RAJKISHORE SAHA Vs. PANNALAL GHOSH

JUDGEMENT

(1.) These two civil revisions are directed against a common judgment and order dated 27.3.95 of the learned Munsiff, Kailashahar, North Tripura, passed in Civil Misc. Case No. 26/89 and Civil Misc. Case No. 11/90 extending the period of execution of the decree dated 12.2.63 in Title Suit No. 47/62 and decree dated 28.10.65 in Title Suit No. 48/62 upto 8.7.89 and 12.9.90 respectively.

(2.) The facts, as recorded in the impugned judgment of the learned Munisiff, are that Title Suit No. 47/62 was instituted by one Akhil Chandra Ghosh against the petitioner in Civil Revision No. 25/95, Sri Rajkishore Saha for declaration of title, recovery of possession and for mesne profit and was decreed ex parte on 12.2.63. Title Suit No. 48/62 was instituted by the said Akhil Chandra Ghosh against Smti. Promodini Deb, the petitioner in Civil Revision No. 26/95, for declaration of title, recovery of possession and for mesne profit and was decreed ex parte on 28.10.65. No execution proceedings were initiated for execution of the said two decrees within the respective periods of limitation. After expiry of the period of limitation, however, Execution (T) No. 9/89 was filed by the legal heirs of late Akhil Chandra Ghosh for execution of the ex parte decree in Title Suit No. 47/62 along with Civil Misc. Case No, 26/89 for extending the period of limitation upto the filing of the execution case on 8.7,89 under Section 17 (2) of the Limitation Act, 1963. Similarly, after the expiry of the period of limitation. Execution (T) No. 2/90 was filed for execution of the ex parte decree in Title Suit No. 48/62 along with Civil Misc. No. 11/90 for extending the period of limitation upto the filing of the said execution case on 12.9.90 under Section 17(2) of the Limitation Act, 1963. By the common judgment dated 27.3.95, the learned Munsiff, Kailasahar, North Tripura, allowed the said Civil Misc. No. 26/89 and Misc. No. 11/90 and extended the period for execution of the two decrees upto 8.7.89 and 12.9.90 respectively. Aggrieved by the said judgment and order, Sri Raj Kishore Sana and Smti. Promodini Deb have filed the present two civil revision petitions under Section 115 of the Code of Civil Procedure.

(3.) At the hearing of the civil revisions, Mr, S. Dev, learned counsel appearing for the petitioners, contended that under Section 17(2) of the Limitation Act, 1963, the Court has the jurisdiction to extend the period for execution of a decree only if the execution of the decree within the period of limitation is prevented by fraud by the judgment debtor. In the petitions that were filed by the legal heirs of late Akhil Chandra Ghosh for extension of the period for execution of the decrees, particulars of fraud against the judgment debtors, namely, Raj Kishore Sana and Smti Promodini Deb, were not stated contrary to the provisions of Order VI, Rule 4, C.P.C. What has been pleaded in the said petitions in details is breach of trust committed by Sri Nani Gopal Ghosh, the eldest son of late Akhil Chandra Ghosh and the erstwhile Power of Attorney. The evidence that was led in support of the petitions also did not make out any case of fraud on the part of the judgment debtors Sri Raj Kishore Saha and Smt. Promodini Deb, Similarly, the impugned judgment of the learned Munsiff would show that breach of trust had been committed by Nani Gopal Ghosh against his co-legal heirs, and no finding as such was recorded that any fraud was committed by Ihe judgment-debtors, Sri Raj Kishore Saha and Smti. Promodini Deb, as a result of which the legal heirs of late Akhil Chandra Ghosh were prevented from executing the decrees within the period of limitation. Mr. Deb vehemently argued that the only finding that was recorded against the judgment debtors by the learned Munsiff in the impugned judgment is that there was collusion of Nani Gopal Ghosh with the judgment debtors and this finding was based on some rent receipts granted by Nani Gopal Ghosh in favour of the two judgment-debtors in respect of the suit property. According to Mr. Deb, from the issue of the said rent receipts by Nani Gopal Ghosh in favour of the judgment-debtors, no inference can be drawn that the judgment debtors committed fraud as a result of which the legal heirs of late Akhil Chandra Ghosh were prevented from executing the decrees. It was next submitted by Mr. Deb that Exhibit-1 would show that the heirs of late Akhil Chandra Ghosh executed a joint Power of Attorney on 9.2.65 appointing Shri Nani Gopal Ghosh and Sri Pannalal Ghosh, two sons of late Akhil Chandra Ghosh, as their constituted attorney empowering them to do all acts necessary in respect of the property of late Akhil Chandra Ghosh and the terms of the said Power of Attorney indicated that both the Attorneys! or any one of them was/were empowered to carry out the activities indicated in the said Power of Attorney. This being the evidence on record, the Court could not possibly come to a finding that the legal heirs of late Akhil Chandra Ghosh were prevented by fraud from executing the decrees within the period of limitation inasmuch as Pannalal Ghosh was equality empowered by the aforesaid Power of Attorney to execute the decrees independent of Nani Gopal Ghosh, the other Power of Attorney Holder. He further contended that in any case the evidence on record indicated that in 1973 the aforesaid Power of Attorney executed on 9.2.65 in favour of both Nani Gopal Ghosh and Pannalal Ghosh was revoked and a fresh Power of Attorney was executed authorising only Panna Lal Ghosh to take various steps with regard to the property of late Akhil Chandra Ghosh. On such evidence on record, therefore, there could be no findimg that the legal heirs of late Akhil Chandra Ghosh were prevented even after 1973 from executing the decrees against the judgment debtors. Mr. Deb, learned counsel appearing for the petitioners, relied on the judgments of the Supreme Court in the cases of Syed Shah Gulam Ghouse Mohiuddin & Ors. Vs. Syed Shah Ahmed Mohiuddin Kamisul Qadiri (dead) by his Legal Representatives & others, AIR 1951 SC 16, and Yeshwant Deorao Vs. Walchand Ramchand, AIR 1971 SC 2184, and, the judgment in the case of Giribala Choudhury & Ors. Vs. Ushangiri Debi, reported in AIR 1955 Assam 177, for his submission that heavy onus was on the party alleging fraud to establish such fraud with all its particulars. Mr. Deb contended that the rights of late Akhil Chandra Ghosh in respect of the properties in possession of the judgment-debtors are intermediary rights. But the intermediary rights in respect of Taluks have, however, been vested in the State Government with effect from 15.4.63 under Section 135 of the Tripura Land Revenue and Land Reforms Act, 1960, and the decrees against the judgment-debtors are inexecutable. In support of this submission, Mr. Deb relied on a judgment of the Supreme Court in the case of Sabitri Debi & others Vs. Sarat Chandra Rout & Ors., (1996) 3 SCC 301. Mr. Deb further argued that the case of legal heirs of late Akhil Chandra Ghosh in the petitions for extension of the period of limitation under Section 17(2) of the Limitation Act, 1963 was that they came to learn from the additional written statement filed by one Guru Charan Das filed on 10.8.87 about the decrees in the two suits and this being their admitted case, the period of limitation under Section 17(2) of the Limitation Act, 1963 could not be extended upto 8.7.89 and 12.9.90 respectively. He contended that all these contentions were raised before the learned Munsiff, but no finding has been recorded on the same.