Biswanath Sutradhar vs Smt. Usha Rani Debnath
2022 Latest Caselaw 1071 Tri

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                            HIGH COURT OF TRIPURA
                                  AGARTALA

                              CRP No.67 of 2022

Biswanath Sutradhar,
Son of late Gopal Sutradhar, resident of South Charilam, 5 No. Colony, P.S
Bisramganja, District Sepahijala Tripura
                                              ----- Defendant-JD-Petitioner(s)
                                  Versus
1. Smt. Usha Rani Debnath,
Wife of late Bhuban Debnath.
2. Sri Maran Debnath,
Son of late Bhuban Debnath,
3. Sri Pradip Debnath,
Son of late Bhuban Debnath,
4. Sri Balaram Debnath,
Son of late Bhuban Debnath,
5. Smt. Purnima Debnath,
Daughter of late Bhuban Debnath,
6. Sri Nepal Debnath,
Son of late Mahendra Debnath,
7. Sri Kajal Debnath,
Son of Birendra Debnath,
8. Sri Anil Datta,
Son of late Ashwini Datta,
All are residents of South Charilam, 5 No. Colony, P.S Bisramganja, District
Sepahijala Tripura
                                                      -----Plaintiff-DH-O.P(s)

9. Sri Shanti Debnath,
Son of late Uopendra Debnath, resident of South Charilam, 5 No. Colony, P.S
Bisramganja, District Sepahijala Tripura.

                                                   -----Proforma-Defendant-O.P(s)

For Petitioner(s)                 :        Mr. D. Deb, Advocate.
                                           Mr. D. Debnath, Advocate.
For Respondent(s)                 :        Mr. N. Chowdhury, Advocate.

Date of Hearing                   :        2nd December, 2022.
Date of Pronouncement             :        14th December, 2022.
Whether fit for reporting         :        NO




CRP No.67 of 2022
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                                       B_E_F_O_R_E_
                    HON‟BLE MR. JUSTICE S.G. CHATTOPADHYAY
                                  JUDGMENT & ORDER

The present civil revision petition is directed against the order

dated 02.06.2022 passed by the Civil Judge (Senior Division) Court No.2, West

Tripura, Agartala in case No. C.M.(J) No.132 of 2021 whereby petitioner's objection

raised under section 47 CPC against the execution of decree dated 22.07.2016

drawn in T.S. No.116 of 2013 was rejected by the Court.

[2] Heard Mr. D. Deb, learned counsel appearing for the petitioner

along with Mr. D. Debnath, learned advocate as well as Mr. N. Chowdhury, learned

counsel appearing for the respondents.

[3] The facts as they emerge from the record are that Sri Biswanath

Sutradhar, present petitioner was the principal defendant in T.S. No.116 of 2013

which was instituted against him in the Court of Civil Judge (Senior Division) at

Agartala on 17.07.2013 by Sri Bhuban Debnath and 3 (three) others who are the

predecessor in interest of Smt. Usha Rani Debnath and others (present

respondents). In T.S. No.116 of 2013, the plaintiffs (respondents herein) sought for

declaration of their right, title, interest and confirmation of possession over the suit

land and also the relief of perpetual injunction against the principal defendant

(petitioner herein). The learned Civil Judge (Senior Division) Court No.2, Agartala

decided the suit on 14.07.2016 declaring the right, title, interest of the plaintiffs and

proforma defendants (respondents herein) and the principal defendant (petitioner

herein) was perpetually injuncted from entering into the suit land or creating any

kind of disturbance to the plaintiffs and the proforma defendants (respondents

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herein). On the basis of the said judgment, decree was drawn up by the trial court

on 22.07.2016 which is as under:

" It is ordered and decreed that "In the result, this suit stands decreed on contest with costs.

The right, title and interest of the plaintiffs and proforma defendant over the suit land consisting of „A‟ and „B‟ Schedule is declared. The court has granted constructive possession in favour of Plaintiffs and proforma defendant over the suit land by considering attending circumstances from the recitals of the sale deeds and considering the finally published khatian vide no.664,182 of Mouja- South Charilam. As per Sec. 38 of the S.R. Act, when the defendant threatens to invade the plaintiffs‟ part affecting the enjoyment of the property, the court may grant perpetual injunction where there exists no standard for ascertaining the actual damage caused or likely to be caused by the invasion or where the compensation in money would not afford adequate relief or where injunction is necessary to prevent a multiplicity of the judicial proceedings. Considering above factors, the defendant Biswanath Sutradhar is injuncted perpetually to enter into the suit land and to make any disturbance to the plaintiffs and proforma defendant. Furthermore, the plaintiffs side is to get the costs of the suit because they had to fight a legal battle for last three years for establishing their legitimate right over the suit land. With the above direction the suit is finally disposed of on contest with costs."

[4] Undisputedly, the said judgment and decree of the trial court

passed in T.S. No.116 of 2013 was never challenged by the present petitioner who

is the judgment debtor in T.S. No.116 of 2013.

[5] Therefore, the successors of the plaintiffs (respondents herein) of

T.S. No.116 of 2013 approached the trial court for execution of the decree by filing

appropriate petition under Order XXI CPC which was registered as Ex (T) No.04 of

2020 in the Executing Court.

[6] Sri Biswanath Sutradhar who was the principal defendant before

the trial court in T.S. No.116 of 2013 being the judgment debtor raised objection

under section 47 CPC before the Executing Court mainly on the ground that the

Executing Court stepped beyond the decree by issuing a direction to evict the

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present petitioner who was judgment debtor in the trial court for restoring the

possession of decretal land in favour of the decree holders (present respondents).

[7] The learned Executing Court after hearing the parties held that the

objection raised by the judgment debtor petitioner was devoid of merit because

Order XXI Rule 32(5) CPC casts jurisdiction on the Executing Court to restore the

possession of decretal land to the decree holder in case the decree of permanent

injunction is violated by the judgment debtor petitioner. At this juncture, it would

be appropriate to extract the relevant part of the impugned order of the Executing

Court which reads as under:

"I have perused the execution petition alongside the certified copies of judgment dated 14th July, 2016 & decree dated 22.07.2016 drawn in TS 113 of 2016.

It is seen that vide judgment and decree drawn in TS 113 of 2016, the right, title and interest of the Ops/DHs including that of proforma-op over the decretal land which is described in Schedule-„A‟ and „B‟ of the execution application was declared vis‟ a‟ vis‟ the present Jd/Petitioner was injuncted perpetually from entering into the decretal land and to make any disturbances to the Ops/DHs and Proforma-Ops.

The judgment and decree passed in TS 113 of 2016 was not for delivery of immovable property rather the same concerns perpetually injuncting the Jd/Petitioner from entering into the decretal land and to make any disturbances to the Ops/DHs and Proforma-Ops.

The Ops/DHs have sought the execution of decree passed in TS 113 of 2016 under Order XXI Rule 35 (1) CPC which is found not applicable in relation to the nature of decree passed.

It is axiomatic that wrong quotation of provision of law should not come in the way of handing out substantial justice should the relief sought for is found otherwise backed by other provision of law then the one quoted.

Here the primordial contention of the Jd/Petitioner is that since no decree of recovery of possession was passed in case no. TS 113 of 2016, the instant execution application whereby the Ops/ DHs sought for recovery of possession of decretal land is not maintainable.

Here I find no merits in the primordial contention raised by the Jd/Petitioner as the execution application whereby the Ops/DHs have sought the execution of judgment and decree passed in TS 113 of 2016 is otherwise found maintainable as per provision of Order XXI Rule 32 (5) CPC which casts jurisdiction upon the executing court to restore the

CRP No.67 of 2022 Page - 5 of 8

possession of land in dispute to decree holder in case the decree of permanent injunction is violated by the Jd/Petitioner.

Thus I find that the execution application filed by the Ops/DHs under Order XXI Rule 35(1) CPC can well treated as an application under Order XXI Rule 32 (5) CPC vis‟ a‟ vis‟ the relief sought for therein can well be handed out to the Ops/Dhs.

The other contention as raised by the Jd/Petitioner in the instant petition filed U/s.47 C.P.C mainly touches upon the facets of the original suit and as such this court being executing court cannot go into the nuances of the same which ultimately would tantamount to re-trial of the original suit already decided.

It is also axiomatic that the executing court cannot go beyond the decree and has to execute the decree as it is unless the decree passed is a nullity or that the decree passed is not executable for any other sufficient reasons.

So under the circumstances as stands elucidated herein above this court being the executing court finds that the Jd/Petitioner has failed to make out a case as to why the execution petition filed by the Ops/DHs is not maintainable.

Hence the petition filed hereby stands rejected.

The case is thus disposed off on contest."

[8] Counsel appearing for the petitioner submits that the impugned

order rejecting the objection of the petitioner under section 47 CPC is passed by the

Executing Court erroneously because application of the decree holders (respondents

herein) for execution of the decree for possession of the decretal land was not

maintainable since the trial court in T.S. No.116 of 2013 did not pass a decree for

recovery of possession.

[9] Counsel further contends that the petitioner was always in

possession of the decretal land. The trial court did not appreciate the evidence of

the petitioner and erroneously passed an order of mandatory injunction against

defendants including the petitioner prohibiting them from entering into the suit

land. Learned counsel has contended that the petitioner pleaded before the trial

court that the plaintiff decree holders (respondents herein) played a fraud by

suppressing the material facts and the petitioner also placed credible materials

CRP No.67 of 2022 Page - 6 of 8

before the trial court in support of their plea of fraud. The trial court did not

examine petitioner's plea of fraud which has totally vitiated the decree. In support

of his contention, learned counsel has referred to a decision dated 18.02.2015

of the High Court of Judicature at Allahabad in Kishan Lal Barwa vs. Sharda

Saharan & Anr. (Civil Misc. Writ Petition No.4788 of 2015) which reads in

paragraph 19 as under:

"19.It is well settled that once the plea of fraud has been setup by the defendant-petitioner before the executing court, and credible evidence in support of such plea was also placed, it was incumbent upon the executing court to have examined the issue of fraud, on merits, and such plea ought not to have been rejected merely on the ground that a decree in favour of the plaintiff-respondent had been passed, and the executing court, as such, had no occasion to examine the plea of fraud. It is also well settled that fraud vitiates all solemn acts. Though a plea of fraud was taken up before the civil court, but such plea was not adjudicated, which is clarified in the judgment of the civil court itself. However, if a credible material has come into existence, which if is found proved vitiates the decree itself, it is the duty of the executing court to consider such plea on merits. It was open for the executing court to have examined the report of the Directorate, Fingerprint Experts, in accordance with law, and for such purpose an opportunity was liable to have been allowed to the plaintiff-respondent. The executing court could have adjudicated as to whether the plea of fraud was made out on facts or not? but it was not open for the executing court to brush aside the objection itself and thereby refused to go into such issue itself."

[10] Counsel, therefore, urges the Court to reject the impugned order

and direct the Executing Court to take into consideration petitioner's plea of fraud

and adjudicate the objection raised under section 47 CPC accordingly.

[11] Mr. Chowdhury, learned counsel appearing for the plaintiff

respondents has argued that the Executing Court by a detailed and reasoned order

has decided the objection of the judgment debtor petitioner raised under section 47

CPC which does not call for any interference in this civil revision petition. Counsel

submits that the Executing Court has rightly viewed that under Order XXI Rule

32(5) CPC, the Executing Court is empowered to enforce the decree of mandatory

CRP No.67 of 2022 Page - 7 of 8

injunction against the judgment debtors by recovery of possession when there is a

breach of the injunction order. Counsel, therefore, urges the Court to dismiss the

petition.

[12] The impugned order passed by the learned Executing Court clearly

demonstrates that the Executing Court is of the view that Order XXI Rule 32(5) CPC

casts jurisdiction on the Executing Court to restore the possession of the decretal

land to the decree holder in case the decree of permanent injunctions is violated by

the judgment debtors. At this juncture, it would be appropriate to reproduce Order

XXI Rule 32(5) CPC which reads as under:

"32. Decree for specific performance for restitution of conjugal rights, or for an injunction.--

(5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment- debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree."

[13] Undisputedly, the respondents decree holders obtained a decree of

right, title and interest over the suit land and a permanent injunction against the

judgment debtor petitioner. The judgment debtor petitioner did not challenge the

said decree. Subsequently, when the decree was put to execution, the judgment

debtor petitioner raised objection under section 47 CPC claiming that they were in

possession and they were entitled to retain the possession since no decree for

recovery of possession has been issued by the trial court in T.S. No.116 of 2013. In

T.S. No.116 of 2013, the trial court having held that the respondents decree holders

were in possession of the suit land, decreed the suit declaring the right, title and

interest of the respondents decree holders and issuing an order of permanent

injunction against the judgment debtor petitioner and as stated, the findings of the

CRP No.67 of 2022 Page - 8 of 8

trial court and the decree passed by it have not been challenged by the judgment

debtor petitioner. In this situation, the Executing Court rightly held that the

judgment debtor petitioner was an encroacher into the decretal land and therefore,

in a petition for execution of the decree it was the duty of the Executing Court to

evict the judgment debtors including the petitioner from the decretal land as they

violated the order of permanent injunction passed by the Court.

[14] In view of what has been stated above, I find no reason to

interfere with the order impugned herein. Resultantly, the civil revision petition

stands rejected and disposed of.

Interim order(s), if any, shall stand vacated and pending

application(s), if any, shall also stand disposed of.

JUDGE

Rudradeep

CRP No.67 of 2022