Madhusudan Banerjee vs Ahmed Hussain

R.K. Bag, J.—This revisional application under Article 227 of the Constitution of India at the instance of the petitioner/judgment debtor arises out of an order dated 20th March, 2013 passed by the learned Civil Judge (Junior Division), 2nd Court, Alipore in Title Execution Case No. 30 of 1997, by which the learned Civil Judge refused to stay execution proceeding and directed the bailiff to execute the writ of delivery of possession of the premises in question by breaking open the padlock, if necessary, positively within 18.04.2013.

It appears from the materials on record that the predecessor-in-interest of the opposite parties/decree holders instituted Title Suit No. 372 of 1990 against the petitioner/judgment debtor for eviction and recovery of possession of the tenanted premises. The suit was dismissed by the trial court. The order of dismissal of the suit was reversed by the first appellate court in Title Appeal No. 60 of 1997. The first appellate court passed the decree for eviction of the petitioner/judgment debtor and directed the petitioner/judgment debtor to deliver possession of the tenanted premises in favour of the opposite parties/decree holders within 3 months from the date of the order. The judgment and decree passed by the first appellate court in Title Appeal No. 60 of 1997 was affirmed by the High Court on 20th December, 2012 in Second Appeal No. 390 of 1998. The petitioner/judgment debtor unsuccessfully moved the Supreme Court of India where the petition for Special Leave to Appeal (Civil) 23911/2013 preferred by the petitioner against the judgment and decree of the High Court was dismissed on 2.9.2013. In the meantime, the petitioner/judgment debtor filed an application before the executing court, praying for stay of execution of the decree. But the executing court rejected the application filed by the petitioner and directed the bailiff to execute the writ of delivery of possession of the tenanted premises by breaking open the padlock, if necessary, within 18th April, 2013. The said order passed by the executing court on 23.3.2013 is under challenge in this revision.

With the above factual matrix, Mr. Tapan Kumar Mitra, learned counsel appearing on behalf of the petitioner/judgment debtor submits that this revisional court passed an order on 10.4.2013 granting stay of operation of the order dated 20th March, 2013 passed by the executing court in Title Execution Case No. 30 of 1997 for a period of 5 weeks or until further orders, whichever is earlier. Mr. Mitra further submits that in spite of stay order granted by this court on 10.4.2013, the bailiff took over possession of the tenanted premises with the help of police on 10.4.2013 and thereby the executing court has violated the stay order granted by this court. Accordingly, the petitioner/judgment debtor has filed a separate application being CAN No. 5037 of 2013 praying for restoration of possession of tenanted premises in favour of the petitioner/judgment debtor. Mr. Mitra has relied on the decision of Supreme Court in the case Mulraj Vs. Murti Raghonathji Maharaj, in support of his above contention. On the other hand, Mr. Reetobrata Mitra, learned counsel appearing on behalf of the opposite parties submits that the executing court or the bailiff was not aware of the stay order granted by the High Court and as such the writ of delivery of possession was executed in compliance with the direction given by the executing court.

On perusal of the decision of Mulraj Vs. Murti Raghonathji Maharaj, , it appears from paragraph 10 that as soon as the court has knowledge of any stay order, it must stay the further proceeding in compliance with the direction given by the higher court. While I fully agree with the above proposition of law laid down by the Supreme Court of India, I find from the lower court record that the learned Judge of the executing court has stayed the operation of the order of executing writ of delivery of possession of the tenanted premises by passing an order dated 12th April, 2013. Accordingly, there is no illegality on the part of the executing court in making compliance with the direction given by the High Court in the instant revisional application. However, the possession of the tenanted premises was delivered in favour of the opposite parties by the bailiff on 10.4.2013 and there is nothing on record to presume that either the bailiff or the executing court had the knowledge about the stay order granted by the High Court before executing the writ of delivery of possession. Since the stay order granted by this court on 10.4.2013 has become infructuous due to delivery of possession of the tenanted premises before communication of the stay order of the High Court to the bailiff or the executing court, I cannot persuade himself to hold that the possession of the tenanted premises will be again restored in favour of the petitioner/judgment debtor as contended on behalf of the petitioner.

Relying on the decision of the Supreme Court in Gojer Bros. (Pvt.) Ltd. Vs. Shri Ratan Lal Singh, Mr. Tapan Kumar Mitra contends that the decree passed by the High Court in Second Appeal is merged with the decree passed by the first appellate court and as such the Title Execution Proceeding initiated by the opposite parties/decree holders on the basis of the decree of the first appellate court cannot proceed. The order of issuing writ of delivery of possession of the tenanted premises by the executing court on the basis of the decree of the first appellate court is not sustainable in law.

Mr. Mitra has relied on the decision of the above reported case in support of his above contention. On perusal of the said decision of the Supreme Court reported in Gojer Bros. (Pvt.) Ltd. Vs. Shri Ratan Lal Singh, I find that in the said case, the appellant obtained a decree for eviction against the respondent under the West Bengal Premises Rent Control Act, 1950. The decree was confirmed in appeal by the first appellate court and thereafter by the High Court and in the meantime the West Bengal Premises Tenancy Act, 1956 came into operation and Section 17D was incorporated in the West Bengal Premises Tenancy Act, 1956 by way of amendment. The decree passed by the lower court was modified to some extent by the High Court and the Supreme Court opined that the appellate court can proceed with the execution of the decree of the High Court which is merged with the decree of the lower court. While I fully agree with the proposition of law laid down by the Supreme Court in the reported decision that the decree passed by the higher court will merge with the decree passed by the trial court or the first appellate court, I find that the facts of the reported case are clearly distinguishable from the facts of the present case. In the instant case, Title Execution proceeding was initiated by the opposite parties/decree holders on the basis of the judgment and decree passed by the first appellate court, but the executing court took into consideration the judgment and decree passed by the High Court by passing a specific order in this regard on 19.01.2013. Since executing court took into consideration the judgment and decree passed by the High Court in the Second Appeal, it is presumed that the judgment and decree passed by the first appellate court was merged with the judgment and decree passed by the High Court and the same was taken into consideration by the executing court in order to pass the order of executing writ of delivery of possession of the tenanted premises. It is pertinent to point out that in the instant case, the High Court did not modify the order or decree passed by the first appellate court, whereas in the reported case the High Court modified the order passed by the lower court and as such the ratio of the decision laid down in Gojer Bros. (Pvt.) Ltd. Vs. Shri Ratan Lal Singh, will not be applicable in the facts of the present case.

In view of my above findings, I can safely hold that the possession of the tenanted premises cannot be restored in favour of the petitioner/judgment debtor. The symbolic possession of the tenanted premises taken over by Mr. Debasish Roy, learned advocate of this court as Special Officer will hand over the possession in favour of the opposite parties/decree holders with immediate effect. The Special Officer is released from this case.

The interim order, if any, passed in connection with this revisional application stand vacated.

I do not find any illegality in the order passed by the executing court. Accordingly, the order dated 20th March, 2013 passed by the learned Civil Judge (Junior Division), 2nd Court at Alipore in Title Execution Case No. 30 of 1997 is hereby affirmed. Both the revisional application and the application being CAN No. 5037 of 2013 are thus, disposed of.

Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties on priority after compliance with all requisite formalities.