Monishi Mohan Gupta vs Nitai Chand Dey

Chittatosh Mookerjee, J.—The Petitioners who are judgment-debtors in Ejectment Execution Case No. 333 of 1972 have obtained this Rule against an order of the learned Chief Judge, City Civil Court at Calcutta, vacating an order of the learned Registrar of the said Court that the said Ejectment Execution Case be disposed of on full satisfaction. The learned Chief Judge by the same order ordered that a fresh writ of delivery of possession be issued in favour of the decree-holder (the opposite party in the Rule.)

Nitai Chand Dey, the opposite party in this Rule, had instituted Ejectment Suit No. 1055 of 1967 against the present Petitioners in the City Civil Court at Calcutta for eviction from No. 3 Baitakkhana 2nd. Lane. The learned Judge, Second Bench, City Civil Court, decreed the said suit in favour of Netai Chand Dey. This Court had dismissed the appeal from original decree No. 1179 of 1960 preferred by the present Petitioners.

Thereafter the opposite party had filed Ejectment Execution Case No. 333 of 1972 for execution of the aforesaid decree for possession obtained by him against the Petitioners. The learned Registrar, City Civil Court, by order No. 2 dated July 19, 1972, directed issue of writ of possession under Order 21, Rule 35 of the CPC fixing August 11, 1972, for return. On August 11, 1972, the learned Registrar passed the following order:

Writ of possession returned after execution as per bailiff''s Respondent dated 27.7.1972.

Possession delivered on 27.7.1972.

Ordered

that the execution case be disposed of on full satisfaction.

A copy of the writ together with the return of a process server of the executing Court has been made annex. ''A'' to the petition. According to the said return, on July 27, 1972, at about 12-30 p.m. the said process server had

delivered khas peaceful and vacant possession of the suit premises as per schedule to the decree-holder who furnished a receipt after obtaining possession.

The Petitioner No. 1 Monishi Mohan Gupta was tried in the Court of the Presidency Magistrate, Calcutta, upon a complaint u/s 448/323/506 of the Indian Penal Code filed by the opposite party. The opposite party''s case in the said criminal case that on July 27, 1972, at about 12 noon the accused Monishi Mohan Gupta had trespassed into the above premises after driving out the complainant. The learned Magistrate acquitted him. The opposite party filed Cr.A. No. 322 of 1973 against the said acquittal order. A.K. Dev J. by his judgment dated June 12, 1974, dismissed the said appeal.

Thereafter, on August 19, 1974, the opposite party Netai Chand Dev filed before the learned Registrar, City Civil Court, an application in Ejectment Execution Case No. 333 of 1972, inter alia, praying that his order No. 3 dated August 11, 1972, be set aside and for restoring the said execution case. He also prayed that the bailiff be directed to deliver possession of the suit premises to the decree-holder.

On August 28, 1974, the learned Registrar passed an order staling that lie was not competent to decide the said application and directed that the application filed by the decree-holder on August 19, 1974, be returned for, presentation to the proper Court. Thereafter, on September 2, 1974, the Petitioner refiled before the learned Chief Judge, City Cavil Court, the said application dated August 19, 1974, along with a separate petition for treating the said application as one under Rule 12 of the City Civil Court Act, 1953, The learned Chief Judge directed service of the notice upon the judgment-debtor. Thereafter, the judgement-debtor filed a written objection to the said application.

On December 18, 1974, the learned Chief Judge heard both the parties. On December 20, 1974, the learned Chief Judge passed the aforesaid order allowing the decree-holders application. He vacated the order of the learned Registrar, dated August 11, 1972 and directed issue of a fresh writ for delivery of possession.

Mr. Balai Chandra Roy, the learned Advocate for the Petitioners, submitted before me that Rule 12 of the Rules of the Calcutta City Civil Court, 1956, was not applicable to the present case. The learned Chief Judge, accordingly, was not competent to set aside the order of the learned Registrar dated August 11, 1972, after expiry of the time limit laid down in Rule 12. Secondly, Mr. Roy submitted that the learned Chief Judge acted illegally by relying upon the findings and observations in the judgment passed in the criminal appeal preferred against acquittal of the Petitioner No. 1. According to Mr. Roy, the learned Advocate for the Petitioners, observations in criminal Court judgments are not evidence in civil Court regarding the factum of delivery of possession to the decree-holder opposite party on July 27, 1972. Mr. Roy further submitted that in the instant case the ejectment decree in question was passed by the learned Judge, Second Bench, Civil Court at Calcutta. Therefore, in any event, the learned Chief Judge could not assume the powers of the executing Court and restore the execution case already disposed of on full satisfaction.

Rule 11 of chapter III, p. II of the Rules of the Calcutta City Civil Court, 1956, enumerates the duties and powers of the Registrar in relation to suits and cases in addition to powers conferred on him by other rules and regulations. The Registrar under item No. 10 may receive applications for execution. The Registrar under Rule 11(12) exercises:

all the powers of an executing Court under Order 21 of the CPC relating to the examination and registration of applications for execution and issue of different processes in cases where there is no contest, but not including powers under Rules 32, 34, 37 to 41, 50, 58, 72, 89 to 92 and 97 to 101 of the Order.

The judgment-debtor contested the application of the decree-holder for restoration of the execution case and for issue of a fresh writ of delivery of possession. Accordingly, the matter was to be heard by the executing Court. In the above view, Rule 12 of chap. III was not attracted to the facts of the present case. The executing Court alone was competent to deal with the above application filed by the decree-holder. I have indicated that one of the points in this Rule is whether the learned Chief Judge was entitled to exercise the powers of the executing Court.

In case, on July 27, 1972, the process server of the City-Civil Court had actually delivered possession to the decree-holder by executing the writ issued in Ejectment Execution Case No. 333 of 1972 then the executing Court would have no jurisdictions to revive the execution case and to order issue of a fresh writ. If, on the other hand, in fact no delivery of possession was given to the decree-holder in execution of the writ on July 27, 1972 and the decree obtained by the opposite party has not been satisfied, then the executing Court possesses ample power to set aside the order dated August 11, 1972, disposing of the execution case on full satisfaction and to issue a fresh writ for delivery of possession in favour of the decree-holder. Therefore, another point in the case is whether on July 27, 1972, possession of the suit premises was actually delivered to the decree-holder.

The City Civil Court, which is an additional civil Court for the city of Calcutta, was established by notification No. 10585 dated February 14, 1957, issued by the State Government u/s 3 of the City Civil Court Act, 1953, (published in the extraordinary issue of the Calcutta Gazette on February 20, 1957). Under Sub-section (1) of Section 5 of the local limits of the jurisdiction of the City Civil Court is the city of Calcutta. The learned Chief Judge u/s 10(1) can make arrangements as he thinks fit for distribution of the business of the City Civil Court among the Judges thereof. Notwithstanding such distribution of business each of the Judges of the City Court has territorial jurisdiction over the entire city of Calcutta. But for convenience there could be allocation of suits and proceedings amongst the Judges of the said Court who exercise co-ordinate jurisdiction. The exercise of powers of distribution of business and transfer and withdrawal u/s 10 of the City Civil Court Act does not curtail or limit the extent of the territorial jurisdiction of the City Civil Court. The learned Advocate for the Petitioner in support of his submissions that the learned Chief Judge cannot act as the executing Court had relied upon the decision in Ajit Kumar Pal Vs. Sadhan Chandra Pal, . The said case was in connection with a transfer application u/s 24 of the Code of Civil Procedure, 1908 and in the said case the learned Judge had referred to Sub-section (1) of Section 13 of the Bengal, Agra and Assam Civil Courts Act, 1887. The said case is distinguishable. The provisions of Section 13(1) of the Bengal, Agra and Assam Civil Courts Act are not pari materia with Section 10(1) of the Calcutta City Civil Court Act, 1953. The State Government u/s 13(1) of the former Act by a notification may alter or fix local limits of jurisdiction of any civil Court. Section 10(1) of the City Civil Court Act has some similarities with Section 13(2). u/s 13(2) of the Bengal, Agra and Assam Civil Courts Act the District Judge may assign civil business to each of two or more Subordinate Judges or Munsifs cognizable by them subject to any special order of the High Court. In such a case the Subordinate Judge or the Munsif, as the case might be, retains his territorial jurisdiction, but for convenience he exercises jurisdiction over the area fixed by the District Judge.

Chakravarti J, in Jagabandhu Nandi Vs. Sivaprosad Bhatta-Charjya and Others pointed out that

the source of the jurisdiction of a Munsif was the order made by the local Government u/s 13(1) of the Bengal, Agra and Assam Civil Courts Act and that an order made by the District Judge of the station u/s 13(2) merely distributes, as a matter of convenience and with reference to certain local areas, the civil business amongst two or more Courts each of which has jurisdiction over the whole area

and

neither of the Courts loses jurisdiction which it has under the Government order made u/s 13(1) of the Act.

Accordingly, if a suit is filed in the Court of a Munsif to whom the local area does not stand allotted, then an order passed by that Court transferring the suit to the Court to which the local area stands allotted is well within jurisdiction.

Sen and N.K. Sen JJ, in Shib Nath Mukherjee, Judgment-debtor Vs. Life Insurance Corporation of India, Decree-holder, quoted with approval the following observations of B.K. Mukherjea and C.C. Biswas JJ, in Masrab Khan v. Deb Nath Nali and Ors. 46 C.W.N. 141 : 75 C.L.J. 255:

An order u/s 13(2) of the Civil Courts Act does not effect at transfer of jurisdiction. It merely distributes as a matter of convenience and with reference to certain local areas, the civil business amongst two or more Courts each of which has jurisdiction over the whole area. In such cases neither of the Courts would lose the jurisdiction which it acquired u/s 13(1) of the Act.

The learned Judge in Masrab Khan''s case had pointed out that u/s 13(c) of the Bengal, Agra and Assam Act, it is the local Government which can fix and alter the local limits of jurisdiction of any civil Court. The local limits thus fixed determine the jurisdiction of Courts. But u/s 302 the District Judge assigns civil business cognizable by them. The City Civil Court itself u/s 5(1) of the City Civil Court Act, 1953, read with the Schedule u/s 20 of the West Bengal Premises Tenancy Act, 1956, acquired jurisdiction to try ejectment suits upto the value specified in the said Schedule and to execute ejectment decrees passed in such suits. Such jurisdiction was neither lost nor modified by arrangements made by the Chief Judge for distribution of business amongst the Judges in terms of Section 10(1). I, accordingly, hold that the learned Chief Judge was competent to deal with the execution case in question. Further, the Chief Judge u/s 10(2)(b)(c) can withdraw any suit or proceeding and dispose of the same. Therefore, the Chief Judge was competent to pass the order impugned in this Rule.

I am not inclined to interfere in revision with the order passed by the learned Chief Judge for restoration of execution case. The merits of the case are overwhelmingly against the Petitioner. Therefore, this Court would be slow in interfering u/s 115 with the order u/s 151 of the Code. The opposite party had obtained an ejectment decree against them which has been affirmed by tins Court. The Petitioners neither in the executing Court nor in this Court have asserted that they have any right in respect of the suit property. Their only case was that the execution case against them having been disposed of on full satisfaction, the opposite party cannot pray for fresh delivery of possession. But I have already observed that in case possession was not in fact delivered to the Defendant the executing Court is competent to revive the ex-case and to issue fresh writ.

There is considerable substance in the contention of the learned Advocate for the Petitioners that the judgment in the criminal case against the Petitioner No. 1 would be irrelevant except when the existence of such judgment is a fact in issue or relevant under some other provisions of the Evidence Act (see Section 43). Therefore, the said criminal Court''s judgment under Sections 11 and 13 would be merely relevant evidence as a transaction. But the findings in the said criminal) Court''s judgment that the decree-holders did not obtain delivery of possession would be not binding upon the present parties in the civil Court. In this connection see the observations in Anil Behari v. Latika Bala Dassi AIR 1955 S.C. 556, 571 and in Krishnan Asari and Another Vs. Adaikalam and Others, .

Sarkar on Evidence (12th ed., pp. 476 and 477) has discussed the said question of relevancy of criminal Court''s judgment in civil cases and vis-a-vis at length.

In the instant case, the decree-holder in his application for setting aside the order dated August 11, 1972 and for restoration of Ejectment Execution Case No. 333 of 1972 had no doubt stated that the bailiff had delivered possession to him and on July 27, 1972, the Defendant No. 9 had forcibly broken open padlock and had trespassed into the premises (vide paras. 2 to 5). These averments should be read in the context of other statements made by the decree-holder in his said application and the special facts and circumstances of the present case. Further, the present Petitioners in their petition of objection did not admit the said fact that the delivery of possession was really given on July 27, 1972. They in para. 3 of their objection petition dealt with the judgment in the criminal case by tersely observing that they were matters of record. The Petitioners nowhere in their said objection petition claimed that they had dispossessed the decree-holder after the writ had been executed and the decree-holder had obtained khas possession. The present party in para. 8 of his application in the Courts below again relied upon the judgment in the criminal Court that the decree-holder did not obtain physical possession in the suit premises. As already observed the Petitioners had contested the application for restoration of the execution case not on the ground that possession was actually delivered to the decree-holder and the decree had been already satisfied, but on the broad ground that an execution once disposed of could not be revived.

In the above view, the learned Chief Judge did not commit any error of jurisdiction by directing restoration of the execution case. The learned Chief Judge found as a fact that the decree obtained by the opposite party had not been satisfied. Even assuming that the learned Chief Judge was not quite right regarding the evidential value of the judgments of the criminal Court, still the the same was a mere error of law without affecting his jurisdiction. The learned Chief Judge upon consideration of all the facts and circumstances has reached the conclusion that the possession of the suit property has not vet been delivered to the decree-holder. I have already observed that the merit of the case is also against the Petitioners.

Therefore, I do not propose to interfere in this case. The decision of Sir Asutosh Mookerjee J. and Beach croft J. in Munshi Kali Sankar Sahay and Ors. v. Maharajah Protap Udai Nath Saha L.R. 16 IndAp 708 was relied upon by the learned Chief Judge. The facts of the said case have some similarities with the present one. The learned Judges with reference to the stand taken by one of the parties in a proceeding u/s 144 of the Code of Criminal Procedure observed:

It appears that after delivery had been effected, disputes broke up between the parties as to the possession of crops, whereupon proceedings were taken u/s 144, Code of Criminal Procedure. In these proceedings the question arose whether the decree-holder or the judgment debtors were in possession of the property. Questions were put to the judgment-debtors as to whether they challenged the delivery of possession made on the 1st September, 1911 and whether or not they were, notwithstanding that order, still in possession of the property. The judgment-debtors took time and subsequently answered the questions in the manner following : ''We are still in possession of the villages by collecting rent and appropriating the crops grown on the khas lands : the possession given to the decree-holder after the issue of the rule by the High Court was not valid''. Upon this, the decree-holder withdrew the case and stated that he would apply for fresh execution of the decree. The Magistrate thereupon directed that the judgment-debtors, now the Appellants before us do get the crops attached. The judgment plainly cannot take inconsistent position in Court to the detriment of the decree-holder. They established their possession in the criminal Court by a two-fold assertion, namely, first that the delivery of possession on the 1st September, 1911, after the order for stay had been made by the High Court, was illegal; and secondly, that notwithstanding that order, they had retained possession of the property. It is clear, therefore, that the decree-holder is entitled to ask for fresh delivery of possession. The first ground thus fails.

The Petitioners have taken up a rather equivocal position. While they did not claim that actual possession was delivered on July 27, 1972, at the same time they asserted that further execution was not legal. In this case the clear finding of fact by the Court below is that the decree-holder did not previously obtain possession. Therefore, the Court below had jurisdiction to revive and restore the execution case in question.

For all these reasons this Rule fails.

There will be no order as to costs.

Let the records be sent down.