AI Structured Summary
Not yet generated for this judgment
Judgment
Biswanath Rath, J. Â
This writ petition appears to be an application under Article 227 of the Constitution of India. The writ petition, being in the nature of certiorari is filed
making a request for quashing of the order dated 22.03.1993 passed by the District Judge, Balasore involving Civil Revision No.46 of 1995.
Short background involved in the case is that the opposite party nos.1 to 5 as the plaintiffs filed O.S. No.83 of 1974-I in the Court of the Subordinate
Judge, Balasore praying for a decree for declaration that the suit land was purchased benami by one Lalmohan Das in the name of his wife Suryamani
and the defendant no.1 had no right, title, interest over the suit land and for recovery of possession from Defendant No.1 to 6 and also for ancillary
reliefs mentioned therein. The present petitioners are the legal heirs of the defendant no.4. Plaint case as reveals, is that the defendant no.4, 5 & 6
entered into the suit land as Bhaga tenant and were engaged as Bhaga Chasi. As they did not pay the Raj Bhag to the plaintiffs 1 & 2, the plaintiffs 1
& 2 were compelled to initiate the suit for collection of arrear rents registered as R.S. Case No.628/63 and on being transferred renumbered as
O.L.R. Case No.80/63-64. Thus, the prayer involved in the suit was for recovery of possession of the disputed land from the defendant nos.2 to 6
inclusive of defendant no.4. The present petitioner i.e. the Defendant no.1 appearing therein, claiming to be the owner on the basis of inheritance from
the benami defendant nos.2 to 6 including the defendant no.4 the present petitioner, on the other hand, claimed that he had purchased the right other
than the Bhag Chasi right from the defendant no.1 and thus claiming to be the owner of the disputed property by inheritance. O.S. No.83 of 1974-I
was decreed ex parte.
The predecessors in the interest of the writ petitioner filed M.C. No.126 of 1979 under Order 9, Rule 13 of C.P.C. for setting aside the ex parte
decree and for restoration of the suit in the guise of their father has no fault for remaining absent in the court. Specific case of the petitioner is that
their father, the defendant no.4 was neither served with the notice by the process server nor the registered post notice reached him. The ex parte
decree was confirmed and the decree holder put the decree into execution in Execution Case No.15 of 1999. The present petitioners being the
judgment debtors, filed objection under Section 47 of the C.P.C. inter alia contending therein that the decree under execution was a nullity and
therefore, was not executable. The execution was objected on the ground of jurisdiction of the Court to pass such decree, for the determination of the
issue already in exercise of power under Section 67 of the O.L.R. Act. The decree holders, the plaintiffs, objected the application on the premises that
the contentions raised in the Section 47 application is not only misconceived but even the executing court cannot go behind the decree. The executing
Court on the premises that the defendants were held as tenants under the plaintiff’s in a duly constituted O.L.R. proceeding under the plaintiffs
and a prayer for eviction for their default in making payment of Bhaga could have been well blocked U/s.14(1)(c) of the O.L.R. Act. The executing
Court further also held that for the plaintiff’s admitting the position of the defendants as Bhaga tenant, difficulty, if any, could have been worked-
out. Even assuming that the claim of the plaintiffs that the defendants became the trespassers on their failure of payment of Bhag comes under
section 15(1) (b) of the O.L.R. Act, therefore, the executing Court was pleased to hold that the suit was barred for the provision contained in Section
67 of the O.L.R. Act. Accordingly, the application U/s.47 of the C.P.C. was allowed. It is against this order the opposite party nos.1 to 5 filed civil
revision no.46 of 1995, a revision under Section 115 of the C.P.C., before the learned District Judge i.e. the revisional court.
Considering the rival contentions of the parties and relying on the decisions in the case of Rusi Kumar Sahu and others versus Sri Sri Rasa @
Rahas Behari Thakura as reported in 1987 (II) OLR 126 and in the case of Dadi Bhogalingam versus Chiranjilal as reported in ILR 1954 CUT. 277
came to hold that the decree and the relief sought for, did not exfacai reveal inherent jurisdiction of the trial court and accordingly, held that the
executing court had no jurisdiction to embark upon an inquiry to find-out, if the trial court had the jurisdiction or otherwise and therefore, set aside the
order vide Annexure-1.
Assailing the aforesaid order, Shri P.K. Rath, learned counsel for the petitioner taking this Court to the pleadings being a part of the suit and for the
clear disclosure of the fact involving the developments through the O.L.R. Case involved therein and further, taking this Court to the compromise
decree involved therein in absence of involvement of the legal heirs of the defendant no.4 contended that the application under Section 47 of the
C.P.C. having been bearing these clear grounds and having taken care of by the executing court, it appears, the revisional court failed in appreciating
the above aspects. It is also contended by the learned counsel for petitioner that the revisional court has not only failed to appreciate the aforesaid
aspect but also failed to appreciate the provisions contained in Section 67 of the O.L.R. Act along with Sections 12, 14 and 15 of the O.L.R. Act as
well. Referring to the decisions in the case of Girijanandini Devi and others versus Bijendra Narain Choudhury as reported in AIR 1967 (S.C.)1124, in
the case of Kiran Singh and others versus Chaman Paswan and others as reported in AIR 1954 (S.C.) 340, in the case of Vasudev Dhanjibhai Modi
versus Rajabhai Abdul Rehman and others as reported in AIR 1970 (S.C.) 1475, in the case of Hasham Abbas Sayyad versus Usman Abbas Sayyad
and others as reported in AIR 2007 (S.C.) 1077, in the case of MMRDA Officers Association Kedarnath Rao Ghorpade versus Mumbai Metropolitan
Regional Development Authority and another as reported in 2005(2) SCC 235 and in the case of Jagtamba Devi versus Hem Ram and Ors. as
reported in 2008 (I) Supreme 750 submitted that the impugned order is otherwise contrary to the settled position of law enumerated in the aforesaid
judgment.
Shri Mishra, learned counsel for the opposite parties on the other hand, appearing for the plaintiff opposite party taking this Court to the nature of
the suit, the pleadings therein and the reliefs claimed involving the suit and more particularly for their being a compromise decree involving the suit
supported the judgment of the revisional court on the premises that for all the above, the executing court failed to appreciate the objection of the
plaintiff but has exceed its jurisdiction in entering into the merits of the suits while exercising the very restricted role of executing a decree already
available. Â
Learned counsel for the opposite parties on the premises that the defendant no.4 having lost in its attempt to set aside the ex parte judgment and
decree and having not further challenged the dismissal of the Order 9 Rule 13 application contended that the defendant no.4 had no scope to bring the
application under Section 47 of the C.P.C.
Learned counsel for the opposite parties further taking this Court to the observations as well as the finding of the revisional authority urged that for
the detailed consideration by the revisional authority and the issues involved herein there is absolutely no infirmity in coming to the conclusion and
thereby allowing the civil revision. It is in the above premises, learned counsel for the opposite parties contended that there is no scope for interfering
in the issue involved herein.
Considering the rival contentions of the parties and on perusal of the plaint averments involving T.S. No.83/1974-I, this Court while not finding any
problem with regard to the position of the parties herein and the disclosures made therein but while going through the plaint averments, the copy of the
plaint being produced by the parties herein, finds, following the pleadings in the plaint involving the paragraph nos.3 & 9 further disclosures made in
paragraph no.13, similarly going through the decree and judgment involved herein, a copy of which again being produced by the parties mentioned,
from the discussions on the case of the defendants including the defendant no.4, finds in spite of notice there is no appearance on behalf of the
defendant nos.1 to 6 but however, going through the application under Section 47 of the C.P.C. this Court finds, the petition moved under Section 47 of
the C.P.C. involving the execution Case No.15 of 1991, the J.Dr 1 & 2 while challenging the executability of the decree have pleaded that the suit has
been decreed ex parte. Their father who has arrayed as a defendant in the suit and they have moved the application under Order 9 Rule 13 of C.P.C.
for setting aside the ex parte decree being lost their preferred appeal and again having lost in there appeal proceeding they have also preferred Civil
Revision before the High Court which was dismissed by order of the High Court dated 16.03.1993 and in the meantime, they have also filed an appeal
involving the ex parte decree before the District Judge which appeal has also been dismissed on 6.04.1994 and compelling them to file an application
under Section 47 of the C.P.C. bringing forth their pleadings in the Section 47 application.
It appears, the defendant no.4 has a clear case that the defendant nos.4 to 6 admittedly entered into the Bhag contribution of the suit land through a
“Kabuliyat†on 27.3.1945. It is also their case that even after expiry of the period of the “Kabuliyatâ€, the defendant nos.4 to 6 continued as
Bhag tenant by virtue of oral contract from year to year, which is even admitted by the plaintiff in the plaint. During 1963 Bhag chasi did not pay the
Raj Bhag for which the plaintiff filed a suit for arrear of the rents being registered as O.L.R. case no.18 of 1963-64, where the defendants including
the Bhag Chasi in filing the written statement denied the landlord and tenant relationship. It is, on the other hand, the defendant nos.4 & 5 asserted
their own title claiming that they had purchased Ac.03.29 decimals of land out of joint land from defendant no.1 vide a sale deed dated 9.11.1962.
Defendant no.2 also made a similar claim having purchased from defendant no.1 on 5.12.1962. It is under this circumstance, this Court finds, the plea
taken by the defendant no.4 or the legal heirs of the defendant no.4 in the Section 47 application that their being an issue involved as to the claim of
the defendants being the Bhag Chasi involving the disputed land, is wholly contrary to their own written statement filed in the O.L.R. proceeding.
Therefore, the basis of filing the Section 47 application particularly involving the provisions of the O.L.R. Act taken note of here, is of no
consequence. It is under this background and on entering into the finding as well as the observations in the impugned order, this Court has no hesitation
in observing that the executing court exceeded its jurisdiction and landed into non existing issues even after its role being confined to that of an
executing court.
For the above, this Court therefore, has no hesitation to confirm the view of the revisional court involved herein. In the circumstances, this Court
while affirming the revisional order involved herein at Annexure-2, vide Civil Revision No.46/15 dismisses the writ petition. Interim order operating
staying the further proceeding of the E.P. Case No.15 of 1991 since 2003 stands vacated.
The writ petition stands dismissed. In the circumstances, there is no order as to cost.