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Pran Kumar Dey Vs. Paritosh Sanyal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.A.O. No. 71 of 1976
Judge
Reported inAIR1978Cal466
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2) and 47
AppellantPran Kumar Dey
RespondentParitosh Sanyal and ors.
Appellant AdvocateN.K. Mitra, Adv.
Respondent AdvocateS.P. Mitter and ;S.P. Rov Chowdhury, Advs.
DispositionRevision dismissed
Cases ReferredJogodishury v. Kailash
Excerpt:
- .....judgment-debtor under order 21, rule 29 of the civil p. c. and as such the said order refusing to stay execution proceedings was not appealable. the appeal was, therefore, dismissed. it may be noted that the learned subordinate judge held that the application was not under section 47 of the civil p. c. and, therefore, the question of appeal did not arise. against the dismissal of the appeal on the ground stated, the present second miscellaneous appeal was filed. 2. mr, n. k. mitra appears on behalf of the appellant and mr. s. p. mitter assisted by mr. s. p. roy chowdhury opposed the appeal. 3. at the very outset mr. s. p. mitter contended that the instant appeal is not maintainable as the order passed by the executing court which was the subject-matter of the first miscellaneous appeal.....
Judgment:

R. Bhattacharya, J.

1. This Second Miscellaneous Appeal is by the judgment-debtor in a Title Execution Case No. 38 of 1966 before the First Court of Munsif at Krishnanagar against the order of dismissal of the first miscellaneous appeal passed by the Subordinate Judge at Nadia arising out of an order of the learned Munsif of the executing court refusing to stay the execution proceedings on the prayer of the judgment-debtor.

The relevant facts may be stated in brief. A decree was obtained against the judgment-debtor and the title execution case was started for execution of the said decree for recovery of possession. The judgment-debtor, it appears, filed a suit for declaration that the decree obtained by the decree-holder-respondents was a nullity. Before that in connection with the decree the defendant went up to the High Court in second appeal, but was unsuccessful. The defendant got sufficient time to vacate the premises in favour of the plaintiffs. The learned Munsif of the executing court considered the application for stay of execution till the disposal of the suit filed by the judgment-debtor for a declaration that the decree is a nullity. On consideration of the facts and circumstances, the learned Munsif felt that there was no just reason for staying the execution and that in case of such stay, the injury would be done to the decree-holder. The executing court, therefore, did not think it just to stay the proceedings and rejected the prayer of the judgment-debtor. Against that order, the first miscellaneous appeal was filed before the District Judge and the miscellaneous appeal was disposed of by the Subordinate Judge on 15-3-1976.On an objection from the side of the decree-holder it was held by the learned Subordinate Judge that the order complained against was not an appealable order under Order 43, Rule 1 of the Civil P. C. The application for stay was filed by the judgment-debtor under Order 21, Rule 29 of the Civil P. C. and as such the said order refusing to stay execution proceedings was not appealable. The appeal was, therefore, dismissed. It may be noted that the learned Subordinate Judge held that the application was not under Section 47 of the Civil P. C. and, therefore, the question of appeal did not arise. Against the dismissal of the appeal on the ground stated, the present second miscellaneous appeal was filed.

2. Mr, N. K. Mitra appears on behalf of the appellant and Mr. S. P. Mitter assisted by Mr. S. P. Roy Chowdhury opposed the appeal.

3. At the very outset Mr. S. P. Mitter contended that the instant appeal is not maintainable as the order passed by the executing court which was the subject-matter of the first miscellaneous appeal was not appealable and, therefore, the present appeal should be dismissed. Mr. N. K. Mitra, the learned Advocate appearing for the appellant has submitted that in fact this was virtually an application under Section 47 of the Civil P. C. and as such the order was appealable. In view of the facts already stated, it is quite clear that the judgment-debtor wanted to have the execution proceedings stayed on the ground that he had already filed a suit for a declaration that the decree was a nullity. The question, therefore, is whether the application of the judgment-debtor can be treated as an application under Section 47 of the Civil P. C. or that the order refusing to stay the execution proceeding is an order passed under Section 47 of the C. P. C. In this connection the decision of the Division Bench of this Court in the case of Rama Prosad v. Anukul Roy Chowdhury reported in 20 Cal LJ 512 : (AIR 1915 Cal 122) may be looked into. I am conveniently quoting the relevant portion :

On the other hand, when the Court has refused to stay execution of a decree, on application made, not on the ground that the decree was incapable of execution, but on the ground that as a proceeding to test the validity of the decree was still pending, no execution should be allowed till its termination, it cannot be said that the order does in any way determine a question relating to the rights and liabilities of the parties with reference to the relief granted by the decree. An order of this nature is of an interlocutory character and does not involve, directly or indirectly, an adjudication of the rights and liabilities of the parties, Mohabir Prosad v. Adhikary Kunwar, (1894) ILR 21 Cal 473; Srimantu v. Sri-mantu, (1901) ILR 24 Mad 358; Srinivas Prosad v. Kesho Prosad (1911) 14 Cal LJ 489. We are consequently of the opinion that the order of the Subordinate Judge refusing to stay execution is not an order under Section 47, which has the characteristics of a decree under Section 2 and is appealable as such.

4. In the present case also the judgment-debtor wanted to stay the proceedings of the execution on the ground that he has filed a suit to challenge the validity of the decree. This order, therefore, does not come under the purview of Section 47 of the Civil P. C. and it does not determine any question relating to the rights and liabilities of the parties or touching the discharge or satisfaction of the decree. Not the interlocutory orders but only those orders passed in the execution proceeding which have conclusively determined the rights and the liabilities of the partiee come under the purview of Section 47 of the Civil P. C. In the case of Nafar Chandra v. Kalipada (44 Cal WN 364) : (AIR 1940 Cal 257) it has been held :

The combined effect of Section 47 and Section 2(2) of the Code is that an order in execution proceedings is a decree in so far as regards the Court passing it, it conclusively determines a question relating to the rights and liabilities of the parties with reference to the relief granted by the decree.

In that case the reference to the Full Bench decision in Jogodishury v. Kailash ((1897) ILR 24 Cal 725 at 737) was made. The order of the executing court in the present case has been rightly held by the learned Subordinate Judge below as not appealable and hence the present appeal is not maintainable.

5. Now the question is whether to avoid delay and unnecessary wastage of time, the matter can be disposed of by this Court. Of course I can treat the memo of this appeal filed before this Court as a revisional application in respect of the order passed by the executing court and to avoid further harassment to the decree-holder and unnecessary suspense in the mind of the parties. I here- by treat the same as an application in revision. The only point for consideration in this case, therefore, is whether the order passed by the learned Munsif of the executing court can be interfered with in this revisional application. First of all I find that the learned Munsif has thought it fit to hold, considering the facts he has stated, that the execution case should not be stayed, for if it is stayed there will be injury on the decree-holder and he thought it wise and judicious not to allow the prayer of the judgment-debtor. It appears that against the decree the judgment-debtor went up to the High Court in second appeal and that was dismissed. Now after being unsuccessful in the second appeal, the judgment-debtor has started a new suit for a declaration that the decree was a nullity. The matter is long pending. Nothing has been shown to suggest that the decree is prima facie a nullity. I do not find anything to suggest that the order of the learned Munsif was without jurisdiction or hit by the infirmities mentioned in Section 115 of the Civil P. C. so as to be interfered with in this revisional application.

6. The revisional application is thus rejected. The execution case shall proceed according to law. I, however, pass no costs in this application.

7. The office is to note that the memo of appeal has been treated by me as revisional application and the matter be shown in the register as such.


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