CIVIL APPEAL 10 of 1994 on 14 September 2009

7

SKCt. No. 1822.12.2020

C.O. No. 3629 of 2009

CAN 1 of 2010 (Old No. : CAN 8337 of 2010) CAN 2 of 2019 (Old No. : CAN 11641 of 2019)

(Via Video Conference)

Smt. Santilata Basu Vs.

Smt. Sankari Sett & Ors.

Mr. Haradhan Banerjee,

Mr. Amitava Pain … For the petitioner.

Mr. Bikram Banerjee … For the opposite parties.

The following observation of the privy council in1872 regarding plight of a decree-holder in executinga decree is still relevant as the fact of the present casewould demonstrate.

“……….the difficulties of a litigant in Indiabegin when he has obtained a decree…….”

The Hon’ble Supreme Court in the case ofSatyawati vs. Rajinder Singh and anotherreported in (2013) 9 SCC 491 also reiterated therelevancy of the said observation till date.

The predecessor-in-interest of the opposite partynos. 1, 2 and 3 filed a suit in the year 1969 foreviction of the predecessor in interest of the petitonerand the opposite party no. 4,5 and 6 herein beingEjectment Suit No. 892 of 1969.

The said suit was initially decreed on August 18,1970, but the decree was set aside in appeal. The appeal Court remanded the suit back to the trialCourt for a fresh decision.

The suit after remand was once again decreed onDecember 19, 1981. The appeal Court affirmed thesaid decree on July 29, 1986.

The decree-holder thereafter put the said decreeinto execution. The first execution case was notpressed by the decree-holder and the secondexecution case was dismissed for default. However,the heirs of the original decree-holder with the leave ofthe Court levied the execution case no. 10 of 1994before the learned 6[th] Judge, Small Causes Court atCalcutta out of which the present revisionalapplication arises.

The prayer of the decree-holder for policeassistance to execute the said decree was allowed inthe year 1996.

At this stage the judgment-debtor filed anapplication under Section 47 of the Code of CivilProcedure challenging the executability of the saiddecree being Misc. Case No. 183 of 1996 subsequentlyre-numbered as Misc. Case No. 291 of 2006. Thegrounds on which such challenge was thrown are thatthe area of the suit property has been enlarged asjudgment-debtor has made further construction overthe suit property on the basis of an agreement withthe son of the decree-holder for which the decree has become inexecutable for want of specification and theexecution has been levied without notice to thejudgment-debtor.

The executing Court by the order impugned beingorder no. 129 dated September 14, 2009 hasdismissed the said application holding that thejudgment-debtor has failed to prove the existance ofsuch agreement and the other allegation.

The grounds on which the judgment-debtor isseeking to impeach the execution, discharge orsatisfaction of the decree are not coming within thesweep of Section 47 of the Code so as to declare thatthe decree is inexecutable.

Therefore, I do not find any reason to interfere withthe order impugned.

Mr. Haradhan Banerjee, learned counsel for thepetitioner submits that there are post litemdevelopment affecting the executability of the saiddecree and he seeks leave of this Court to fileappropriate application to bring those facts on record.

Leave as sought for by Mr. Banerjee, in my opinionif granted would enlarge the scope of the presentrevisional application. Therefore, I am not inclined togrant such leave to the petitioner.

However, it is always open for the petitioner toquestion the executability of the decree underexecution on the basis of any new ground affecting the execution, discharge or satisfaction of the saiddecree and the dismissal of the present revisionalapplication cannot stand in the way of the petitionerto adopt such recourse.

C.O. 3629 of 2009 is disposed of with the aboveterms. No order as to costs.

The executing Court, keeping in view of the age ofthe decree is requsted to make all endeavour todispose of the execution case expeditiously.

In view of the disposal of the main application, theconnected applications being CAN 1 of 2010 (Old No. :CAN 8337 of 2010 and CAN 2 of 2019 (Old No. : CAN11641 of 2019) are disposed of accordingly.

Urgent Photostat certified copy of this order, ifapplied for, be supplied to the parties subject tocompliance with all requisite formalities.

(Biswajit Basu, J.)