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2013 Supreme(Cal) 845
CALCUTTA HIGH COURT
Toufique Uddin, J.
Kaushik Ghosh - Petitioner
Versus
Reba Das & Anr. - Opposite Parties
C.O. No. 660 and 661 of 2013
Decided on : 08-11-2013
For the Petitioner:Anirudhdha Chatterjee, Rahul Karmakar and Keka Mukherjee, Advocates.
For the Opposite Parties :Saibalendu Bhowmick and Manisha Bhowmick, Advocates.
The legal representative of a deceased decree-holder can execute the decree only if there is a transfer of interest of the decree to the legal representative either by any assignment or by operation of law in writing.
Headnote:
WILL - SUBSTITUTION OF LEGAL REPRESENTATIVE - ORDER 22 RULE 3 OF THE CODE OF CIVIL PROCEDURE - TRUST PROPERTY - ORDER 21 RULE 16 OF THE CODE OF CIVIL PROCEDURE - SUCCESSION - ORDER 21 RULE 101 OF THE CODE OF CIVIL PROCEDURE - ADJUDICATION OF RIGHT, TITLE AND INTEREST - LEGAL REPRESENTATIVE OF DECEASED DECREE-HOLDER - RIGHT TO EXECUTE DECREE - INTERPRETATION OF TRUST DEED AND WILL - JURISDICTION OF EXECUTING COURT TO DECIDE TITLE OF PARTIES - APPLICABILITY OF ORDER 21 RULE 16 OF THE CODE OF CIVIL PROCEDURE - PROBATE OF WILL - SECTION 213 OF THE INDIAN SUCCESSION ACT, 1925 - EXECUTION OF TRUST UNDER INDIAN TRUST ACT - ORDER 21 RULE 97 OF THE CODE OF CIVIL PROCEDURE - POLICE HELP FOR EXECUTION OF DECREE - ORDER 21 RULE 101 OF THE CODE OF CIVIL PROCEDURE - ADJUDICATION OF RIGHT - RIGHT, TITLE AND INTEREST OF DECREE-HOLDER AND LEGAL REPRESENTATIVES - POSSESSION OF OBSTRUCTIONIST - SCOPE OF INTERFERENCE BY HIGH COURT -
Fact of the Case:
The petitioner, as the sole beneficiary of the estate of his deceased father, Paresh Chandra Ghosh, sought substitution in place of the deceased decree-holder, Renuka Ghosh, in an execution proceeding. The third party/objector, Jyotsna Das, contested the application, claiming independent right over the possession of the suit property and filed an application under Order 21 Rule 101 of the Code of Civil Procedure for adjudication of right, title, and interest of both parties.
Finding of the Court:
The court held that the impugned order passed by the learned Court below appears to be a speaking one and there is no merit in the revision.
Issues: 1. Whether the petitioner, as the sole beneficiary of his deceased father's estate, is entitled to be substituted in place of the deceased decree-holder in the execution proceeding? 2. Whether the third party/objector, Jyotsna Das, has an independent right over the possession of the suit property? 3. Whether the executing court has jurisdiction to decide the title of parties in the execution proceedings?
Ratio Decidendi: 1. The court held that the petitioner's claim to represent the deceased decree-holder based on the Will left by his predeceased father has no legal basis as the Will was not probated and no application for granting probate was ever made. 2. The court also held that the petitioner's claim that the suit property is governed by a trust deed and not by law of inheritance is not tenable as the trust deed lost its sanctity when Paresh Chandra Ghosh, the petitioner's father, predeceased Renuka Ghosh, the original owner of the property. 3. The court further held that the executing court has jurisdiction to decide the title of parties in the execution proceedings under Order 21 Rule 101 of the Code of Civil Procedure.
Final Decision: The court dismissed the revision petition, holding that the impugned order passed by the learned Court below appears to be a speaking one and there is no merit in the revision.
Toufique Uddin, J.
The revision No. C.O. No. 660 of 2013 arose out of order No. 52 dated 15.9.2012 passed by the learned 3rd Bench of the Small Causes Court at Calcutta in Misc. Case No. 216/2007 arising out of Ejectment Execution Case No. 58/2007.
2. The short background is that the predecessors in interest of the petitioner viz. Renuka Ghosh, since deceased had obtained an ex parte decree of eviction from the learned 3rd Bench, Small Causes Court, Calcutta on 6.11.2006 passed in Ejectment Suit No. 165/04. The petitioner states that the said Renuka Ghosh during her lifetime had put the said decree into execution before the learned Executing Court and the same was registered as Ejectment Execution Case No. 58/07. Being registered, Renuka Ghosh during her lifetime filed an application under Order 21 Rule 97 of the Code of Civil Procedure before the learned Executing Court praying for police help to execute the said decree. The application was registered as Misc. Case No. 216/07. The application was duly contested by one third party/resistant or objector viz. Jyotsna Das wherein she filed written objection denying and disputing the material allegations. During pendency of the Misc. Case No. 216/07 the said Jyotsna Das filed an application under Order 21 Rule 101 of the Code of Civil Procedure praying for adjudication of right. That application was registered as Misc. Case No. 102/08. It was duly contested by Renuka Ghosh during her lifetime denying all material allegations. During pendency of the said two cases the decree holder died intestate on 8.9.11. Subsequent to the said demise as per the trust deed dated 10.7.72, the rear portion of the building wherein the suit premises is situated devolved upon the estate of the deceased Paresh Chandra Ghosh. Paresh Chandra Ghosh during his lifetime had executed his last Will and testament on 31.12.2005 bequeathing the said property in favour of the petitioner. Paresh Chandra Ghosh pre-deceased the decree-holder. As per the said Will, the petitioner being the sole beneficiary of the estate is to be substituted in place and state of late Renuka Ghosh.
3. Accordingly, the petitioner filed an application under Order 22 Rule 3 of the Code of Civil Procedure in Misc. Case No. 216/07. Due to some lacuna in the application the same was withdrawn and a fresh application dated 17.3.12 was filed praying for substitution in place of decree-holder. The objector duly contested the application verbally before the learned Court below disputing all material allegations. On 15.9.12 learned Executing Court on hearing of both the sides rejected the application filed by the petitioner by Order No. 52.
4. Now, the point for consideration is if the impugned order calls for any interference or not.
5. The learned Court below erred in law as well as in fact by making out a third case which is neither a case of the petitioner nor the Opposite Party.
6. The learned Counsel for the Petitioner contended before me that the learned Court below erred in law in not appreciating that the suit property is governed by trust deed and not by law of inheritance. The learned Court below did not consider clause 5 of the trust deed.
7. On the other hand, the learned Counsel for the Opposite Party supported the impugned order passed by the learned Court below and submitted that the order needs no interference.
8. The learned Counsel for the Petitioner have also submitted written notes of argument. It was contended by them that the instant application for substitution is not required under law as per provisions of Order 22 Rule 12 of the Code of Civil Procedure. The execution shall proceed as if the decree-holder is alive.
9. The petitioner is the only legal heir upon whom the entire state of the said Paresh Ch. Ghosh being the 50% of landed property has devolved as per his Will and as such the learned Executing Court does not have jurisdiction to decide title of parties in any executing proceedings. The Opposite Party No. 3/th
