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High Court Of Calcutta
Narayan Chandra Sil
CASH REGISTER CO (P) LTD - Appellant
Versus
SURAJ NARAYAN SHAW - Respondent
C. O. 814 Of 2002
Decided On : 08/09/2002
WEST BENGAL PREMISES TENANCY ACT - SECTION 13(1) - NULLITY OF DECREE - IMPLIED SURRENDER - JURISDICTION OF EXECUTING COURT - RES JUDICATA - REVIEW APPLICATION - SCOPE AND GROUNDS - DISMISSAL OF SPECIAL LEAVE PETITION - EFFECT - CIVIL PROCEDURE CODE, ORDER 47 RULE 1 - REVIEW - GROUNDS - NEW PLEA OR GROUND - CIVIL PROCEDURE CODE, SECTION 115 - REVISION - SCOPE AND GROUNDS - INTERIM ORDER - VACATION - STAY OF OPERATION OF ORDER - REJECTION.
Fact of the Case:
Petitioner, the judgment-debtor, filed three applications before the lower court: one under section 47 of the Civil Procedure Code (CPC) for stay of execution proceedings, one under Order 39 Rules 1 and 2 of the CPC for temporary injunction against the decree-holders, and one under section 151 of the CPC for stay of all proceedings. The lower court rejected all three applications.
Finding of the Court:
The court found that the petitioner had taken a new plea in the section 47 application, which was not pleaded or established in the trial court. The court also found that the Division Bench of the High Court had already rejected the petitioner's review application, which sought to raise the same new plea. The court held that the executing court had no jurisdiction to entertain an objection to the validity of the decree on the ground of absence of jurisdiction, as the objection did not appear on the face of the record and required examination of questions raised and decided at the trial.
Issues: 1. Whether the decree passed in the eviction suit was a nullity due to the implied surrender of the tenancy and the applicability of the West Bengal Premises Tenancy Act, particularly section 13(1) of the Act. 2. Whether the executing court had jurisdiction to entertain an objection to the validity of the decree on the ground of absence of jurisdiction, where the objection did not appear on the face of the record and required examination of questions raised and decided at the trial. 3. Whether the dismissal of the review application by the Division Bench of the High Court barred the petitioner from raising the same grounds in the section 47 application.
Ratio Decidendi: 1. The court held that the decree passed in the eviction suit was not a nullity, as the grounds of implied surrender and the application of the West Bengal Premises Tenancy Act were not considered by the trial court. The court found that the petitioner had taken a new plea in the section 47 application, which was not pleaded or established in the trial court. The court also found that the Division Bench of the High Court had already rejected the petitioner's review application, which sought to raise the same new plea. 2. The court held that the executing court had no jurisdiction to entertain an objection to the validity of the decree on the ground of absence of jurisdiction, as the objection did not appear on the face of the record and required examination of questions raised and decided at the trial. The court relied on the Supreme Court decision in V. D. Modi v. R. A. Rehman and Ors. (AIR 1970 SC 1475), which held that when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record. However, where the objection as to jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction. 3. The court held that the dismissal of the review application by the Division Bench of the High Court barred the petitioner from raising the same grounds in the section 47 application. The court relied on the Supreme Court decision in State of Uttar Pradesh v. Nawab Hussain (1977, 2 SCC 806), which dealt with the principle of constructive res judicata.
Final Decision: The court dismissed the revisional application under section 115 of the CPC. The court also vacated the interim orders and affirmed the impugned order and judgment of the lower court. The court rejected the petitioner's prayer for stay of the operation of the order passed by the court.
( 1 ) THIS revisional application under section 115 of the Code of Civil Procedure is directed against the judment and order dated 21. 3. 2002 passed by Shri R. K. Dey, learned Judge, City Civil Court, VIIth Bench in connection with Misc. Case No. 1332 of 2001 arising out of Title Execution Case No. 50 of 2000.
( 2 ) IT appears from the impugned order that as many as three applications were filed by the petitioner/judgment-debtor before the learned lower Court. In one application under section 47 of the Code of Civil Procedure the petitioner prayed for stay of all further proceedings of Title Execution Case No. 50 of 2000. In other application under Order 39 Rules 1 and 2 of the Code the petitioner prayed for temporary injunction against the O. P. s/decree-holders and in application under section 151 of the Code of Civil Procedure the petitioner prayed for stay of all proceedings of the said Title Execution Case number. After hearing both the parties the learned Judge rejected all the three applications.
( 3 ) IT appears from the record that the O. Ps. got a decree in title suit No. 1323 of 1981 on 29. 4. 1985 against which the petitioner preferred an appeal before the High Court and the said appeal being Nos. FAT 2630 of 1985 and F. A. No. 121 of 1997 was dismissed. Thereafter the petitioner preferred as many as two S. L. Ps. before the Hon'ble Apex Court one against the dismissal of appeal by the High Court and the other against the dismissal of the review application by the High Court. After hearing both the parties, both the S. L. Ps. were dismissed by the Hon'ble Apex Court.
( 4 ) MR. S. Dasgupta, the learned senior counsel appearing for the revisionist submits before me that the rent deposited by the petitioner was accepted by the O. Ps. and as such a new tenancy was created with the implied surrender of the tenancy by the original tenant. It is also pointed out by Mr. Dasgupta that in terms of the provisions of section 13 (1) of the West Bengal Premises Tenancy Act (hereinafter referred as 'act') no decree could be passed in the eviction suit and as such the decree was a nullity. It is also pointed out by Mr. Dasgupta that in the instant case the lease was for 21 years and so the West Bengal Premises Tenancy Act will not operate.
( 5 ) MR. S. P. Roychaudhury, the learned counsel appearing for the O. P. /decree-holder submits before me that there is little scope of section 47 of the Code of Civil Procedure. He has taken me through the pleadings of the parties in the Title suit and tries to impress upon me that the petitioner admitted the case of the O. P. in their written statement. He has also referred to paragraph 12 of the written statement filed by the petitioner wherein the entire transaction was described as oral. Mr. Roychaudhury has also submitted that only in the review application before the High Court the petitioner introduced the case of implied surrender for the first time. Mr. Roychaudhury contends that the petition under section 47 of the Code of Civil Procedure is a mere repetition of paragraph 11 of the review application. It is also pointed out by him that from paragraph 13 of the petition under section 47 onwards again new facts were introduced as if a new suit was brought in the application under section 47 of the Code of Civil Procedure in order to substantiate the claim of implied surrender.
( 6 ) THE learned advocates for both the parties have referred to a number of case laws which I shall discuss at the appropriate point of time. In reply Mr. Dasgupta has submitted that the function of the executing Court is not to see the execution of the decree only.
( 7 ) MR. Dasgupta has referred to the ratio decided in the case of P. M. C. K. Nair v. C. R. N. Iyer and Ors. (1992, 4 SCC 254 ). In the said case the Hon'ble Apex Court after having drawn the analogy of the English law observed that just as under the English law, there can be an implied surrender under the law of transfer of
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