Rasomay Mitra vs Smt. Lachmi Todi

Sudhindra Mohan Guha, J.—The order dated May 26, 1981 passed by Shri S.K. Mitra, Judge, City Civil Court. Calcutta in Miscellaneous Case No. 971 of 1978 rejecting an objection u/s 47 of the Civil P. C. on the ground of limitation has been challenged under the present Rule,

A suit for ejectment being Ejectment Suit No. 530 of 1969 was filed against the petitioner on April 15. 1969 which was decreed ex parte on 4th July, 1969. This decree was put into execution on Aug. 26,. 1969 by Ejectment Execution Case No. 611 of 1969. On Nov. 12, 1969 the opposite party filed an application for allowing Police help which was numbered as Misc, Case No. 880 of 1969.

On May 6, 1970 the petitioner filed an application under Order 9, Rule 13 of the C. P. Code which was numbered as Misc. Case No. 431 of 1970. Misc. Case No. 880 of 1969 for Police help was allowed ex parte on Dec. 21, 1970. The application for setting aside ex parte decree i. e. Misc. Case No. 431 of 1970 was dismissed on contest on Mar. 25, 1972. The appeal against the order being F. M. A. 457 of 1972 was dismissed on contest on April 17, 1979. The petitioner tenant, however, was allowed time till the end of July 1979 for rendering vacant possession. Further proceedings of Ejectment Execution case remained stayed from May 7, 1970 to July 31, 1979. On July 31, 1979 the petitioner came up with the objection u/s 47 of the C. P. Code. This was numbered as Misc. Case No. 971 of 1979. On the following day an application u/s 5 read with Section 14 of the Limitation Act and Section 151 C. P. Code was filed for condonation of delay. By the impugned order the application for condonation of delay as well as objection u/s 47 was rejected.

Mr. R.N. Mitra, learned Advocate for the petitioner contends that the objection u/s 47 of the Code is not an application and as such the provision of Article 137 of the Limitation Act would not be applicable. It is only by way of abundant caution the petitioner filed an application for condonation of delay. With reference to Civil Rules and Orders Vol. I. Rule 776 it is contended that the objections u/s 47 of the Code has been described as cases and not applications and that the learned Judge was not justified to treat the objection as an application. Reliance is made on the cases reported in Pokhar Singh Vs. Tula Ram, and Nar Singh Datt Vs. Ram Pratap and Others, . It is held therein that no limitation is prescribed for an objection u/s 47, C. P. Code. Objection under that section cannot fall within Art. 181 of the Limitation Act. For an analogy Mr. Mitra refers to the decision of a Division Bench of this Court in the case of Birendra Nath Banerjee Vs. Sm. Snehalata Devi and Another, , wherein it is held that an application for pre-emption u/s 4 of the Partition Act, 1893 can be made at any stage while the suit is pending or in other words before final decree for partition is made. An application claiming pre-emption at any time when the appeal against final partition decree is pending cannot be held barred by limitation on the ground that it has been filed beyond three years of the passing of the preliminary decree. Again in support of the contention that even if the objection be taken to be an application, that being filed in a pending proceeding, will not be attracted under Article 137 reliance is placed on the decision in the case of Paritosh Kumar Ghose Vs. Smt. Saraswati Nandi, . It is contended by Mr. Mitra that there is hardly any difference between a pending suit and a proceeding for execution.

Mr. Saktinath Mukherjee, learned Advocate for the opposite party on the other hand contends that the Division Bench of this Court held that a proceeding u/s 47 of the C. P. C. will be governed by Limitation Act. He makes reliance on the decision in the case of Hafez Uzir Ali Vs. Nasimannessa Bibi and Others, . It is held therein that an application u/s 47 falls within Article 181 of the Limitation Act. In a subsequent decision in the case of Basir Ulla v. Nabin Ch. Shaha reported in ILR 1947 (1) Cal 22 another Division Bench was exactly of the same view and at page 30 of the report it is observed by Their Lordships as follows: "From the records of the case it appears, however, that the appellant in the first place claimed relief u/s 47 of the Civil P. C. by filing an application under that section and that this application was subsequently treated by the court as a suit under the provision of Section 47 Sub-clause (21 of the Code. This being the case, in our opinion, there can be no doubt that, as regards limitation the Article of the Limitation Act which applied was Article 181 which relates specifically to application and prescribes a period of three years with effect from the date when the right to apply accrued,"

With due respect to Their Lordships of the Allahabad High Court I am of the view that it is obligatory on my part to follow the Division Bench decision of this Court, Accordingly, agreeing with the learned trial Judge I would hold that Article 137 of the Limitation Act would govern an application u/s 47 of the Civil P. C. This application on the ground of limitation, therefore, was rightly rejected.

In reply, it is contended by Mr. Mitra that the decree was a nullity and such an objection can be taken at any stage of the execution and even in collateral proceedings. It transpires from the records that such a contention was never raised earlier. Mr. Shyama Prasanna Roy Chaudhury, the learned Advocate for the opposite party relying on the decision in the case of Biswa Bhusan Bose v. Smt. Kusum Agarwalla reported in (1981) 1 Cal LJ 1, contended that it would not be safe to say that the decree had been passed by a court having no jurisdiction. Whether an objection of nullity can be taken at any stage of the proceeding, it is to be found first that the decree was a nullity. In the absence of such finding I would refrain from making any observation or comment on the arguments advanced by Mr. Mitra on this score.

In view of the foregoing findings, the Rule is discharged. Interim orders of this Court are vacated. There will be no order as to costs.