Sankar Nath Ghosh vs Dhirendra Nath Chatterjee

Bijitendra Mohan Mitra J.

The instant revisional application is one under Article 227 of the Constitution of India taken up at the stage of motion on a contested hearing being directed against Order dated December 6, 1997 passed by the learned District Judge at Alipore in C.R. No. 42 of 1997 arising out of a proceeding u/s 115A of the CPC confirming Order No. 89 dated February 4, 1997 passed by the First Court of Assistant District Judge at Alipore in Title Execution case No. 29 of 1977.

It appears from a perusal of the records that the connected suit was decreed exparte sometime in the month of May 1977 leading rise to the connected Title Execution Case which had been allowed to spread over for a period of 20 years. During the period of the pendency of the execution proceeding there has been intermittent dates followed by other contingent events lengthening the longevity of the title execution case.

In the instant case, it has been stated that on January 3, 1997 the Defendant No. 2/Petitioner heard a rumour in the locality that the opposite party was going to put the decree into execution and, on hearing about the same, the connected misc. case was initiated for setting aside the ex parte decree on the ground of non-service of notice.

Mr. Roy Chowdhury, appearing on behalf of the Petitioner, has strenuously argued the case and he has tried to submit without any qualms that Article 123 of the Limitation Act would apply in this case and the normal period of limitation as forecast under the said provision in the facts of this case would be the period of 30 days from the date of knowledge of the decree. Save and except that the Petitioner has heard it from a rumour, no other particulars have been mentioned about the date of putting the decree into execution to the knowledge of the Petitioner who happens to be the member of unregistered club. The Petitioner is found resisting the execution of the decree in his personal capacity and, according to Mr. Bhattacharya, appearing on behalf of the opposite parties it is well-timed coinciding with the deposit of huge amount of the police cost and the same was done at the nick of the hour.

According to Mr. Bhattacharya, while considering the question of grant of stay, the Court should look into the prima facie case of the Petitioner and the Petitioner has not succeeded in projecting any glimpse of a prima facie case about the Petitioner''s title to the property. Mr. Bhattacharya has also drawn the attention of this Court to Order No. 25 dated May 26, 1980 passed in the connected execution case and, according to Mr. Bhattacharya, the stay is also indicative about the date of knowledge for the second time after the passing of the decree. Mr. Roy Chowdhury has submitted that in terms of the execution superadded to Article 123 of the Limitation Act, substituted service, under Order 5 Rule 20 of the Code of Civil Procedure, shall not be deemed to be due service. Against that, Mr. Bhattacharya has referred to the second proviso to Order 9 Rule 13 CPC and it has been contended that even if there is any irregularity in the service of summons, the same should not invalidate the decree.

This Court is now posted with the problem as to whether an order of stay can be granted in the facts and circumstances of the case. No doubt the Defendant No. 2 is figuring as a Petitioner but his locus standi is that of a member of an unregistered Club and he has come up with a case when the Defendant No. 1 has been served long before and, according to Mr. Bhattacharya, this is with a view to frustrate the execution and relegate it to the cold storage for eternity so that the trail of litigation does not come to a terminal end. This Court cannot but appreciate the strenuous endeavour of Mr. Roy Chowdhury in espousing the case of his client with reference to the ticklish points about procedure and substance but this Court is here only concerned with the scrutiny of the revisional powers concurrently exercised by the learned District Judge at Alipore. It is well-known that the scope of Article 227 of the Constitution is wide apart from the scope of Section 115 CPC and the Supreme Court has deprecated that under the guise of Article 227 no second revision is permissible. This Court is, therefore, only concerned with the question of exercise of discretion by the Court in exercise of its powers u/s 115 Code-of Civil Procedure, namely, about any possible irregularity in exercise of jurisdiction or because of the proviso empowering the Court to exercise its jurisdiction for the ends of justice. Here it seems that the ends of justice cannot be sub served in the background of the facts and circumstances of the instant case. In the revisional order, the learned District Judge has made a remark in conformity with the opinion of the trial Court that the revisionist may have remedy by way of restoration. The said reasoning has been attempted to be seriously impeached by Mr. Roy Chowdhury and, according to Mr. Roy Chowdhury, the same may not be the law but the Court may refer to the same by placement of reliance on the analogous provisions of Order 21 Rule 26(2) CPC where it has been held that where the property of the person of the judgment debtor has been seized under an execution, the Court may order restitution of such property keeping in view the question of probable stay on the matter. Therefore, in the facts and circumstances of the case, the revisional court has refused to exercise its jurisdiction by interfering with the order of the trial Court where it has exercised its discretion in the background of the facts and circumstances of the case. No doubt the longevity of the litigation or the length of the property can have any bearing on the question but, while considering the question of substance, the Court is required to look into the background of the facts of the case. The Court concerned is perhaps not unmindful of the alleged right of the present Petitioner which appeared to the Court to be founded on a ramshackle foundation. Coupled with the same, the Court must have taken into account the period of pendency of the execution and the second round of notice served on the Petitioner at the time of issuance of order of police help.

Mr. Roy Chowdhury has made an earnest endeavour to point out that substituted service will not be deemed to be good service but at the same time it should be juxtaposed against the second proviso to Order 9 Rule 13 CPC which makes it clear that if it is to the satisfaction of the Court that the Defendant on notice of the date of hearing had sufficient time to appear, the Court should not set aside the ex parte decree on the ground of irregularity of service of the summons. The source of knowledge being attempted to be pinpointed as rumors has become tainted because rumors cannot substitute the source of any knowledge. Therefore, the reasoning may appear to the Court to be a whisper in despair which is not in consonance with reasonable foundation. Therefore, this Court on conspectus of its assessment does not feel that the revisional Court has committed anything wrong in refusing to exercise its jurisdiction to interfere with the impugned order. The impugned order under challenge does not also call for invocation of extra-ordinary power of jurisdiction of superintendence by this Court under Article 227 of the Constitution as, according to the opinion of this Court, the revisional Court has not crossed the barriers of its limit nor has it arrived at any decision which is contrary to the guidelines of Section 115 Code of Civil Procedure.

Therefore, in exercise of its limited jurisdiction conferred under Article 227 of the Constitution, the instant matter does not seem to appear within the compass of its ambit and, as such, this Court does not at all feel inclined to interfere with the instant order so that the longevity of litigants does not become a casualty before the altar of the perennial longevity of the litigation under procedural wrangling.

Accordingly, this Court is constrained to dismiss the application on contest and it stands dismissed.