                                Appearance:
                                                       Mr. Shomrik Das, Adv.
                                               Mr. Debabrata Mukherjee, Adv.
                                                      ...for the appellant no.1

                                          Mr. Sabyasachi Chowdhury, Sr. Adv.
                                                Ms. Rituparna De Ghose, Adv.
                                                       Mr. Arnab Sardar, Adv.
                                                    ...for the respondent no.1

                                                  Mr. Debnath Ghosh, Sr. Adv.
                                                      Mr. Bimalendu Das, Adv.
                                                      Ms. Shomrikta Das, Adv.
                                                      ..for the respondent no.3

                                                      Mr. Amales Ray, Sr. Adv.
                                                   Mr. Sarosij Dasgupta, Adv.
                                                   Ms. Mousumi Bhowal, Adv.
                                                 Mr. Ishan Bhattacharya, Adv.
                                                      ...for the respondent no.2
                                        2

                            Dictated by Arijit Banerjee, J.

The Court: This application has been taken out as recently as on June

30, 2025, by the respondent no.2 in this disposed of appeal praying for the

following orders:

"a) An order restraining the Learned Master from drawing up the decree in terms of the judgment and order dated 22nd May, 1997 passed by the Hon'ble Division Bench of this Hon'ble Court in A.P.O. No.504 of 1992 and A.P.O. No.555 of 1992;

b) An order be passed recalling the order dated 22nd May, 2025 passed by this Hon'ble Court in I.A No. G.A. 5 of 2023 filed in A.P.O. No. 504 of 1992 and I.A No. G.A. 4 of 2023 filed in A.P.O. No.555 of 1992;

c) Stay of all further proceedings in drawing up the decree by the Learned Master in terms of the judgment and order dated 22nd May, 1997 passed by the Hon'ble Division Bench of this Hon'ble Court in A.P.O. No. 504 of 1992 and A.P.O. No.555 of 1992, till disposal of the instant application;"

The decree in question was passed way back on May 22, 1997, more

than 28 years ago. The decree is yet to be drawn up.

An application being GA/5/2023 has been taken out in this appeal by

the respondent no.1 praying for diverse reliefs including a direction on the

Learned Master to draw up the decree immediately. It is the contention of the

respondent no.1 in that application that the respondent 2 has, with oblique

motive, resisted the drawing up and completion of the decree in question, on

the specious plea that without a description of properties being furnished, the

decree cannot be drawn up. That application is pending. Today, a report

dated July 1, 2025 signed by the Learned Master and Official Referee of this

Court has been placed before us. The relevant portion of that report reads as

follows:

"In compliance with Your Lordships Order the decree was drawn up and circulated amongst the Learned Advocates appearing for the parties in advertently the cause title and few potions of the drawn up decree cause title which was amended in the Memorandum of Appeal and judgment dated 22.05.1997 has gone down in the draft decree. Learned Advocate for the applicant submitted the approved draft with few changes and Learned Advocate appearing for the respondent no.2 and 3 chose to file an application instead of submitting the draft decree with necessary changes.

This is to humbly place before Your Lordships the process of drawing up has been completed, few changes are required in the draft of drawn up decree which shall be done if Your Lordships gracious to give the undersigned some more time, it could have been completed if the respondent no.2 and 3 would have submitted their approved draft and given the undersigned the opportunity to place before Your Lordships the corrected drawn up decree. The undersigned is placing before Your Lordships the unsettled draft decree which has been drawn up in compliance with Your Lordships solemn Order dated 22.05.2025."

Mr. Roy, Learned Senior Counsel appearing in support of the present

application, strenuously argued that the respondent no.1 had filed an

application under Section 152 of the Code of Civil Procedure before a Co-

ordinate Bench for including description of the concerned properties in the

decree. That application was turned down by the Division Bench. The Special

Leave Petition filed against such order by the respondent no.1 herein was

converted to a civil appeal and then was dismissed. Therefore, there is no

further scope for adding anything to the decree and without the description of

the properties, the decree cannot be drawn up.

Mr. Roy also refers to Order VII Rule 3 read with Order XX Rule 9 of the

Code of Civil Procedure. He also refers to a judgment of the Hon'ble Supreme

Court in the case of Nahar Singh vs. Harnak Singh and Others reported in

(1996) 6 SCC 699 in support of his submission that without a list of properties

and/or description of properties, a decree for recovery of real property cannot

be drawn up.

We see that there is an order of a Division Bench of this Court passed on

an application made by the present respondent no.1. The relevant portion of

that judgment and order dated April 3, 2019 passed in GA/2285/2018 reads

as follows:

"13) We have considered the submissions made from the Bar, the judgments relied upon and the facts of the case in details.

Admittedly there is a judgment dated 22nd May, 1997. The judgment in its last paragraph has clearly set out the reliefs granted after thread bare discussion on each of the issues raised

by the parties. The last paragraph of the judgment, therefore, fulfils the requirements as to the "contents of decree" as prescribed in Rule 11 of Chapter 16 of the Original Side Rules of this Court. This also fulfils the requirements of Order 20 Rule 6 of the Code of Civil Procedure, 1908. Rule 1 of Chapter 16 of the Original Side Rules of this Court as also Rule 6A of Order 20 of the Code of Civil Procedure, 1908 mandates the drawing up of the decree on the judgment being pronounced if a decree follows. Rule 11 of Chapter 16 of the Original Side Rules of this Court also provides that the decree shall not contain any recitals other than such short ones as the Registrar or the Master may think necessary. The judgment dated 22nd May, 1997 in Clause 3 under the heading 'reliefs' clearly holds that a decree is passed in terms of orders dated 15.09.1993, 14.10.1993, 18.11.1993, 17.12.1993 and 20.12.1993 in partial modification of the Mittal Settlement being Annexure-G to the plaint. The said orders clearly indicate which property is to go to whom. The suit was primarily one inter alia for declaration and cancellation in respect of a document being Annexure-G to the plaint (Mittal Settlement). In such a suit, the question of putting in the description of immovable properties in the plaint did not arise as the document (Mittal Settlement) was annexed. A description of the immovable properties can only be curled out from the various orders which formed the basis of the decree. It is not known as to why the Master in his minutes dated 16th March, 1998 wanted the plaintiff's advocate to include a consolidated list of properties mentioned in Annexure-G to the plaint. The applicant (defendant no.1/respondent no.1) had made an attempt to include such consolidated list which has turned down right up to the Apex Court. As such, there is no opportunity left to improve upon the particulars of the immovable properties mentioned in the judgment dated 22nd May, 1997. The applicant has made all endeavours as directed by the learned Master but has failed providing better particulars of the immovable properties. The applicant, therefore, cannot be hauled up for any fault. It is the Court which has

passed the judgment and applicant had no control over the contents of the same. A party cannot, in such a situation, be left to be remediless without being able to enjoy the fruits of the decree. The Original Side Rules and also the Code of Civil Procedure, 1908 mandates the drawing up of a decree. The judgment has been pronounced and, as such, the decree in terms thereof has to be drawn up. A decree cannot be left undrawn once a judgment has been pronounced as the last paragraph of judgment is allowed to be treated as the operative part of the decree till the decree is drawn up. The department, therefore, should make all endeavour to draw up and complete the decree in terms of the judgment and order dated 22nd May, 1997. The department can add on short recitals as permissible under the Rule 11 of Chapter 16 of the Original Side Rules of this Court by collecting particulars from the pleadings and materials on record."

In view of the aforesaid, the question of any order to restrain the Learned

Master from drawing up or completing the decree cannot and does not arise.

From the records of the case, it appears that the respondent no.2 with oblique

motive has been resisting drawing up of the decree.

The application being GA/6/2025 in APO/504/1992 stands dismissed

with costs assessed at Rs.25,000/- to be paid to the West Bengal State Legal

Services Authority within a fortnight from date.

Let a copy of this order be forwarded by our Registry to the Member

Secretary, West Bengal State Legal Services Authority. If cost is not paid

within the time period indicated herein, the Member Secretary will be at liberty

to mention before this Court.

We direct the Learned Master to draw up and complete the decree in