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High Court Of Calcutta
D. K. SETH, JYOTESH BANERJEE
BIBHUTI BHUSAN DUTTA - Appellant
Versus
SAMARENDRA NATH MISRA - Respondent
Appeal From Original Order 239 Of 1998
Decided On : 06/18/2002
ORDER XXI RULE 99 CPC - DISPOSSESSION OF PROPERTY - SCOPE AND APPLICABILITY - DETERMINATION OF RIGHT, TITLE, AND INTEREST - BURDEN OF PROOF - EXECUTION OF DECREE OBTAINED BY FRAUD - JURISDICTION OF EXECUTING COURT - COLLUSION BETWEEN DECREE-HOLDER AND JUDGMENT-DEBTOR.
Fact of the Case:
The appellant, a tenant in a property, was dispossessed in execution of an ex parte decree obtained by the decree-holder against the judgment-debtor, the appellant's landlord. The appellant filed an application under Order XXI Rule 99 CPC, claiming that the decree was not binding on him as he was not a tenant under the judgment-debtor. The trial court dismissed the application, holding that the appellant was estopped from contending that he was a tenant under the decree-holder because he had admitted being a tenant under the judgment-debtor in a proceeding before the Rent Controller.
Finding of the Court:
The court held that the appellant had made out a case that there were some substance in his contention that the decree was not binding on him, and that the trial court should have determined the questions raised by the appellant in accordance with Order XXI Rule 101 CPC. The court also held that the trial court could examine the question of fraud and collusion between the decree-holder and the judgment-debtor in obtaining the dispossession in execution of the decree, as this would not amount to going behind the decree.
Issues: 1. Whether the appellant was bound by the ex parte decree obtained by the decree-holder against the judgment-debtor. 2. Whether the trial court erred in dismissing the appellant's application under Order XXI Rule 99 CPC without determining the questions raised by the appellant. 3. Whether the trial court could examine the question of fraud and collusion between the decree-holder and the judgment-debtor in obtaining the dispossession in execution of the decree.
Ratio Decidendi: 1. The provisions of Order XXI Rule 99 CPC are attracted where (i) a person other than the judgment-debtor (ii) is dispossessed of immovable property (iii) covered by the decree (iv) in execution thereof. 2. In order to bring the case within the scope of Order XXI Rule 99 CPC, the appellant has sought to contend that he is not a tenant of Smt. Archana Misra, though the receipts were granted by Smt. Archana Misra. According to him, it was at the behest of Dr. Samarendra Nath Misra, Smt. Archana Misra used to grant those receipts. 3. In a proceeding under Rule 99, all questions arising between the parties relevant to the adjudication of the application shall be determined by the Court and not by a separate suit. 4. The question of title, if raised, can be gone into within the scope of this rule and be decided by the Executing Court. 5. The question of fraud and collusion between the decree-holder and the judgment-debtor in obtaining the dispossession in execution of the decree can be examined by the trial court, as this would not amount to going behind the decree.
Final Decision: The court allowed the appeal, set aside the order of the trial court, and remanded the case to the trial court for the purpose of deciding the same afresh in the light of the observations made in the judgment.
( 1 ) - This appeal is directed against Order No. 31 dated 12th December, 1997 passed in Misc. Case No. 1610 of 1995 by the learned Judge. City Civil Court Calcutta, Twelfth Bench. The said Misc. Case arose out of a proceeding under Order XXI Rule 99 of the Code of Civil Procedure (CPC ). Briefly stated, the facts are as follows :-
( 2 ) PURSUANT to an ex parte decree against one Archana Misra, the petitioner Bibhuti Bhusan Dutta was dispossessed in course of execution. According to the applicant, the ex parte decree against Smt. Archana Misra was obtained by the plaintiff Samarendra Nath Misra by practicing fraud and collusion upon the Court. Inasmuch as the applicant was the tenant in respect of the suit premises after having the talk of tenancy with Dr. Misra, who had pointed out that the receipts would be granted by his wife and accordingly, the receipts used to be granted by the wife of Dr. Misra being Smt. Archana Misra. The said Smt. Archana Misra had instituted a suit for eviction against the applicant being suit No. 487 of 1990 in the City Civil Court at Calcutta, which was being contested, by the applicant. During the pendency of the said suit, Dr. misra, plaintiff-decree-holder instituted a suit for eviction against his wife Smt. Archana Misra in the City Civil Court at Calcutta being Ejectment Suit No. 113 of 1993. The applicant/appellant was inducted as tenant on June 15, 1983. The suit file by the plaintiff/respondent herein was decreed ex parte against Smt. Archana Misra on 2nd of August 1994. The bailiff submitted a report on 24th November 1984 that the execution was resisted by the wife Smt. Archana Misra. He apprehended breach of peace. Therefore, returned the writ unexecuted. On 25th November, 1994, on an application under Order XXI Rule 97 CPC, police help was granted by the Court. In execution, the appellant/applicant was dispossessed. Thereafter, the Ejectment Suit No. 487 of 1990 filed by Smt. Archana Misra was dismissed for non-prosecution, on the prayer of Smt. Archana Misra, on 31st of June, 1995. The appellant/applicant filed an application under Order XXI Rule 99 read with section 151 CPC being the present Misc. Case No. 1610 of 1995 on 19th July, 1995. The Misc. case was dismissed on 30th March, 1996. F. M. A. 1256 of 1997 was filed before this Court on 25th November, 1995. The said appeal was allowed on 19th of September, 1997, remanding the case to Court below. On remand, the order appealed against was passed on 12th of December, 1997 rejecting the said application under Order XXI Rule 99 CPC. Submission of the Appellant :
( 3 ) THE learned counsel for the appellant points out that under Order XXI Rule 99 of the Code of Civil Procedure, the relief can be had by a person who is not a judgment-debtor. The appellant has sought to point out that he was not the judgment-debtor. In other words, according to him, the appellant is not bound by the judgment. In order to bring his contention home, the appellant had attempted to make out a case that he was a tenant under the plaintiff Dr. Samarendra Nath misra on whose behalf the receipts were granted by his wife Smt. Archana Misra. He was not a tenant under Smt. Archana Misra and thereby a sub-tenant in the premises and as such, the decree could not be binding upon him. 3. 1. In support he had also attempted to make out a case that the ex parte decree against Archana Misra was obtained by Dr. Samarendra Nath Misra fraudulently and in collusion between themselves. In support he had pointed out to the materials on record and took us through it. He has pointed out that initially Smt. Archana Misra appeared in the suit but did not contest the same and allowed the suit to be decreed ex parte. At the time when the suit was decreed, the relationship of landlord-tenant and between Dr. Samarendra Nath Misra and Smt. Archana Misra was not established. There was no material to prove that Archana Misra was a tenant under Dr. Samarendra Nath Misra, the
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