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High Court Of Calcutta
ARUN KUMAR MITRA
SHIB SANKAR RUDRA - Appellant
Versus
JYOTIRMOY RUDRA - Respondent
C. O. 1108 Of 2002
Decided On : 07/18/2003
APPOINTMENT OF RECEIVER - EXECUTION OF DECREE - SECTION 151 CPC - SECTION 51 CPC - EXECUTION OF DECREE BY APPOINTING RECEIVER - CONDITIONS AND LIMITATIONS - INHERENT JURISDICTION OF COURT - RE-EXECUTION OF DECREE - SATISFACTION OF DECREE - ENDORSEMENT BY POLICE ON WRIT OF DELIVERY OF POSSESSION - JURISDICTION OF POLICE - MAINTAINABILITY OF REVISIONAL APPLICATION - DISMISSAL OF PREVIOUS REVISIONAL APPLICATION - RES JUDICATA.
Fact of the Case:
The decree-holder, who was allotted a plot of land by the Refugee Relief and Rehabilitation Director, obtained a decree for declaration of his sole ownership and possession of the plot. The judgment-debtors, who were the decree-holder's brothers, filed appeals and other legal proceedings, which were all dismissed. The decree-holder filed a Title Execution case for execution of the decree. The judgment-debtors filed an application for stay of execution, which was dismissed. The decree-holder then filed a petition under Section 151 of the Code of Civil Procedure (CPC) for appointment of a Receiver for the execution of the decree. The judgment-debtors objected to the petition, arguing that the decree had already been executed and that the Court had no jurisdiction to appoint a Receiver under Section 151 CPC when there was a specific provision under Section 51 CPC for the appointment of a Receiver for execution of a decree.
Finding of the Court:
The Court held that the decree had not been executed in full and final satisfaction, as the police had no authority to make an endorsement on the writ of delivery of possession that physical possession had been given. The Court also held that the inherent jurisdiction of the Court under Section 151 CPC could be exercised in the instant case, as there was no inconsistency or conflict with the provisions of Section 51 CPC. The Court further held that the revisional application was not maintainable, as a previous revisional application filed by one of the judgment-debtors had been dismissed and the instant petitioner was a party to that application.
Issues: 1. Whether the Court has jurisdiction to appoint a Receiver for the purpose of execution on an application under Section 151 CPC when there is a provision under Section 51 CPC for the purpose of appointment of Receiver for execution of a decree. 2. Whether the decree was executed in full and final satisfaction. 3. Whether the revisional application is maintainable.
Ratio Decidendi: 1. The Court held that the inherent jurisdiction of the Court under Section 151 CPC could be exercised in the instant case, as there was no inconsistency or conflict with the provisions of Section 51 CPC. 2. The Court held that the decree had not been executed in full and final satisfaction, as the police had no authority to make an endorsement on the writ of delivery of possession that physical possession had been given. 3. The Court held that the revisional application was not maintainable, as a previous revisional application filed by one of the judgment-debtors had been dismissed and the instant petitioner was a party to that application.
Final Decision: The Court dismissed the revisional application.
( 1 ) THIS revisional application has been preferred challenging order dated 15-10-2001 passed by the learned 5th Civil judge, Senior Division at Alipur in Title execution Case No. 27/79. The background of this case in brief is, inter alia, as follows: the decree-holder/respondent came from Bangladesh (the then Pakistan) in the year 1948. On 18-5-1953 Refugee Relief and Rehabilitation Director, Govt. of West Bengal allotted a plot of land being Plot No. 290 nandannagar G. S. Colony, Belgharia, Calcutta-83. According to the judgment-debtor no. 2 since Jyotirmoy Rudra, the decreeholder who was his brother was adult and the petitioner and the other brother Sunil kr. Rudra, respondent No. 2 herein were aged about 15 and 17 years naturally the plot was allotted in favour of the decreeholder Jyotirmoy Rudra. Actually the three brothers, that is, Jyotirmoy and Shib Sankar and Sunil were the joint allottee of the plot. In the year 1969 the decree-holder Jyotirmoy rudra filed T. S. No. 19/69 for declaration that he is the sole allottee and the judgmentdebtors are licensees. Thereafter the petitioner/judgment-debtors filed T. S. No. 57/ 69. On 15-7-1971 T. S. No. 19/69 was decreed and T. S. No. 57. 69 was dismissed. The judgment-debtors filed two appeals Title appeal No. 1042/71 and 1043/71. By an order dated 19-6-1972 both the appeals were remanded to the trial Court for hearing on the point of abatement and on 2-2-1973 T. S. No. 19/69 was again decreed and T. S. No. 57/69 was again dismissed. Again the judgment-debtors preferred two appeals being titel Appeal No. 308/73 and 309/73. Both the appeals were dismissed on 14-5-1974. The judgment-debtors filed two appeals being S. A. No. 309/74 and 310/74. On 21-7-1978 both the second appeals were dismissed and the judgment-debtors were allowed three years time to vacate the premises of the decree-holder. It may be recorded that it is the case of the case of the decree-holder that he constructed residential premises in and over the said plot of land allotted in his favour.
( 2 ) THE decree-holder then filed Title Execution case No. 27/79 for execution of the decree. There were some litigations in the meantime which are not relevant at the moment. Lastly, the judgment-debtors filed an application under Section 47, CPC for stay of the execution which was registered as Misc. Case No. 31/86 and it was dismissed on 23-12-1988. The judgment-debtors filed Misc. Case No. 1/79 being review application which was also dismissed on 31- 3-1990. The revisional application was preferred before the High Court and that was also dismissed on 31-7-1990. Subsequently a Govt. order was Issued through which it was communicated to the decree-holder intimating that the Govt. had taken decision that the plot No. 219 that is the suit plot will be distributed amongst the three brothers that is the decree-holder and the judgment-debtors. The decree-holder filed a writ petition being W. P. No. 196/97 challenging the said Govt. order and/or notification and the letter dated 8-8-1996 through which the govt. order was communicated to him and the operation of the said order was stayed by the High Court on 16-9-1998. After hearing the parties the High Court allowed the said writ petition being No. W. P. 196/97 filed by the decree-holder and the High Court imposed cost of Rs. 3400/- upon the judgment-debtors and directed the Refugee Relief and Rehabilitation Department, Govt. of west Bengal to execute a free-holder title deed solely in favour of the decree-holder within six weeks from the date of communication of the order dated 16-9-98. According to the decree-holder appeal against order dated 16-9-1998 was dismissed. The executing Court thereafter issued Writ of delivery of possession execution of decree with police help and the decree-holder had deposited police cost. A writ of delivery of possession was issued to the bailiff. In the report dated 20-11-1999 submitted by the bailiff it was stated that
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