Rasamani Dei vs Naba Kishore Acharya and Another

L. Mohapatra, J.—The judgment-debtor filed this Writ Application challenging the order dated 28.1.1999 passed by the Learned Civil Judge (Junior Division), First Court, Cuttack in Misc. Case No. 56 of 1997 dismissing an application for amendment of the petition filed u/s 47 of the CPC as well as the revisional order dated 16.11.2001 dismissing the revision.

The case of the petitioner is that schedule "A" property was originally the self-acquired property of one Gajendra Acharya, who has died in the meantime. Opposite Parties 1 and 2 are the two sons of the said Gajendra Acharya. Gajendra Acharya during the life time proposed to sell the suit property to the present Writ Petitioner and a sale deed was executed and registered by Gajendra Acharya in favour of the petitioner in respect of the said "A" schedule property for the consideration of Rs. 2,000/-. After execution of the sale deed, the petitioner is in possession of the same. After death of Gajendra Acharya, the opposite party No. 1 filed Title Suit No. 164 of 1979 against the petitioner to set aside the aforesaid sale deed and ultimately, the suit was decreed on compromise. After the suit was decreed, an Execution Case was levied by the opposite party No. 1. The compromise decree was challenged on different grounds in appeal and was ultimately carried to this Court in Second Appeal No. 109 of 1984. The First Appellate Court dismissed the appeal and the Second Appeal was also dismissed by this Court. In the Execution Case, a petition u/s 47 of the CPC was filed by the petitioner and during pendency of the said petition, an application for amendment of the petition filed u/s 47 of the CPC was filed. It is the case of the petitioner that during pendency of the Execution Case though an application u/s 47 of the CPC has been filed by her challenging the executability of the decree, the petitioner having purchased 8 annas share in the property from the suit land under the registered sale deed dated 2.2.1996, the application u/s 47, CPC was sought to be amended. The said petition was rejected by the Executing Court and the revision was filed against the order passed by the Executing Court. The revision having been dismissed, the petitioner has approached this Court in this Writ Application.

Shri Mukherji, the Learned Counsel appearing for the petitioner has challenged both the orders on the ground that though the suit had been decreed on compromise and the petitioner lost in all the forums, during pendency of the execution case, the opposite party No. 2 sold half share in the property to the petitioner under a registered sale deed dated 2.2.1996. In view of the subsequent development that took place during the pendency of the Execution Case, the compromise decree in respect of the said property purchased by the petitioner has become in executable and therefore the amendment sought for in the application filed u/s 47 of the CPC should have been allowed.

Shri Mishra, the Learned Counsel appearing for the opposite parties, on the other hand, contended that the opposite party No. 2 was not a party to the compromise having no interest in the property and therefore any sale made by him does not affect the right of the decree-holder-opposite party in executing the decree. It was specifically contended by Shri Mishra that the decree was not invalid on the date it was passed and the subsequent development alleged to have been taken place does not affect the decree at all. As the opposite party No. 2 had no interest in the property, he did not contest the suit and consequently he was not made a party in the compromise decree also.

It appears from the record that Title Suit No. 164 of 1979 was filed in the Court of the then First Munsif by opposite party No. 1 alone. The suit was decreed on compromise. The petitioner challenged the compromise decree in appeal and having lost the same, she approached this Court in Second Appeal. After dismissal of the Second Appeal, the Execution case levied by the opposite party No. 1 proceeded. In the said Execution Case an objection was filed u/s 47 of the CPC by the petitioner. A petition was again filed by the petitioner under Order 6, Rule 17, CPC read with Sections 94 and 151, CPC for amendment of the petition filed u/s 47, CPC alleging therein that during pendency of the Execution Case, the opposite party No. 2 had sold his 8 annas share in the property to the petitioner under a registered sale deed dated 2.2.1996. It was also contended in the said petition that a part of the property having been purchased by the petitioner during pendency of the Execution Case, the decree has become in-executable and accordingly the prayer for amendment should be allowed. The opposite party No. 1- decree holder resisted the petition on the ground that opposite party No. 2 was not a party to the compromise decree having no interest in the property and the claim of the petitioner that she had purchased 8 annas share of opposite party No. 1 is false and manipulated to prolong the Execution Case. It further appears from the record that even though the opposite party No. 2 was a party to the suit, he did not appear in the case. The compromise petition was filed by the plaintiff-opposite party No. 1 and defendant 1 and 3. On the basis of the said compromise petition, the suit was decreed. It is clear from the compromise decree that opposite party No. 2 did not contest the suit. It is, therefore, obvious that opposite party No. 2 who had no claim over the property neither appeared in the suit nor contested the same. The sole contention of the Learned Counsel appearing for the petitioner is that the opposite party No. 2 having sold his share in the property during pendency of the Execution Case, the decree has become in-executable and the subsequent development that had taken place during pendency of the Execution Case should have been allowed to be added to the petition u/s 47 of the CPC by way of amendment. Reliance was placed on a decision of this Court in the case of Smt. Radhi Dei and Others Vs. Lalit Bihari Mohanty, . The Learned Counsel relied upon the following portion of the observation made by this Court in the aforesaid case :

"Ordinarily the Executing Court is not entitled to go behind the decree and is not entitled to consider subsequent events to deny the decree-holder the right to execute the decree. But there are certain well recognized exceptions to this rule, one of them is that when the decree is a nullity or the decree-holder has lost the right to execute the decree on account of a subsequent change in law or some subsequent development, then the Executing Court can take note of change in the situation and can refuse to execute the decree on that basis."

Shri S. P. Mishra, the Learned Counsel appearing for the opposite party No. 1 also relied on the said decision and submitted that the opposite party No. 2 having no interest in the property, even if the sale deed executed by him is taken into consideration, it is of no consequence and the decree is executable. In the aforesaid reported case the Court held that on account of subsequent change in law or any subsequent development, if the decree became in executable, the same should be taken note of by the Executing Court. Admittedly, this is not a case where there has been any legal development and the decree is in executable. The only subsequent development alleged by the petitioner is regarding sale of the property by opposite party No. 2 in her favour. Since it is clear from the record that the opposite party No. 2 did not appear in the suit nor contested the same and that he was not a party to the compromise decree and it has been declared that the plaintiff is the rightful owner of the entire schedule "A" property, there is hardly any scope to accept the contention of the Learned Counsel of the petitioner that the opposite party No. 2 had any right in the property to sell. It is, therefore, clear that the petition was filed to delay the disposal of the Execution Case.

I, accordingly, do not find any merit in the Writ Application and the same is dismissed.