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Meheran Bibi and ors. Vs. Sk. Razzak and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberS.M.A. No. 44 of 1964
Judge
Reported inAIR1978Cal365
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 and 151
AppellantMeheran Bibi and ors.
RespondentSk. Razzak and ors.
Appellant AdvocateS.C. Mitter and ;S.P. Roy Chowdhury, Advs.
Respondent AdvocateSatyajit Banerjee, Adv.
DispositionAppeal allowed
Cases Referred and Sasikanta Acharjee v. Jalil Baksh Munshi
Excerpt:
- .....of that question the decree-holders were not entitled to get delivery of possession. the learned executing court, it appears from the perusal of the order, thought that it was the duty of the decree-holders to bring to the notice of the learned court the observations made by the appellate court regarding the consideration about local investigation. the learned executing court thought that as the judgment-debtors were not heard on that question, their case had been seriously prejudiced and in that view of the matter he recalled the order dated 28-8-1963 directing issue of writ of delivery of possession and vacated the said order. along with that there was the order for restoration of possession of the property to the judgment-debtors. in the appellate court the learned.....
Judgment:

R. Bhattacharya, J.

1. This second miscellaneous appeal arises out of an order passed in a miscellaneous appeal disposed of by the Additional Court of the Subordinate Judge at Asansol. The learned judge dismissed the appeal and upheld the decision of the learned Munsif who ordered for restoration of possession of certain lands in an execution proceeding in connexion with a decree. The decree-holders are the appellants before us and they are aggrieved at the orders passed by the courts below.

2. The relevant facts in this case are that the appellant-decree-holders started an excution case for recovery of possession of certain properties in pursuance of a decree. An application was filed by the judgment-debtors under Section 47 of the Code of Civil Procedure. But the decision was against the judgment-debtors, and as such, there was an appeal. In that appeal the decree-holders were permitted to proceed with the execution of the decree after certain amendments in the application for execution and after removal of some defects appearing therein. At the end of the judgment however, the learned Subordinate Judge remarked that before him there was a contention raised by the judgment-debtors that no delivery of possession was possible without local investigation. There was no decision on that point, but the matter was left with the executing court to be considered in connexion with delivery of possession of the suit lands and he made it clear that the said question remained open for deter-mination at appropriate stage. Admittedly after the disposal of that appeal the decree-holders, as directed by the appellate court, remedied the defect in the application for execution and thereafter t hey prayed for delivery of possession. On the prayer of the decree-holders, in fact, a writ of possession was issued and ultimately the said writ was executed and delivery of possession of the properties in question was effectively done. Thereafter the judgment-debtors applied before the court for restoration of possession of the properties to them on the ground that the executing court ought to have considered the question of local investigation and without determination of that question the decree-holders were not entitled to get delivery of possession. The learned executing court, it appears from the perusal of the order, thought that it was the duty of the decree-holders to bring to the notice of the learned court the observations made by the appellate court regarding the consideration about local investigation. The learned executing court thought that as the judgment-debtors were not heard on that question, their case had been seriously prejudiced and in that view of the matter he recalled the order dated 28-8-1963 directing issue of writ of delivery of possession and vacated the said order. Along with that there was the order for restoration of possession of the property to the judgment-debtors. In the appellate court the learned Subordinate Judge, as we have already stated, made certain remarks about local investigation which resulted in the recalling of the order in the executing court.

3. We have heard Mr. Mitter, the learned Advocate appearing on behalf of the appellants and Mr. Banerjee for the respondents. At the very outset Mr. Banerjee raised one point as to the maintainability of an appeal against the order passed by the learned Munsif directing delivery of possession of the property to the judgment-debtors under Section 151 of the Code of Civil Procedure. This point was raised when this matter was taken up by a Single Bench constituted by Mr. Justice S. K. Datta. His Lordship found some contradictory decision in the case of Surpat Singh v. Ratanchand, reported in 43 Cal WN 1028 : (AIR 1940 Cal 92) as against several other decisions, particularly, in the cases reported in 31 Cal WN 290 : (AIR 1927 Cal 285). 35 Cal WN 105: (AIR 1931 Cal 779 (2)) and (1954) 58 Cal WN 800. His Lordship thought that in view of the contradictory decisions, the matter should be decided by a Division Bench, and as such, the matter has been placed before us.

4. On the point raised whether an appeal will lie against the order for restitution of possession under Section 151 of the Code of Civil Procedure, we have been referred to several decisions. We find that the following decisions are relevant for our consideration:

(1) Gnanada Sundari Mojumdar v. Chandra Kumar De. reported in 31 Cal WN 290: (AIR 1927 Cal 285); (2) Sasikanta Acharjee v. Jalil Baksh Munshi reported in 35 Cal WN 105 : (AIR 1931 Cal 779 (2)) (3) Anantalal Raj v. Jogindra Chandra Mondal (1954) 58 Cal WN 800. and (4) Surpat Singh v. Ratanchand. reported in 43 Cal WN 1028 : (AIR 1940 Cal 92).

5, Admittedly in view of the facts, already stated, the impugned order passed by the learned Munsif of the executing court was under Section 151 of the Code of Civil Procedure. This is not an order passed under Section 144 of the said Code. The first decision on this point is the case of Gnanada Sundari Mojumdar in 31 Cal WN 290: (AIR 1927 Cal 285). That is a decision of a Division Bench constituted by Greaves and Mukherji, JJ. The judgment was delivered by Mr. Justice Greaves and agreed to by Mr. Justice Mukherji. That was a case of restoration of posses-tion under Section 151 of the Code of Civil Procedure and not under Section 144. There against that order an appeal was filed and that was allowed and against that order passed in that appeal, a second appeal was filed before this Court. Before the said Bench a question was raised whether any appeal lay against an order of restitution of possession under Section 151 of the Code of Civil Procedure. In that case a Patna decision was referred to in support of the contention that no appeal lav and there was a contrary view placed before the Bench which said that an appeal would lie. But according to that Bench, that was an obiter dictum. Subsequently in that case Mr. Justice Greaves held as follows :

'But I am inclined to think that an appeal does lie. It certainly seems a curious position that if the Court deals with the matter under Section 144. C. P. C., an appeal lies whereas if the Court under Section 151 exercises the same jurisdiction which Section 144 gives him, but exercises that jurisdiction under Section 151 because Section 144 is not strictly applicable, no appeal lies; and the view I take is that if as here the order is made under the provisions of Section 151, but in fact in exercise by analogy of the jurisdiction under Section 144 an appeal does lie.'

As we have stated, this view was shared by Mr. Justice Mukherji as well.

6. The next case has been reported in 35 Cal WN 105: (AIR 1931 Cal 779 (2)1. That is the case of Maharaja Sasikanta Acharjee v. Jalil Baksh Munshi. That was also a decision of a Division Bench constituted by Mukherji and Mit-ter, JJ. There again the question was whether an appeal lay against the order for restitution of possession under Section 151 of the Code of Civil Procedure. In that case the decision in the case of Gnanaria Sundari Mojumdar, (AIR 1927 Cal 285) was referred to and it was held with reference to that case.

'This decision is directly in point and no authority of this Court has been shown to us in which a different view has been taken. In my opinion, a matter of this description, in which two views are always possible, should be left to be governed by practice.'

Besides the decision on this point, the provision in Section 47 of the Code of Civil Procedure was also considered and it was held :

'Applications for restitution, which are not by way of execution of the decree varying or reversing an original decree, but are independent applications in connection with execution proceedings taken under the original decree, have been regarded as giving rise to matters under Section 47 of the Code...... '

and in support of the proposition some cases were mentioned. We, therefore, find that our Court in the case of Maharaja Sasikanta Acharjee followed the decision in the case of Gnanada Sundari Mojumdar.

7. The next case in point of time, as reported, is the case of Surpat Singh v. Ratanchand, appearing in 43 Cal WN 1028 : (AIR 1940 Cal 92). In this case also the same question arises whether an appeal would lie against an order for restitution of possession passed under Section 151 of the Code of Civil Procedure. In this case the decisions appearing in 31 Cal WN 290 : (AIR 1927 Cal 285 and 35 Cal WN 105 : (AIR 1931 Cal 779 (2)) were referred to and it was held as follows :

'In our opinion, it may be necessary to consider that decision on some further appropriate occasion.'

The learned judges further opined on the question as to whether restitution occurs under the purview of 47 C. P. Code, as mentioned in the case of Sasikanta Acharjee as follows :

'If we may say so with respect, we doubt whether that attempt has been successful.'

And ultimately it was stated :

'There is a clear distinction in the present case.'

According to the learned judges in the case under their consideration, the order for restitution was an interlocutory order and in that view of the matter they decided the case. Therefore, the case of Surpat Singh is not a decision contrary to the decisions, as already referred to, reported in 31 Cal WN 290 : (AIR 1927 Cal 285) and 35 Cal WN 105 : (AIR 1931 CaJ 779 (2)).

8. Lastly the decision in the case of Anantalal Raj v. Jotindra Chandra Mondal ((1954) 58 Cal WN 800) has been referred to. The Division Bench was constituted by Das and Guha Ray, JJ. In that case the question was whether an appeal lay against the order setting aside a sale and directing restoration of possession under Section 37-A (8) of the Bengal Agricultural Debtors Act, In that connexion it was held,

'It is undisputed that proceedings by way of restitution are appealable, whether an order for restitution is made expressly in terms of Section 144 or in exercise of the powers akin to those referred to in Section 144 of the Code of Civil Procedure (Vide Gnanada Sundari Mojumdar v. Chandra Kumar De, 31 Cal WN 290 : (AIR 1927 Cal 285) and Sasikanta Acharjee v. Jalil Baksh Munshi 35 Cal WN 105: (AIR 1931 Cal 779 (2)).'

9. In view of our discussion made above iwe have no doubt that the consistent practice of this Court which is invariably followed is the principle that an appeal will lie against an order for restitution of possession of a property though passed under Section 151 of the Code of Civil Procedure. The decision appearing in 43 Cal WN 1028 : (AIR 1940 Cal 92) as we have already stated, does not go against such practice followed by our Court and the decisions we are relying upon have not been disapproved by a larger Bench. No decision of the Supreme Court has been brought to our notice which may suggest that the view we are going to adopt is against the law. We, therefore, hold that the appeal against the order of the executing Court was maintainable, and as such, the present appeal is not contrary to law.

10. A question arose whether the present case comes under the purview of Section 47. We are not going to consider that question as in our view already expressed this second appeal was according to law and not incompetent,

11. Now let us come to the question as to whether the order complained against, as passed by the learned Munsif, was legal or justified. We have already stated the nature of the order passed in the previous appeal decided by the learned Subordinate Judge where the question as to whether local investigation wag necessary was left with the executing court to be dealt with at the appropriate stage. In the present case we find that the contention of the judgment-debtors was that the description given of the land in question was not sufficient to identify the property and for execution of the writ of delivery of possession, and as such, local investigation was necessary. Admittedly, after the previous appeal the decree-holders rectified the petition for execution, as suggested by the appellate court and thereafter there was a prayer for issue of a writ of delivery of possession and the executing court did issue such writ. The record shows that in pursuance of writ of delivery of possession, the peon effected the delivery of possession of the property and there was no difficulty for the peon in identifying the property. Admittedly, from the side of the judgment-debtors the property was delivered to the decree-holders in pursuance of the writ of delivery of possession. There was no grievance on the side of the judgment-debtors that wrong properties were delivered. Rather their prayer was that there should be re-delivery of property to them simply on the ground that without considering about the local investigation for the correct identification of the property, the court had no jurisdiction to issue writ of possession. Nowhere in the order passed in the previous appeal was there any direction upon the executing court to consider the question of local investigation in any mandatory form.

Rather it was left to the learned court to consider that question at the appropriate stage. The words, 'appropriate stage' are significant. It shows that when occasion will arise and when it would be thought necessary the court will consider that question. In this case the peon in pursuance of writ of delivery of possession effected and executed the said writ and there was no difficulty in the matter of identification of the property and, therefore, there can be no doubt that there was no occasion for local investigation for tha purpose of delivery of possession. In our view, in this case, as the facts reveal, tha consideration for local investigation was utterly unnecessary, and the matter was being unnecessarily delayed by the judgment-debtors.

12. In this connexion we should note that the courts below had the view that it was the duty of the decree-holders to point out the remark of the appellate court about local investigation to the executing court. This was not the duty of the decree-holders. The copy of the judgment was sent to the executing court. It was for the court to consider that decision and act accordingly. There was no malpractice or mala fides on the part of the decree-holders in not pointing out that portion of the order to the learned Munsif. There was no occasion, in our view, for the learned executing court for recalling the order for issue of writ of delivery of possession or for directing restoration of the possession of the property to the judgment-debtors. The decree-holders wanted orders to record the satisfaction of the decree. The executing court in the facts and circumstances ought to have done that. It had no jurisdiction after the delivery of possession of the properties to the decree-holders to the satisfaction of the decree to disturb their possession. We, therefore, hold that the orders Nos. 38 and 39 dated 4-10-1963 are liable to be set aside.

13. The appeal is thus allowed with costs and we set aside the impugned orders.

14. Let the records go down at once and the learned executing court will dispose of the decree-holder's application dated 30-9-1963 in accordance with law.

Monoj Kumar Mukherjee, J.

15. I agree.


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