Dhirendra Prasad Sinha Son Of Late ... vs Harihar Das Son Of Late Bhagwati ...
2021 Latest Caselaw 1712 Jhar

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 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                W.P. (C) No. 2566 of 2013

Dhirendra Prasad Sinha son of Late Devendra Prasad
Sinha, resident of village Pirra, P.O. and P.S. Ratu,
District Ranchi (Jharkhand)             ......         Petitioner
                             Versus
1.Harihar Das son of Late Bhagwati Das, resident of Lalit
Gram Colony, Kathitand, Ratu, P.O and P.S. Ratu,
District Ranchi ...                     Plaintiff/ Respondent
2.Smt. Sushila Devi wife of Brajesh Dwivedi, resident of
village Pirra, P.S. Ratu, District Ranchi
3.Bimla Devi wife of Sri Jagatpal Prasad, resident of
Gudri Bazar, P.S. Lower Bazar, District Ranchi.
4.Smt. Geeta Devi wife of Sri Mahendra Singh, resident
of Church Road, P.S. Lower Bazar, District Ranchi.
5.Smt. Geeta Devi wife of Sri Rajan Sahu, resident of
Gudri Bazar, P.S. Lower Bazar, District Ranchi.
                          ....     Defendatns/Respondents
                               -------

CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

-------

For the Petitioner        : Mr. Amar Kumar Sinha, Adv
For the Respondent        : --
                    -----------

6/Dated 8th April, 2021

The matter has been taken up through video

conferencing.

2. The instant petition is under Article 227 of the

Constitution of India whereby and whereunder order

dated 11.04.2013 passed by Additional Munsif -II, Ranchi

in Execution Case No. 13 of 2010 has been assailed, by

which the writ for effecting delivery of possession in

respect of land along with house in which petitioner is

residing with his family members, has been issued.

3. The brief facts of the case, which requires to be

enumerated reads hereunder as:

The respondent no. 1/plaintiff filed a suit being

Title Suit No. 19 of 2005 in the Court of Munsif, Ranchi

against Ram Naresh Pramanik and Smt. Sushila Devi

praying therein a decree for declaration of title with

respect to the suit lands described in Schedule -A to the

plaint; and for recovery of possession; as also for grant of

injunction restraining the defendant from going over the

land in question.

The case of the plaintiff, respondent no. 1 herein,

is that he purchased 10 decimals of land of R.S. Plot No.

519, Khata No. 24 situated at village Pirra, P.S. Ratu,

District Ranchi from one Sushila Devi, wife of Braj

Kishore Dubey vide registered sale deed dated

29.06.1989.

The defendant no. 1, namely, Ram Naresh

Pramanik appeared and filed written statement stating

inter alia that the suit land has already been transferred

by defendant no. 1 to different persons during the year

1995 to 2003 and no piece of land is left in the hand of

defendant no.1 and the purchasers are in possession of

the same.

The suit had proceeded, in which, the other

defendants, defendant nos. 2 to 6, chosen not to appear

and as such the suit has been proceeded as against them,

however, defendant no. 1 has contested the suit by filing

written statement. Thereafter, judgment and decree has

been passed on 01.11.2010 in favour of the plaintiff and

accordingly decree has been prepared by declaring the

right and title of the plaintiff over the suit land in the

following terms:

(A)That on adjudication a decree be passed declaring the right, title of the plaintiff over the suit land mentioned in schedule A.

(B)That the possession of the plaintiff be confirmed over the suit land mentioned in Schedule A. In the alternative if the court finds that the plaintiff is not in possession of the suit property a Decree for recovery of possession of the suit land in favuor of the plaintiff be passed. (C)That on adjudication permanent injunction be issued restraining the defendant from going over the land to disturb the possession of the plaintiff, the defendant be restrained from changing the topography of the suit land. (D)Cost be awarded.

(E)Plaintiff awarded such relief or reliefs to which he may be found in the circumstances of the suit.

The decree holder has filed execution case being

Execution Case No. 13 of 2010 in the Court of Additional

Munsif -II, Ranchi for executing the decree passed in the

said suit and for taking delivery of possession of the suit

premises.

The judgment debtor no. 6, petitioner herein,

namely, Dhirendra Prasad Sinha, has filed show cause

raising objection about maintainability of the execution

proceeding on the ground that the judgment and decree

under execution has been obtained misleading the Court

and by playing fraud upon it. Further the

judgment/decree has been obtained ex-parte behind the

back of the answering judgment debtor. It has further

been objected on the ground that even in the present

execution proceeding the concerned judgment debtor has

not received any notice and immediately upon coming to

know about the present execution case, has appeared

herein. The Executing Court has passed an order on

11.04.2013 and considered the objection filed on behalf of

judgment debtor no. 6, the petitioner herein, and after

considering the rival submissions made on behalf of the

parties, the office has been directed to issue delivery of

possession at once and decree holder was directed to take

steps for filing the process of the writ of delivery of

possession and process fee and also deposit the nazir cost

within 15 days of this order, whereupon the office shall

obtain the Shrestedar's report thereon, and if found in

order will issue it, as directed above.

The aforesaid order has been questioned in the

present proceeding by filing writ petition by invoking writ

jurisdiction of this Court under Article 227 of the

Constitution of India on the ground that Executing Court

has not considered the fact by rejecting the objection over

the fact of ex parte decree passed behind the back of the

writ petitioner. Further it has not been considered that

the property in question has been purchased by the

petitioner from its rightful owner by virtue of registered

sale deed and got it mutated in the revenue record as also

constructed houses and other structures over the same.

It has further on the ground that the defendant no. 1,

namely, Ram Naresh Pramanik was the only contesting

defendant, who died during pendency of the suit and

plaintiff did not chose to substitute the name of the legal

heirs of the deceased, defendant no. 1 and succeeded in

obtaining ex parte decree by suppressing real facts of the

case.

3. Mr. Amar Kumar Sinha, learned counsel

appearing for the petitioner has submitted on the basis of

ground, as referred herein above, that the order passed

by the executing court is not sustainable in the eye of law

and, therefore, the same may be quashed and set aside.

4. None appears to oppose the statement made on

behalf of learned counsel for the petitioner although the

name of the counsel representing the respondents-decree

holder, is reflected in the daily cause list.

5. This Court has heard learned counsel for the

petitioner and perused the materials available on record

as also the finding recorded by the Executing Court.

The fact, which is not in dispute in this case, is

that Title Suit, being Title Suit No. 19 of 2005 was filed

for declaration and right over the property which finds

mention in Schedule A. It appears from the judgment

passed in Title Suit No. 19 of 2005, as would be evident

from paragraph 3 thereof that upon service of summon

defendants appeared in the suit and filed written

statement and contested the claim of the plaintiff by

making out his own case. It further appears from

paragraph 7 of the said judgment that one defendant filed

written statement in the suit whereas other defendants

neither filed written statement nor witnesses of the

plaintiff have been cross-examined by the defendants as

also defendants have not given any specific witness in

support of the case or any documentary evidence for

substantiating the claim as made out in the written

statement.

The trial court has proceeded with the trial and

passed the decree in favour of the plaintiff.

Admittedly, no appeal has been filed against

judgment/decree dated 01.11.2010 passed in Title Suit

No. 19 of 2005. The decree holder has filed Execution

Case being Execution Case No. 13 of 2010, in which, after

being called upon, the defendant no. 6 appeared and filed

objection on the maintainability of the case, inter alia, on

the ground that the judgment/decree has been passed ex

parte and further defendant no. 1 has died during the

pendency of the suit. The Executing Court has rejected

the objection made on behalf of judgment debtor no. 6

and proceeded with the execution proceeding by issuing

writ for delivery of possession vide order dated

11.04.2013.

6. Order dated 11.04.2013 passed in Execution Case

No. 13 of 2010 has been assailed on the grounds that:

The suit has been decided ex parte against

defendant nos. 2 to 6 and second ground is that the

defendant no. 1 has died during pendency of the suit and

no efforts have been taken for substituting him with her

legal heirs.

The ground, as has been agitated by learned

counsel for the petitioner that the suit has been decided

ex parte against the defendant nos. 2 to 6 is concerned,

the same is having no foundation as because as would be

evident form paragraph 3 of the judgment passed in Title

Suit No. 19 of 2005 that the summons have been issued

upon the defendants and on valid service of the same, one

of the defendants appeared and filed written statement

and contested the claim of the plaintiff. Further it is the

case of the defendant no. 1 as per the written statement

that the defendant no. 1 has transferred the landed

property in question to different persons in different times

in the year 1995 to 2003. Therefore, it is evident that

even after service of summons upon the defendants in the

suit, save and except defendant no. 1, none has appeared

and therefore, the suit has been proceeded ex parte and

accordingly the suit has been decided, therefore, it is not

correct to say as has been submitted by learned counsel

for the petitioner that the judgment/decree has been

passed ex parte and behind back of defendant nos. 2 to 6.

The question of passing of the decree behind the

back of the defendant nos. 2 to 6 is said to be correct, if

there is no summons or summons have not duly been

served but that is not the case. As per the judgment

passed in Title Suit rather the case is that summons have

been issued one of the defendants, defendant no. 1

appeared and filed written statement and, therefore, the

suit has been proceeded ex parte against the other

defendants.

7. In view thereof, there is no substance in the

argument advanced on behalf of the defendants to the

effect that the judgment/decree is passed behind the

back of the defendants and second ground has been

taken that the defendant no. 1 has died in course of

pendency of the suit, no steps have been taken for

substitution, the decree which has been passed is treated

to be nullity in the eye of law against dead person.

Learned counsel for the petitioner has not taken such

plea before the Executing Court or in the show cause filed

therein as to whether the fact about death of defendant

no. 1 has been explained before the trial Court and

appropriate application for substitution of defendant no.

1 with the legal heirs has been filed

8. Learned counsel for the petitioner in course of

argument is fair enough to submit that no such plea has

been made before the Executing Court that the judgment

passed against the dead persons is nullity in the eye of

law but the question is that unless the court proceeding

with execution is apprised with the death of the plaintiff

or the defendants as the case may be warranting the

plaintiff to file appropriate application for substitution of

the legal heirs, as has been provided as per the provision

made under Order XXII Rule 2 of the Code of Civil

Procedure.

Further it is also proposition of law that there will

be no abetment by reason of death after hearing as per

the provision of Rule 6 of Order XXII and the fact of the

case in hand nothing has been brought on record as to

when the defendant no. 1 has died either before the trial

court or before the executing Court by way of an

objection. Therefore, in absence of such a specific plea,

the executing court has rightly not come to the

conclusion about the fact about the death of defendant

no. 1 considering the reason for not proceeding with the

execution proceeding.

9. The writ petition has been filed invoking the

jurisdiction conferred under Article 227 of the

Constitution of India. So far as the scope of Article 227 of

the Constitution of India is concerned, the same has been

laid down in the case of Shalini Shyam Shetty & Anr

Vrs. Rajendra Shankar Patil, reported in (2010) 8 SCC

329 wherein the Hon'ble Apex Court has been pleased to

laid down regarding scope of Article 227 which relates to

the supervisory powers of the High Courts and by taking

aid of the judgment rendered by the Hon'ble Full Bench of

Calcutta High Court in the case of Dalmia Jain Airways

Ltd. Vrs. Sukumar Mukherjee, reported in AIR 1951

Calcutta 193, wherein it has been laid down that Article

227 of the Constitution of India does not vest the High

Court with limitless power which may be exercised at the

court's discretion to remove the hardship of particular

decision. The power of superintendence confers power of

a known and well recognized character and should be

exercised on those judicial principles which give it its

character. In general words, the High Court's power of

superintendence is a power to keep the subordinate

courts within the bounds of the authority, to see that they

do what their duty requires and that they do it in a legal

manner.

The power of superintendence is not to be

exercised unless there has been:

(a)An unwarranted assumption of jurisdiction, not

vested in a court or tribunal; or

(b)gross abuse of jurisdiction; or

(c)an unjustifiable refusal to exercise jurisdiction vested

in courts or tribunals.

Further, in the aforesaid judgment the Hon'ble

Apex Court has taken aid of a judgment rendered in the

case of Mani Nariman Daruwala alias Bharucha

(Deceased) through LRS. & Ors Vrs. Phiroz N.

Bhatena & Ors, reported in (1991) 3 SCC 141 wherein

it has been laid down that in exercise of jurisdiction

under Article 227, the High Court can set aside or reverse

finding of an inferior court or tribunal only in a case

where there is no evidence or where no reasonable person

could possibly have come to the conclusion which the

court or tribunal has come to.

The Hon'ble Apex Court has made it clear that

except to this limited extent the High court has no

jurisdiction to interfere with the finding of facts.

Further, in the judgment rendered by the Hon'ble

Apex Court in the case of Laxmikant Revchand

Bhojwani & Anr. Vrs. Pratapsing Mohansingh

Pardeshi Deceased through His Heirs and Legal

Representatives reported in (1995) 6 SCC 576 it has

been laid down that the High Court under Article 227

cannot assume unlimited prerogative to correct all

species of hardship or wrong decisions. Its exercise must

be restricted to grave dereliction of duty and flagrant

abuse of fundamental principles of law and justice.

10. This Court, therefore, based upon the

judgment rendered by Hon'ble Apex Court, as referred

above, considering the fact of the case in hand is of the

view that the executing court proceeded with the

executing proceeding for execution of judgment and

decree has not committed any error, therefore, this Court

is not inclined to exercise the power conferred under

Article 227 of the Constitution of India with the order

passed by the executing court.

11. Accordingly, the instant writ petition stands

dismissed.

12. It is evident from the record of the case that

the proceeding of the execution proceeding was stayed by

virtue of interim order passed by the Co-ordinate Bench

of this Court vide order dated 07.05.2013. After dismissal

of the writ petition, the same stands automatically

vacated. Therefore, the Executing Court is directed to

proceed with the execution proceeding in accordance with

law.

(Sujit Narayan Prasad, J.) Alankar/-