Champabati Devi vs The State of West Bengal

Sen, J.—These revisional applications are directed against an order of Sri S.N. Bagchi, Additional District Judge, Alipore, holding that two execution cases filed by Sm. Chainpabati Devi could not he maintained in his Court.

The facts are briefly as follows: Portions of premises Nos. 25A, Theatre Road, and 6A, Outram Street, Calcutta, belonging to the Petitioner were requisitioned under the Defence of India Rules and government took possession on November 7, 1954. The requisitioned area comprised mostly open land adjoining the buildings at the address mentioned above. In April, 1947, the Petitioner was paid Rs. 42,000 in part payment of the compensation; but as there could be no agreement as to the amount of total compensation payable to the Petitioner, a reference was made to an arbitrator for determination of the compensation u/s 19 of the Defence of India Act. Shri R.S. Trivedi, I.C.S., was appointed as the arbitrator. The arbitrator held local inspection and took the necessary evidence and by an order dated May 3, 1948, made an award of compensation at Rs. 940 per month from November 7, 1944, which was found to be the date on which government took possession, to the date of formal release. In the course of his order Sri B.S. Trivedi observed that the formal release of the property requisitioned had already taken place. There was an appeal by the Petitioner, and a Bench of the High Court by an order, dated August 6, 1953, increased the rate of compensation, directing that the same should be calculated at the rate of Rs. 25 per cotta per month for the open land measuring approximately 50,000 sq. ft. and a further sum of Rs. 70 per month for the godowns included within the requisition. It was directed that the compensation money should be paid to the claimant Petitioner within a month of the arrival of the records in the lower court, less the amount which had already been paid. The Petitioner, claiming that the compensation as awarded by the High Court had not been paid by the government, started two execution cases Nos. 1/56 and 3/56, in the court of the Arbitrator and First Additional District Judge, Alipore. In execution case No. 1/56, the claim was made for Rs. 1,08,505-9-6, being compensation at the rate fixed by the High Court from November 7, 1944 to June 30, 1956, the case of the Petitioner being that no formal release of the whole area had taken place by that date, although a portion of the area had been acquired by the government with effect from June 1, 1950, and compensation on the balance of the area said to be under requisition was sought from June 2, 1950. The amount was claimed after deducting Rs. 42,000 already paid as part-payment in April, 1947, and Rs. 26,194-9-9 deposited by cheque on June 26, 1956, in the original arbitration case.

In execution case No. 3/56, the Petitioner claimed compensation of Rs. 766-5-9 for the month of July 1956, alleging that the area of 22,100 sq. ft. was still under requisition.

These cases were filed before Sri. G.S. Chatterjee who was then in charge of the court of the Arbitrator and first Additi6nall District Judge, Alipore, on July 2, 1956, and August 27, 1956, respectively. The learned Judge issued notices under Order 21, Rule 22 of the CPC and also reported the cases u/s 82 of the Code of Civil Procedure. The Assistant Secretary, Land and Land Revenue Department, Requisition Branch, replied to the reports stating that the balance of the dues under the High Court decree coming to Rs. 26.194-9-9 had already been deposited in the original arbitration case No. 247 of 1947 for payment to the decree holder Champabati Devi. On behalf of the government it was claimed that nothing further was due under the award. According to the government, the property in question had been de-requisitioned on December 8, 1947, and it was not correct that the area was still under requisition even in June and July, 1956. After certain further proceedings, the State government filed objections u/s 47 of the Code of Civil Procedure, taking the defense that the applications for execution were not maintainable as the property had been de-requisitioned on December 8, 1947, and the whole of the balance of compensation due had been deposited on June 26, 1956, before the execution cases had been started and the question whether the property had been validly de-requisitioned or not could not be agitated in the execution proceedings; and that the court of the First Additional District Judge had no jurisdiction to entertain the applications for execution of the award which had been made by an Arbitrator u/s 19 of the Defense of India Act.

The two objection petitions u/s 47 of the CPC filed in the two cases were heard together by Sri. S.N. Bagchi, who was at the time the presiding officer of the Court of the First Additional District Judge, Alipore. The learned Judge came to the conclusion that under Rule 20 of the Rules framed u/s 19 of the Defense of India Act, the Arbitrator was deemed to be a court and the award would have to be executed by him in the same manner as a decree, and that the court of the First Additional District Judge who was not an Arbitrator u/s 19 of the Defense of India Act could not entertain the applications for execution. The learned Judge, therefore, found that he had no jurisdiction to deal with the applications for execution. In that view he did not deal with other objections of the government, viz., that as the property had been de-requisitioned on December 8, 1947, the execution cases were not maintainable, and that the question whether there had been valid de-requisition could not be entertained or decided by the executing court.

From that decision the decree-holder Petitioner Champabati Devi has filed these revisional applications, Mr. Jitendra Kumar Sen Gupta, appearing for the Petitioner, has repeated the argument which was advanced by him before the lower court, viz., that as the Arbitrator Sri. R.S. Trivedi was dead, and as Rule 20 of the Rules framed u/s 19 of the Defence of India Act, provides, that the award of the Arbitrator shall be enforceable in the same manner and to the same extent as a decree of the Civil Court and the Arbitrator shall be deemed to be a court, it should be held that the business of the court, i.e., the Arbitrator, had been transferred to the court of the First Additional District Judge, Alipore, and, therefore, the presiding officer of the court of the First Additional District Judge had jurisdiction to entertain the execution cases u/s 150 of the Code of Civil Procedure. Section 150 of the CPC provides that save as otherwise provided, where the business of any court is transferred to any other court, the court to which the business is so transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed upon the court from whom the business was so transferred. In this connection Mr. Sen Gupta has stated that when the sum of Rs. 26,194-9-9 was deposited in the original case, viz., Land Acquisition case No. 247 of 1947, which was the proceeding before the Arbitrator Sri R.S. Trivedi, Sri. G.S. Chatterjee, who about the middle of 1956, was the presiding officer of the First Additional District Judge''s court, raised the question whether he was competent to deal with payment to the referring claimant in the above case, and the First Land Acquisition Collector by letter No. 4495 of August 30, 1956, intimated that there was no objection to the payment being made to the referring claimant in the above case by him, and that as the award of the Arbitrator has the force a decree of a Civil Court, no appointment of a fresh Arbitrator seemed to be necessary for the execution proceedings. Mr. Sen Gupta has produced a copy of the letter in question for our inspection. Mr. Sen Gupta has also pointed out that when Sri G.S. Chatterjee who received the two execution applications, made his reports u/s 82(1) of the CPC to the Secretary, Land and Land Revenue Department of the government of West Bengal, re-described himself as the Arbitrator at Alipore, and the Assistant Secretary of the Land and Land Revenue Department replied to him in September, 1956, addressing him as the Arbitrator, 24-Parganas at Alipore. Mr. Sen Gupta has, therefore, urged that apart from the provisions of Section 150 of the Code of Civil Procedure, the government in the Land and Land Revenue Department, which is the relevant department concerned, submitted to the jurisdiction of the First Additional District Judge in connection with the two execution proceedings and therefore subsequently the government could not be allowed to raise the objection that the court of the First Additional District Judge did not have jurisdiction to entertain the execution applications in respect of the award made by Sri. R.S. Trivedi u/s 19 of the Defence of India Act.

In relation to the argument based on the provisions of Section 150 of the Code of Civil Procedure, the point for consideration is whether the court of Sri. G.S. Chatterjee, viz., the court of the First Additional District Judge, Alipore, could be regarded as the court to which the business of Sri. R.S. Trivedi as Arbitrator had been transferred. Sri. R.S. Trivedi as Arbitrator was exercising special jurisdiction conferred on him by his appointment as an Arbitrator u/s 19 of the Defence of India Act, and though Rule 20 of the Rules u/s 19 of the Defence of India Act provides that the Arbitrator should be deemed to be a court, and though it may be true that Sri. R.S. Trivedi in addition to his functions as the Arbitrator was working as the First Additional District Judge Alipore, still Sri. R.S. Trivedi disposed of the reference made to him as Arbitrator in May, 1948, by making an award, and was thereafter transferred; he died a few years later; and Sri. G.S. Chatterjee was appointed as the First Additional Judge, Alipore, in 1956 and was never appointed as an Arbitrator u/s 19 of the Defence of India Act. In the circumstances, it would hardly be correct to describe Sri. G.S. Chatterjee as successor to Sri. R.S. Trivedi, and it cannot be said that the business of Sri. R.S. Trivedi''s court stand transferred to Sri. G.S. Chatterjee. Mr. Sen Gupta has referred to a decision of this Court, Abdus Sattar v. Mohini Mohan (1933) 37 C.W.N. 679, in which it was held that a decree passed by a Munsif''s Court when the presiding officer had special jurisdiction up to Rs. 2,000 could be executed by his successor Munsif even though not having special jurisdiction up to Rs. 2,000. I do not however think that this decision would apply by analogy to the facts of the present case, because that decision related pecuniary jurisdiction only and in the present case we are concerned with special jurisdiction as an Arbitrator. The correct procedure would be for the Arbitrator himself, and where the Arbitrator is dead, another person appointed as Arbitrator to entertain the execution applications in respect of the award, and thereafter of course the award could be sent for execution to any other Court under the provisions of Section 38 of the Code of Civil Procedure.

The learned Government Pleader has referred to Section 37 of the Code of Civil Procedure, which defines to the expression "the court "which passed a decree" in relation to the execution of decrees. Section 37 provides that where the court of first instance which passed the decree has ceased to exist, the court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit, shall be deemed to be the court which passed the decree. Accordingly, in the present case, the execution cases could be validly entertained by some court which could validly make the award as Arbitrator u/s 19 of the Defense of India Act. Now, Sri. G.S. Chatterjee, First Additional District Judge, could validly be appointed as an Arbitrator, but he could not pass an award as an Arbitrator unless he was specifically appointed as such Arbitrator. In the circumstances, strictly speaking it should be held that the court of Sri. G.S. Chatterjee, First Additional District Judge, Alipore, could not entertain the execution applications in respect of the award because on the dates on which the execution applications were filed he could not have made the awards, as he was not appointed as an Arbitrator u/s 19 of the Defense of India Act. The proper procedure as I have already indicated, would be that the execution applications should be filed before an Arbitrator appointed u/s 19 of the Defense of India Act, and then any other court like the court of the First Additional District Judge could execute the decree if the execution case was sent to it u/s 38 of the Code of Civil Procedure.

Next, we have to consider the argument of Mr. Sen Gupta that at the first stage the government in the Land and Land Revenue Department acquiesced in the jurisdiction of Sri. G.S. Chatterjee to execute the award as the Arbitrator and First Additional District Judge, and therefore after about a year the government could not turn round and deny that the Court of the First Additional District Judge had jurisdiction. In this connection we may refer to the decision of the judicial committee in Ledgard and another v. Bull . That case arose out of a proceeding for breach of a patent tinder the patent law. Under the provisions of the Act a suit for such a breach of patent could only be enter-trained by the court of the District Judge. The suit was however: filed in the court of Subordinate Judge and was subsequently transferred by the Additional District Judge with consent of both parties and was disposed of by the District Judge. It was held that as the suit had been instituted in the court of the Subordinate Judge who was incompetent to try it and had sub-subsequently been transferred to the court of the District Judge who was competent to try the suit, the transfer was incompetent because the suit had not been filed in a proper court having jurisdiction, and that the consent given by the Defendants to the transfer to the court of the District Judge would not operate as a waiver to the plea of want of jurisdiction which was taken in the Defendant''s written statement and was subsequently insisted upon. In the course of the decision it was observed that when in a cause which the Judge is competent to try, the parties without objection join issue, and go to trial upon the merits the Defendant cannot subsequently dispute his jurisdiction upon the ground that there were irregularities in the initial procedure which if objected to at the time would have led to the dismissal of the suit; but where the court had no inherent jurisdiction over the subject-matter of the suit the parties could mot by consent convert the proceeding into a proper judicial process.

Mr. Sen Gupta lias urged that in any case, the First Additional District Judge would have jurisdiction if the execution cases were transferred to that court u/s 38 of the Code of Civil Procedure, and it could not be said that the court did not have any jurisdiction at all to deal with execution cases, and that even if there was irregularity in assuming jurisdiction, the objection to jurisdiction must be deemed to have been waived. In the present case, however, I must hold that the court of the Additional District Judge did not have inherent jurisdiction to entertain the execution cases, although it could entertain the execution cases, on their being sent or transferred to it under the proper provisions of law. In the circumstances, it is not a case of irregularity in assuming jurisdiction but want of inherent jurisdiction. Further a reference to the order sheet of the execution cases shows that the court did not definitely assume jurisdiction; the court was hesitating in the matter of exercise of! jurisdiction, and at one stage the cases were transmitted to the court of the Arbitrator under the Central Government at 1, Strandale Road, Alipore. Thereafter the cases were received back from the Arbitrator at 1 Strandale Road, Alipore, and even thereafter the court thought of making a reference to the Secretary of Land and Land Revenue Department regarding the matter of jurisdiction. It was shortly thereafter that the objection petitions u/s 47 were filed, in which objections on merits as well as objection to jurisdiction were made. In the circumstances it could not be said that the court had assumed jurisdiction with the consent of the parties, even though there had been a letter previously written, though not in connection with these execution cases, stating that Sri. G.S. Chatterjee as First Additional District Judge, Alipore, could make the payment to the referring claimant in L.A. Case No. 247 of 1947, and that appointment of a fresh Arbitrator was unnecessary for execution proceedings.

In the circumstances, we hold that the Additional District Judge, Alipore, did not have jurisdiction to entertain the execution applications in connection with the Arbitrator''s award, such award not having been sent or transferred to the court of the First Additional District Judge, by the Arbitrator; and that there was no such assumption of jurisdiction with the consent of the parties as to amount to waiver of the objection as to jurisdiction by the opposite party, the State Government; and the opposite party could therefore raise the question of want of jurisdiction in their objection petitions u/s 47 of the Code of Civil Procedure.

In connection with the order of the learned Additional District Judge, that the execution applications be returned for filing to the Arbitrator if and when appointed under the Defense of India Act, we do not think that should he the correct order in view of the circumstances of this particular case. Though we have agreed with the finding of the court below that the court of the Additional District Judge had no jurisdiction to entertain the execution cases, still for the purpose of avoiding unnecessary proceedings we would make some observations as to the merits. The award by Shri R.S. Trivedi which is on the record shows that the land had been vacated by the Government and release had taken place. Thus at the 2nd page of his judgment Shri R.S. Trivedi observed that an amendment in the order of requisition had been made by the Collector after the land had been vacated by the Government, and though the claimant persisted in his fiction that the land had not been vacated, that was only his imagination. Towards the end of the judgment again, he observed that the rent payable under the award shall be payable up to the formal date of the release of the premises by Government which has already taken place. In the circumstances, the terms of the order by Arbitrator assessing the compensation at Rs. 940 per month from November 7, 1944, to the date of formal release, cannot be taken to mean that the award covers compensation for any period after the date of the order May 3, 1948 or that the date of formal release referred to is a future date. Mr. Sen Gupta has urged in this connection that the High Court left the question open whether or not formal release had already taken place. If the question was left open, the question could not be decided in execution proceedings, but an independent suit or proceeding must be filed for deciding it. The judgment of the High Court is not before us, but the decree-of the High Court shows that the High Court directed that the compensation should be paid to the claimant within one month of the arrival of the records in the lower court, less any amount already paid; this would indicate that compensation was being awarded for a period which had already passed, and that it could not be an award in respect of a monthly payment from month by month in the future. In the circumstances, we must hold that the Petitioner is not entitled to claim any additional amount after the date of release, viz., December 8, 1947, on the basis of the award of Shri R.S. Trivedi as modified by the High Court. If the case of the Petitioner is that the de-requisition as made on December 8, 1947 was not legal and that the requisition should be deemed to be continuing until 1956, it is necessary that the Petitioner should obtain a declaration to that effect in a suit before she seeks to realize any compensation for the period after December 8, 1947.

In the circumstances, in place of the order passed by the learned Additional District Judge directing that the applications for execution be returned to the filing pleader, we would order that the applications for execution of the award be dismissed. Subject to the above modification of the order of the court below, these rules are discharged with costs.

N.K. Sen, J.

I agree.