SAMPATRAJ PAGARIA Vs. DELTA INTERNATIONAL LTD

JUDGEMENT

(1.) This is an application for rejection of the plaint and for stay of all further proceedings in suit No. 691 of 1989 (Sampatraj Pagaria v. Delta International Pvt. Ltd. and another). It is the case of the petitioner that by and under a registered indenture of lease dated 10/07/1977 the predecessor in interest of the petitioner, the Council House Properties Pvt. Ltd., demised unto the predecessor in interest of the respondent No. 2, the Eagle Star Insurance Company Ltd., the entirety of the third, fourth, fifth and sixth floor of the premises No. 4, Government Place (North) "Eagle House", Calcutta for a term of 21 years commencing on and from 14/06/1967 at and for a monthly rental of Rs. 10,770.30 p. and service charges of Rs. 7,180.20 p. on terms and conditions mentioned in the said lease. Council House Properties Pvt. Ltd. was amalgamated with the petitioner by an order passed by this court in company proceeding, as a result whereof all the right, title and interest of the said Council House Properties Pvt. Ltd., the transferer company, stood transferred to and vested in the petitioner, the transferee company. The respondent/defendant No. 2 is the successor in interest of M/s. Eagle Star Insurance Company and prior to May 1984 was known as Oriental Fire and General Insurance Company Ltd. The petitioner instituted a suit in this court being suit No. 883 of 1987 against the said defendant No. 2 herein claiming decree for khas possession of the suit premises and a sum of Rs. 2,40,000.00 and further mesne profits. The said suit was filed alleging inter alia subletting of the 3rd, 4th, 5th and 6th floors of the said premises to various persons including the plaintiff in the instant suit without consent of the petitioner and/or his predecessor in interest. In the said suit an application was made for judgment upon admission by the petitioner and after hearing counsel for the parties the trial Judge was inclined to allow the said application and ultimately passed a decree on 9/06/1989. At the suggestion of the parties, the said decree for eviction passed against the Oriental Insurance Co. Ltd. was adjusted. Before the said decree could be put into execution the plaintiff herein instituted the instant suit praying for the following reliefs :

(2.) Learned Advocate for the petitioner referred to Order 21 Rule 35(1) of the Code of Civil Procedure and submitted that in respect of a decree for immovable property possession thereof shall be delivered in favour of the decree-holder by removing any person bound by the decree who refused to vacate the property and therefore, the plaintiff in the instant suit being bound by the decree passed in the previous suit, the Court is entitled to remove him and deliver possession of the property to the decree-holder in the said suit. The question, therefore, relates to execution, discharge and satisfaction of the decree and the instant suit, it has been submitted, is really barred and is not maintainable. Mr. P. K. Roy and Mr. Ranjan Deb, learned Advocates for the petitioner also relied upon the following decisions in support of their contention. 1. Rupchand Gupta v. Raghuvanshi (Private) Ltd. and another reported in AIR 1964 SC 1889. 2. Bharat Petroleum (erstwhile Burmah Shell) Management Staff Pensioners v. Bharat Petroleum Corporation Ltd. and others reported in AIR 1988 SC 1407. 3. M. P. Shreevastave v. Mrs. Veena reported in AIR 1967 SC 1193 : (1967 All LJ 423). 4. Unreported decision in the case of Akhtar Hossain and Another v. Mohammad Shoaid and Others in Suit No. 162 of 1986. It has also been argued on behalf of the petitioners that the amendments to the Civil Procedure Code in Order 21 Rule 97 onwards up to Order 21 Rule 106 have enlarged the scope of execution proceedings and even questions of title to the property can be adjudicated and the said proceedings may be adjudicated under the aforesaid Sections and as such the instant suit is clearly barred and liable to be rejected. It has also been submitted that Section 9 of the Code of Civil Procedure also provides that the court shall have jurisdiction to try suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Since in this case the suit is barred under Order 47 of the Code of Civil Procedure the Court will not have jurisdiction to try such suit also under Section 9 of the Code of Civil Procedure.

(3.) Mr. Ahin Chowdhury, learned Advocate for the respondent/plaintiff on the other hand submitted that it is not correct to allege that the suit is barred under Section 47 of the Code of Civil Procedure. Section 47 provides for bar of a suit relating to execution, discharge or satisfaction of the decree. In the instant suit there is no question of execution, discharge or satisfaction of the decree. On the contrary the plaintiff has challenged the validity of the decree itself in the said suit. He has further submitted that the amendments to order 21 Rule 97 to Order 21 Rule 106 does not have any bearing in the instant suit inasmuch as no question relating to discharge, satisfaction or execution of the decree is involved in the instant suit. He has referred to the plaint in the suit and submitted that such a suit cannot be said to be barred under Order 47. In fact he has made a prayer for declaration that the plaintiff is a monthly tenant. He has also prayed for a declaration that the decree passed in Suit No. 883 of 1987 (M/s. Delta International Ltd. and Anrs. v. Oriental Fire and General Insurance Co. Ltd.) is not binding upon the plaintiff and is not executable against him. He has also prayed that the said decree be adjudged void and set aside and/or cancelled. The learned Advocate submitted that the executing court has no power to declare a decree as void or to set aside or to cancel a decree. Since in the plaint he has alleged that the said decree passed in the said Suit No. 883 of 1987 he had a right to challenge the right for possession in an appropriate proceeding. In support of his contention the learned Advocate relied upon the following decisions : 1. M. P. Sreevastave v. Veena reported in AIR 1967 SC 1193. 2. Jagat Enterprises v. Anup Kumar Daw and Ors. reported in (1977) 81 CWN 400 : (AIR 1977 Cal 209). 3. Sudindra and Budan reported in (1886) ILR 9 Madras 80 at 83. 4. Dhani Ram Mahta v. Lumeswar Singh and Murlilal Mahta reported in (1896) ILR 23 Calcutta 639.