ASHISH KUMAR MUKHERJEE Vs. SUDIP BHATTACHARYAY

JUDGEMENT

(1.) The impatient decree-holder is frequently approaching the High Court for a direction to activate the execution proceeding filed after getting the ex parte decree for eviction against the tenant. The suit for eviction of a tenant was decreed ex parte against the tenant/opposite party and an application for setting aside the said ex parte decree was taken out subsequently. Since the execution proceeding was being delayed on the frivolous ground of verification of the tabular statement, the petitioner approached the High Court under Article 227 of the Constitution of India.

(2.) This Court noticed the long date fixed for such purposes and directed the Executing Court to complete the verification work within certain time. The Executing Court subsequently issued a writ of possession and the bailiff was resisted, which constrained the petitioner to file an application under Order XXI Rule 97 of the Code of Civil Procedure for police help.

(3.) It is undeniable that in the said proceeding the judgement debtor after appearance is taking adjournments for filing the written objection and the record would manifest that the said proceeding is unnecessarily prolonged. Subsequently an application under Section 47 of the Code of Civil Procedure is filed by the judgement debtor/opposite party, which was directed to be registered as a Miscellaneous Case by the Executing Court. On the next date, which was fixed for the said Miscellaneous Case, the matter could not be taken up because of the resolution taken at the Bar. On the third date the decree-holder appeared and filed written objection to the said application. Before the Court fix the further date in the said proceeding, the petitioner hurriedly rushed to this Court with an application under Article 227 of the Constitution of India complaining that the Court is unnecessarily delaying the proceeding and invited the attention of the Court that the said application under Section 47 of the Code of Civil Procedure is frivolous, vexatious and does not deserve to occupy the docket of the Court. The Executing Court had no occasion either to consider the merit of the said application or to peruse the objection put-forth by the decree-holder. The power of superintendence enshrined under Article 227 of the Constitution of India cannot be used to act as the Court of first instance, as such power is to be exercised to keep the subordinate Courts within the boundaries of law. The matter, which is pending before the Executing Court, has not been finally decided nor the Executing Court passed any order affecting the right of the parties thereto. Furthermore the application under Article 227 of the Constitution of India is still within the revisional jurisdiction of the High Court and, therefore, the Court should satisfy whether the order complained of can be brought within the ambit of "case decided".