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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Shree Chandrashekhar, J.
Ashok Kumar Singh, son of Late Suraj Prasad Singh – Petitioner
Versus
M/s Fertilizer Corporation of India Limited (Unit Sindri) - Respondent.
W.P.(C) No. 2678 of 2012
Decided On : 04-12-2018
Code of Civil Procedure, 1908 – Section 47 – Eviction – Arrears of rent and damages – Title Suit was instituted by the plaintiff-M/s Fertilizer Corporation of India Limited, Sindri against the defendant, who is father of the petitioner herein, for eviction and realization of arrears of rent and damages. – This suit was decreed by judgment and decree – Thereafter, Title Appeal was preferred by the defendant which was finally dismissed by the judgment and S.A preferred by the defendant before the Hon’ble Patna High Court, at Ranchi Bench was allowed setting-aside the judgment and decree in appeal and remanded the matter for a fresh decision. During pendency of Title Appeal the original appellant died and his heirs and legal representatives and others were substituted in his place. – By judgment Title Appeal was dismissed. – Against this judgment, Smt. Motijhari Devi and Others filed S.A. before this Court which was dismissed – Held, Suit was decreed and the judgment and decree in Title Suit have attained finality; challenge by the petitioner to the judgment and decree in Title Suit of 1975 has failed before this Court and also before the Supreme Court, it remains a matter of record that inspite of notice to the plaintiff that the defendant has raised constructions and inducted several tenants no corresponding relief was sought in the suit. – The contention raised on behalf of the respondent- M/s Fertilizer Corporation of India Limited that, the decree for vacant possession of the suit land by evicting the defendant through process of the court would envelop in itself demolition of the illegal constructions and eviction of the tenants, is misconceived. – Without seeking amendment in the plaint and a corresponding amendment in the decree, the decree-holder-M/s Fertilizer Corporation of India Limited was not entitled to khas possession of the suit land by demolition of the constructions thereon. – No doubt, in execution proceeding essence of the decree can be gathered from pleading of the parties and the judgment in the suit, something which is not there in the decree cannot be added; the Executing Court cannot modify the decree. – It is pertinent to record that the objection of the petitioner to the application filed by the decree-holder for writ of delivery of possession has been rejected primarily on the ground that a similar objection was already rejected by the court by its order – Therefore, on that count alone order has also become unsustainable. – In view of the findings recorded by the trial court on issue no. 5 in the suit, the existing constructions could not have been demolished in execution of the decree in Title Suit as it stands today. – Writ Petition Allowed
Aggrieved of the order dated 04.08.2016 passed in Execution Case No. 04 of 1977 and order dated 30.03.2012 passed in Misc. Case No. 27 of 2006 which was instituted in the Execution Case No. 04 of 1977, the petitioner/judgment-debtor has approached this Court.
2. Contention raised on behalf of the petitioner is that the Executing Court cannot altered/modify the decree and the decree as it stands only can be executed by the Executing Court.
3. Briefly stated, Title Suit No. 109 of 1969/35 of 1975 was instituted by the plaintiff-M/s Fertilizer Corporation of India Limited, Sindri against the defendant-Suraj Prasad Singh, who is father of the petitioner herein, for eviction and realization of arrears of rent and damages. This suit was decreed by judgment and decree dated 20.11.1975. Thereafter, Title Appeal No. 02 of 1976 was preferred by the defendant which was finally dismissed by the judgment dated 27.11.1979 and S.A No. 02 of 1980(R) preferred by the defendant before the Hon’ble Patna High Court, at Ranchi Bench was allowed on 15.09.1981, setting-aside the judgment and decree in appeal and remanded the matter for a fresh decision. During pendency of Title Appeal No. 02 of 1976, the original appellant died and his heirs and legal representatives namely, Smt. Motijhari Devi and others were substituted in his place. By judgment dated 20.09.2002, Title Appeal No. 02 of 1976 was dismissed. Against this judgment, Smt. Motijhari Devi and Others filed S.A. No. 365 of 2002 before this Court which was dismissed on 23.11.2004.
4. In Execution Case No. 04 of 1977, which was preferred after the disposal of Title Suit No. 109 of 1969/35 of 1975, the application of the petitioner/judgment-debtor filed under Section 47 CPC raising an objection on executability of the decree in Title Suit No. 109 of 1969/35 of 1975 was registered as Misc. Case No. 27 of 2006. This miscellaneous case has been dismissed by a cryptic order passed on 30.03.2012. Thereafter, the application filed by the decree-holder on 29.07.2016 for issuance of a writ of delivery of possession has been allowed, rejecting the objection of the petitioner, by an order dated 04.08.2016. This order has also been impugned by the petitioner through I.A. No. 6768 of 2016 which was allowed by this Court by order dated 10.05.2017.
5. Section 47 CPC provides that all questions arising between the parties to the suit in which decree was passed and relating to the execution, discharge or satisfaction of the decree shall be determined by the court executing the decree and not by a separate suit. One of the objects behind Section 47 CPC is to avoid multiplicity of litigation. Powers of the Executing Court under Section 47 CPC is limited and execution of a decree can be resisted primarily on three counts: (i) the decree is not executable, (ii) the court which has passed the judgment lacked jurisdiction, and (iii) the decree has been passed against a dead person. In paragraph nos. 14, 19 and 21 of the plaint, the plaintiff- M/s Fertilizer Corporation of India Limited has pleaded that in breach of the compromise decree prepared in Title Suit No. 237 of 1953, the defendant made illegal constructions and inducted several tenants. Order dated 30.03.2012 by which the application under Section 47 CPC has been dismissed records in detail the constructions raised by the defendant/judgment-debtor and tenancy to several persons including Sahara India. The plaintiff has pleaded as under ;
“14. That in addition to the aforesaid violation of the basic terms of the compromise the defendant has also sub-let the illegally constructed rooms to different persons who are illegally holding shops there. That in some of the rooms illegally sub-let by the defendant the occupiers are holding cycle repair shop, sweets stall, dry cleaner, snack shops, meat stall shop, washing clothes and numerous other kinds of business. That some of the persons who are occupying the said illegally constructed rooms by the defendants ar
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