Jharkhand High Court
Om Prakash Chabra vs Sri Bijay Kumar Sarawgi on 9 January, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND, RANCHI
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C.M.P. No. 926 of 2024
—-
Om Prakash Chabra, aged about 88 years, son of late Ram Chand
Chhabra, C/o M/s Exide Power Point, Main Road, Ranchi, PO and PS
Hindpiri, District Ranchi, Jharkhand …..Defendant/ Judgment Debtor/ Petitioner
— Versus —
1.Sri Bijay Kumar Sarawgi, son of late Rikhab Chand Sarawgi, resident of
Old Civil Surgeon Bungalow, Main Road, Ranchi, PO and PS Hindpiri,
Disrict Ranchi, Jharkhand …… Plaintiff/ Decree Holder/
Opposite Party
2.M/s New Battery Centre, represented through Om Prakash Chabra,
office at Main Road, Ranchi, PO and PS Hindpiri, District Ranchi,
Jharkhand … Defendants/ Judgment Debtors/ Performa Opposite Party
—-
CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
—
For the Petitioner(s) :- Mr. Amit Kumar Das, Advocate
For the Opp.Party No.1 :- Mr. Shashank Shekhar, Advocate
Mr. Karbir, Advocate
—-
3/09.01.2025 It has been pointed out that so far as Opposite Party No.2 is concerned
he is performa-Opposite Party.
2. Heard Mr. Amit Kumar Das, the learned counsel appearing on behalf of
the petitioner as well as Mr. Shashank Shekhar, the learned counsel appearing
on behalf of the Opposite Party No.1.
3. This petition has been filed under Article 227 of the Constitution of India
for setting aside the order dated 23.07.2024 passed by learned Additional Civil
Judge, Jr. Division, Ranchi in Execution Case No.04 of 2020 whereby the
objection filed by the petitioner under Section 47 of the CPC has been rejected.
4. Mr. Amit Kumar Das, the learned counsel appearing on behalf of the
petitioner submits that the Opposite Party no.1 had initially instituted a civil suit
for eviction of the petitioner being Eviction (Title) Suit No.52 of 2016 and by the
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judgment dated 23.04.2014 passed by learned Additional Munsif-II, Ranchi, the
said suit was decreed in favour of the O.P.No.1. He further submits that
aggrieved with the said judgment, the petitioner has moved in Civil Revision
No.16 of 2014 in which the trial court records were called for on 30.11.2018
and the said civil revision was admitted by the order dated 07.03.2019 and the
said revision application is still pending for final hearing. He then submits that
the O.P.No.1 has initially filed the Execution Case No.13 of 2014 in which the
petitioner has appeared and ultimately the said execution case was dismissed
by order dated 17.08.2016 due to non-prosecution by the Opposite party. He
submits that the Opposite party has filed restoration petition for restoring the
said execution case which was further dismissed for non-prosecution by order
dated 12.06.2018. He further submits that thereafter fresh Execution Case No.4
of 2020 was filed in which objection was made under section 47 which has
been rejected by the learned court on the ground that it is not maintainable. He
submits that once O.P.No.1 has chosen to file the restoration petition which was
dismissed, he has got no right to file the second execution case and to buttress
his argument, he relied in the case of Sudama Ram v. The State of
Jharkhand and Others, 2012 SCC OnLine Jhar 859. Relying on the above
judgment, he submits that the impugned order may kindly be set aside. On
query by the Court, with regard to remedy, he submits that now the O.P.No.1 is
required to file fresh suit. On this ground, he submits that the order may kindly
be set aside.
5. Per contra, Mr. Shashank Shekhar, the learned counsel appearing
on behalf of the O.P.No.1 draws the attention of the Court to Order IX Rule 4 of
CPC and submits that it is open to file a fresh suit for execution in light of that
provision and only limitation is that it may be within the limitation period. He
submits that the learned Court has rightly passed the said order and there is no
illegality. He further draws the attention of the Court to section 141 CPC and
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submits that execution case also comes under the parameteria of the suit. To
buttress his argument, he firstly relied in the case of Brakewell Automotive
Components (India) Private Limited v. P.R. Selvam Alagappan, (2017(
5 SCC 371, paragraph nos.22 and 23 of the said judgment is quoted below:
“22. Judicial precedents to the effect that the purview of
scrutiny under Section 47 of the Code qua a decree is limited to
objections to its executability on the ground of jurisdictional infirmity or
voidness are plethoric. This Court, amongst others in Vasudev Dhanjibhai
Modi v. Rajabhai Abdul Rehman [Vasudev Dhanjibhai Modi v. Rajabhai
Abdul Rehman, (1970) 1 SCC 670 : AIR 1970 SC 1475 : (1971) 1 SCR 66] in
essence enunciated that only a decree which is a nullity can be the
subject-matter of objection under Section 47 of the Code and not one
which is erroneous either in law or on facts. The following extract from
this decision seems apt : (SCC pp. 672-73, paras 6-7)
“6. A court executing a decree cannot go behind the decree :
between the parties or their representatives it must take the decree
according to its tenor, and cannot entertain any objection that the
decree was incorrect in law or on facts. Until it is set aside by an
appropriate proceeding in appeal or revision, a decree even if it be
erroneous is still binding between the parties.
7. When a decree which is a nullity, for instance, where it is passed
without bringing the legal representative on the record of a person
who was dead at the date of the decree, or against a ruling prince
without a certificate, is sought to be executed an objection in that
behalf may be raised in a proceeding for execution. Again, when the
decree is made by a court which has no inherent jurisdiction to make
it, objection as to its validity may be raised in an execution proceeding
if the objection appears on the face of the record : where the
objection as to the jurisdiction of the court to pass the decree does
not appear on the face of the record and requires examination of the
questions raised and decided at the trial or which could have been but
have not been raised, the executing court will have no jurisdiction to
entertain an objection as to the validity of the decree even on the
ground of absence of jurisdiction.”
23. Though this view has echoed time out of number in similar
pronouncements of this Court, in Dhurandhar Prasad Singh v. Jai Prakash
University [Dhurandhar Prasad Singh v. Jai Prakash University, (2001) 6
SCC 534 : AIR 2001 SC 2552] , while dwelling on the scope of Section 47
of the Code, it was ruled that the powers of the court thereunder are
quite different and much narrower than those in appeal/revision or
review. It was reiterated that the exercise of power under Section 47 of
the Code is microscopic and lies in a very narrow inspection hole and an
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executing court can allow objection to the executability of the decree if it
is found that the same is void ab initio and is a nullity, apart from the
ground that it is not capable of execution under the law, either because
the same was passed in ignorance of such provision of law or the law
was promulgated making a decree unexecutable after its passing. None
of the above eventualities as recognised in law for rendering a decree
unexecutable, exists in the case in hand. For obvious reasons, we do not
wish to burden this adjudication by multiplying the decisions favouring
the same view.
6. By way of relying on the above judgment, he submits that scope
of section 47 CPC is discussed and in light of this judgment, the argument of
learned counsel for the petitioner is not tenable.
7. He further draws the attention of the Court to the judgment of the
Privy Council in the case of Govind Prasad v. Har Kishan (Weir, J.), AIR
1929 Allahabad which is as under:
“This is an application by the plaintiff in a civil suit to review an order of
the Small Cause Court Judge of Meerut dismissing the plaintiff’s suit. The
facts are those. The plaintiff, who is the applicant in these proceedings
brought a suit against the defendants, who are the respondents in these
proceedings, on 20th May 1927 that suit was dis- missed under O. 9, R 3,
in consequence of neither party having appeared when the suit was
called for hearing. The plaintiff applied to the learned Judge on 3rd
September 1927, to have the suit restored, and the learned Judge
dismissed that application. The plaintiff then brought a new suit upon
the saume cause of action on 17th October 1927. In that suit the learned
Judge has passed the following order:
“The application for restoration was dismissed. The present suit is not
maintainable. Dismissed with costs.”
In my opinion the learned Judge was clearly wrong in holding that the
plaintiff was not entitled to bring a second suit, when an application to
restore his first suit had been dismissed. Two authorities have been cited
to me, namely, Daya Shankar v. Raj Kumar (1) and Bhudeo v. Baikunthi
(2). I entirely agree with the leaned Judge who decided both those cases,
and I, therefore, set aside the order of the Small Cause Court Judge and
direct him to proceed with the trial of the suit No. 6390 of 1927.
Application allowed. Costs will be costs of the case.”
8. Relying on the above judgment he submits that identical was the
situation in that case and that case was allowed by the Court. He further draws
the attention of the Court to the Division Bench judgment of this Court in the
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case of Smt. Karmi Devi v. Satendra Kumar Singh and Another, 2010
(1) JLJR 10 and by way of drawing the attention of the Court to paragraph
no.5 of the said judgment, he submits that two issues were framed in that case
and issue no.1 was identical to the present facts. He further submits on relying
on the judgment in the case of Mt. Balkesia v. Mahant Bhagwan Gir, AIR
1937 Patna 9, the answer of the first issue was made in paragraph no.15 of
the said judgment by which judgement it has been held that there is no bar of
availing remedy by way of filing another suit. On this ground, he submits that
the said order is not required to be interfered by this Court as the O.P.No.1 will
be remediless that too when he is having the decree in his favour. He submits
that the second execution case was filed within time and that aspect has been
taken care of and it is well settled in light of the judgment of the Hon’ble
Supreme Court as well as of the Division Bench of this Court. On the point of
filing of the petition within limitation, he further relied in the case of
Bhagyoday Coopertive Bank Limited v. Ravindra Balkrishna Patel
Deceased Through His Legal Representatives and Others, (2022) 14
SCC 417 and he relied on paragraph no.25 of the said judgment which is as
under:
“25. The first question we have to consider is: whether the
dismissal of the execution petition filed by the appellant apparently
on the ground of default or withdrawal of the first execution petition
will result in a bar for the filing or the prosecuting of the second
execution petition. In this regard, in fact, we must notice that the
learned counsel for the respondent does not seek to raise any
objection as such to the contentions of the appellant that the
second execution application would be maintainable provided it is
within the period of limitation. We also find merit in the contentions
of the appellant that the mere dismissal of the first application on
the ground of default may not result in the decree-holder being
precluded from filing a fresh execution petition provided it is within
time.”
9. Referring the above judgments, he submits that the facts of the
present case are identical and in view of that there is no merit in this petition
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and it may kindly be dismissed.
10. In view of the above submission of the learned counsels appearing
on behalf of the parties, the Court has gone through the materials including the
impugned order. It is an admitted position that the O.P.No.1 has instituted
Eviction (Title) Suit No.52 of 2016 which was decreed in favour of the O.P.No.1
against that the revision was preferred by the petitioner herein which is still
pending. The O.P.No.1 has filed the Execution Case No.13 of 2014 which was
dismissed for default. Subsequently, the petitioner has filed restoration petition
which was further dismissed for default and thereafter the present execution
case has been filed by the O.P.No.1 within the period of limitation and these
facts are not in dispute. The only argument was advanced by the learned
counsel for the petitioner that once the restoration petition was filed for
restoration of the dismissed execution case and further it was dismissed, the
second execution case is not maintainable. This aspect appears to be the
subject matter before the Division Bench of this Court in the case of “Smt.
Karmi Devi” (supra) relied by the learned counsel for the O.P.No.1, wherein at
paragraph no.5, the two issues have been framed which are as under:
“5. In the background of the facts of the case, the important
questions that fall for consideration are:-
(i) Whether after the dismissal of the petition for restoration of suit
under Order IX Rule 4, CPC a fresh suit is maintainable?
(ii) Whether after dismissal of the suit for default, a fresh suit is
barred by res judicata”
11. The discussion was made in paragraph no.13 which is as under:
“13. In the case of Mt. Balkesia vs. Mahant Bhagwan Gir, (AIR
1937 Patna 9), a similar question came for consideration before a
Division Bench of the Patna High Court. In that case also taking
the similar view His Lordship James, J. observed:
“Mr. Khurshaid Husnain argues, in the second place, that the
present suit should be regarded as barred by reason of the
provisions of O.9, R. 4. O.9, R.4, provides that where a suit is
dismissed under R. 2, or R. 3, the plaintiff may bring a fresh suit,
or he may apply for an order to set the dismissal aside. Mr.
Khurshaid Husnain argues that these two provisions are mutually
exclusive, so that if the plaintiff elects to avail himself of his right
6 C.M.P. No. 926 of 2024
to apply to have the order of dismissal set aside, he is thereby
precluded from availing himself of the right to institute a fresh
suit. The only decisions in point which have been brought to our
notice by Mr. Khurshaid Husnain are adverse to this argument :
63 I C 239 of Stuart, J., A I R 1926 All 678 of Daniels, J., and.50) All
837 of Weir, J., all of the Allahabad High Court. In all these cases
it has been held that the alternative provisions of R.4 are not
mutually exclusive, and that a plaintiff whose application for a
restoration of his suit has been dismissed is not precluded from
instituting a fresh suit. I do not consider that any ground has
been made out which justifies us in differing from the view
expressed by the learned Judges whom I have named. It appears
to us that a reasonable reading of the rule provides that the
plaintiff may bring a fresh suit or he may apply for a setting aside
the dismissal. If he satisfies the Court and obtains an order
setting aside the dismissal, he proceeds with his original suit. If
having applied for an order to set aside the order of dismissal, he
fails to satisfy the Court and his application is dismissed, he is left
to his alternative remedy which is that he may, subject to the law
of limitation, bring a fresh suit.”
12. The answer to above was made in paragraph no.15 of the said
judgment, which is as under:
“15. In the light of the provisinos contained in Order IX and
the law discussed hereinabove, it can be safely concluded that in
case of dismissal of suit under Order IX Rule 4 CPC the plaintiff
has both the remedies of filing of fresh suit or application for
restoration of the suit. If he chooses one remedy he is not
debarred from availing himself of the other remedy. Both these
remedies are simultaneous and would not exclude either of
them.”
13. This aspect is further well settled in light of the Privy Council
judgment relied by the learned counsel appearing on behalf of the O.P.No.1 in
the case of “Govind Prasad” (supra). In light of the above discussion, it is
crystal clear that in Rule 4 under Order IX CPC in cases where none of the
parties are present at the time of call and the suit was dismissed for default,
there is no bar on the plaintiff to bring a fresh suit on the same cause of action
giving the details of the said suit which was dismissed for default and applying
such principle in any event there is no bar even in the Code of Civil Procedure
to prefer a second execution case. However, it has to be before expiry of
limitation period. In such circumstances as in the present case none of the
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parties were represented and dismissal for default occurred.
14. That apart, this Court is bound by this proposition of law laid
down in the case of “Bhagyoday Coopertive Bank Limited“(supra) wherein
the Hon’ble Supreme Court in unambiguous terms has accepted the contention
of the appellant, the contention of the party of that case that mere dismissal of
the first execution application on the ground of default may not result in the
award-holder/ decree-holder being precluded from filing a fresh execution
petition provided it is within time. Admittedly, the second execution was filed
within time and it is well settled that any party cannot be allowed to be
remediless and that too when the decree is in the favour of the O.P.No.1. Thus,
there is no illegality in the order of the learned court.
15. So far as the judgment relied by Mr. Das, the learned counsel
appearing on behalf of the petitioner in the case of Sudama Ram v. The
State of Jharkhand and Others (supra) is concerned, that appears to be a
judgment in which the Division Bench judgment of this Court as well as the
other judgments of the Hon’ble Supreme Court has not been considered and it
is said to be per incuriam. Further, in that case, in the restoration petition, the
main issue was itself decided and thereafter the second petition was filed. In
this background, it was held by the co-ordinate Bench of this Court that it will
be endless litigation if that petition is allowed. The facts of the present case is
otherwise as has been discussed hereinabove, judgment relied by the learned
counsel appearing on behalf of the petitioner is not helping the petitioner.
16. In view of above facts, reasons and analysis, C.M.P. No. 926 of
2024 is dismissed.
17. Pending petition if any also stands disposed of accordingly.
18. The learned executing court will expedite the execution case.
( Sanjay Kumar Dwivedi, J.)
SI/, A.F.R.
8 C.M.P. No. 926 of 2024