Ramu Prasad Jaiswal vs Rakesh Narayan

P.P. Bhatt, J.—Petitioner by way of filing the present writ petition under Article 227 of the Constitution of India has prayed for issuance of an appropriate writ/order/direction for quashing and setting aside the order dated 16.4.2012 (Annexure-6) passed by the learned Munsif, Palamau at Daltonganj in Execution Case No. 5/2011, whereby learned court below rejected the petition dated 24.2.2012 filed by the petitioner u/s 47 of the CPC. Heard the learned senior counsel for the petitioner as well as respondent and perused the impugned order as well as other materials placed on record.

Learned senior counsel for the petitioner, while referring the impugned order, submitted that the learned court below has not properly considered the scope u/s 47 of the CPC. The main contention, which was raised before, the executing court in an application filed u/s 47 of the CPC, was that the decree is a nullity for want of inherent jurisdiction and therefore, the said issue can be raised before the executing court and the executing court is required to decide the said application in detail and for that purpose, the application filed u/s 47 of the CPC is required to be registered as miscellaneous case and the same is required to be dealt with after affording reasonable opportunity to the parties. It is the case of the petitioner that the respondent/original plaintiff filed title eviction suit before the trial court and the said suit was -filed u/s 11(1)(b) and (c) of the Bihar Buildings (Lease, Rent & Eviction) Control Act and therefore, the said suit was filed by adopting special procedure as enumerated u/s 14 of the Act.

Learned senior counsel for the petitioner/while referring Annexure-3 to the main petition i.e. clarification filed on behalf of decree-holder on the objection petition dated 24.2.2012 filed by the judgment-debtor, pointed out from paragraph Nos. 3 & 4 that the fact regarding filing of eviction suit u/s 11(1)(c) and grant of leave as laid down u/s 14(4) has been adopted by the original plaintiff. However, ignoring this fact, the learned executing court rejected the application filed u/s 47 of the CPC.

Learned senior counsel for the petitioner further submitted that the question with regard to lack of inherent jurisdiction raised by the petitioner in an application filed u/s 47 of the CPC is required to be examined by the executing court without taking recourse of appeal and the petitioner is not required to file an appeal challenging the judgment and decree passed in the eviction suit.

Learned senior counsel for the petitioner in support of his argument has referred to and relied upon the following judgments:--

(i) Kiran Singh and Others Vs. Chaman Paswan and Others,

(ii) Reyazul Haque Vs. Mosst. Maimun Khatoon and Another,

(iii) Chandrika Misir and Another Vs. Bhaiya Lal,

(iv) Sunder Dass Vs. Ram Prakash,

Learned senior counsel for the petitioner, while referring Section 47 of the CPC, submitted that all the 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.

Learned senior counsel for the petitioner submitted that the petitioner is eligible and entitled to take recourse of Section 47 of the Code without availing any other remedy as the petitioner has challenged the decree on account of lack of inherent jurisdiction.

As against that, learned senior counsel for the respondent submitted that the learned executing court after careful consideration of the submissions made by the parties and on examining the facts and circumstances of the case as also considering the provisions of law, passed a detailed order and the petitioner has no case on merit. It is further submitted that the petitioner has not challenged the judgment and decree passed in eviction suit by way of filing an appeal and therefore, without taking recourse of preferring an appeal, the petitioner is not entitled to take recourse u/s 47 of the CPC by filing an objection u/s 47 of the CPC. Learned senior counselor the respondent further submitted that even on merit, the petitioner has no case as bare reading of plaint makes it clear that the suit was not filed u/s 11(1)(c) and (d) and the suit was not proceeded u/s 14 of the Act. Learned senior counsel for the respondent, while referring the judgment delivered by the learned trial court, pointed out that nowhere in the judgment it is stated; that the judgment and decree has been passed by adopting special procedure as envisaged u/s 14 of the Act. Learned senior counsel for the respondent has also referred to the averments made in the counter-affidavit.

Learned senior counsel for the respondent, in support of his argument, referred to and relied upon the following two judgments:

(i) Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman and Others,

(ii) (2006) 3 BLJR 2359 (Jhar).

Considering the aforesaid rival submissions and on perusal of the impugned order, it transpires that the application was moved by the petitioner/defendant before the learned court below u/s 47 of the CPC mainly on the ground that the decree is a nullity for want of inherent jurisdiction and therefore, objection filed by the petitioner is required to be dealt with in detail after affording reasonable opportunity of being heard to the petitioner as also by following the due process. Meaning thereby, the application filed u/s 47 of the Code is required to be registered as miscellaneous case and full-fledged hearing is required to be given in an application filed u/s 47 of the Code and it cannot be summarily rejected by the learned executing court. This proposition canvassed by the learned senior counsel for the petitioner cannot be accepted for a simple reason that the petitioner has not filed any appeal being aggrieved and dissatisfied with the judgment and decree passed by the learned trial court in a eviction suit and without taking recourse of statutory efficacious remedy available under law, petitioner has straightway approached the executing court and raised the objection regarding the question of inherent jurisdiction.

I have perused the judgments cited by the learned senior counsel for the petitioner. Principles enumerated in the said decisions are well accepted proposition of law. However, said principles are required to be applied looking to the facts of each case. In the cases, which have been referred to and relied upon by the learned senior counsel for the petitioner, the parties have taken recourse of appellate authority and thereafter the question was raised before the executing court, whereas in the instant case the petitioner without taking recourse of statutory efficacious remedy available under law, has straightway approached the executing court and raised the objection regarding the question of inherent jurisdiction. Therefore, this Court is of the view that the judgments, which has been referred to and relied upon by the learned senior counsel for the petitioner, is not applicable to the present facts and circumstances of the case. So far the decisions, which have been referred to and relied upon by the learned senior counsel for the respondent is concerned, it is well accepted principle that a court executing a decree cannot go behind the decree. The question with regard to lack of inherent jurisdiction can be raised by the petitioner before the appellate court as the legality and validity of the decree can always be questioned in an appeal but, as stated above, without taking recourse, the petitioner has straightway approached the executing court by way of filing a petition u/s 47 of the Code.

Learned senior counsel for the petitioner as well as respondent have argued about the merits of the case pertaining to question of inherent jurisdiction. This Court is of the view that the said question is not required to be discussed in detail as it may come in the way of the present petitioner in the event of preferring appeal. However, prima facie, it reveals from the pleading that the suit was not confined to the provisions contained in Section 11(b) and (c) and it was not tried u/s 14 of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2000 by adopting special procedure. However, merits of this contention can be examined before the appropriate forum.

There is no merit in this writ petition. Accordingly, this writ petition is dismissed. Ad-interim relief granted earlier shall stand vacated.