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2010 Supreme(Gau) 735
GAUHATI HIGH COURT
H.Baruah, J.
Kshitish Nandi -Appellant
Versus
Manada Dhar & Ors. -Resopndent
CRP No. 69 of 2010
Decided On : 18-09-2010
Advocate appeared for the Petitioner:Mr.K.N.Bhattacharjee, Advocates appeared for the Respondents: Mr.A.M.Lodh & Mr.A.Lodh
Headnote:
Civil Procedure Code, 1908 - Order 39 Rule 1 & 2 - Transfer of Property Act - Section 52 - Temporary injunction - Possession of land - Consideration - Predecessors-in-interest of respondents herein as plaintiffs instituted Title Suit in Court of Sub-Judge to obtain a decree for recovery of possession of suit land described in plaint - Trial Court after due trial decreed suit in favour of predecessors-in-interest of respondents - Being aggrieved judgment debtor preferred an appeal and on dismissal of said appeal judgment debtor approached High Court by filing a Second Appeal which too resulted dismissal - Since no SLP had been filed before Apex Court judgment and decree passed by High Court attained finality - Respondents herein being legal heirs of the plaintiffs filed an execution case for execution of decree which attained finality - Petitioner having stepped into shoes of decree holder filed an application under Order 21 Rule 16 CPC which was dismissed by executing Court on ground that there was no scope for re-examination of issue raised in application filed under Order 21 Rule 16 - Held, It was consistently argued by Sr. counsel that despite materials available before Courts below sufficient to act under Order 39 Rule 1 and 2, Court below refused to act as such and therefore this Court in exercise of power under Article 227 can quash order passed by Courts below and can remand matter with a direction to dispose of same in accordance with law - This Court does not find any fault in submission advanced in regard to exercise of power under Article 227 of Constitution by this High Court while exercising power of superintendence over all Court by High Court - Facts involved in this case are summarily discussed whenever and wherever is necessary while writing this judgment and order - In considered view of this case those facts are not considered properly in its true perspective rather overlooked by both Courts below only on simple ground that such an attempt is made only to frustrate execution proceeding - Court finds no reason to accept findings of Courts below - Matter is remanded back to trial Court to dispose of matter afresh in accordance with law within a period of two months after receipt of copy of judgment and order - Parties are directed to appear before trial Court within a period of days from date of judgment and order - Send all records if taken from the Courts below - Petition disposed of
In this revision order dated 28.7.2010 passed by Additional District Judge, North Tripura, Dharmanagar in Civil Misc. Appeal No. 2 of 2010 has been assailed, whereby and whereunder the order dated 31.5.2010 passed in Misc. Case No. 15 of 2010 by the Civil Judge, Jr. Division, North Tripura, Dharmanagar has been upheld. By order dated 31.5.2010 Civil Judge, Jr. Division, Dharmanagar, North Tripura refused to grant temporary injunction in favour of the petitioner herein preferred under Order 39 Rule 1 & 2 of the Civil Procedure Code (for short CPC).
2. The factual matrix in a short campus can be stated as under:
The predecessors-in-interest of the respondents herein as plaintiffs instituted Title Suit No. 10 of 1979 in the Court of Sub-Judge, Dharmanagar to obtain a decree for recovery of possession of the suit land described in the plaint. The trial Court after due trial decreed the suit in favour of the predecessors-in-interest of the respondents. Being aggrieved, the judgment debtor preferred an appeal and on dismissal of the said appeal, the judgment debtor approached the High Court by filing a Second Appeal which too resulted dismissal. Since no SLP had been filed before the Apex Court the judgment and decree passed by the High Court attained finality. The respondents herein being the legal heirs of then plaintiffs filed an execution case for execution of the decree which attained finality. The said execution case was registered as Ex.(T) No. 18 of 2001. During the pendency of the execution case as indicated above, on 17.9.2007, the petitioner herein purchased a portion of the decreetal land measuring .003 acres from Sri Ajit Rn. Dhar @ Hira Dhar, respondent No. 9 herein by registered sale deed at a consideration of Rs. 90,000/- and on such purchase the petitioner herein stepped into the shoes of the decree holder in respect of land measuring .003 acres. The petitioner having stepped into the shoes of the decree holder filed an application under Order 21 Rule 16 CPC on 5.5.2008 which was dismissed on 11.5.2010 by the executing Court on the ground that there was no scope for re-examination of the issue raised in the application filed under Order 21 Rule 16.
3. Being aggrieved thereby the petitioner approached this Court by filing a Civil Revision Petition being No. 28 of 2008 whereunder the order dated 11.5.2010 had been challenged. This Court by order dated 10.8.2010 allowed the revision with the following direction:
"while disposing of the application under Order XXI Rule 16 CPC the Executing Court should also take note of the fact that the present petitioner filed a partition suit relating to the part of the decretal land which is pending before the learned Civil Judge, Jr. Division, Dharmanagar. It is made clear that while considering the aforesaid application, the Executing Court should not be influential by this order, it should pass order on application dated 05.05.2008 in accordance with law, and till the order is passed in the said application, the execution proceeding so far as relating to the alleged purchased decreetal land measuring 0.003 acres, which is the subject matter of the aforesaid petition, shall remain stayed."
From the above direction it can be noticed that this Court directed disposal of the application filed under Order 21 Rule 16 of the CPC in accordance with law and till such disposal, the execution proceeding was directed to be remained stayed.
4. The petitioner herein, having stepped into the shoes of the decree holder by virtue of purchase of a portion of decreetal land by a registered sale deed from the respondent No. 9 herein and on refusal to partition the suit land by the respondents herein; had filed a partition suit being No. TS(P) 5 of 2010 alongwith an application under Order 39 Rule 1 & 2 seeking grant of temporary injunction against the respondents, upon taking resort to the ratio laid down in the case between Jagdish Dutt & Anr. Vs. Dharam Pal & Ors., reported in (1999) 3 SCC
