Kerala High Court
M.Kamaraj vs Tata Tea Ltd on 19 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 24TH DAY OF NOVEMBER 2021 / 3RD AGRAHAYANA,
1943
OP(C) NO. 2084 OF 2021
AGAINST EXT.P7 ORDER DATED 5.11.2021 IN E.A.NO.37/2021 IN EP
48/2016 IN OS 103/1996 OF MUNSIFF COURT, DEVIKULAM
PETITIONER:2ND JUDGMENT DEBTOR/2ND DEFENDANT
M.KAMARAJ
AGED 63 YEARS
S/O. LATE MAHALINGAM, LOWER DIVISION 5/309,
CHENDUVARAI ESTATE, SP PURAM (SETHU PARVATHY BAI
PURAM), KANNAN DEVAN HILLS (KDH), MATTUPETTY,
DEVIKULAM, IDUKKI DISTRICT, PIN CODE - 685615.
BY ADVS.
C.G.BINDU
AJITHA C.G.
RESPONDENTS/DECREE HOLDER/PLAINTIFF:
TATA TEA LTD.
REGIONAL OFFICE AT NO.1, BISHOP LEFROY ROAD,
CALCUTTA, WEST BENGAL WITH REGIONAL OFFICE AT
MUNNAR, KDH VILLAGE, PRESENTLY TATA GLOBAL
BEVERAGES LTD, KOLKOTA, WITH REGISTERED OFFICE AT
BISHOP LEFROY ROAD, KOLKOTTA, REPRESENTED BY THE
MANAGER, PIN - 685613.
BY ADVS.
V.ABRAHAM MARKOS
ABRAHAM JOSEPH MARKOS
P.G.CHANDAPILLAI ABRAHAM
ALEXANDER JOSEPH MARKOS
SHARAD JOSEPH KODANTHARA
SRI.MATHEW JOHN,SC
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
24.11.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P(C).No.2084/2021 2
"C.R"
A. BADHARUDEEN, J.
================================
O.P(C).No.2084 of 2021
================================
Dated this the 24th day of November, 2021
JUDGMENT
This Original Petition has been filed under Article 227 of the
Constitution of India by the 2nd Judgment debtor in E.P.48/2016 in
O.S.No.103/96 on the file of the Execution Court/Munsiff Court,
Devikulam. The original petitioner urged the following points
specifically in the Original Petition to be decided in this case:
(i) Can the execution Court proceed with the delivery of
immovable property in a case where Exhibit-P2 decree is an in-
executable one on various aspects.
(ii) Is not the execution Court bound to adjudicate
application filed under Section 47 challenging the executability of
a decree?
(iii) Can the execution Court by-pass Order 21 Rule 23(2)
of the Code of Civil Procedure?
2. Heard the matter in detail.
3. It is contended by the learned counsel for the petitioner,
inter alia, that the petitioner suffered decree in O.S.103/1996 and
the said decree was confirmed in A.S.No.55/2001 of Sub Court,
Thodupuzha. According to the petitioner, though
R.S.A.No.32/2004 was filed before this Court challenging the
dismissal of A.S.No.55/2001, the same also was dismissed for
default. The petitioner would contend further that the
plaintiff/decree holder has no title to the schedule property and
they have purchased the decree schedule building only during
2005 as borne out from Ext.P5 execution petition. It is submitted
further that the Amin noted the number of the building, sought to
be evicted, in deviation from the original building number shown
in the decree schedule. This Original Petition was moved when
delivery was ordered with aid of police, by the execution court to
execute the decree passed in a suit of the year 1996.
4. It is not in dispute that the petitioner herein is none
other than the 2nd judgment debtor in E.P.No.48/2016 and the 2nd
defendant in the O.S.No.103/1996. Ext.P1 is the copy of
E.P.No.48/2016 filed by Tata Tea Ltd., presently, Tata Global
Beverages Ltd. Ext.P2 is the copy of decree in O.S.No.103/1996
wherein also the plaintiff is Tata Tea Ltd. Comparing Exts.P1 and
P2, without much ado, it can be safely concluded that the plaintiff
the Tata Tea Ltd. filed execution petition showing the present
name of the company as Tata Global Beverages Ltd. Thus the
contention raised by the learned counsel for the original petitioner
that the decree holder in Ext.P1 E.P.No.48/2016, who is the
subsequent purchaser of the property during 2005, has no legs to
stand.
5. It is true that in Ext.P3 report of the Amin, it has been
stated that, building No.1/647 of Munnar panchayat stated in the
decree, could not be found since house No.310 in ward No.5 of
Devikulam Panchayat is the number presently affixed in the
building. Based on this report, the learned counsel for the
petitioner urged that the decree schedule building could not be
identified and the decree holder is attempting to get eviction of a
building different from the decree schedule item. In Ext.P3 report,
Amin stated that delivery could not be effected as 2 nd judgment
debtor (the petitioner herein) objected the same. In Ext.P3 report
the Amin specifically reported further that the decree schedule
property was identified based on the boundaries shown by the
decree holder in conformity with the decree schedule boundaries
and it was thereafter the 2nd judgment debtor was directed to vacate
the building. The above report of the Amin would go to show that
the property has been identified properly based on the schedule
description. But the building situated in the decree schedule
property has been reported to be having a different number. I do
not think that the number given by Devikulam Panchayat, now
Munnar Panchayat, shall be always the same. It is judicially
noticeable that the Panchayat would give new numbers to the
building on completion of every 5 years and therefore the
possibility of maintaining the number assigned during 1996 and
2001 is an outright impossibility. Therefore, the said reason
cannot be found in favour of the petitioner to hold that the building
was not properly identified, in the case on hand, where the Amin
has specifically reported that the decree schedule property was
well identified and eviction could not be effectuated as it was
obstructed by the petitioner herein. Regarding identification of a
decree schedule property along with a building, the identification
of the decree schedule property based on schedule description
alone is sufficient and the difference in the building number
situated therein is of no consequence.
6. Ext.P4 is the objection filed by the petitioner/2 nd
judgment debtor incorporating the said grounds by asserting that
the decree could not be executed. In fact, the objection does not
contain anything to favour the contention raised by the original
petitioner. Ext.P5 is an application filed by the petitioner to cancel
the delivery proceedings when E.A.No.37/2021 was allowed to
give police aid to the Amin to execute the order. Going by the
averments in the application also, the difference noted in the
number of the building has been highlighted to assert the
contention that the decree could not be executed. In fact, the said
contention cannot be appreciated as I have already pointed out.
Thus it has to be held that point No.(i) urged by the learned
counsel for the petitioner to the effect that Ext.P2 decree is not
executable, cannot be found favour and the said point answered
against the petitioner.
7. The second challenge raised in this Original Petition is
whether the execution court is bound to adjudicate an application
filed under Section 47 of Code Civil Procedure challenging the
executability of decree? In this context, a glimpse on Section 47
of CPC is necessary. Section 47 of Code of Civil Procedure deals
with questions to be determined by the court executing the decree.
Section 47 provides as follows:
"47. Questions to be determined by the Court executing
decree:-- (1) All questions arising between the parties to be suit
in which the decree was passed, or their representatives, and
relating to the execution, discharge or satisfaction of the decree,
shall be determined by the Court executing the decree and not by
a separate suit.
(2) xxx xxx xxx
(3) Where a question arises as to whether any person is
or is not the representative of a party, such question shall, for the
purposes of this section, be determined by the Court.
[Explanation I:-- For the purposes of this section, a plaintiff
whose suit has been dismissed and a defendant against whom a
suit has been dismissed are parties to the suit.
Explanation II:-- (a) For the purposes of this section, a
purchaser of property at a sale in execution of a decree shall be
deemed to be a party to the suit in which the decree is passed;
and
(b) all questions relating to the delivery of possession of
such property to such purchaser or his representative shall be
deemed to be questions relating to the execution, discharge or
satisfaction of the decree within the meaning of this section.]
Thus Section 47 mandates determination of all questions arising
between the parties to the suit in which the decree was passed or
their representatives in relation to execution, discharge or
satisfaction of the decree. It is interesting to note that the 2 nd
judgment debtor filed a petition to cancel the delivery proceedings
on 23.09.2021 when the Amin visited the spot for effecting
delivery on 16.09.2021. Prior to this stage, no effective
participation was made by the petitioner herein before the
executing court. Though the petition was filed after the report of
the Amin, nothing stated in the petition in order to canvass the
position that the decree is not executable in any manner.
8. The learned counsel pointed out a decision reported in
2008(4) KLT 761, Babu Raj v. Vasantha Devi in support of this
contention. When the above decision was gone through, in fact, the
said decision was held not good law in a subsequent decision
reported in 2011 (1) KHC 352, Unnikrishnan & Ors. v.
Kunhibeevi & Ors. by a Division Bench of this Court. On a
perusal of the decree in consonance with the other materials, there
is nothing to suggest that the decree is not an executable one and
no dispute whatsoever to be adjudicated by exercising power under
Section 47 of CPC is made out. Thus the 2nd question also
answered in the negative.
9. Third question to be decided is: can the execution court
by-pass Order 21 Rule 23(2) of the Code of Civil Procedure? It is
true that Order 21 Rule 23(1) provides that where the person to
whom notice is issued under Rule 22 does not appear or does not
show cause to the satisfaction of the Court why the decree should
not be executed, the Court shall order the decree to be executed.
Order 21 Rule 23(2) provides that where such person offers any
objection to the execution of the decree, the Court shall consider
such objection and make such order as it thinks fit. In fact , Order
21 Rue 23 deals with the procedure to be followed after getting
notice under Order 21 Rule 22. It is not in dispute that when there
is a valuable objection, the Court is bound to consider the same.
However, the said consideration to be bagged in a narrow compass
when the objection does not contain any valid grounds or the
objection appears to be as one filed during 2021, with intention to
delay the execution of the decree of the year 1996.
10. The prayers in this petition are:
i) to set aside Ext.P1 execution petition and all further
proceedings ended in Ext.P7 delivery order dated 05.11.2021 of
the Munsiff Court, Devikulam;
ii) to direct the execution court Devikulam to consider and
pass orders on Ext.P4 objection and P5 application.
In this context, it is to be noted that Ext.P5 application was filed
when police protection was ordered to effect delivery by allowing
an application filed by the decree holder on 20.09.2021 when the
petitioner herein/2nd judgment debtor obstructed delivery. On an
overall discussion by addressing the points raised by the learned
counsel for the petitioner, it has to be observed that the decree put
in execution as per Ext.P1 is an executable decree and the
contention raised by the petitioner to the effect that the decree is
not an executable one is unsustainable. Coming to Ext.P4
objection and Ext.P5 application, in fact, no valid sustainable
contentions could be gathered therefrom. However, it cannot be
said that the execution court would ignore the objections, if any
merits therein, and for which no specific direction is warranted in
the present case, where even breathing time not given to the
execution court to consider the same, since stay was obtained in
this matter just after filing the objection and petitions. It seems
that the above objection filed at the fag end of delivery
proceedings with intention to protract execution of a decree in a
suit of the year 1996 and therefore, the Original Petition deserves
no merit and is liable to be dismissed in the interest of justice.
11. Before parting as aforesaid, it is the need of the hour to
conceive the ordeal faced by the decree holder in his thirst for
enjoying the fruits of the decree. See this Original Petition
pertains to execution of a decree in a Suit of the year 1996.
Exactly telling, a decree passed in a Suit filed before 25 years till
remains unexecuted. If this is the scenario, the confidence of the
people in the system how to be maintained? In any view, in order
to keep the efficiency and transparency of the system, petition of
this nature should be closed at the threshold after considering its
merits without any delay, otherwise the system will suffer.
Accordingly, this Original Petition stands dismissed. It is
specifically ordered that the interim stay granted by this Court is
hereby vacated and the execution court is directed to expedite the
execution proceedings as per law.
Sd/-
(A. BADHARUDEEN, JUDGE)
rtr/
APPENDIX OF OP(C) 2084/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE EXECUTION PETITION E.P NO.
48/2016 IN OS NO. 103/1996 DATED 25.08.2016 ON
THE FILE OF MUNSIFF COURT, DEVIKULAM.
Exhibit P2 TRUE COPY OF THE DECREE DATED 30.6.1999 IN OS
NO. 103/1996 OF THE MUNSIFF COURT, DEVIKULAM,
IDUKKI DISTRICT.
Exhibit P3 TRUE COPY OF THE REPORT OF THE AMIN IN E.P NO.
48/2016 IN OS NO. 103/1996 ON THE FILE OF
MUNSIFF COURT, DEVIKULAM, IDUKKI DISTRICT.
Exhibit P4 TRUE COPY OF THE OBJECTION TO THE EP NO.
48/2016 IN OS NO.103/1996 DATED 23.09.2021 ON
THE FILE OF MUNSIFF COURT, DEVIKULAM.
Exhibit P5 TRUE COPY OF THE OBSTRUCTION PETITION IN EP NO.
48/2016 IN OS NO.103/1996 DATED 17.09.2021 ON
THE FILE OF MUNSIFF COURT, DEVIKULAM.
Exhibit TRUE COPY OF THE RESIDENCE CERTIFICATE OF THE
P5(a) PETITIONER SHOWING THE BUILDING NO. 5/309 OF
DEVIKULAM GRAMA PANCHAYATH ISSUED FROM KDH
MATTUPETTY VILLAGE OFFICE DATED 17.11.2020.
Exhibit TRUE COPY OF THE VOTER'S I.D. OF THE
P5(b) PETITIONER.
Exhibit TRUE COPY OF THE RATION CARD ISSUED IN THE NAME
P5(c) OF PONTHAI BY TALUK SUPPLY OFFICER, DEVIKULAM.
Exhibit TRUE COPY OF THE OWNERSHIP CERTIFICATE
P5(d) CONTAINING DETAILS OF BUILDING DETAILS OF
BUILDING NO.1/647 ISSUED BY DEVIKULAM GRAMA
PANCHAYAT.
Exhibit P6 TRUE COPY OF THE APPLICATION E.A.NO. 37/2021 IN
EP NO. 48/2016 DATED 29.09.2021 ON THE FILE OF
MUNSIFF COURT, DEVIKULAM, IDUKKI DISTRICT.
Exhibit P7 TRUE COPY OF THE ORDER DATED 5.11.2021 IN EA
NO. 37/2021 IN EP NO. 48/2016 IN OS NO.103/1996
OF THE MUNSIFF COURT, DEVIKULAM, IDUKKI
DISTRICT.
