Subhash Mohan Dey vs Satyendra Nath Bhowal and Others

M. Sharma, J.—This revision petition has arisen against the order dated 30.5.88 passed by the learned Assistant District Judge No. 2, Silchar in Misc Case No. 23/87 in Title Execution Case No. 4/75.

A long history have to be treaded down to arrive at the decision raised in this revision petition. The predecessor in interest, father of the revision Petitioner Late Satindra Mohan Dev purchased jote right of a plot of land at the Central Road, Silchar measuring 3 Katha. 9 Chataks from the original tenant with the permanent structure standing thereon some time in the year 1938. The then laadlord Late Surendra Nath Sen thereafter executed a lease deed with the father of the Petitioner on 25.9.39 in respect of the said land for a period of 27 years with the express right of the lessee to construct building thereon by removing the existing structure and to let out the building to a third party. The said lease stipulated a clause that in case, after expiry of the period of lease the lessee within 9 months of expiry, thereof would exercise option for renewal of the lease of the said land, the lessor would be bound tc renew the lease for another 27 years at a rent to be fixed taking into consideration the existing land revenue and other charges on the land.

The original, judgment debtor Bibekananda Bhowal entered into an agreement with the father of the Petitioner in 1953 (Annexure-I) to take lease of the building by constructing the same on 1 Katha 7 Chataks of the leasehold land on condition to adjust the amount spent by him from the monthly rent of the house. The original decree holder Late Satindra Mohan Dey, the father of the Petitioner, filed Title Suit No. 41/56 for ejectment of Bibekananda Bhowal for violation of terms of contract and also for subleting a portion of the building without the consent of the decree holder. The learned Sub Judge decreed the suit. Judgment debtor Bibekananda Bhowal filed FA No. 39/59 in this Court against the decree. The suit was compromised and a compromise decree in FA No. 39/59 was passed by this Court. As per the terms of the compromise decree judgment debtor Bibekananda, Bhowal was allowed to stay in the decretal premises for 10 years and he was to deliver vacant possession of the suit premises after expiry of 10 years from the date of compromise decree.

In 1966 the judgment debtor Bibekananda Bhowal alongwith his two brothers, i.e. opposite party No. 1 and 2 in this petition, purchased the Maiki right of the entire leasehold land including the land on which the decretal premises is situated for a sum of Rs. 5001/-. Judgment debtor Bibekananda Bhowal and the opposite party No. 1 and 2 filed. Title Suit No. 41/66 in the court of learned Assistant District Judge, Silchar for eviction of late S.M. Dev and his three sons on the ground that the leasehold right of the land expired after 27 years which they purchased after the expiry of the lease. During the pendency of the Title Suit No. 41/66 S.M. Dev died and his heirs and legal representatives were substituted. The suit was tranferred to the court of learned District Judge which was registered as Title suit No. 5/72. By judgment and decree dated 31.7.73 the learned District Judge, Silchar decreed the suit of ejectment of the Defendants'' heirs of late S.M. Dev. The Petitioner with other Defendants of Title suit No. 5/72 impugned the judgment and decree of learned District Judge in FA No. 458/73 and execution of the decree was stayed pending disposal of the appeal.

This Court by the judgment dated 24th August, 1982 passed in FA No. 458/73 reversed the decision of the trial court holding that the Defendants (decree holders of FA. No. 49/59) were protected from eviction from the suit land u/s 5 of the Assam (Urban Areas Non-Agricultural) Tenancy Act and were non-evictable tenant in respect of the suit land. On the basis of the finding this Court partly allowed the appeal by setting aside the decree of ejectment of the Defendant from the suit land. This Court further affirmed the decree declaring the title of the Plaintiffs as owner of the suit land. The operative part of the appellate judgment passed in FA No. 458/73 is as follows:

In view of our above findings, we party allow the appeal by modifying the decree of the learned Trial Court to the extent that the reliefs granted by him:

(1) for khas possession of the suit land by evicting the Defendants.

(2) award of compensation of Rs. 200/- against the answering Defendants for illegal occupation of the suit land, and

(3) for injunction restraining the Defendants from realising rent are set aside. The Plaintiff''s right over the Schedule 1 land, however stands declared and so also their possession in respect of Schedule II land. On the facts and circumstances of the case, we leave the parties to bear their own costs throughout.

The observation in the concluding part of the judgment passed in FA No. 453/73 regarding possession of Schedule II land in suit wherein the decretal premises of the compromise decree dated 10.5.65 passed in FA No. 39/59; is situated, having created coufusion, the Defendant Appellants of FA No. 458/73 filed an application on 2.11.82 for clarification/modification or the said observation in the operative part of the judgment. This Court after bearing the parties by the order dated 30.5.83 (Annexure-II) among other clarified as follows:

We make it clear that whatever has been stated by us in the aforesaid sentence of this judgment would not stand in the way of the Appellants in prosecuting their case against Plaintiff No. 1 and the question of evictability or otherwise of this Plaintiff front the premises over Schedule II land will be decided in the related proceeding. Nothing said by us in the above quoted sentence will prejudice the right of either of the parties in the eviction proceeding pending against the Plaintiff No. 1 as we had no occasion in this cast, to apply our mind to the case filed against Plaintiff No. 1 as tenant of the premises over Schedule II land. We may also say that we had not accepted Plaintiff No. 1 as owner of the structure over Schedule II, but had merely noted that he was possessing the same.

Late B. Bhowal and his two brother, namely, the opposite party No. 1 and 2 challenged the judgment of this Court passed in FA No. 458/73 in SLP before the Hon''ble Supreme Court but the SLP was rejected in limine by order dated 15.3.73.

Judgment debtor Bibekananda Bhowal not having vacated the decretal premises as agreed in the compromise decree passed in FA No. 39/59 the Petitioner and other heirs of original decree holder late Satindra Mohan Dev put the compromise decree into execution in Title Execution Case No. 4/75 for recovery of khas possession of the decretal premises. The judgment debtor filed objection u/s 47 CPC contending inter alia that in view of the changed circumstances. viz, purchase of Maliki right of the land and judgment and decree passed in TS No. 5/72 for eviction of the decree holder of the Title Execution Case No. 4/75 from the decretal premises, the said compromise decree became infructuows and not executable. The said application was registered as Misc Case No. 27/75 and after hearing the same the Execution Case No. 4/75 arising for execution of the compromise decree passed in FA No. 39/59 was held not executable. The decree holders preferred Misc Appeal No. 13/76 and 14/76 against the said order in the court of the District Judge, Silcliar. By a common judgment and order dated 10.6.81, the District Judge held that the compromise decree passed in FA No. 39/59 for eviction of judgment debtor was executable. Against this order dated 10.5.86, judgment debtor late Bibekananda Bhowal filed Civil Revision No. 114/81 and 115/81 before this Court and this Court stayed the proceedings of the execution case. During the pendency of the said civil revisions judgment debtor Bibekananda Bhowal died and the legal representatives of Bibekananda Bhowal, namely, opposite party Nos. 3 to 8 were substituted in the said Civil Revisions by order dated 9.7.84 (Annexure-3). The legal representatives contested the Civil Revisions. In the hearing of Civil Revision petitions No. 114/81 and 115/81, the judgment debtor Petitioners filed written argument (Annexure-III). In the written argument amongst; others judgment debtors urged the following subsequent events and changed circumstances, which nullified the compromise decree:

(a) expiry of the lease of late Satindra Mohan Dev and non-renewal thereof.

(b) purchase of the entire property by the Petitioners in 1966 by a registered deed.

(c) institution of Title suit No. 133/72 by the opposite parties in the court of Sadar Munsiff, Silchar against the Petitioners.

(d) application and affidavits with annexures of the executor Santosh Mohan Dev forgoing claims against the Petitioners and showing the Petitioners (Bhowal Medical Hall) as non evictable in Misc probate Case No. 135/71 and obtaining benefit thereby they cannot approbate and reprobate at the same time.

(e) obtaining of the probate by the executor Santosh Mohan Dev in 1975 on the ''WILL'' of late Satindra Mohan Dev.

(f) judgment and modification orders of this Hon''ble High Court in FA No. 458/73.

(g) suppression of material facts before the courts of law by the opposite parties.

(h) Clause C not having contained any of the ingredients required to be proved to evict a tenant u/s 5 of the Act, this decree cannot be executed.

By order dated 27.1.87 this Court dismissed the said two Civil Revisions and held that the compromise decree was executable. Against this order substituted judgment debtors, namely, opposite parties No. 3 to 8 filed an application for review of the judgment dated 27.1.87 passed in the Revision petitions. By order dated 1.7.87 (Annexure-IV) this Court dismissed the review application and granted three months time to the judgment debtors to vacate the suit premises. In para 5 of the judgment this Court on consideration of the ratio of the judgment passed in FA No. 458/73 and the order dated 30.5.83 held that opposite party No. 1 and 2 had never been nor are in possession of 2nd Scheduled land and held, in view of the judgment and order in FA No. 458/73, the compromise decree was executable. Further in para 7 of the judgment passed in the review application No. 1/87 this Court dealt with the ground regarding the ''LAST WILL'' of late S.M. Dev and the probate granted in the Will and rejected the contention of the judgment debtor that the compromise decree was not executable Substituted judgment debtors (opposite party Nos. 3 to 8) did not vacate the decretal premises after expiry of three months from 1.7.87, but tiled SLP before the Supreme Court impugning the order dated 1.7.87 passed in Review applications No. 1/87 (which was dismissed as infructuous by order dated 31.3.92). The opposite party Nos. 3 to 8 with opposite party No. 1 and 2 filed Title Execution Case No. 1/87 in the month of July, 1987 for execution of the decree passed in Title suit No. 5/72 by the District Judge by depositing Rs. 9000/- in the court as compensation. But the decree passed in Title Suit No. 5/72 was reversed by this Court by judgment dated 24.8.82 in FA No. 458/73.

After two months of expiry of three months time, granted by this High Court, Petitioner with other decree holders filed two applications on 30.11.87 in the court of the learned Assistant District Judge No. 2, Silchar one for insertion of names of the substituted judgment debtor in place of original judgment debtors and another petition for issue of writ for getting possession of the decretal premises, Learned Assistant District Judge No. 2 ordered for issue of fresh notices to the substituted judgment debtors and rejected the prayer to issue writ at that stage. By judgment dated 9.12.87 (Annexure-V) passed in the Civil Revision No. 402/87 setting aside the order dated 30.11.87 holding that as the legal representatives (opposite party Nos. 3 to 8) had already been substituted in Civil Revision No. 114/81 and 115/81 and they prosecuted the case, the issue of fresh notice was not necessary and directed the executing court to proceed with the execution of the decree. On 15.12.87 the opposite party No. 1 and 2 (who are not judgment debtors) filed Title suit No. 202/87 in the court of the Munsiff No. 3, Silchar for decree of declaration that the compromise decree passed in FA No. 39/59 was not executable and obtained ad interim injuction restraining the Petitioner and other decree holders from executing the decree. After obtaining the ad interim injunction the opposite party No. 1 and 2 filed a writ petition registered as Civil Rule No. 1378/87 before this Court. By order dated 17.12.87 (Annexure-VI) this Court disposed of the civil Rule with the observation that the Petitioners (opposite party No. 1 and 2) might approach the Executing court in an application u/s 47 Code of Civil Procedure. In persuance to the said order dated 17.12.87, the opposite party No. 1 and 2 filed an application u/s 47/151 CPC (Annexure-VIII) in Title Execution Case No. 4/75 and the application was registered as Misc Case No. 23/87 in Title Execution Case No. 4/75. An application was preferred by the Petitioner in this Court which was registered as Misc Case No. 23/38 for cancellation/modification of the order dated 17.12.87 passed in Civil Rule No. 1378/78. This Court by order dated 26.2.88 (Annexure-VII) directed the Assistant District Judge No. 2 not to entertain the application u/s 47 CPC filed as per permission granted by the order dated 17.12.87. On 9.3.88 (Annexure IX) the Petitioner filed an application annexing a certified copy of the order dated 26.2.88 in Misc Case No. 23/87 in Title Execution Case No. 4/75 praying for rejection of the Misc Case No. 23/87 in view of the order dated 26.2.88 passed by this Court in Misc Case No. 28/87. The learned Assistant District Judge No. 2, Silchar by order dated 30.5.88 held that the compromise decree dated 10.5.65 was not executable and passed order in favour of the opposite party No. 1 and 2 entertaining the petition u/s 47/151 Code of Civil Procedure. That order is impugned in this Civil Revision challenging the jurisdiction of the learned Executing court in passing such order.

I have heard Mr. D.N. Choudhury, learned Counsel for the Petitioner and Mr. B.K. Das, learned Counsel for the opposite party. Learned Counsel for the Petitioner submitted that the judgment debtor had already exhausted the remedies u/s 47 CPC and the question whether the decree was executable or not has been finally settled by the judgment of this Court in Civil Revision No. 114/81 and 115/81 and in Review application No. 1 of 1987. It is also apparent form the judgment of the Review application No. 1/87 that this Court fully considered the submissions of the judgment debtors that subsequent events nullified the compromise decree and held that the compromise decree was executable. Learned Counsel for the Petitioner submitted that a Special Leave Application against the judgment passed by this Court in Civil Revision No. 114/71 and 115/81 was dismissed by the Hon''ble Supreme Court by order dated 31.3.92 and the learned Counsel has produced a photo copy of the order in support of the submissions. Learned Counsel submitted that the application u/s 47/151 CPC filed by the opposite party No. 1 and 2, who are not judgment debtors, in the executing court apparently to delay the execution proceeding. In spite of the fact that this Court by order dated 26.2.88 specifically directed the executing court not to entertain the application u/s 147/151 Code of Civil Procedure, filed persuant to the order dated 17.12.87 passed in Civil Rule No. 1378/78 and the decision of this Court in Review application No. 1/87 which was in record of the Title Execution case No. 4/75, the learned Assistant District Judge has arbitrarily and illegally in violation of the direction of this Court entertained the application treating it as under 151 CPC apparently to bye pass the order dated 26.2.88 and passed the impugned order. The impugned order is not only illegal and without, jurisdiction but also passed in deliberate violation of the direction of this Court made by order dated 26.2.88 and also in deliberate disregard of the judgment and order passed in Civil Revision Nos. 114/81 and 115/81 and in Review application No. 1/87. Learned Counsel for the Petitioner has further submitted that with a view to delay the execution of decree passed as early as in the year 1965, the judgment debtor and/or brothers of the original judgment debtors are filing spurious Misc application and suprious suits. Learned Counsel for the Petitioner has also submitted that the Title suit No. 202/87 challenging the validity of the decree passed in 1965 is clearly time barred inasmuch as, as per provision of Article 59 of the Limitation Act, limitation for challenging validity of a decree is three years. The judgment debtor also filed Title Execution Case No. 1/87 by putting a non existing decree into execution by depositing Rs. 9000/- as compensation, just to create confusion and to delay the execution of decree. This Court in FA No. 455/83 held that the decree holders were non evictable tenant, over the suit land of Title suit No. 5/72 and the court set aside the decree for ejectment. Even then just after passing of the judgment in Review application No. 1/87 the opposite parties initiated execution case for non-existing decree just to confuse and delay the execution case. This sort of entertaining spurious proceedings and spurious suits to delay and defeat execution of a lawful decree should be discouraged. The learned Counsel further submitted that the subsequent events which are dealt in the impugned order by the learned executing court were already dealt by this Court in Civil Revision Nos. 114/81 and 115/81 and in Review Application No. 1/87. However the learned executing court sat on judgment over the decision of this Court and held that the decree was not executable.

Mr. B.K. Das learned Counsel for the opposite parties has submitted that a court can take into consideration to the subsequent events if the same has materiel bearing on the relief. In support of his contention Mr. Das has placed reliance, on a decision of the Apex Court in Ramesh Kumar Vs. Kesho Ram, The Subsequent event urged by Mr. Das are more or less same which was urged in the written argument by the judgment debtors in the hearing of Civil Revision Nos. 14/81 and 115/81.

I have considered the submissions made on behalf of the contesting parties and perused the impugned orders and other materials. It is apparent that the judgment debtors (opposite party Nos. 3 to 8) had already exhausted remedies u/s 47 CPC upto filing the Civil Revision No. 114/81 and 115/81 and Review application No. 1/87 and cannot agitate the same ground before the Executing court. The present opposite party No. 1 and 2 filed Misc Case No. 23/87 u/s 147/151 Code of Civil Procedure. The point to be considered now is whether the application u/s 47/151 CPC is maintainable. By order dated 26.2.88 (Annexure-VII) this Court specifically directed the Executing court not to entertain the application u/s 47/151 Code of Civil Procedure. Further as per order dated 30.5.83 (Annexure-II) and judgment dated 1.7.87 in Review application No. 1/87, the decision of this Court was that none of the applicants of Misc Case No. 21/87 (two brothers of original judgment debtor, i.e., the present opposite party No. 1 and 2) had been or are in possession of the decretal premises. So the question of any irreparable lost or suffering did not arise if the decree was executed. This Court set aside the decree of eviction of the Defendant-Appellants, who were held as non evictable tenant from the suit land passed in TS No. 5/72. Therefore the question of putting the decree into execution for eviction from the part of the suit land by depositing Rs. 9000/- could not arise. This Court in FA No. 458/73 only confirmed the value of the building as decided by the court below, but did not direct to deposit the amount for eviction of the Petitioners. Further the Executing court erroneously did not take into consideration the appellate judgment dated 10.6.81 and judgment dated 1.7.87 passed in Review application No. 1/87 by this Court in which identical grounds were dealt exhaustively and the decision was given that the decree was executable. The opposite party No. 1 and 2 by purchasing the ''Maliki right'' of the land on which the decretal premises situate entered into the shoes of the original landlord.

The opposite party No. 1 and 2 are not the parties to the execution proceeding. They are third parties. They filed this petition on the ground that they acquired ''Maliki right'' of the suit premises. As discussed above the decree holders filed the execution case in 1975 (Execution case No. 4/75) to execute the compromise decree. But due to the innumerable proceedings and counter proceedings decree could not be executed since 1975. The compromise decree was declared executable by this Court by order dated 27.1.87 which was affirmed by this Court by rejecting the Review application No. 1/87. The SLP preferred by the judgment debtor against the judgment passed in Civil Revision No. 114/81 and 115/81 was dismissed by the Apex Court. The heirs legal representatives of the judgment debtor were substituted in the Civil Revision No. 114/81 and 115/81. Opposite party No. 1 and 2 who, are not judgment debtors however filed TS No. 202/87. As to the submission of Mr. Das that subsequent event if had material bearing on the relief can be taken into consideration by the Court, it is to be considered what are the subsequent events. As already stated above the subsequent events sought to be urged in the written argument filed by the judgment debtors in Civil Revision No. 114/81 and 115/81 and that the effect of subsequent events were fully considered by this Court in Review application No. 1/87 and after consideration thereof this Court held that the decree was executable. As such, there is no scope to advance the points again and again and the learned executing court ought not to have entertained these points which had already been dealt with by this, court. Such entertainment amounts to defiance and disobediance of the ruling of this Court. Admittedly the Petitioner and other decree holders'' are the owners of the decretal premises standing on the land in respect of which the decree holders are non-evictable tenants. From the order dated 30.5.83 passed by this Court in FA No. 458/73, and the judgment passed in Review application No. 1/87 it is apparent that the opposite party No. 1 and 2 had not been in possession of the decretal premises and/or are also not found to be in possession of the decretal premises. As such execution of the decree in no way would cause any loss to them. In fact they cannot be concerned in the matter of execution of decree and it is the substituted judgment debtors; whose, predecessor-in-interest late Dr. B. Bhowal, the original judgment debtor was inducted in the decretal premises as a monthly tenant are concerned. When it is found that the opposite party No. 1 and 2 had never been in possession of the decretal premises the question of inherent power u/s 151 CPC to protect an apparently, non-existing interest cannot arise. The inherent jurisdiction must be exercised subject to the rule that if the code contains specific provisions which would meet the necessities of the case in question, such provisions should be followed and the inherent jurisdiction u/s 151 CPC should not be followed. In Ram Chand and Sons Sugar Mills Pvt. Ltd. Vs. Kanhaya Lal Bhargava and Others, the Apex Court observed that the inherent power of the court is in addition to and complementary to the powers expressely conferred under the Code of Civil Procedure. But that power will not be exercised if its exercise is inconsistent with or comes into conflict with any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are expressed provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions.

As already observed this Court by order dated 26.2.88 passed in Misc. Case No. 23/88 directed the learned Executing court not to entertain the application which was filed in persuant to the order dated 17.12.87 passed in Civil Rule No. 1378/78. As such, prima facie it appears that the learned executing court in violation of the direction of this Court has entertained the application and passed the impugned order. Disobedience of the direction passed by this Court on 26.2.88 and defiance of this Court''s decision passed in Review application No. 1/87 cannot but be viewed seriously,

Application tiled by the opposite party during the course of hearing on 3.9.92 for calling the records in the Title Execution case has been refused as this Court felt it was not necessary in view of relevant annexures annexed by both the parties in their petitions and counter affidavits which are sufficient for disposal of the Revision Petition.

For the reasons stated above, the impugned order is illegal and without jurisdiction. The petition is allowed and the impugned order dated 30.5.88 passed in Misc Case No. 23/87 in Title Execution Case No. 4/75 is set aside with cost of Rs. 500/-.