Nirmal Kumar Chakraborty vs Dulal Chandra Bhattacharjee and Others

Tarun Chatterjee, J.—In this revisional application, the Judgment debtor/ petitioner question the validity of the orders being order Nos. 32 and 33 dated 10th February, 1995 passed by the learned Munsif, Second Court at Baruipur, in miscellaneous. Case No. 92 of 1993, which arose out of title execution case No, 22 of 1993. By order No. 32 dated 10th February, 1995 the Executing Court rejected the objection filed by the judgment debtor/petitioner u/s 47 of the Code of Civil Procedure. Order No. 33 is an order consequential to order No. 32 dated 10th February, 1995. Both these two orders, therefore, are under challenge in this revisional application.

The decree holder/opposite party No, 1 along with others instituted a suit for injunction restraining the Judgment debtor/petitioner from drawing overhead electric line over the private pathway of the decree holders in the second court of the Munsif at Baruipur in the year 1993, upon the allegations that the suit land being the private pathway for ingress or egress to the house and tank of the decree holders and that suit land was never used as public pathway and as the judgment debtor/ petitioner tried to draw his overhead electric line over the suit land Illegally a decree for permanent injunction should be granted. This suit was contested by judgment debtor/petitioner by filing a written statement in which it was alleged that the said pathway was not a private pathway of the plaintiffs but the said pathway was the only pathway for the use of the Judgment debtor and their predecessors. In the written statement it was further pleaded that this pathway had been continued to be used for the last 100 years by the Judgment debtor/petitioner and his predecessor in interest by exercising their right of easement openly and peacefully for a period of more than 20 years and therefore, the judgment debtor/petitioners had acquired a right of easement over the suit property for ingress and egress for his use and therefore, the Judgment debtor petitioners entitled to draw electric line over the suit property. The suit was decreed by the Trial Court and the judgment debtors was permanently restrained from drawing electric line over the suit land or from fixing polls on the same. After the decree was passed in the suit, according to the judgment debtor/petitioner, one of the plaintiffs/decree holders felt that considerable time had already elapsed but the judgment debtor had been deprived of vital benefit of electric connection in this modern age as such they desired that the electric connection should be given to the Judgment debtor/petitioner. Accordingly, some of the plaintiffs withdrew their objection unconditionally in respect of electric connection. In the changed circumstances the petitioner made a prayer before the West Bengal State Electricity Board for having electric connection to his house over the said pathway. On such an application the West Bengal State Electricity Board fixed the electric polls and took steps to give electric connection in the house of the judgment debtor/petitioner. As soon as it was found that electric connection was given to the Judgment debtor/petitioner and electric polls were fixed In the same pathway the decree holder/opposite party made an application under order 21 Rule 32 of the CPC before the Munsif, second Court at Baruipur which came to be registered as title execution case No, 22 of 1993. In the said application the decree holder contended that the judgment debtor along with opposite party No. 2 and 3 willfully and deliberately flouted the decree of the suit as mentioned hereinabove by giving electric connection to the judgment debtor/petitioner and as such he prayed for attachment of the properties of the judgment debtor. It is an admitted position that such and application was filed only by the plaintiff No. 5 who is now the decree holder/ opposite party No. 1. It is also not in dispute that the other decree holders gave their consent to give electric connection to the Judgment debtor. Against the said application under order 21 Rule 32 of the CPC an objection was filed by the Judgment debtor stating inter alia that in view of the changed circumstances and after getting consent from the predecessor of the plaintiffs and also from the plaintiff No. 4 except the plaintiff No. 5/opposite party No. 1 he took electric connection for his use. The learned Munsif however, by an order dated 3rd June, 1994 allowed the application under order 21 Rule 32 of the CPC and directed removal of the electric polls and directed the decree holder/opposite party No. 1 to furnish details of the properties of the judgment debtor/petitioner. Against this order a revisional application was moved before a learned Judge of this Court. A learned Judge of this Court affirmed the order of the learned Munsif and dismissed the revisional application. After the rejection of the revisional application by this Court, Shri Ajit Kr. Bhattacharya, Shrimati Chabi Adhikari and Shrimati Reba Pradhan who are heirs and legal representatives of the late Tarini Bhushan Bhattacharyya gifted their undivided share of the disputed land by a registered deed of gift dated 14lh of August, 1994 to the Judgment debtor. According to the petitioner, therefore he by such transfer, has became a co-sharer of the decretal property with decree holder/opposite party No. 1. As the petitioner has become to sharer of the decretal property he raised an objection u/s 47 of the CPC inter alia alleging that in view of the change of circumstances and in view of the admitted fact that he has become a co-sharer of the decretal property, the decree passed to permanent injunction was no longer executable against him. This objection was covered into a Miscellaneous Case being Miscellaneous Case No. 92 of 1994. In the said Miscellaneous case it was further alleged by the petitioner that since he had become a co-sharer of the decretal property as the heirs and legal representatives of one of the co-sharers of Sri Tarini Bhusan Bhattacharyya had gifted their undivided share of the decretal property to him the decree for permanent injunction against the petitioner was no longer executable in view of the subsequent event that had occurred after the decree for permanent injunction was passed. Such an objection was however, rejected by the learned Munsif by the impugned order being Order No. 32 dated 10th February, 1995 on a finding that this objection cannot now be raised in view of the decision of this Court passed in the Civil revisional application by which the learned Judge of this Court held that subsequent event cannot be looked into by the executing Court unless they came within the parameter of order 21 Rule 32 of the CPC read with Rule 13 thereof. The Executing Court also held that decree for permanent injunction obtained by one of the co-sharers of the suit land without making the other co-sharers parties to the suit was very much valid and binding on the person against whom such decree was passed.

Mr. Roychoudhury appearing on behalf of the Judgment debtor/ petitioner contended that in view of the changed circumstances which arose after the order under order 21 Rule 32 of the CPC was passed, the executing Court was entitled to take into consideration of such changed circumstances and after taking into consideration of such changed circumstances which had occurred subsequent to the passing of the order under order 21 Rule 32 of the Code of Civil Procedure, the executing Court ought to have held that the decree for permanent injunction was no longer executable in law. In support of this contention Mr. Roychoudhury relied on the decisions in the case of In Re: Boreddi Kondamma and Another, , in the case of Pusapati Ramabhadra Raju Vs. Ayitha Ramanna and Others, and also relied on a decision of this Court reported in 75 Calcutta Weekly Notes, 502 (Sm. Kalyani Sen v. Sk. Enayetullah).

Mr. Dasgupta, appearing on behalf of the decree holder/opposite party contested the submission so made by Ms. Ray Choudhury. He submitted that the objection u/s 47 of the CPC filed by the judgment debtor/petitioner was not maintainable in law as the Judgment debtor/petitioner, in the facts and circumstances of this case could not be termed as "representative" of the decree holders. Mr. Dasgupta also on reliance to the words ''parties to the suit'' as incorporated in Section 47 of the CPC contended that since the Judgment debtor/ petitioner became a co-sharer of the suit property from a person who was not a party to the suit cannot be said to be "a party to the suit" at this stage u/s 47 of the Code of Civil Procedure. In support of this contention Mr. Dasgupta relied on the decisions in the case of Smt. Durga Devi Vs. Shanti Parkash Thakar Das and Others, in the case of Mahalinga Pathar Vs. Santhanagopalakrishnan, and in the case of Venkatappa v. Hanumanthappa AIR 1953 Mys 152. Reference was also made to decisions of the Supreme Court reported in Shri Bhagwan and Another Vs. Ram Chand and Another, Jaisri Sahu Vs. Rajdewan Dubey and Others, Sri Venkateswara Rice, Ginning and Groundnut Oil Mill Contractors Co. and Others Vs. State of Andhra Pradesh and Others, and AIR 1968 S C 936.

Since a question of law regarding the maintainability of the objection u/s 47 of the CPC was raised by the decree holder/opposite party, I am of the view that before going into merits of the objection u/s 47 of the CPC it would be fit and proper to consider the aforesaid objection as to the maintainability of the objection u/s 47 of the Code Civil Procedure should be decided first, as in my view if it is held that objection u/s 47 of the CPC at the instance of the petitioner was not maintainable in law then it would not be necessary for me to go into the merits of such an objection filed u/s 47 of the CPC and accordingly I am of the view that the question of law that was raised by Mr. Dasgupta, appearing on behalf of the decree holder/opposite party, should be taken up first. So far as this question is concerned, after hearing the learned counsel for the parties and after considering the scope of Section 47 of the Code of Civil Procedure, I am of the view that the objection filed u/s 47 of the CPC at the instance of the Judgment debtor/petitioner on the ground that the judgment debtor/ petitioner having become a co-sharer of the decretal property on the basis of the deed of gift executed by the heirs and legal representative of one Sri Tarini Bhushan Bhattacharyya (since deceased) the decree for permanent injunction would not be no longer executable under order 21 Rule 32 of the Code of Civil Procedure, was not maintainable in law. In order to appreciate00 the submissions of Mr. Dasgupta it would be necessary to reproduce Section 47(1) and (3) of the CPC and also explanation No. 1 which has been inserted by the amended Act of 1976 to replace the old explanation which are as follows:

Section 47(1) : All questions arising between the parties to the suit in which the decree was passed on their representatives and relating to the execution, discharge of satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit.

47(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 No. 1 : For the purposes of this section a plaintiff whose suit has been dismissed and the defendant against whom the suit has been dismissed are parties to the suit.

From a bare look of the aforesaid provision of Section 47 of the CPC as quoted hereinabove and its explanation it can be safely concluded that the judgment debtor/petitioner could not be said to be a ''party to the suit'' nor a ''representative'' on the basis of his acquiring title to the decretal property by registered deed of gift from the heirs and legal representatives of the said Tarini Bhushan Bhattacharyya (since deceased). It is an admitted position in this case that Tarini Bhushan Bhattacharyya (since deceased) was not a party to the suit. A division bench decision of the Punjab and Haryana High Court in the case of Smt. Durga Devi Vs. Shanti Parkash Thakar Das and Others, while interpreting the expression ''parties to the suit in which the decree was passed'' as in Section 47 of the Code of Civil Procedure, at paragraph 9 in page 232 observed as follows:

"The expression ''parties to the suit In which the decree was passed" in Section 47, Civil Procedure Code, would in this view refer to the capacity in which the individuals concerned were impleaded in this suit. It is undoubtedly desirable to construe Section 47, Civil Procedure Code, as liberally as its language would permit, so that the object of affording relief to the parties cheaply, speedily and finally is achieved, but in order to attract the bar created by this section, the parties should have been impleaded in the suit in the same capacity in which the objection is sought to be raised by them 1o the execution of the decree.

Yet in another Division Bench decision of the Madras High Court in the case of (Estates and Agent Co. Ltd. v. L.T. Commr.) in paragraph 6 at page 81 it was observed as follows :

"As regards the second objection, however, we are of opinion that it did not fall within the purview of an executing Court. If an objection is taken not as a judgment debtor but in a different capacity, and a title is set up practically in a third party, though by a judgment debtor. it is not the province of an executing court to adjudicate on such claims. Any order passed in execution proceedings would not obviously bind third parties and if there is a valid trust. the proceedings will not bind even the trustees though they might be parties to the execution in their own private character."

In view of the aforesaid observations made by two Divisions Bench decisions of two different High Court of India with which I am in full agreement it must be held that the Judgment debtor/petitioner cannot be permitted to file the objection u/s 47 of the CPC on the basis of his becoming a co-sharer of the decretal property by the deed of gift executed in his favour by a third party who was admittedly not a party to the suit as, in my view, Tarini Bhushan Bhattacharyya (since deceased) from whom admittedly the Petitioner had acquired right title and interest in the decretal properly was not party to the suit. Therefore, in my view, since Tarani Bhushan Bhattacharyya (since deceased) was not a party to the suit, the petitioner having claimed right title and interest from the said Tarini Bhushan Bhattacharyya (since deceased) cannot be held to be a ''party to the suit''. Now let me see whether the petitioner still be said to be a representative within the meaning of Section 47 of the Code of Civil Procedure. On this question I am also of the view that the petitioner cannot be termed as ''representative'' within the meaning of Section 47 of the Code of Civil Procedure. As noted herein earlier, while deciding the objection u/s 47 of the Code of Civil Procedure, It is for the executing court to decide all question arising between the parties to the suit in which the decree was passed or their representatives and shall be determined by the Court executing the decree. Considering explanation 1 given in Section 47 of the CPC and also the observations made by the two High Court decisions as noted hereinabove the petitioner cannot also be termed to be a ''representative'' of the parties to the suit as admittedly the petitioner in his objection u/s 47 of the CPC had alleged that he became a co-sharer of the decretal property. From the said Tarini Bhushan Bhattacharyya (since deceased) after the decree for permanent injunction was passed but as, in my view, the said Tarini Bhushan Bhattacharyya (since deceased) or his heirs or legal representatives were admittedly not parties to the suit, even if right title and interest was vested on the petitioner on the basis of registered deed of gift executed by the heirs and legal representatives of Tarini Bhushan Bhattacharyya (since deceased) even then the question of the petitioner becoming a "representative" of the decree holder cannot arise at all as Tarini Bhushan Bhattacharyya or heirs and legal representatives from whom the petitioner had derived title to the suit property were admittedly not parties to the suit. Therefore, the executing court was Justified in holding that since the petitioner could not come within the meaning of "party to the suit" or a "representative" within the meaning of Section 47 of the Code, the objection u/s 47 of the CPC was not maintainable in law. For the reasons aforesaid there is no ground for Interference against the impugned order in this revisional application.

In view of the fact that I am in full agreement with the executing court that the petitioner cannot maintain objection u/s 47 of the CPC for the reasons aforesaid, it is not necessary for me to deal with the decisions cited by Mr. Roychoudhury on merits of the objection u/s 47 of the CPC and accordingly I refrain from dealing with the decisions cited by Mr. Roychoudhury for the petitioner. I however, make it clear that since I have decided this revisional application on the question of locus standi of the petitioner to file an objection u/s 47 of the CPC it would be open to the petitioner to raise the question taken in the objection u/s 47 of the Code Civil Procedure, either by filing an independent suit for relief or by taking any other appropriate forum that would be available to him. I also make it clear that since the revisional application has been decided only on the maintainability question it would not be deemed that the petitioner having raised the objection u/s 47 of the CPC would not now be permitted to take any other steps in the matter.

For the reasons aforesaid, this revisional application stands rejected.

There will be no order as to costs.

Let this order be communicated to the executing court at an early date.

Office is directed to supply the xerox certified copy of this order/ judgment to the learned advocates appearing for the parties forthwith, if the same is applied for.