Divisional Engineer, WBSEB, Baruipur vs Bhajan Chandra Halder alias Manoranjan Halder

Harish Tandon, J.—This revisional application is directed against the order dated 29.06.2005 passed by the Additional District Judge, Alipur in Civil Revision Case No. 247 of 2003 affirming the order dated 2.9.2003 passed by the Civil Judge (Junior Division), 2nd Court, Diamond Harbour in Title Execution Case No. 5 of 1998 by which an application u/s 47 of the CPC is rejected. The opposite party instituted a Title Suit No. 120 of 1992 against the petitioner praying for a decree of removal of the pole affixed on the land owned by the opposite party. The said suit was decreed ex parte on 5.8.1994 by directing the petitioner to remove the said electric poll placed on the land owned by the opposite party.

The said decree was thereafter put into execution being Title Execution Case No. 5 of 1998.

The petitioner raised objection by filing an application u/s 47 of the CPC relating to the executibility of a decree. The case made out in the said application u/s 47 of the Code are adumbrated as follows:

(1) that the opposite party obtained the decree by practising fraud upon the Trial Court;

(2) the West Bengal State Electricity Board is empowered to draw overhead lines from anywhere in the public interest even without the consent of the owner of the land where the polls are affixed;

(3) the transformer has been installed in the decretal property in pursuance of the scheme adopted by the West Bengal State Electricity Board for electrification of the village Manirampur for providing electricity facility to each and every house of the said village;

(4) if the decree is executed then the electric connection provided to the Manirampur village shall have to be disconnected and the public at large would be affected by the same;

(5) the suit is not maintainable inasmuch as the remedy of the decree holder lies in filing a suit for damages;

(6) the decree cannot be executed because it has an impact on the public at large and there would be a mass movement.

The Trial Court rejected the said application as the aforesaid objections does not come within the purview of section 47 of the Code of Civil Procedure. The petitioner assailed the said order in revision before the Additional District Judge, Alipur u/s 115 of the Code which is dismissed on the ground that the said application u/s 47 is barred by limitation.

Mr. Sumit Panja, learned Advocate appearing for the petitioner submits that the decree becomes inexecutable if by execution of the decree public at large would be affected. He submits that section 51 of the Electricity Act 1980 read with section 42 of the Electric Supply Act provides that the distribution company has a power to set up the pole and the electrical instruments including the transformer without the consent and concurrence of the owner of the said land. He further submits that u/s 10 and 16 of the Telegraph Act 1885, such power is also conferred upon the distribution company and placed reliance upon the following judgments:

The Superintending Engineer, TNEB Basin Bridge, Power House, Chennai-12 and three others Vs. Thangaprakasam, .

E. Venkatesan and others Vs. Chairman, Tamil Nadu Electricity Board, Madras and others,

Ginageria Welfare Primary Teachers Training Institute & Anr. v. Chairman. West Bengal State Electricity Distribution company Ltd. & Ors. (2009) 1 CHN 685

Calendula Relators Pvt. Ltd. v. CESC Ltd. (2010)1 CLJ 709

Tapan Kumar Jana v. State of West Bengal (2011)1 CLJ 287 (Cal)

He strenuously argues that the court should refuse to execute the decree if the public at large would be affected thereby as the public interest shall prevail over the private interest.

He further submits that the revisional Court below should not have rejected his application u/s 47 of the Code on the ground of limitation as there is no prescribed period of limitation under the Limitation Act and placed reliance upon the judge of the Allahabad High Court in case of Nar Singh Datt Vs. Ram Pratap and Others, and a judgment of this Court in case of Rasomay Mitra Vs. Smt. Lachmi Todi, .

Lastly he submits that the question as to the executibility of a decree comes within the purview of section 47 of the Code and placed reliance upon the judgment of the Apex Court in case of Dhurandhar Prasad Singh Vs. Jai Prakash University and Others, .

Mr. Ashim Kumar Ghosh, learned Advocate appearing for the opposite party submits that the executing Court cannot go behind the decree by invoking the provision contained u/s 47 of the Code of Civil Procedure. He further submits that the executing court cannot pass any order which amounts to the variation and/or modification of a decree and placed reliance upon a judgment of the Andhra Pradesh High Court in case of Pothuri Thulasidas v. Potru Nageswara Rao reported in AIR 2005 AP 171. He further contends that executing Court cannot determine whether the decree passed is in consonance with the law or not u/s 47 of the Code. Lastly he submits that the grounds taken in an application u/s 47 of the Code is not tenable.

Having considered the respective submissions admittedly an ex parte decree is passed for removal of the structure installed at the land owned by the decree-holder/opposite party. Immediately thereafter the execution case was filed as the judgment debtor/petitioner did not remove the pole installed on the land owned by the decree-holder/opposite party.

It appears from the facts recorded in the impugned order by the first revisional Court that an application u/s 47 was filed nearly 5 years after the filing of the execution case. The court relied upon a single Bench judgment of this Court in case Rasomay Mitra (supra) where it has been held that Article 137 of the Limitation Act applies to an application u/s 47 of the Code. Therefore the first point which is urged before this Court by the petitioner in this revisional application is that there cannot be any prescribed period of limitation in maintaining an application u/s 47 of the Code. This Court in case of Rasomay Mitra (supra) relied upon the earlier Division Bench judgment of this Court in case of Baserulla v. Nabin Chandra Saha reported in ILR (1947)1 Cal 22 wherein the Division Bench held that an application u/s 47 is treated as a suit under the provision of section 47(2) of the Code. In the said report the Bench also took note of another Division Bench judgment of this court in case of Hafez Uzir Ali Vs. Nasimannessa Bibi and Others, where it has been held that Article 181 (now Article 137) of the Limitation Act applies.

Before determining whether the Limitation Act applies to an application u/s 47 of the Code, it is profitable to quote section 47 as it stands initially prior to 1976 which reads thus :

Section 47. Questions to be determined by the Court executing decree.-(1) All questions arising between the parties to the 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) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional Court fees.

(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.- 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.

By Act 104 of 1976 sub-section 2 of section 47 of the Code was omitted and new explanations were substituted in place and stead of the former explanation, thus the section 47 as it stands today is as follows:

"Section 47. Questions to be determined by the Court executing decree.-

(1) All questions arising between the parties to the 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) Deleted

(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 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.

From the combined reading of the unamended section 47 vis a vis the amended section 47 one can find initially the proceeding u/s 47 was treated as a suit subject to any objection as to the limitation and jurisdiction.

Section 47 has a restricted applicability in relation to the execution, discharge and satisfaction of a decree and does not imbibe in itself any other kind of objection apart from the above. The aforesaid consideration relates to the competence of the executing Court to execute the decree as it stands with further power to determine whether there has been a satisfaction and/ or discharge of a decree or not. There is essentially a fundamental distinction between a decree passed by a Court lacking inherent jurisdiction or a decree passed against a dead person and a decree being merely illegal or not passed in consonance with the procedure laid down by the law. In case of former the decree is a nullity and no Court would execute the same but in later case, the executing court is denuded from adjudicating any objection of such kind. If a decree which is a nullity per se is not capable of being executed then putting any restriction by application of provision of the Limitation Act would render such decree executable. Similarly in case of satisfaction of a decree the decree-holder or a third party cannot be restricted to take such plea by way of objection u/s 47 of the Code. By Act 104 of 1976 the legislature consciously deleted/omitted sub-section 2 of section 47 by which the proceeding under the said section was treated as a suit subject to the limitation or jurisdiction, upon obvious consideration that any fetter put either in the form of the limitation or jurisdiction would render the void decree to be executed. Thus the single bench decision in case of Rasomay Mitra (supra) by placing reliance upon the two Division Bench judgment which were rendered upon consideration of sub-section 2 of section 47 of the Code cannot be made applicable after the deletion thereof.

The Allahabad High Court in case of Nar Singh Datt Vs. Ram Pratap and Others, which was applied and affirmed in case of Sarwan Lal and Another Vs. Kanti Prasad (deceased by L.R.''s), have taken a pragmatic view by holding that no period of limitation should be attributed to a proceeding u/s 47 of the Code.

A decree can be rendered void on several eventualities if any declaration is required for rendering the decree void in such event the provisions under the Limitation Act cannot be said to be inapplicable. Thus no straight jacket formula could be set up for the proposition that the Limitation Act has no manner of applicability at all in a proceeding u/s 47 of the Code but its applicability should be judged in the facts and circumstances of each case.

The other point which has been taken by Mr. Panja is that the decree is not capable of being executed as it has a larger impact on the public who would be deprived of the supply of electricity. The Constitution enshrined the hierarchical system of judiciary and the order of the Court having binding upon all concerned and cannot be allowed to be flouted and/or violated. Section 47 of the Code is not stretched that far to render the decree inexecutable inasmuch as the execution thereof would have a larger impact on the public.

Mr. Panja tries to contend vociferously that section 51 of the Indian Electricity Act 1910 read with section 10 and 16 of the Telegraph Act 1885 confers unbridled power upon the Electricity Supply Corporation to put up a pole on any person''s land as it does not amount to acquisition of land and placed reliance upon the several judgments which have been noted by recording the submissions of Mr. Panja hereinabove. There cannot be any dispute to the proposition relating to the conferment of powers by the legislature in enacting the law but if any decree is passed by the Court competent to grant the same without considering the aforesaid provisions. It cannot be said that the said decree is inexecutable. Even if a decree suffers from illegality, irregularity by not adopting the procedure, the same could be set aside in a competent legal proceeding or by a superior Court but cannot be collaterally attacked in an incidental proceeding (See Rafique Bibi (D) by Lrs. Vs. Sayed Waliuddin (D) by Lrs. and Others, ). The scope of an executing Court u/s 47 of the Code is microscopic and is required to be adjudicated through a narrow passage as is held by the Apex Court in case of Dhurandhar Prasad Singh (supra).

Therefore, the decree passed by a competent Civil Court cannot be said to be void in all respect but may at best be termed as an illegal and/or irregular erroneous decree which does not come within the ambit of section 47 of the Code. Balvant N. Viswamitra and Others Vs. Yadav Sadashiv Mule (dead) through Lrs. and Others, . Rafique Bibi (D) by Lrs. Vs. Sayed Waliuddin (D) by Lrs. and Others, .

Such objection cannot come within the purview of executibility of the decree as enshrined u/s 47 of the Code.

Therefore, this Court does not find any fault in the impugned order passed by the executing Court which is affirmed by the first revisional Court below.

The revisional application, therefore, fails. In the facts and circumstances, there shall however be no order as to costs.

Urgent photostat certified copy of this judgment, if applied for, be given to the parties on priority basis.

Later

After the judgment is delivered, the learned Advocate appearing for the petitioner prays for stay of operation of the instant order. The same is considered and rejected.