MURLIDHAR JOGANI Vs. AHMED TEA COMPANY P LTD

JUDGEMENT

(1.) An order dated 12.4.2005 passed by the learned District Judge, Dibrugarh in Title Execution Case No. 17/02 has been put to challenge in the present revision application under Section 115 of Code of Civil Procedure (hereinafter referred to as the Code). By the aforesaid order dated 12.4.2005, the learned District Judge has held the application filed under Section 47 of the Code by the present petitioners, who are the Judgment Debtors, to have been disposed of by the learned executing Court i.e. learned Civil Judge (Sr. Division) Dibrugarh by order dated 5.4.2003 and, therefore, the Court of the District Judge will not have the jurisdiction to re-hear the said application.

(2.) The facts, in brief, may be noted at this stage. The opposite party Nos. 1 and 2 in the present revision application, as plaintiffs, instituted Title Suit No. 153/69 in the Court of Assistant District Judge, Dibrugarh seeking a decree of eviction of one Chiranjilal Jogani, predecessor in interest of the present nevision petitioners from the suit premises rented out to him. The aforesaid decree of eviction was sought by the plaintiffs on the ground that the suit premises was required by the plaintiffs for their own use and occupation and also that the defendant-tenant, Chiranjilal Jqgani, was a defaulter in the matter of payment of rent. Consequently it was prayed by the plaintiffs in the suit that the defendant, Chiranjilal Jogani was liable to be evicted under the provisions of Assam Urban Areas Rent Control Act, 1972. The aforesaid suit i.e. TS 153/69 was decreed by the learned Trial Court on 31.1.97 by ordering for the eviction of the defendant Chiranjilal Jogani. In the decree passed by the learned Trial Court, there was, however, a direction for payment of sum of Rs. 10,000.00 by the plaintiffs to the defendant on account of compensation. The decree passed by the learned Trial Court was confirmed in appeal i.e. TA No. 7/87 on 19.4.1993 and also by this Court by its order dated 22.1.2001 passed in Civil Revision No. 193/93 and SA 102/93. Thereafter, on 9/5/2002, the decree holder instituted an execution proceeding before the learned Civil Judge, Sr. Division. Dibrugarh and in the said executing proceeding, which was registered and numbered as Title Execution Case No. 17/02, the judgment debtor filed objections under Section 47 of the Code. It must be noticed at this stage that after the suit was decreed by the learned Trial Court, the defendant No. 1 died on 18.2.88 and his legal heirs including his son Shri Murlidhar Jogani and Ram Kishore Jogani were brought on record by effecting necessary substitution. Thereafter, Ram Kishore Jogani died on 19.12.93 and his legal heirs are also been brought on record. The petitioner No. 1 in the present proceeding is the son of Chiranjilal Jogani whereas the petitioner Nos. 2-5 are the sons and daughters of deceased Ram Kishore Jogani. The petitioner Nos. 6 and 7 are the daughters of the deceased Chiranjilal Jogani. In the objections filed under Section 47 of the Code by the judgment debtors, several grounds, as specified therein, were taken by the judgment debtors against the executability of the decree. Out of the objections so taken, what is of significance and, therefore, must be taken note of is the objection of the Judgment Debtor to the effect that after the death of Chiranjilal Jogani on 18/12/88 and his son Ramkishore Jogani on 19.12.93, the tenancy had devolved on the legal heirs of the both the aforesaid two persons, all of whom would be entitled to the compensation of Rs. 10,000.00 which is payable by the decree holders in terms of the decree passed. As the said compensation was not tendered to all the legal heirs, the decree was not executable. The learned executing court by order dated 5.4.2003 disposed of the objections of the judgment debtors u/s. 47 of the Code by ordering payment of the compensation amount to all the legal heirs before the decree is to be executed. Thereafter, deposit of the compensation amount was made by the decree holders whereupon the learned executing Court, by order dated 13.8.2004, ordered further steps in execution. Thereafter, on 19.8.2004, the judgment debtors filed an application before the learned executing Court to the effect that as the objections filed under Section 47 of the Code had not been disposed of by considering all the grounds urged, the said application/objections should be re-heard by the executing Court. Before any order on the said application could be passed by the learned executing Court, the judgment debtors filed another application before the learned District Judge for transfer of the case to the Court of the learned District Judge under Section 24 of the Code. Though no specific order on the aforesaid transfer application was passed by the learned District Judge it appears that the record of Title Execution Case No. 17/ 02 was requisitioned by the learned District Judge from the learned executing Court. Thereafter, on 23.12.2004, the learned District Judge passed an order fixing the date of hearing of the objections of the Judgment Debtors under Section 47 of the Code and until the matter is decided, further proceedings in execution were stayed by the learned District Judge. Thereafter, the impugned order dated 12.4.2005 has been passed by the learned District Judge holding that as the objections of the judgment debtors under Section 47 of the Code had already been disposed of by the learned executing Court by order dated 5.4.2003, re-hearing of the matter can only be by way of a review of the said order. As no review application has been filed and in any case as review can only be made by the Court which had passed the order, the learned District Judge took the view that there was no jurisdiction in the Court of the learned District Judge to reconsider and re hear the objections filed by the judgment debtors under Section 47 of the Code. Aggrieved, the present revision application has been filed.

(3.) I have heard Mr. S.P. Roy, learned counsel for the revision petitioners and Mr. A. Sarma, learned Sr. Counsel appearing for the respondents.