IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) CRP NO.6 OF 2017 1. SMTI. TETERI DEVI, Wife of Late Mohendra Harizon. 2. SHRI RAMANANDA HARIZON, Son of Late Mohendra Harizon. 3. SMTI. MINA DEVI, Daughter of Late Mohendra Harizon, All are residents of Niz Laluk, Mouza: Laluk, PS: Bihpuria, District: Lakhimpur. -Versus-..Petitioners/Plaintiffs SHRI BHASKAR SAIKIA, Son of Late Guna Kanta Saikia, PO & Mouza: Laluk, District: Lakhimpur, PIN - 784160...Respondent/Defendant B E F O R E HON BLE MR. JUSTICE ARUP KUMAR GOSWAMI For the petitioners For the respondent : Mr. P.S. Deka, Advocate. : Mr. P.K. Kalita, Senior Advocate. Mrs. T. Goswami, Advocate. Date of hearing & Judgment & Order : 29 th November, 2017. JUDGMENT & ORDER (ORAL) Heard Mr. P.S. Deka, learned counsel for the petitioners. Also heard Mr. P.K. Kalita, learned senior counsel, appearing for the respondent. 2. The petitioners instituted Title Suit No.12/2001 seeking, inter alia, declaration of their rights, title and interest over the suit land as described in Schedule A of the plaint as well as recovery of khas possession of land in Schedule CRP No.6/2017 Page 1 of 11
'B'. Land described in Schedule 'B' is part of Schedule 'A' land and khas possession is sought by evicting the defendant therefrom. The opposite party in this petition under Article 227 of the constitution of India is the judgment-debtor. 3. Earlier, the opposite party herein had approached this Court by filing a civil revision petition numbered as CRP No.128/2007, which was disposed of on 29.09.2011. In the said revision petition, challenge was made to an order dated 01.02.2007 passed by the learned Civil Judge, Lakhimpur in Misc. Case No.19/2006 arising out of Title Execution Case No.9/2004, whereby the objection, raised by the judgment-debtor, alleging that the delivery of possession of land had been given, in excess of the decretal land, to the decree-holders, had been dismissed. As the events prior to passing of the aforesaid order dated 01.02.2007 was set out in material facts in the aforesaid judgment & order dated 29.09.2011, I deem it appropriate to extract Paragraph 2 thereof: 2. Before coming to the merit of this revision, I set out hereinbelow, in brief, the material facts, which have led to this revision. (i) The decree holders-opposite party instituted Title Suit No.12/2001 seeking, inter alia, declaration of their rights, title and interest over the suit land, as described in Schedule 'A' to the plaint, as well as recovery of khas possession of land in Schedule 'B', the land, described in Schedule 'B', being a part of the land of Schedule 'A', by evicting the defendants therefrom. (ii) By judgment and order, dated 16.02.2004, the learned Civil Judge (Sr. Division), Lakhimpur, decreed the suit by describing the decree as a preliminary decree, whereby plaintiffs' rights, title and interest over the land in Schedule 'A', inter alia, was declared and the khas possession of the land, in Schedule 'B', was directed to be delivered to the plaintiffs by ascertaining, with the help of the Circle Officer, Bihpuria, the land in Schedule 'B' and appointed, in this regard, the Circle Officer, Bihpuria, as the Survey Commissioner, with direction to him to personally supervise the demarcation of the land in Schedule 'A' and 'B' so that recovery of khas possession of the land in Schedule 'B' takes place. CRP No.6/2017 Page 2 of 11
(iii) No appeal was preferred by the judgment-debtors against the decree so granted. Thereafter, the decree-holders instituted Title Execution Case No.9/2004. This execution proceeding passed through various kinds of resistance in the sense that the Circle Officer, Bihpuria, reported to the learned Executing Court, on 22.04.2006, that he had visited the decretal land and found that the decree-holders were already in possession of the decretal land. Interestingly, however, the Circle Officer's report also suggested that appropriate demarcation can be done only by the Director of Survey, Government of Assam, and the Circle Officer, thereafter, requested that the Director of Survey, Government of Assam, be directed to demarcate the land, in question. An objection was raised in the execution proceeding, by the decree-holders, as regards the truthfulness of the Circle Officer's report by contending that the Circle Officer's report was not true and sought for re-issue of the writ of delivery of possession of the land, in Schedule 'B', to the decree-holders. By filing a petition, the judgment-debtors raised an objection to the effect that the preliminary decree had not been made final and, hence, without passing a final decree, the question of delivery of possession did not arise. This apart, according to the judgment-debtors, the Circle Officer's report clearly revealed that the decree-holders were already in possession of the decretal land and, hence, there was no question of dispossession of the decree-holders as contended by them. However, on the basis of the application, made by the decree holders, seeking issuance of a fresh writ of delivery of possession of the land in Schedule 'B', an order was passed, in the execution proceeding, directing that the writ of delivery be reissued. (iv) Yet another application was made by the decree-holders, in the execution proceeding, seeking that notice be issued to the Mandal to be present along with the Nazir at the time of execution of the decree. The learned executing Court, then, passed an order directing the decreeholders to take necessary steps for issuance of writ of attachment of immovable property and, on the strength of the writ, so issued, the Nazir CRP No.6/2017 Page 3 of 11
was, eventually, directed to attach the decretal land. In course of time, the Nazir reported that the writ had been executed by delivering the khas possession of the land, in Schedule 'B', to the decree holders. (v) Thereafter, a petition was filed by the judgment-debtors alleging to the effect, inter alia, that they had gone to the location of the land and found that the Nazir had delivered possession of land, measuring 2 Bigha and 19 Lechas, to the decree-holders; but, on making further enquiry by the judgment-debtors, it was revealed that though the decree was in respect of delivery of possession of the land covered by Dag No.226, the Nazir had delivered to the decree-holders the land covered by not only Dag No.226, but also Dag Nos.225 and 227, although the land, covered by Dag Nos.225 and 227, were not the subject-matter of the decree. The judgment-debtors alleged, in their said petition, that the Nazir had delivered to the decree-holders the possession of the decretal land with the help of the local gaonbura, one police officer and some other persons instead of taking help of the Circle Officer, Bihpuria, or the Mandal or any of the staff of the Bihpuria Revenue Circle. The judgment-debtors, therefore, prayed that the learned executing Court invoke its jurisdiction under Section 47 CPC and pass appropriate order(s) for re-delivery of the land, which had been given to the decree-holders, in excess of the land in respect whereof, the decree had been granted. This application gave rise to Misc. Case No. 19/2006. (vi) In Misc. Case No. 19/2006, which, thus, arose out of the Title Execution case, the decree-holders raised their objection by stating to the effect, inter alia, that as the decree-holders had already obtained delivery of possession of the decretal land and the decretal land had been fully demarcated by the Bailif, the execution proceeding was complete and, therefore, the question of invoking of the executing Court's power, under Section 47 CPC, did not legally arise, particularly, when the learned executing Court had recorded, in its order passed on 08.06.2006, that the decree stood fully satisfied. CRP No.6/2017 Page 4 of 11
(vii) In short, thus, what was contended by the decree-holders was that the decree having been satisfied, as indicated above, by the order, dated 08.06.2006, passed in the execution proceeding, by the learned Court below, nothing further remained to be done and Section 47 CPC was not attracted to a completed execution proceeding. (viii) By its order, dated 01.02.2007, the learned executing Court agreed with the above contention of the decree-holders and took the view that the execution proceeding having been completed and the executing Court having already recorded its satisfaction as regards the execution of the decree, the execution proceeding cannot be reopened by taking recourse to Section 47 CPC on the allegation made by the judgmentdebtors that the delivery of the land, in excess of the decretal land, had taken place. 4. While allowing the aforesaid civil revision petition by judgment & order dated 29.09.2011, this Court held thus:- 19. In the result and for the reasons discussed above, this revision partly succeeds. The impugned order, dated 01.02.2007, is hereby set aside and the learned executing Court is hereby directed to hear the parties afresh, make enquiry as may be deemed necessary and, then, reach a final decision on the question as to whether the delivery of land to the decree-holders was in accordance with law or not, or was there any error, mistake or mischief and, on the basis of the conclusion(s), which the learned executing Court may reach, appropriate consequential order(s) may be passed. It is, however, made clear that since the decree has been granted in respect of the land covered by Dag No.226, under Patta No.40, any land, other than, or in excess of, the decretal land, if already delivered to the decree holders, then, such delivery of possession of the land other than, or in excess of, the decretal land, has to be held as illegal and the khas possession of the excess land, not covered by Dag No.226, shall be delivered back to the judgment-debtors. The learned executing Court must ensure that the decree, which has been granted, is CRP No.6/2017 Page 5 of 11
executed at the earliest and delivery of possession is given to the decreeholders, but without any excess delivery of land. 5. Perusal of the aforesaid judgment & order of this Court goes to show that a duty was cast on the executing Court to ensure that the decree, which had been granted, is executed at the earliest and delivery of possession is given to the decreeholders without any excess delivery of land. 6. Before proceeding further, it will be appropriate to note that this application under Article 227 of the Constitution of India is filed against the order dated 11.08.2016 dismissing the case for default. The order dated 11.08.2016 reads as follows:- 11.8.16 D.H is represented. J.D is represented. Seen the ptn 32 filed by D.H. praying time showing that due to illness of mother failed to take steps. Heard. It appears from CR that already five adjournments taken by D.H. for step, causing delay and earlier grounds were similar. Hence the prayer is rejected in this situation as no sufficient cause is attributed. So, this case is dismissed for default. 7. A perusal of the said order goes to show that the decree-holders were represented and had prayed for time to take steps due to illness of the mother. On the ground that 5(five) adjournments were taken on similar grounds, the learned executing Court had rejected the said prayer. 8. On 22.09.2015, the learned executing Court had directed the concerned Circle Officer to provide assistance at the time of giving delivery of the suit land to the decree-holders without fail and the Superintendent of Police, Lakhimpur to provide police assistance to the decree-holders in case of requirement for executing the decree, if any law and order problem arises. The Additional Deputy Commissioner, Revenue, Lakhimpur was also directed to monitor or direct the Circle Officer concerned to provide assistance to the decree-holders to execute the decree without fail, failing which, it was indicated that legal action under law would be drawn up against the concerned authorities. The decree-holders were directed to take steps. Copy of the said order was directed to be sent to the Circle Officer, CRP No.6/2017 Page 6 of 11
Bihpuria Revenue Circle and to the Additional Deputy Commissioner, Revenue, Lakhimpur and to the Superintendent of Police, Lakhimpur for intimation and necessary action. The Court fixed 14.10.2015 for step/report. 9. Order of the Court dated 14.10.2015 goes to show that the decreeholders had submitted a writ and the Court had directed to issue the writ against the judgment-debtor fixing 20.11.2015 for report. Thus, it appears that no execution had taken place pursuant to the earlier order dated 22.09.2015. On 30.04.2016, a report was furnished by the Circle Officer, Bihpuria Circle stating that as per demarcation, only 1 Katha 14 Lechas had been found instead of 2 Kathas 19 Lechas and that the same could be handed over to the decree-holders. The counsel for the decree-holders had accepted the said report and the decree-holders were directed to take possession of the land mentioned in the report of the Circle Officer through Bailiff of the Court. 18.05.2016 was fixed for report and the decree-holder was also directed to take steps. It is from that point onwards that the decree-holder had filed petitions on 18.05.2016, 08.06.2016, 17.06.2016 and 08.07.2016 praying for time, as noted by the learned executing Court in the order dated 11.08.2016, on account of illness of the mother of the decree-holders. 10. Mr. Deka has submitted that the order passed by the learned executing Court cannot be sustained in law in any view of the matter, as it was the petitioners, who were trying to obtain the fruits of the decree and because of perforce of circumstances, occasioned by illness of the mother, time had to be prayed for. By taking time, the decree-holders do not stand to gain anything and the learned executing Court, without considering this aspect of the matter, rejected the petition for grant of time, although in the long intervening period, despite taking of requisite steps, the petitioners were not put in possession towards satisfaction of the decree. 11. Mr. Kalita has submitted that in terms of Order 21 Rule 106(3) CPC, the petitioners ought to have filed an application within 30(thirty) days from the date of the order before the learned executing Court and, therefore, this petition is misconceived. He also places reliance on the judgment of the Supreme Court in the case of Damodaran Pillai & Ors. -Vs- South Indian Bank Limited, reported in (2005) 7 SCC 300. CRP No.6/2017 Page 7 of 11
12. In Damodaran Pillai (supra), the execution petition was set down for hearing and it was dismissed for default on 01.11.1990, as against which an application for restoration of the said execution petition was filed by the decreeholder on 04.04.1998 on the premise that it came to learn about the dismissal of the said execution petition only on 25.03.1998. The learned executing Court had allowed the application for restoration filed by the respondent on the ground that it acquired knowledge of the dismissal of the execution petition only on 25.03.1998. The Supreme Court held that an application under Section 5 of the Limitation Act, 1963 is not maintainable in a proceeding arising out of Order 21 CPC and that, a fortiori, for the said purpose, inherent power of the Court cannot be invoked. The Supreme Court held that if an order had been passed dismissing an application for default, under Sub-rule (2) of Rule 105 CPC, an application for restoration thereof must be filed only within a period of 30(thirty) days from the date of the said order and not thereafter and that when the decree-holder had acquired the knowledge of the order of dismissal of the execution petition is wholly irrelevant. 13. It will be appropriate to extract Order 21 Rule 23, Order 21 Rules 105 and 106 CPC read for better appreciation:- 23. Procedure after issue of notice. (1) Where the person to whom notice is issued under rule 22 does not appear or does not show cause to the satisfaction of the court why the decree should not be executed, the court shall order the decree to be-executed. (2) Where such person offers any objection to the execution of the decree, the court shall consider such objection and make such order as it thinks fit. 105. Hearing of application.- (1) The court, before which an application under any of the foregoing rules of this Order is pending, may fix a day for the hearing of the application. (2) Where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not appear when the case is called CRP No.6/2017 Page 8 of 11
on for hearing, the court may make an Order that the application be dismissed. (3) Where the applicant appears and the opposite party to whom the notice has been issued by the court does not appear, the court may hear the application ex parte and pass such Order as it thinks fit. 106. Setting aside orders passed ex parte, etc.- (1) The applicant, against whom an Order is made under sub-rule (2) of rule 105 or the opposite party against whom an Order is passed ex parte under sub-rule (3) of that rule or under sub-rule (1) of rule 23, may apply to the court to set aside the order, and if he satisfies the court that there was sufficient cause for his non-appearance when the application was called on for hearing, the court shall set aside the order on such terms as to costs or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application. (2) No Order shall be made on an application under sub-rule (1) unless notice of the application has been served on the other party. (3) An application under sub-rule (1) shall be made within thirty days from the date of the order, or where, in the case of an ex parte order, the notice was not duly served, within thirty days from the date when the applicant had knowledge of the order. 14. Order 21 Rule 23 CPC provides that where the person to whom notice is issued under Rule 22, which is in respect of notice to show cause against execution when an application is made (a) more than 2(two) years after the date of the decree, or (b) against the legal representative of a party to the decree or where an application is made for execution of a decree filed under the provisions of Section 44A, or (c) against the assignee or receiver insolvency, where the party to the decree has been adjudged to be insolvent, does not appear or does not show cause to the satisfaction of the Court why the decree should not be executed, the Court shall order the decree to be executed. Where such person offers any objection to the CRP No.6/2017 Page 9 of 11
execution of the decree, the Court shall consider such objection and make such order as it thinks fit. 15. Order 21 Rule 105 CPC essentially provides that (a) where an application made under any of the Rules under Order 21 is pending for hearing, if the applicant does not appear when the case is called out for hearing on the date fixed, the Court may make an order dismissing the application and (b) where the applicant appears and the opposite party to whom the notice had been issued by the Court does not appear, the Court may hear the application ex parte and pass such order as it thinks fit. 16. Order 21 Rule 106(1) CPC provides for filing of an application for setting aside an order made under Rules 105(2) or 105(3) of Order 21 or Rule 23 of Order 21 CPC. Order 21 Rule 106(3) CPC provides that in that event the application shall be made within 30(thirty) days from the date of the order, or where, in the case of an ex parte order, the notice was not duly served, within 30(thirty) days from the date when the applicant had knowledge of the order. 17. Crucial expression in Order 21 Rule 106(1) CPC is sufficient cause for non appearance. The provisions as contained in Order 21 Rule 106 CPC revolve around non-appearance of the party on the date fixed for hearing. In the instant case, the date was not set down for hearing. It is also not a case where the decree-holders were not represented. The decree-holders were very much present on the date fixed and an application for adjournment was filed on the ground of illness of mother and, therefore, I am of the considered opinion that though the learned executing Court had used the expression dismissed for default, which may be occasioned for dismissal of the petition for adjournment, the same is not akin to an order of dismissal for non-appearance of the decree-holders. 18. In that view of the matter, I am of the opinion that Order 21 Rule 106(3) CPC shall not apply in the instant case. What is questioned before this Court is the legitimacy of the order whereby the adjournment petition was rejected. Bearing in mind that the petitioners had obtained the decree way back in the year 2009, only because the decree-holders had taken four or five adjournments spanning over a CRP No.6/2017 Page 10 of 11
period of about two months on the ground of illness of the mother, the learned executing Court committed material irregularity in taking an adverse view of the matter and penalising the decree-holders by opining that they were delaying the proceedings, when for the intervening long years, they were not in any way responsible. 19. Taking that view, I am of the opinion that the impugned order dated 11.08.2016 passed by the learned Civil Judge (Senior Division), Lakhimpur, North Lakhimpur in Title Execution case No.9/2004 cannot be sustained in law and, accordingly, the same is set aside. 20. The parties to this proceeding, either by themselves or through their counsel, will appear before the learned executing Court on 9 th January, 2018 for further orders. 21. With the above observations and directions, the civil revision petition stands allowed. No cost. J U D G E M. Sharma CRP No.6/2017 Page 11 of 11