Rakhal Chandra Pandit vs Pulin Behari Mandal

A.P. Bhattacharya, J.—Civil Revision case No. 130 of 1977 and Civil Revision case No. 1433 of 1977 were heard together. The Rule in C.R. 130 of 1977 was obtained by the Petitioner Rakhal Chandra Pandit on his petition under Article 227 of the Constitution challenging the order of the executing authority under the West Bengal Land Reforms Act purported to have been made u/s 151 of the CPC on November 2, 1976, setting aside an earlier order dated May 15, 1975 and directing that the execution proceeding shall proceed. The other Rule, namely, C.R. 1433 of 1977 was issued suo motu and was directed against the order dated March 15, 1975, of the same authority.

The Rules were issued under the following circumstances and the relevant facts for the purpose of appreciating the matter are set forth. The Petitioner in C.R. 130 of 1977, namely, Rakhal Chandra Pandit, was a bargadar in respect of R.S. plot No. 77 of mouza Maheshpur originally under one Gajendra Nath Pandit. The said Gajendra Nath Pandit made an application to the Bhagchas Officer, Basanti, u/s 18 of the West Bengal Land Reforms Act praying for an award terminating cultivation of the Petitioner The award was made terminating the cultivation as applied for, by the Bhagchas Officer on December 23, 1967. Thereafter, the Petitioner preferred an appeal which was dismissed by the appellate authority on June 1, 1968. There was long silence thereafter. Then on March 29, 1974, the award was executed by Gajendra Nath Pandit before the executing authority, namely, the Sub-divisional Officer, Alipore. Subsequently the opposite party who purchased the property from Gajendra Pandit got himself substituted in place of Gajendra Nath Pandit and the execution proceeded. On receipt of notice of the same the Petitioner appeared before the executing authority and showed cause, pleading that the application was barred by time. The S.D.O., viz., the executing authority held that the application for execution was barred by time and passed orders dismissing the same on May 13, 1975. Thereafter the opposite party filed a petition for review under Order XLVII, Rule 1, Code of Civil Procedure, praying for review of the said order by the executing authority. It is significant to note that the award was stayed and could not be executed in view of Section 21A of the West Bengal Land Reforms Act of 1969 for a period of one year upto August 4, 1970. Be that as it may, the executing authority held that he had no power of review, but he was entitled to set aside the order u/s 151 of the CPC and this was done. The order dated May 15, 1975, was set aside and the executing authority held that the execution should proceed according to law. Against this order of the executing authority passed reviewing his earlier order the Rule had been obtained in C.R. 130 of 1977.

In the other revision case, namely, C.R. 1433 of 1977, a Rule was issued suo motu by this Court and the earlier order dated May 15, 1975, is challenged in that Rule. The opposite party contends that the order dismissing the execution case on finding that it was barred by limitation should be set aside as the Limitation Act has no application to an execution proceeding started under the West Bengal Land Reforms Act. The application was admittedly filed beyond three years of the date of award.

With regard to C.R. 130 of 1977 there is no controversy at all. Mr. Mukherjee appearing for the opposite party in this Civil Rule concedes that the executing authority has no power of review under Order XLVII, Rule 1 of the Code of Civil Procedure. The executing authority is not a civil Court and the inherent power of the civil Court u/s 151, Code of Civil Procedure, cannot be exercised by him. The learned Advocates of both the parties concede to the legal proposition that Section 151, Code of Civil Procedure, has no application and there is no quarrel over the same. That being the position, this Civil Rule must be made absolute and the order of the executing authority impugned in this Rule, namely, the order dated November 2, 1976, must be set aside.

Next, the position which follows are that the order of the executing authority dated May 15, 1975, revives. That order again is challenged by the opposite party in the other Civil Rule which had been issued suo motu by this Court. The entire controversy, therefore, is on the question as to whether the Limitation Act applies to an execution petition under the West Bengal Land. Reforms Act. This appears to be a point of first impression and is not covered, I am told, by any decision of this Court. In support of the order dated May 15, 1975, Mr. Bagchi led by Mr. Ganguli submits that Limitation Act would apply to an execution petition under the West Bengal Land Reforms Act and that the relevant provision which applies in this case is Article 137 of the Limitation Act. The period of limitation, according to him, is three years from the date of the award and the instant execution petition having been filed beyond the period of three years must be held to be barred by limitation and as such, the order dismissing the execution petition by the executing authority on May 15, 1975, is a valid order. Mr. Mukherjee, on the other side, contends that the order of dismissal of the execution petition is without jurisdiction as the executing authority has invoked the provisions of the Limitation Act which do not apply to an application for execution of an award under the West Bengal Land Reforms Act.

The application for execution is made u/s 20 of the West Bengal Land Reforms Act, 1955, which provides as follows:

Any order made under this chapter including an order passed in appeal shall be executed by the officer or authority appointed by the State Government in such manner as may be described.

Rule 9 of the West Bengal Land Reforms Rules, 1956, describes the manner of such execution. Rule 9 is quoted thus:

Any party may apply to the officer or authority referred to in Sub-section (1) of Section 18 or the Sub-divisional Officer referred to in Sub-section (1) of Section 19 for the execution of any order made by such officer or authority or by such Sub divisional Officer. The officer or authority or the Sub-divisional Officer shall there upon forward such application forthwith to the officer or authority referred to in Sub-section (2) of Section 20 who shall execute the order in the manner laid down in the case of Civil Procedure after serving on the person against whom execution is applied for a notice to show cause, within seven days of the date of the service of the notice, why the order shall not be executed.

The Sub-divisional Officer, according to the above Rule, is the executing authority. The manner of execution is that he shall execute the order in the manner laid down in the Code of Civil Procedure. Now the question is whether an application for execution in the above circumstances can be called an application under the Code of Civil Procedure.

In this connection a decision of the Supreme Court has been placed before me which is said to have a bearing on the issue as to whether the Limitation Act could apply in the instant case. The decision is in The Kerala State Electricity Board, Trivandrum Vs. T.P. Kunhaliumma, . The Supreme Court was interpreting an application u/s 33 of the Industrial Disputes Act, 1947. The provision of Article 137 of the Limitation Act had also been considered in that connection. It was held that the application u/s 33 of the Industrial Disputes Act was not an application under the Code of Civil Procedure. Later, however, the Supreme Court has held to the contrary in the case of The Kerala State Electricity Board, Trivandrum Vs. T.P. Kunhaliumma, . It has been held in the said decision that Article 137 is attracted to all application contemplated under any other statute as well. Such applications are not confined to the Code of Civil Procedure. That being the position, the application for execution though it is not under the CPC would be one to which Article 137 of Limitation Act would apply.

The next point argued by Mr. Mukherjee in this connection is that the executing authority is not a Court and as such the application for execution cannot be said to be an application to a Court. Article 137 of Limitation Act only contemplates applications to Courts. Mr. Bagchi tries to maintain that the executing authority prescribed in Rule 9 quoted above is a civil Court. He has referred to Rules 7 and 6 of the West Bengal Land Reforms Rules, 1956, in this respect. With regard to Rule 7 procedure for appeals, a similar provision as Rule 9 appears. Every appeal shall be filed in the form of memorandum and shall be signed and verified by the Appellant in the manner provided in Sub-rule (2) and (3) of Order VI of Schedule I to the Code of Civil Procedure. I do not think that these rules in any way help me in deciding the issue as to whether the authority constituted by Rule 9 is a Court. I am not impressed with the argument advanced in this respect. The executing authority, i.e. the Sub-divisional Officer is not a Court. As Article 137 contemplates an application to Court and as the executing authority is not a Court, the question of its application to the executing Court does not arise, Mr. Mukherjee is, therefore, entitled to succeed in C.R. 1433 of 1977. The West Bengal Land Reforms Act does not provide for any period of limitation so far as applications for execution are concerned. This seems to be a case casus omissus. In this connection reference has been made to a decision of this Court in Jayanta Kumar Das and Ors. v. Gour Hari Das 1975 (2) C.L.J. 436 where a single Judge of this Court has considered the applicability of the provision of Limitation Act to an application for pre-emption made by a non-notified co-sharer tenant. Section 8 of the West Bengal Land Reforms Act was considered in this connection before amendment of 1971 as to whether there was any limitation for presentation of an application u/s 8 by a non-notified co-sharer tenant before the Revenue Officer. At the relevant time before the amendment of 1971 the Revenue Officer was the authority to whom application for pre-emption u/s 8 of the West Bengal Land Reforms Act used to lie. It was held that as the statute does not provide any period of limitation in such cases the Court is helpless in this matter. The provisions of the Limitation Act did not apply to such applications u/s 8 of the West Bengal Land Reforms Act by non-notified co-sharer tenants as the position then was. The order of the executing authority dated May 15, 1975, in the instant case was without jurisdiction as the executing authority has applied the provision of the Limitation Act in holding that the execution petition was barred by limitation. That order is thus without jurisdiction and is liable to be set aside.

In the aforesaid premises C.R. 1433 of 1977 also succeeds and is made absolute and the order dated May 15, 1975, of the appellate authority is set aside. The net result would, therefore, be that the execution proceeding shall proceed before the Sub-divisional Officer in accordance with law.

Both the Rules are thus made absolute. No order is made as to costs. Let the records be sent down to the Court below at once.