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IN THE HIGH COURT AT CALCUTTA
Shampa Sarkar, J.
Nirmal Bhattacharya – Petitioner
Versus
Pijush Kumar Basak – Opposite Party
CO 427 of 2022 with CAN 1 of 2022
Decided On : 04-08-2023
EXECUTION OF DECREE - ORDER 47 OF CODE OF CIVIL PROCEDURE - ANALOGOUS TRIAL - JURISDICTION - EXECUTION OF DECREE - OBJECTION - NULLITY OF DECREE - RES JUDICATA - SCOPE - CIVIL PROCEDURE CODE, 1908 - SECTION 47.
Fact of the Case:
The petitioner filed a revisional application against an order rejecting his application under Section 47 of the Code of Civil Procedure (CPC) in a title execution case. The petitioner argued that he was not aware of the suit proceedings and that the decree in the subsequent suit could not be executed until the prior suit was disposed of. The decree holder denied the petitioner's contentions, stating that the judgment and decree in the subsequent suit were passed on contest and that the petitioner had filed an appeal which was dismissed on merits.
Finding of the Court:
The court found that the learned court below had considered the provisions of law and the facts pleaded by the parties and had arrived at the conclusion that the scope of Section 47 of the CPC was limited to questions relating to execution, discharge, or satisfaction of the decree. The court also found that the petitioner had contested the subsequent suit but did not raise the issue of pendency of the prior suit, which had been renumbered after transfer. The court further found that the petitioner had failed to prove his tenancy in both the suits and that the issue of tenancy had attained finality.
Issues: 1. Whether the petitioner was aware of the suit proceedings and the dismissal of the prior suit? 2. Whether the decree in the subsequent suit could be executed before the disposal of the prior suit? 3. Whether the petitioner's application under Section 47 of the CPC was maintainable?
Ratio Decidendi: 1. The court held that the petitioner was aware of the suit proceedings and the dismissal of the prior suit, as he had appeared in the subsequent suit and had filed an appeal against the judgment and decree. 2. The court held that the decree in the subsequent suit could be executed before the disposal of the prior suit, as the prior suit had been dismissed for non-compliance of the court's order and the petitioner had not taken any steps to restore the suit. 3. The court held that the petitioner's application under Section 47 of the CPC was not maintainable, as the decree in the subsequent suit was not a nullity and the petitioner had not raised the issue of pendency of the prior suit in the subsequent suit or in the appeal.
Final Decision: The court dismissed the revisional application, holding that the learned court below had rightly rejected the Misc Case and that the Misc Case was an abuse of the process of court and a total misuse of the provisions of law.
Based on the provided legal document, the key legal principles and conclusions are as follows:
A decree that is a nullity, such as one passed without proper jurisdiction or against a person not properly on record, can be challenged at the execution stage. However, an erroneous decree—whether in law or fact—cannot be contested during execution (!) (!) .
The scope of Section 47 of the Civil Procedure Code is limited to questions relating to the execution, discharge, or satisfaction of a decree. It does not extend to challenging the validity of the decree itself, especially if the decree is not a nullity (!) (!) .
The court emphasized that a party cannot invoke Section 47 to delay or stall execution by raising issues that should have been raised during the trial or appellate proceedings. The doctrine of res judicata and issue estoppel are applicable, especially when issues like tenancy have been finally decided in earlier suits (!) (!) (!) .
The petitioner’s contention that the decree was not executable due to the non-trial of an earlier suit was rejected. The court found that the petitioner had participated in the proceedings, contested the suit, and failed to raise the issue of pendency or non-trial of the earlier suit at appropriate stages. The subsequent decree was therefore binding and executable (!) (!) .
The court held that the application under Section 47 was filed based on incorrect and misleading facts, aiming solely to delay the execution process. Such misuse of legal provisions constitutes an abuse of process (!) (!) .
The principle that a decree, once valid and not set aside through proper proceedings, must be executed without going behind its tenor was reaffirmed. Objections to the decree’s validity should be raised via appeal or other appropriate proceedings, not during execution (!) (!) .
The court dismissed the revisional application, finding that the lower court’s decision was correct, and that the application under Section 47 was an improper attempt to prolong litigation and obstruct justice (!) (!) .
The court also noted that issues such as the alleged irregularities in trial or transfer of suits did not warrant interference, especially when the petitioner had participated in the proceedings and failed to raise these issues at the appropriate time (!) (!) .
In summary, the legal principles reaffirm that only nullities can be challenged during execution, and erroneous decrees, which are final and properly passed, cannot be disputed during execution proceedings. Attempts to do so are viewed as misuse of legal processes and can be dismissed as abuse of court proceedings.
JUDGMENT :
Shampa Sarkar, J.
1. The revisional application arises out of an order dated February 8, 2022 passed in Misc Case No.19 of 2021, by the learned Civil Judge, (Senior Division) 2nd Court at Barasat.
2. The application under Section 47 of the Code of Civil Procedure filed by the petitioner in Title Execution Case No.35 of 2017, arising out of judgment and decree passed in Title Suit No.141 of 2013, was rejected.
3. The petitioner, as the judgment debtor, contended that he was not aware that the suit had proceeded. Summons were not received from the transferee court regarding analogous trial of the two suits. Only when summons of the execution case were served, the petitioner realized that the Title Suit No.141 of 2013 had been decreed. Hence, a prayer for rejection of the execution case was made.
4. The objections taken in Misc Case No.19 of 2021 was that the petitioner/judgment debtor in Title Execution Case No.35 of 2017 had filed a title suit before the learned Civil Judge (Junior Division) 3rd Court at Sealdah, being Title Suit No.440 of 2012. The said title suit was filed for declaration of his tenancy right and injunction against the opposite party who was the decree holder in Title Execution Case No.35 of 2017. Until, the prior suit was disposed of, the decree in the subsequent suit could not be executed. It was further stated that the suits were directed to be tried together, but Title Suit No. 141 of 2013 had been decreed earlier, without any analogous trial.
5. Let me deal with the facts first. Title Suit No.440 of 2012 was filed by the petitioner and Title Suit No.141 of 2013 was filed by the opposite party. The opposite party filed an application under Section 24 of the Code of Civil Procedure seeking transfer of the Title Suit No.440 of 2012, from the Court of the Learned Civil Judge (Junior Division), 3rd Court at Sealdah to the Court of the learned Civil Judge (Senior Division), 2nd Court at Barasat for analogous hearing of Title Suit No. 440 of 2012 and Title Suit No.141 of 2013. Title Suit No. 141 of 2013 was a suit for eviction, recovery of khas possession and mesne profits filed by the opposite party/decree holder against the petitioner/judgment debtor.
6. The application for transfer was allowed. A direction for analogous hearing of Title Suit No.141 of 2013 with Title Suit No.440 of 2012 before the Learned Civil Judge, (Senior Division) 2nd Court at Barasat was passed. The petitioner contended that the order of transfer was passed in his absence.
7. According to the petitioner, no evidence was recorded and no trial was held in respect of Title Suit No. 440 of 2012. Title Suit No. 141 of 2013 was heard and decreed on August 30, 2017. Title Suit No. 440 of 2012 remained in the files, without any progress. Instead, the later suit proceeded and was decreed, in violation of the direction of the learned District Judge, North 24Parganas, for analogous trial of both the suits by the learned Civil Judge, (Senior Division) 2nd Court at Barasat vide order dated May 4, 2015. According to the petitioners, without the trial of Title Suit No. 440 of 2012, the decree passed in Title Suit No. 141 of 2013 was a nullity and thus, inexecutable. Title Execution Case No 35 of 2017 should be dismissed.
8. The decree holder denied the contentions of the petitioner. It was stated that the judgement and decree in Title Suit No. 141 of 2013 dated August 30, 2017 was passed on contest. The same was appealed from. The appeal was registered as Title Appeal No.65 of 2017. The title appeal was dismissed on September 11, 2018 on merits. Upon dismissal of the appeal, the Misc Case was filed. The records of Title Suit No. 141 of 2013 and Title Suit No. 440 of 2012 were sent to the transferee court. Title Suit No.440 of 2012 was renumbered as Title Suit No. 668 of 2015. The suits were fixed for analogous hearing on consecutive dates, namely, June 1, 2015, August 12, 2015, January 29, 2016, March 9, 2016, May 12, 2016, June 28, 2016 and July 2
A decree which is a nullity can be objected to at the execution stage, but a decree which is erroneous either in law or on facts cannot be objected to at the execution stage.
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