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Judgment
Amitava Lala, J.—The Plaintiff, abovenamed instituted a suit in the Original Side of this Hon''ble Court praying, inter alia:
a) Decree for adjudication, determination and settlement of the monthly rent for the suit premises morefully described in schedule ''A'' to the plaint by the Defendant from July 1, 1995 and decree for such sum as may be found due and payable upon enquiry and determination by this Hon''ble Court ;
b) Interest including interim interest and interest, upon judgment on the account of difference between the amount paid by the Defendant and the amount to be determined by the Hon''ble Court at the rate of 18% per annum being the reasonable rate of interest or at such rate as this Hon''ble Court may seem fit and proper;
c) Receiver;
d) Injunction ;
e) Commissioner;
f) Costs ;
g) Further or other reliefs.
After institution of the aforesaid suit the Plaintiff took out an application in this Court being G.A. No. 315 of 1998 for the purpose of appointment of surveyor/ commissioner/special officer for the purpose of ascertaining the amount of rent and various other consequential reliefs which is still pending before this Hon''ble Court.
The Defendant also took out an application being G.A. No. 980 of 1998 praying, inter alia:
a) Leave, if at all granted under Clause 12 of the laters patent be revoked ;
b) The present suit filed by the Plaintiff be dismissed and in the alternative the plaint filed in the suit be rejected;
c) In the further alternative, the plaint filed in the suit be returned to the Plaintiff for presentation before the appropriate forum;
d) Stay of all further proceedings in the present suit as also applications therein;
e) An interim orders in terms of prayers above;
f) Such further and/or other order or orders be passed and/or direction or directions as this Hon''ble Court may deem fit and proper.
Parties have filed their respective affidavits in the application.
Since such application is made by the Defendant to determine the question of jurisdiction, this Court is inclined to consider the same at first.
The Defendant/Petitioner contended that initially a suit being an Ejectment Suit No. 197 of 1990 was instituted in the City Civil Court at Calcutta in respect of self-same premises wherein a compromising application was put in for the purpose of disposal of this suit in the terms given in paras. 1(1) to 1 (XVI) and passed decree on such terms and conditions. Therefore, such, terms and conditions have binding effect over and in respect of the parties.
One of such terms is as follows:
III) The Defendant (United Bank of India) has agreed to review the rate''s of rent in the year 1995 and thereafter at the instance of the Plaintiff (Dipali Mallick) he reviewed after every 5 (five) years which will be not exceeding 15% of the existing rate.
The nature of argument as advanced by the Defendant/Petitioner is that the parties read and understood the said clause as provided in the agreement between the parties for mutual review and/ or refuse and/or survey of a rate of amount equivalent to the rent of and from July, 1995 according to market rate and thereafter the same would be reviewed after every five years at the instance of the bank however, subject to increment of non-exceeding of the existing rate.
Therefore, if this Hon''ble Court interpretes the decree in the manner, as the Plaintiff has proposed, then the Plaintiff''s claim would be enforcement of the said decree. Hence suit wiil be liable to dismissal on two grounds:
a) Suit is barred u/s 47(1) of the Code of Civil Procedure;
b) Suit does not disclose any cause of action.
In the advancement of the argument Mr. Abhrojit Mitra, learned Counsel appearing for the Defendant/ Petitioner contended that all 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 the separate suit. In support of his contention he relied upon judgment reported in Jai Narain Ram Lundia Vs. Kedar Nath Khetan and Others,
He further contended that even as to the question of declaratory relief, the executing court will be in a position to decide whether such decree is merely a declaratory decree or decree is capable of execution. In support of such contention Mr. Mitra also cited a judgment reported in Parkash Chand Khurana, etc. Vs. Harnam Singh and Others, therein.
He raised his argument one step further by saying that cognizance of a suit which falls within the purview of Section 47 above is expressly barred and a decree passed in contravention of such section would be a nullity. In support of such cqmtention he relied upon Sadananda Saha and Others Vs. Union of India (UOI),
So far the second point is concerned he stated that the decree as its stands has fully carried out. The Defendant has reviewed the rent and refused to increase the rent. As such there is no scope for enforcement of such clause of review of rent. A clause in a contract enabling one party to determine the price/ rate is perfectly valid. In support of his contention he relied upon Combard Tricity Finance Ltd. v. Paton 1989 (1) All E.R. 918 at page 923 (g).
He also contended that to give a cause of action of the Plaintiff an interpretation of the decree as suggested by the Plaintiff is obvious. To that ratio of the Supreme Court in a reported decision State of Punjab and others Vs. Krishan Dayal Sharma, execution court is bound by the terms of the contract, it cannot add or alter the decree on its notice of fairness or justice. The right of the decree holder to obtain relief is detemrined in accordance with the terms of the decree.
He further added that what the executing court cannot do u/s 47 of the CPC can not also be done by Court in a separate suit.
On the other hand, Mr. Ranjan Deb, learned Counsel appearing for the Plaintiff/Respondent contended that the scope of the part of the compromise decree as above is a pure and simple declaratory relief. There is no question of putting such declaratory relief into an execution. There is no question of execution, discharge and/or satisfaction of the decree by the executing court. Section 47(1) of the CPC can not apply at the threshold. In the circumstances, filing of separate suit is obvious.
He made a negative argument be saying that execution is not permissible after 12 years but by virtue of such compromise a question of review of rates of rent may arise even after 12 years and in such case even the execution will be in-applicable. Therefore at that stage the Plaintiff herein will be remedyless.
He made his submission by saying that cause of action in the suit instituted in the City Civil Court and in the High Court are different and when one is made for eviction and another is made for arrears of rent. He said that performance of decree is not a decree. He does not want setting aside of the decree passed on compromise but to implement. He said that one party has given offer, another party refused. Therefore, the Defendant Petitioner''s contention is that by such refusal matter ends there which cannot be neither practical nor justifiable. He relied upon page 347 of the 15th edition volume 1 of Mulla''s CPC to that score. He further relied upon a book of Sweet and Maxwell called the Declaratory judgment page 3 para. 1.06 and stated that whilst the Defendant is assumed to have respect for the law, justice does not rely on this alone. A declaration by the court is not a mere opinion devoid of legal effect, the controversy between the parties is determined and is res judicata as a result of the declaration being granted. Hence, if the Defendant then acts contrary to the declaration, he will not be able to challenge the unlawfulness of his conduct in subsequent proceedings. By contrast, the Plaintiff may then again go to court, this time for damages to compensate for the loss she has suffered or to seek a decree to enforce the rights established by the declaration. A Defendant, being aware of these consequences, will usually comply with the declaratory judgment. However, where the Plaintiff has grounds to fear that the declaration will not be strictly observed, he may in cases in which he is entitled to a remedy which can be enforced - claim additionally an award of damages, an order of specific performance, an injunction or any other remedy to which he is entitled.
He also relied upon Section 35 of the Specific Relief Act to establish that effect of declaration is also part and parcel of specific relief.
In addition thereto he placed Section 51 of the CPC to indicate mode of execution and to establish that no such mode is aplicable herein so that it can be said the execution is an alternative mode of remedy in this context.
On a question of whether the nature of the suit is permissible or not, Mr. Deb relied upon a Single Bench decision of this Hon''ble Court of Martin Burn Ltd. v. Steel Authority of India Limited 1988 (2) C.L.J. 416 wherein it was held that the court has power to fix the rent in the event of disagreement between the parties from which an appeal was preferred in this Court but the appeal court affirmed the view taken by the Single Bench of this Court in an unreported judgment Steel Authority of India Limited v. Martin Burn Ltd. Judgment dated September 20, 1993 in Appeal No. 686 of 1988.
Mr. Mitra contended that so far the judgment is concerned an agreement may be enforceable but decree is not. Mr. Mitra further cited two judgments to establish his case of Rabindra Nath Roy Choudhury and Others Vs. Dhirendra Nath Roy Choudhury and Another, and Nebubala Sardar Vs. Abdul Aziz Baidya, to establish his first stand which has been distinguished by Mr. Deb by saying that in those cases decree was not merely declaratory but were executable.
Mr. Mitra further contended that this is not in respect of fair rent but for market rent which is arising out of contingent contract and no contingency is applicable in this case. Ultimately Mr. Mitra contended that decree is not sacrosanct but is a matter of interpretation and such interpretation is not permissible in law in a separate suit.
The crux of the case is hiddn in the Section 47(1) of the CPC itself. If this case is falling under the four corners of Section 47(1) of the CPC naturally the suit will be hit by the same but if this case is not hit by Section 47(1) of the CPC suit can be proceeded. Therefore, I have read the Section 47(1) repeatedly and found all 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, shali be determined by the court executing the decree and not by a separate suit.
Admittedly the Plaintiff herein was not the party to the suit nor party to compromise. Therefore I have to consider at first as to whether the Plaintiff is coming under the category of their representatives or not.
Generally speaking their representatives means successor in interest in the property in the suit but for the explanations as substituted by the Amendment Act, 1976. Therefore I have to take more pain to come to a proper interpretation. Therefore again I have to consider as to whether this purchaser of the property can be fit in within the category of their representatives or not.
Explanation ll(a) specifically speaks that for the purpose of this section, a purchaser of a property at a scale in execution of a decree shall be deemed to be a party to the suit in which the decree is passe''. Therefore the aforesaid explanation is only restricted to a purchaser of a property at a sale in execution of a decree but not otherwise.
My reading becoming much more specific after reading further Explanation 11(b) which says that ail questions relating to delivery of possession of such property to such purchaser or his representatives shall be deemed to be questions relating to the execution, discharge or satisfaction of a decree within the meaning of this section. Therefore it should be construed that all questions relating to delivery of possession of such property to such purchaser at a sale in execution of a decree.
Had it been the position definitely a party has no other alternative but to invoke Section 47 of the CPC otherwise a purchaser of a property outside the court cannot be brought in under the purview of Section 47 of the Act. In all, such purchaser, purchaser the property outside the court cannot be brought within the purview of explanations 11(a) and (6) as substituted by Amendment Act, 1976 and be said a party to the suit.
The question of their representatives u/s 47(1) of CPC giving a general expression of the legal representatives but due to the specific explanation under explanations ll(a) and (b) the Plaintiff/Respondent cannot be brought under such expression.
Therefore Section 47 of the CPC cannot be said to be applicable in case of Plaintiff herein at all. A compromise between the parties cannot throw away a third party interest in respect of the property which he has purchased out of the court. Such is, definitely, not the intention of the legislature.
Under the circumstances, my interpretation is that the Section 47(1) of the CPC may be applicable in respect of delivery of possession to a purchaser of a property a sale in execution of a decree but must not be applicable in respect of a third party who has puchased the property outside the Court and not steped in the shoes of original party to the lis or in the execution process being continuance of a suit.
Mode of arguments advanced by both the parties in respect of applicability of the execution process in respect of declaratory relief u/s 47(1) of the CPC leaving aside the actual point of controversy, as to whether such section will, at all, be applicable in the case for execution, discharge or satisfaction of such decree in respect of a third party or not.
This being so, I have no hesitation in my mind to hold that the application should fail.
Accordingly, the application is dismissed but no order is passed as to costs.
The Plaintiff will be entitled to press for early hearing of the suit, if it is otherwise ready and application in connection therewith before the appropriate bench.
Department and all parties are to act on a signed copy minute of the operative part of the order.