PRATIBHA SARDAR Vs. TARUN KUMAR HALDAR

JUDGEMENT

(1.) -The present revisional application is directed against Order No. 24 dated January 13, 1999 passed by the learned Civil Judge (Junior Division), 1st court, Baruipur in Misc. Case No. 70 of 1998 arising out of Execution Case No. 2 of 1998. The connected misc. case is the outcome of a proceeding under section 47 of the Code of Civil Procedure. By the impugned order, the concerned Judge rejected the petition under section 47 CPC on, inter alia, the reference that if separate execution proceedings are required to be started, that will create manifold complications for recovery of possession. Save and except the reason as spelt out in the impugned order as mentioned herein, no other reason is found forthcoming from the same. This court has given anxious consideration about the propriety of the impugned order. Mr. Bhattacharya, learned Advocate appearing on behalf of the petitioners, has assailed the impugned order substantially on a point that in respect of decrees with regard to Title Suit Nos. 211 of 1987 and 232 of 1987 one composite execusion application is not maintainable and, as such, the objection of his client under section 47 CPC should be sustained. Mr. Bagchi, learned Advocate appearing on behalf of the opposite party, has drawn attention to the court on section 99A CPC in order to pinpoint that errior, defect or irregularity in any proceeding, unless prejudicially affecting the decision of the case, should not be allowed to be brought within the four corners of objection as contemplated under section 47 CPC Here, in the proceeding under section 47, the question of executability of two, decrees through a composite execution proceeding has been raised and it has been sought to be affected that the same was an objection eroding into the vitals of the foundation of the executability of the decree. It has been frankly confessed by both the learned Advocates appearing on behalf of the contesting parties that in support of their contentions they could not lay their hands on any decision and, therefore, precedence cannot come in aid of their submissions.

(2.) Therefore, the court, while giving its anxious consideration to the problem counterbased before it, has to apply its mind to the construction of the relevant provision of the statute. As it is a proceeding under section 47 CPC, it is worthshile to keep in view that the questiion covered by section 47 CPC relates to all questioins arising between the parties to the suit in which the decree was passed. Therefore, the emphasis is on user of the preposition as a preclude to the suit as well as the decree which is symptomatic of particularisation of the lease as well as of the decree and the same is required to be comprehended in the light of the procedures as contemplated under Order 21 Rule 11 sub-rule (2) CPC which contains the mandatory provision as to the possibility included in the tabular form, namely, inter alia, (a) the number of the suit; (b) as delineated in alphabatical order in the said provision as to the date of the decree. The particular emphasised in Order 21 Rule 11(2) is about specific particular of the number of the suit and number of the decree where singular number has been used and not plural number. This court has also taken into account the language similarly used under Order 11 Rule 15 CPC that when a decree has been passed jointly in favour of more than one person, the application for execution can be made for the whole of the decree. Decree is the concept of totality of a whole which cannot be fragmented nor can it be supplanted to plural decrees. Care should be taken to see that an execution application contains any substantial particulars required by Order 21 Rule 11 as otherwise the application will be defective and in support of the same reliance may be placed to the case of Krishna v. Mulchand reported in AIR 1941 Bombay 302 Full Bench, a further reference may be made to the case of Jugal Kishore Saraf v. M/s. Raw Cotton Co. Ltd. reported in AIR 1955 SC 376 where the apex court has laid down that the cardinal rule of construction of statute literally, i.e., by giving to the words used by the legislature their ordinary, natural and gramatical meaning. It is well-known that the procedure as envisaged in the portion of the orders of CPC has been formulated by the wiser heads keeping in view that procedures are hand maids of justice which should not be allowed to be given a go-bye otherwise substantive opinion may be substituted in lieu of specific procedure which may take away from vitals of the pyramid of justice as envisaged in the para materia. Therefore, this court in agreement with the mode of construction as made by the apex court leans in favour of making a grammatical construction in tune with the etymological sense of the expression by considering the relevant clauses of Order 11 Rule 2 clauses (a) and (c) read with Order 21 Rule 15 sub-rule (1) CPC The submission of Mr. Bagchi, learned Advocate appearing on behalf of the opposite party, on the score of section 99A CPC tends to connote irregularity in the proceeding relating to such order or decree prejudicially affecting the decision of the case but that does not usurp in the domain of the procedure relating to the mode of execution of the decree. It is known that the second chapter of litigation starts after the passing of the decree. Therefore, the procedures required to be mandatorily followed with regard to the execution of the decree relates to assertion of the respective rights on the view of the perspective of the executability of the decree and, therefore, an irregular procedure of execution cannot be allowed to stay on any motion to validate the execution of decree passed in various suits through one composite proceeding. Therefore, this court is of the opinion that for each decree as it is circumscribed by the user of expression by choice of the inclusion of the preposition 'and', namely, decree is prectised and suit is also mentioned as a suit and, therefore, for each decree passed in each separate suit, there should be separate execution proceeding and it should not be clubbed together.

(3.) Accordingly, in view of the reasons as stated above, this court feels that the concerned trial Judge has acted with material irregularity in exercise of jurisdiction by allowing a composite execution in two different suits. Therefore, this court hereby interferes with the order impugned and, accordingly, the order under challenge is set aside. It is, however, made clear that as it is a proceeding and decree is executable per se as per epithet used by the apex court, therefore, for each decree the is free to initiate appropriate proceeding and rejection of the connected composite execution proceeding will not be a bar to initiate a fresh execution proceeding in accordance with law. Subject to the above observations, the revisional application stands allowed. xerox certified copy, if applied for, be issued at the earliest. Application allowed