SAMBHU NATH JAISWAL Vs. SANKAR PROSAD JADAV

JUDGEMENT

(1.) This revisional application is directed against order dated 4th December, 2013 passed by the learned Civil Judge (Junior Division), Additional Court at Sealdah in ejectment execution case No.01 of 2009. The petitioner in this revisional application is a decree-holder in ejectment application No.235 of 2004 which was filed in the Court of learned Additional Rent Controller at Sealdah under Section 6 of the West Bengal Premises Tenancy Act, 1997 for ejectment/eviction and for mesne profits.

(2.) The opposite party/judgment-debtor filed an application in the execution case to the effect that the decree dated 19th May, 2005 passed by the Additional Controller, Sealdah on the petitioner's application dated 2nd July, 2004 could not be executed because the said decree was passed without jurisdiction and consequently the same was a nullity and cannot be executed. In making such submission that the decree is a nullity and cannot be executed the judgment-debtor, relying upon a Letter of Intimation issued by the Kolkata Municipal Corporation, filed an application before the executing Court under Section 38 read with Section 151 of the Code of Civil Procedure and contended that the decree obtained by the decreeholder in respect of a premises where the judgment-debtor is a bharatia under the decree-holder/thika tenant, is a thika-tenanted property and, therefore, the decree passed in the aforesaid proceeding was a nullity because the same was to be decided by the Controller of thika tenancy. Prior to filing of the said application he filed an objection under Section 47 of the Code of Civil Procedure in the executing Court which was numbered as Misc. Case No.36 of 2009 wherein he took several grounds including the ground of Section 8(3) of the West Bengal Thika Tenancy (Acquisition & Regulation) Act, 2001. But the said application under Section 8(3) of the West Bengal Thika Tenancy (Acquisition & Regulation) Act, 2001 was rejected, holding, inter alia, that the question whether the decree is affected by the provisions of Thika Tenancy (Acquisition & Regulation) Act, 2001 or whether the same is saved under Section 27 of the West Bengal Thika Tenancy Act, 2001 is a mixed question of law and fact depending on the date of accrual of cause of action in the original ejectment case and such mixed question of law and fact can only be decided by the adjudication of the Misc. Case as a whole on the basis of evidence which may be produced.

(3.) It was held that such mixed question cannot be decided on the basis of an application ancillary to the Misc. Case. Subsequently, however, by an order dated 5th April, 2010 the objection filed by the judgment-debtor under Section 47 of the Code of Civil Procedure challenging executability of the decree on the ground that the decree has already been satisfied on 19th August, 2008 or 20th August, 2008 and also on the ground that the property in question is a thika property, was rejected. On the basis of the aforesaid application under Section 38 read with Section 151 of the Code of Civil Procedure the learned Court below has passed the impugned order thereby holding that the decree is a nullity and unexecutable as it was passed by improper application of law and has, therefore, cancelled the said decree by invoking the inherent power under Section 151 of the Code of Civil Procedure read with Section 38 of the Civil Procedure Code. Section 38, however, does not expressly authorize a Court to cancel a decree on the question of nullity or any other ground. Section 38 reads as follows :-