Satyendra Ghosh vs Bani Bhattacharjee and Others

J.N. Sarma, J.—This revision application has been filed against the part of the order dated 3.7.97 passed by the learned Civil Judge (Sr. Division) No. 2 Guwahati in Title Execution Case No. 1/93. A decree was obtained by the opp. parties in a suit of 1981 and that decree was put into execution. When the decree was put into execution, the judgment debtor filed an application questioning the legality and validity of the decree on various grounds and that has been rejected by the executing Court. We are not concerned with that aspect of the matter as those judgment debtors are not here in this revision application. This revision application has been Med by a stranger to the decree. He filed an application u/s 47 of the CPC before the Executing Court and the Executing Court did not accept this application filed by the present Petitioner holding that as he is a stranger, he has no right to file this application u/s 47 of the CPC Section 47 applies only to parties to the suits. Hence this revision.

I have heard Sri S.P. Roy, learned Advocate for the Petitioner and Sri C.K. Sarma Baruah, learned Advocate for the Respondents/opp. parties. Sri Roy contends that mere quoting a wrong Section in the application itself is not sufficient. He submits that this application should have been treated as an application under Order 21 Rule 97 of the C.P.C and the Court should have proceeded with the matter in accordance with the scheme under Order 21 Rule 97 to Rule 105 and it is submitted that he made submissions before the Executing Court but even those submissions were not considered by the Executing Court. Sri Roy in support of his contention that mere wrong quoting of Section is not sufficient, relies on a decision reported in Bhanwar Lal Vs. Satyanarain and another, That matter also arose out of a matter for execution. There also a stranger made an application and that was rejected and the Supreme Court directed that such application should be considered under Order 21 Rule 97 and the Supreme Court further pointed out that after all the procedure is the hand-maid of substantive justice and it should not be used as weapon or should not be used as a roaster by the Court. The contention of Sri Roy may be correct but what he has missed in the case is that the Supreme Court has pointed that the right to file an application under Order 21 Rule 97 or Rule 99 will arise only when the decree holder is obstructed in the delivery of possession. In the case of 1995 (supra) the decree was put into execution and the Nazir/Bailiff of the Court went to deliver the possession and at that time this stranger obstructed to the delivery of possession and it was in such a situation the Supreme Court pointed out that he has acquired right to file an application under Order 21 Rule 97 and/or Rule 97.

The next case relied on by Brahmdeo Chaudhary, Adv. Vs. Rishikesh Prasad Jaiswal and another, That was also a case under Order 21 Rule 97 and Rule 99. There also the Supreme Court pointed out that the Order 21 can be invoked only after offering a resistance by a stranger. The Supreme Court has specifically stated in paragraph 5 as follows:

Once resistance is offered by a purported stranger to the decree and which comes to be noted by the executing Court as well as by the degree holder, the remedy available under Order 21 Rule 97 to 105 shall come into field.

That is not the position in the present case. In the present case even writ has not been issued and even before issuing a writ this application u/s 47 of the CPC (now stated to be wrongly filed under that Section) was filed and that was rejected by the executing Court. If the contention of Sri Roy is accepted, it will mean to open up the Pandora''s Box and will give long handle to anybody and everybody to come to the executing Court and object to the execution of decree. That is not the scheme of Order 21 Rule 97. The scheme of Rule 21 is to protect the possession of one who is in possession of a plot of land in a bonafide manner, that such bonafide person is not thrown out by the mischievous decree holder. That protection cannot be extended to a stranger at each and every stage of the execution. The law has fixed/determined the stage on which such a person may come before the Court only on the happening of that situation and not before that.

In that view of the matter, there is no error of jurisdiction in the impugned order and this civil revision shall stand dismissed. But before I part with the record another aspect of the matter should be taken into which has been brought to the notice of the court by Sri C.K. Sarma Baruah, learned Advocate for the Respondents that this Petitioner has already filed a separate suit being Title Suit No. 110/97 before the Civil Judge (Jr. Division) No. 3 at Guwahati praying for an injunction restraining execution and that prayer for injunction was rejected. As against that an appeal being Misc. Appeal No. 21/97 has been filed before the Civil Judge (Sr. Division) No. 1 at Guwahati and that appeal is pending. This suit was filed even before filing of so called application u/s 47 of the C.P.C. When the application u/s 47 was filed it was not mentioned there. Litigation is not a game of hide and seek. It is expected that when a person comes to the Court to demand justice, it must not suppress the material facts. That is what has been done in the instant case.

In that view of the matter, this revision application is rejected with a cost of Rs. 3,000/-.