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Sm. Kamala Dutta and anr. Vs. Ballygunge Estates (P.) Ltd. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 299 of 1973
Judge
Reported inAIR1974Cal75,77CWN839
ActsCode of Civil Procedure (CPC) , 1908 - Section 144 - Order 20, Rule 22 - Order 21 - Rule 22(2)
AppellantSm. Kamala Dutta and anr.
RespondentBallygunge Estates (P.) Ltd.
Appellant AdvocateB.C. Dutta and ;Partha Dutta, Advs.
Respondent AdvocateRanadeb Chowdhury, ;Bikash Chandra Sen, ;Alok Biswas and ;Benoy Kumar Roy, Advs.
DispositionAppeal dismissed
Cases ReferredAdi Feroz Shah v. H. M. Seervai
Excerpt:
- .....service of notice under order 21, rule 22 of the code of civil procedure on some of the heirs and legal representatives of the deceased judgment-debtor briefly in the following circumstances. 2. the respondent, ballygunge estates (private) ltd. is the owner of a cinema house known as 'aleya cinema' near gariahat market, ballygunge, calcutta. one keshab chandra dutta, who was the manager of the cinema, instituted a suit on or about 17th august, 1970 in alipore court for specific performance of contract with other consequential reliefs against the respondent in terms of an agreement alleged to be entered into by and between the respondent and the plaintiff in that suit which was ultimately decreed ex parte. this ex parte decree was put into execution on or about 27th january, 1971 and the.....
Judgment:

A.K. Sinha, J.

This appeal is preferred against an order passed by the learned Subordinate Judge, Sixth Court,the Executing Court, allowing the decree-holder petitioners to take delivery of possession after dispensing with the service of notice under Order 21, Rule 22 of the Code of Civil Procedure on some of the heirs and legal representatives of the deceased judgment-debtor briefly in the following circumstances.

2. The respondent, Ballygunge Estates (Private) Ltd. is the owner of a Cinema House known as 'Aleya Cinema' near Gariahat Market, Ballygunge, Calcutta. One Keshab Chandra Dutta, who was the Manager of the Cinema, instituted a suit on or about 17th August, 1970 in Alipore Court for specific performance of contract with other consequential reliefs against the respondent in terms of an agreement alleged to be entered into by and between the respondent and the plaintiff in that suit which was ultimately decreed ex parte. This ex parte decree was put into execution on or about 27th January, 1971 and the plaintiff Keshab Chandra took possession of the Cinema.

3. Thereafter, the respondent made an application under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree and obtained an order setting aside such decree on 23rd October, 1971. Then the matter came up in revision at the instance of Keshab Chandra, the plaintiff, who obtained a Rule from this Court which was, however, discharged. On or about 6th January, 1972 the respondent made an application under Section 144 of the Code of Civil Procedure for restitution and pending the disposal of the restitution application the plaintiff Keshab also made successive applications, for preferring an appeal, for leave to appeal to the Supreme Court but both the applications for leave as also for special leave were dismissed. On or about 6th May, 1972 the respondent obtained an order for restitution of possession of the Cinema upon his application. An appeal taken again to this Court from this order was also dismissed on or about 3rd October, 1972.

4. Then, in the meantime Keshab Chandra, the plaintiff, died and after his death the respondent made an application for bringing the heirs and legal representatives of Keshab on record and prayed for delivery of possession against them as mentioned in the application. Some of the heirs, namely, widow of Keshab and one son Dipak Dutta applied in the original suit for substitution of heirs and legal representatives of the deceased plaintiff including themselves and pending the disposal of this application no order was made upon the application made by the respondent for proceeding against the heirs and legal representatives of Keshab. The application of the widow and one son of Keshab for substitution was, however, allowed on 16th February, 1973 but his four daughters were added as pro forma defendants. On or about 26th March, 1973 the respondent applied for dispensing with the service of notice for delivery of possession on those four daughters under Order 21, Rule 22 (2) of the Code. Both the applications of the respondent were, however, opposed by the widow and the son Dipak, but the Court below passed an order on 28th March, 1973 allowing the respondent to take delivery of possession against the heirs and legal representatives of Keshab having dispensed with the service of notice under Order 21, Rule 22 (3) of the Code on the view that service of such notice upon the four daughters of Keshab would cause unreasonable delay and would defeat the ends of justice particularly when the petitioner only prays for taking delivery of possession of the property on the basis of restitution. That is how, in short, the appellants felt aggrieved and preferred the present appeal.

5. Mr. Dutta appearing in support of the appeal has contended, in the first place, that unless all the heirs and legal representatives of the deceased plaintiff Keshab are brought on record, the Court could not have any jurisdiction to execute the order for restitution and direct delivery of possession to the respondent. He has relied on a long line of decisions beginning from (1905) 32 Ind App 23 (PC), Khirajmal v. Daim; 41 Ind App 251 = (AIR 1914 PC 129), Raghu-nath Das v. Sundar Das Khetri; AIR 1936 Mad 205 (FB), Kanchamalai Pathar v. Ry. Shahaji Rajah Sahib as also a number of decisions of this Court namely; (1937) 41 Cal WN 157, Tarak Chandra Ray v. Panchanan Banerjee; 43 Cal WN 859 = (AIR 1939 Cal 612), Satish Chandra Lahiri v. Raja Protiva Nath Roy; 46 Cal WN 631 = (AIR 1942 Cal 436), Faizaddi Talukdar v. Razia Begum; AIR 1949 Cal 299, Pashupatinath Malia v. Ushapati Misra; (1955) 59 Cal WN 1073, Sm. Rajlakshmi Dassi v. Province of West Bengal; and : AIR1961Cal336 , Shanti Devi v. Khandubala Dasi. We do not think on the facts of this case it would be necessary for us to deal categorically with each of these decisions for, substantially, these are cases where the question mainly was whether in absence of the heirs and legal representatives of a deceased judgment-debtor, auction sale at the instance of the decree-holder was void or voidable. There was want of uniformity of decisions on this question even in this Court. The matter was exhaustively considered in the above Full Bench of this Court in : AIR1961Cal336 and the majority opinion given by this Court is that the sale in question is not valid or operative against the heirs of the deceased who were not brought on record before such a sale took place and decisions, of this Court to the contrary, were held to be not correctly decided. In this case, however, it would be important to notice that in coming to the conclusion it has been observed that 'so far as the Calcutta High Court is concerned, an omission to issue the notice required by Order 21, Rule 22 is a mere irregularity not affecting the jurisdiction of the Court in executing the decree. But these amendments do not abrogate Section 50 of the Code. The decree-holder must still apply under Section 50 to execute the decree against the legal representative and obtain an order binding on him and allowing the execution to proceed against him. Section 50 embodies the fundamental principle that the legal representative must be made a party to the execution proceedings in order that the court may acquire power to proceed against him and to sell his property'. Even so, it will further appear from the Full Bench decision that the court was not considering a question where some of the heirs and legal representatives were on record. In this case none of the heirs and legal representatives, as will appear from the facts recited, were brought on record or made parties to the execution proceeding before the sale took place. Be that as it may, the question before us is very different from the question raised or decided in the Full Bench. Here, in the instant case, admittedly, some of the heirs, namely, the widow and one son of Keshab, in fact, entered appearance and filed objection against the applications made by the respondent. It also appears that in the first application made on 11th December, 1972 by the respondent, in paragraph 6, the names of the heirs and legal representatives have been categorically stated and in paragraph 7 the permission of the Court has been sought for 'to take back possession of the suit property against the said legal heirs of the deceased opposite party'. The respondent has also in this application prayed on amendment of the prayer that it may be permitted to take delivery of possession of the suit property against the legal heirs of the deceased opposite party and pass such other order or orders as may be found fit and proper. This application along with the further application as already noticed, for dispensing with the service of notice upon the four daughters of Keshab were taken up for disposal by the learned Court below. On these two applications written objections were filed by the present appellants, and substantially theobjection was that the application for taking delivery of possession was an execution of the order and, therefore, without compliance with Order 21 of the Code for impleading all the heirs of the deceased opposite party including the four daughters and with due notice to them all, the petitioner could not be allowed to take possession. It appears that the court below considered both the aspects of the matter. It is true that in view of the decision of the Supreme Court in : [1965]2SCR436 , Mahiji Bhai v. Mani Bhai and : [1966]3SCR479 , Maqbool Alam Khan v. Mst. Khodaija, the question whether an application under Section 144 of the Civil Procedure Code was an application for execution has been set at rest for it has been held that such an application in a sense is an application for execution. Even so, it is quite clear from the order passed by the learned court below that the question has been considered on the footing that an application under Section 144 of the Code was an application for execution.

6. Mr. Dutta has, however, contended that unless there is an order, specifically made, bringing in all the heirs and legal representatives on record as parties to the execution proceeding, the court cannot assume jurisdiction to proceed to execute such order for delivery of possession to the respondent in view of the above decisions, particularly the Full Bench of this Court for it is clearly incumbent upon the respondent to apply for bringing in the heirs and legal representatives of the deceased judgment-debtor on record under Section 50 of the Code. We are unable to accept the contention of Mr. Dutta as correct in the form it is put, for on the facts of this case it clearly appears that all the heirs and the legal representatives have been brought on record. On a fair reading of the provisions of Section 50 of the Code, it seems quite clear that the petitioner has to pray before the court for proceeding against the heirs and legal representatives of the deceased judgment-debtor. In the application made by the respondent, this has been made sufficiently clear, both in the body of the petition as also in the praver portion. Clearly Order 22, Rules 3 and 4 of the Code do not apply to execution proceeding; so, no leave or specific order is necessary, again, from the court to proceed against such heirs and legal representatives as enumerated in the body of the application or in the prayer made by the decree-holder concerned in a given case. The question, of course, may arise in cases where there is dispute between the parties as to who are actually the heirs and legal representatives of the deceased. In that event theexecuting court has to determine that question and permit the decree-holder concerned to proceed against such heirs and legal representatives as may be determined by the court. In this case, however, there is no dispute between the appellant and the respondent regarding the identity or status or the number of heirs and legal representatives of the deceased. In fact the appellant themselves applied in the original Title Suit to bring the same heirs and legal representatives including themselves on record and the order has been passed. It is difficult to see how in these circumstances the present appellants can raise any such objection on a plea that all the heirs and legal representatives are not on record or that there is no order passed by the court to bring them on records,

7. This apart, it seems quite clear from the order itself that the court has accepted, although not specifically stated, all persons mentioned in the first application of the respondent as also in the application made by the present appellant themselves in the suit, as heirs and legal representatives on record in the application for taking delivery of possession made by the respondent and then proceeded to determine the further question namely, whether the service of notice under Order 21, Rule 22 (2) of the Rule upon the four daughters should be dispensed with. If it is not so then it is difficult to see how the court can determine further question of dispensing with notice in respect of persons who are not before it. A notice under Order 21, Rule 22 (2) contemplates that the judgment-debtor on whom such notice should be issued are already on record. In our opinion, therefore, it has been made sufficiently clear in the order by the court below that the heirs and legal representatives against whom the respondent has prayed for taking delivery of possession have been or must be deemed to have been brought on record.

8. Mr. Dutta has contended relying on three decisions of the Supreme Court in AIR 1965 SC 1019, Dayaram v. Shyam Sundari; : [1966]1SCR937 , N. K. Mohd. Sulaiman Sahib v. N. C. Mohd Ismail Saheb and : AIR1967SC49 , Dolai Maliko v. Krushna Chandra Patnaik that unless all the heirs and legal representatives of the deceased are brought on record, there cannot be any representation of the estate of the deceased and in that event it is not open to the court to proceed against only some of the heirs. Incur view none of these cases has any bearing on the question involved in the case under consideration before us. While considering the scope of Order 22, Rule 3 or 4 of the Code. Supreme Court tookthe view that the Court ought to proceed on the principle of representation of the estate but that again will depend on the facts of each case, in the view, we have already taken of the matter, it is not necessary for us again to deal with each of these cases specifically for the simple reason that the heirs and legal representatives are already on record or have been brought on record. The question of representation, however, of the estate of the deceased Keshab, is not at all relevant in the instant case. Here, the respondent has asked for delivery of possession against all the heirs and legal representatives of the deceased Keshab. This apart, we do not find any reason why the Court should not issue a Writ for delivery of possession against those heirs who have at least by their own motion have brought them on record in the proceeding started by the respondent for taking delivery of possession. The question is not one of determination of right, title and interest of parties in case of a sale held in execution of decree of deceased judgment-debtor without making any of his heirs and legal representatives as parties but of delivery of possession in respect of a property at least against some of the heirs and legal representatives admittedly on record. No question of representation of the estate arises at all in such cases to execute the decree against some of the heirs, although such is not the case here, for delivery of possession. At any rate, the law has even contemplated all such contingencies and that is why there are provisions under Order 21, Rule 100 of the Code for remedies of those persons who are not judgment-debtors in an execution petition in case they are dispossessed of any immovable property in course of execution of a decree. We are however, not actually deciding nor it is necessary to decide this question finally for we have already concluded that on the admitted position of the parties all the heirs and legal representatives of the deceased Keshab have been brought on record. The first contention of Mr. Dutta, therefore, fails.

9. This brings us to the other point raised by Mr. Dutta relating to the question of dispensing with the service of notice under Order 21, Rule 22 (2) of the Code upon the four daughters of Keshab. It is contended by Mr. Dutta that service of notice upon the four daughters of Keshab is the foundation of jurisdiction of the Executing Court to execute the order for delivery of possession, and unless such notices are actually served on the remaining heirs, the entire order given by the Court will be an order passed without jurisdiction and is a nullity. Mr. Dutta in aid of this contention hasagain sought to draw support from the decision of the Judicial Committee in (1905) 32 Ind App 23 and 41 Ind App 251 = (AIR 1914 PC 129) (supra) and also a Full Bench decision of the Patna High Court in AIR 1945 Pat 1 (FB), Ajab Lal Dubey v. Hari Charan Tewari and two other decisions of the same High Court in AIR 1947 Pat 454 (FB), Ramlal Sahu v. Mt. Ramia; : AIR1969Pat228 , Jharkhand Mines & Industries Ltd. v. Nand Kishore Prasad and a decision of the Bombay High Court AIR 1969 Bom 85. Mr. Dutta has also relied on a decision of this court in 35 Cal WN 9 = (AIR 1931 Cal 476), Chandra Nath Dutta v. Nabadwip Chandra Dutta. On the question of service of notice we do not think that the decision of the Judicial Committee would have any application to the law which now stands amended and particularly in view of the Calcutta amendment added as Order 21. Rule 22 (3). So far as the decisions of the Patna High Court are concerned, no such amendment as that of Calcutta High Court has been made with regard to the provisions of Order 21, Rule 22 of the Code. But, even then, it has been held in the Full Bench case which was also a case of sale that a sale held in execution of a mortgage decree after the service of all necessary processes including the sale proclamation, without any notice to the legal representative is void in the sense that it is not valid and operative against such legal representative. In the Calcutta decision which was given on the law, as it then stood, Rankin, C. J. held clearly that even though notice under Order 21. Rule 22 (1) of the Code was obligatory it was not open to the judgment-debtor who already appeared in the execution case without such notice to say, at a later stage that 'the whole proceeding was without jurisdiction because of absence of notice under Rule 22'. This decision, therefore, does not support, rather goes against the appellant. However, on the question of notice even the opinion of the Patna Full Bench is that although notice under Order 21, Rule 22 (1) even after the amendment must have to be served upon the judgment-debtors or their legal representatives. Sub-rule (2) of Rule 22 of Order 21 provides an exception and that only means that the Court is not precluded from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice. Therefore, even, on the strength of Sub-rule (2)the Court has sufficient jurisdiction to dispense with the service of notice upon the judgment-debtor or their legal representatives in a proper case and proceedwith the execution. At any rate, after the addition of Sub-rule (3) by the Calcutta amendment, the omission to issue a notice in a case where notice is required under Sub-rule (1) or to record reasons in a case where notice is dispensed with under Sub-rule (2), shall not affect the jurisdiction of the court in executing the decree. This has sufficiently been made clear in Shanti Devi's case, : AIR1961Cal336 (supra) In the instant case, however, the court below has dispensed with the service of notice after recording its reasons in terms of Sub-rule (2) of Rule 22 of Order 21 of the Code. We fail to see, how, even then, the issue of process can be said to have been made without jurisdiction. Even if there was any omission by the court below to issue a notice or to record reasons in dispensing with the service of such notice that could not have affected the jurisdiction of the Court in executing the decree in view of the Calcutta amendment.

10. Nevertheless, in this case reasons have been given but Mr. Dutta has strenuously contended before us that the reasons given were not valid reasons. We are unable to accept that contention as correct for the law itself provides that the reasons which have to he recorded must show that such service of notice would cause unreasonable delay or defeat the ends of justice. In this case the court below has clearly stated in the order that the 'issue of notices on such four daughters of Keshab as aforesaid would cause unreasonable delay and would defeat the ends of justice.........' It may be that other reasons namely that the appellants, who entered appearance and contested this application of the respondent, could not represent, in law, the entire estate of Keshab. But that will not surely affect the other reasons given by the Court below for dispensing with the services of notice upon the four daughters on the ground that issue of such notice would cause unreasonable delay and would defeat the ends of justice. In this case, as already seen the appellants themselves have made the four daughters pro forma defendants and from the records it appears that notice could not be served on those daughters by them. So in this state of circumstances it is difficult to see how the dispensation of service of notice upon the four daughters as made by the court below could be held, at all, to be unreasonable or not for valid reasons.

11. This apart, the reasons that require to be recorded by the court below relate to matters on which the court has to exercise its discretion. The question is whether or not the appellate court should interfere with such reasons evenif they cannot come to the same conclusion on such reasons given by the court of the first instance. Mr. Chowdhury on behalf of the respondent has contended, we think rightly, relying on two decisions of the Supreme Court in AIR 1961 SC 1156 and : AIR1967SC249 , Uttar Pradesh Co-op. Federation Ltd. v. Sunder Bros., Delhi that 'where the discretion under the Section has been properly and judiciously exercised by the trial Court, the appellate court would not be justified in interfering with such exercise of discretion merely on the ground that it would have taken a contrary decision if it had considered the matter at the trial stage. But if it appears to the appellate court that the trial Court has exercised its discretion unreasonably or capriciously or has ignored relevant facts or has approached the matter unjudiciously, it would be its duty to interfere'.

12. Mr. Dutta however, has sought to meet this point on an argument that these are decisions on question raised under Section 34 of the Indian Arbitration Act. We think, the proposition laid down by the Supreme Court is one of principle although it was expressed on the facts of those cases while construing Section 34 of the Indian Arbitration Act. In our opinion, the same principle will apply in a matter, as in the instant case, where the executing court is left with a discretion to issue or dispense with the issue of a notice upon the judgment-debtor. We, however, hasten to add that even on consideration of all facts and circumstances and relevant materials on record, we think, the court below was right in dispensing with the service of notice upon the four daughters of the deceased and the reasons given in support of its order were sufficient and proper. We therefore equally find no substance also in the second contention raised by Mr. Dutta.

13. Mr. Chowdhury on behalf of the respondent, however, has raised another point, namely, that the present appellants are no parties aggrieved for even if, no notice has been served upon the four daughters of the deceased, the appellants cannot be affected at all and consequently they cannot be deemed to be an aggrieved party and cannot be held to be competent to prefer the present appeal. We do not think that in the view we have taken of the matter, it is necessary to decide this question finally although the argument of Mr. Chowdhury cannot be brushed aside. We may usefully refer in this connection to a Supreme Court decision in : [1971]1SCR863 , Adi Feroz Shah v. H. M. Seervai where the point has been discussed in great details and it has been laid down that a party, who is not aggrieved by the impugnedorder, has no right to prefer an appeal but then the question whether the party who has preferred such appeal is really aggrieved or not would depend on the facts and circumstances of each case. Mr. Dutta has however, contended that the question after all affects the possession of the property and therefore, whatever may be the reason given by the court below the appellants are certainly affected by such an order because they will be deprived of their possession of the property by the issue of process now made by the court. We, however, do not decide the question finally and the point is left open.

14. For the reasons already given this appeal is dismissed with costs. Hearing fee assessed at 10 gold mohurs.

15. Let the records go down as quickly as possible.

Sen Gupja, J.

I agree.


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