SHIB SANKAR RUDRA Vs. JYOTIRMOY RUDRA

JUDGEMENT

(1.) This revisional application has been preferred challenging order dated 15-10-2001 passed by the learned 5th Civil Judge, Senior Division at Alipur in Title Execution Case No. 27/79. The background of this case in brief is, inter alia, as follows: The decree-holder/respondent came from Bangladesh (the then Pakistan) in the year 1948. On 18-5-1953 Refugee Relief and Rehabilitation Director, Govt. of West Bengal allotted a plot of land being Plot No. 290 Nandannagar G.S. Colony, Belgharia, Calcutta-83. According to the judgment-debtor No. 2 since Jyotirmoy Rudra, the decreeholder who was his brother was adult and the petitioner and the other brother Sunil Kr. Rudra, respondent No. 2 herein were aged about 15 and 17 years naturally the plot was allotted in favour of the decreeholder Jyotirmoy Rudra. Actually the three brothers, that is, Jyotirmoy and Shib Sankar and Sunil were the joint allottee of the plot. In the year 1969 the decree-holder Jyotirmoy Rudra filed T. S. No. 19/69 for declaration that he is the sole allottee and the judgmentdebtors are licensees. Thereafter the petitioner/judgment-debtors filed T.S. No. 57/ 69. On 15-7-1971 T.S. No. 19/69 was decreed and T.S. No. 57.69 was dismissed. The judgment-debtors filed two appeals Title Appeal No. 1042/71 and 1043/71. By an order dated 19-6-1972 both the appeals were remanded to the trial Court for hearing on the point of abatement and on 2-2-1973 T.S. No. 19/69 was again decreed and T.S. No. 57/69 was again dismissed. Again the judgment-debtors preferred two appeals being Titel Appeal No. 308/73 and 309/73. Both the appeals were dismissed on 14-5-1974. The judgment-debtors filed two appeals being S.A. No. 309/74 and 310/74. On 21-7-1978 both the second appeals were dismissed and the judgment-debtors were allowed three years time to vacate the premises of the decree-holder. It may be recorded that it is the case of the case of the decree-holder that he constructed residential premises in and over the said plot of land allotted in his favour.

(2.) The decree-holder then filed Title Execution case No. 27/79 for execution of the decree. There were some litigations in the meantime which are not relevant at the moment. Lastly, the judgment-debtors filed an application under Section 47, CPC for stay of the execution which was registered as Misc. Case No. 31/86 and it was dismissed on 23-12-1988. The judgment-debtors filed Misc. Case No. 1/79 being review application which was also dismissed on 31- 3-1990. The revisional application was preferred before the High Court and that was also dismissed on 31-7-1990. Subsequently a Govt. order was Issued through which it was communicated to the decree-holder intimating that the Govt. had taken decision that the plot No. 219 that is the suit plot will be distributed amongst the three brothers that is the decree-holder and the judgment-debtors. The decree-holder filed a writ petition being W.P. No. 196/97 challenging the said Govt. order and/or notification and the letter dated 8-8-1996 through which the Govt. order was communicated to him and the operation of the said order was stayed by the High Court on 16-9-1998. After hearing the parties the High Court allowed the said writ petition being No. W.P. 196/97 filed by the decree-holder and the High Court imposed cost of Rs. 3400/- upon the judgment-debtors and directed the Refugee Relief and Rehabilitation Department, Govt. of West Bengal to execute a free-holder title deed solely in favour of the decree-holder within six weeks from the date of communication of the order dated 16-9-98. According to the decree-holder appeal against order dated 16-9-1998 was dismissed. The executing Court thereafter issued Writ of delivery of possession execution of decree with police help and the decree-holder had deposited police cost. A writ of delivery of possession was issued to the bailiff. In the report dated 20-11-1999 submitted by the bailiff it was stated that the decree-holder categorically endorsed that the possession could not be handed over due to insufficient force but the Police Officer made an endorsement on the writ that possession was physically handed over. According to the decreeholder the executing Court was vacant for long time and the decree-holder filed an application under Article 227 of the Constitution of India before the High Court and by order dated 19-4-2000 the High Court directed the learned 5th Civil Judge (Senior Division) at Alipur to dispose of the execution case within three months from the date of communication of the order. The decree holder filed a petition dated 27-6-2000 under Section 151 of the Code of Civil Procedure praying for appointment of Receiver for the execution of the decree. The judgmentdebtor Sunil Kr. Rudra filed written objection on 5-7-2000 to the said application dated 27-6-2000 filed by the decree-holder. The judgment-debtor Sunil Kr. Rudra denied that the plot in question was given to the decree-holder alone. He claims that on the writ there is an endorsement of the police that possession was physically handed over on 20-11-1999 and the decree-holder even after getting possession managed to put an endorsement stating that possession was not delivered to him and this endorsement was made long after delivery of possession. The judgment-debtor Sunil Kr. Rudra claims that he does not know anything about the High Court order dated 19-4-2000 and he denies that under Section 151, CPC the Court has inherent power to appoint Receiver. The judgment-debtor Sunil Kr. Rudra prayed for dismissal of the petition dated 27-6-2000 filed by the decree-holder. On 21-8-2001 judgment-debtor No. 2 Shib Sankar Rudra, petitioner herein, filed an application under Order 21, Rules 24 and 25 read with Section 151, CPC praying for issuing summons upon the O.C., Belgharia and the seal bailiff of the executing Court who had been to the suit premises on 20-11-1999 to execute the Writ so that they may be examined to clarify their reports. In the said petition judgment-debtor No. 2, petitioner herein, submits that the bailiff had been to the suit property to execute the decree and it appears from the bailiffs report that possession of the suit premises was delivered on 20-11-1999 with police help and the police who assisted the bailiff has reiterated on the writ that possession of the suit premises was peacefully delivered. According to the petitioner/judgment-debtor No. 2 the bailiffs report contains some contradictions since after stating that possession was delivered, it has also been mentioned that judgment -debtor with the help of the local people entered into the suit premises after breaking open the padlock and the report also contradicts the police report. According to the judgment-debtor No. 2, the bailiff had made a conspiracy with the decree-holder and has submitted inconsistent report and on such ground he prays that the O.C., Belgharia P.S. who assisted the bailiff for giving possession of the suit premises be examined in the Court. The petitioner herein that is the judgment-debtor No. 2 also submitted before the learned executing Court that the decree has been executed and the possession has been delivered, the decree has become final and the said decree cannot be re-executed and if someone has later entered the suit premises forcibly he must be held as trespasser and it is a fresh cause of action and a fresh suit is to be filed for recovery of possession of the suit premises and the execution proceeding cannot be reopened. The judgment-debtor No. 2 prayed for dismissal of the decree-holders petition dated 27-6-2000. By the impugned order dated 15-10-2001 the learned Executing Judge allowed the petition dated 27-6-2001 for the purpose of appointment of Receiver and rejected the petition dated 21-8-2001 filed by the judgment-debtor No. 2. The learned counsel for the petitioner Shib Sankar Rudra who is the judgment-debtor No. 2 challenges this impugned order mainly on the grounds that since in the bailiffs report the police had made an endorsement that possession had been handed over and thereafter with the help of the local people the judgment-debtor No. 2 has re-entered the suit premises there should be a separate suit since it is a separate cause of action. According to the learned counsel for the petitioner the decree once executed cannot be re-executed. The third point which has been taken by him that Order 21, Rule 24 of the Code of Civil Procedure provides for execution process which can only be followed. The learned counsel also submits that the application dated 20-6-2000 has been filed by the decree-holder without assigning any reason and lastly, the learned counsel submits that under Section 151 of the Code of Civil Procedure, Receiver cannot be appointed for the purpose of execution of the decree inasmuch as when there is provision in specific under Section 51 of the C.P. Code for the purpose of appointments of Receiver for execution of a decree. The learned counsel for the respondent No. 1 submits that there is no bar in granting an order appointing Receiver for the purpose of execution on an application under Section 151, CPC. The learned Counsel for the petitioner relies on a decision reported in AIR 1961 SC 137 (Shewbux Mohata v. Bengal Breweries Ltd. and another) decision reported in AIR 1923 Mad 25. The learned counsel for the respondent No. 1, decree- holder relies on decisions reported in 2000 (6) SCC 120 : (AIR 2000 SC 2108) (Rajappa Hanamantha Ranoji v. Mahadev Channabasappa) and AIR 1944 Sind 155 (Ganwar S/o Bangui v. Emperor) and also on a decision reported in 1977 (4) SCC 467 (Arivandandam v. T. V. Satyapal).

(3.) Prior to discussion of the citations referred to above relied oh by the learned counsel for the respective parties, let us discuss the points raised by the learned counsel for the petitioner one after another. The first point is as to whether the Court has jurisdiction to pass an order for appointment of Receiver for the purpose of execution on an application under Section 151, CPC when there is provision under Section 51 of the C.P. Code for the purpose of appoint of Receiver for execution of a decree. It is a general provision that inherent jurisdiction of the Court should be exercised subject to the rule that if the Court does contain specific provisions which would meet the necessities of the case in question such provisions should be followed and the inherent jurisdiction should not be invoked but in Mullas Civil Procedure Code it has been stated that no order should be made under Section 151 of the C.P. Code unless it is necessary for the ends of justice or to prevent abuse of the process of the Court. It has also been observed there that this power under Section 151 will not be exercised if its exercise is inconsistent with or comes into conflict with any of the powers expressly or by necessary implication conferred by the other provisions of the Code. The provisions of Section 51 of the Code of Civil Procedure is quoted hereinbelow :