Case: Sameer Singh  Vs. Abdul Rab

2. The Universal Construction Company, the respondent No. 3 herein, instituted Civil Suit No. 480 of 1971 in the High Court of Calcutta invoking its original civil jurisdiction for realization of a sum of Rs.2,15,289.28 paise from the Engineers Syndicate (India) Private Limited, the 4th respondent herein, and an ex parte decree was passed in the suit. After obtaining the decree, respondent No. 3 assigned the same in favour of Abdul Rab, respondent No. 1 herein, on 20th May, 2005. After the deed of assignment was given the formal shape, the 1st respondent moved the High Court of Calcutta and got the said decree transferred to the Court of Sub Judge-I, Jamshedpur for execution by way of attachment and sale of immovable properties of the 4th respondent situated within the jurisdiction of the executing Court. Thereafter, the 1st respondent filed an execution case against the 4th respondent. A schedule of property was attached to the execution petition.3. As the factual matrix would unfurl, the executing court after receipt of the decree on 23.8.2006 issued notice to the 4th respondent by registered post and when the service was not effected, mode of publication was taken recourse to for appearance of the judgment-debtor. Eventually, the execution case was fixed for ex parte hearing on 9.3.2007 on the petition of the assignee-decree-holder. After following the procedure, the scheduled property was put up for sale by way of auction and ultimately Abdul Rafai, respondent No. 2, purchased the property and pursuant to the order of the Court took over possession of the said immovable property.4. As the factual narration would further undrape, at the said juncture, the present appellants filed an application under Order XXI, Rules 97, 99 and 101 of the Code of Civil Procedure (C.P.C.) contending, inter alia, that the disputed property originally belonged to the 4th respondent who had borrowed a sum of Rs.14,571/- from his deceased father, Gopal Singh, by depositing the sale deeds of the said property on 18.2.1971 at Calcutta and had delivered possession of the said property to Gopal Singh on 19.2.1971 in lieu of interest of said borrowed amount. When he failed to pay the borrowed sum, the 4th respondent agreed to transfer the said property for a consideration of Rs.25,000/- to Gopal Singh after adjusting the borrowed amount i.e. Rs.14,571/-. Regard being had to the said arrangement, Gopal Singh had paid the balance amount of Rs.10,429/- and accordingly an agreement for sale was executed. When the 4th respondent did not honour his part of the contract, Gopal Singh instituted Title Suit No. 43 of 1974 in the Court of Sub Judge-I, Jamshedpur against the 4th respondent and eventually the said suit was decreed by the Second Additional Sub Judge-I on 14.5.1977. Thereafter, a case was filed and in pursuance of the decree a sale deed was executed on 10.10.1982 in favour of the father of the appellants through Court and he was put in possession through Nazir of the Civil Court in respect of the property in question, and after the demise of Gopal Singh, the appellants, being sons, inherited the said property and remained in possession having right, title and interest till 27.4.2008 when all of a sudden, respondent No. 2 through the help of Nazir took delivery of the property after dispossessing the appellants therefrom. On an inquiry being made, they came to know under what circumstances they had been dispossessed by the Nazir. The application further asserted that the schedule of property which had been appended to Execution Case No. 24 of 2006 had been deliberately added though the 4th respondent had no concern with the same. It was also put forth that an order of attachment was published in a local dailydated 23.10.1982 in respect of the scheduled property by the High Court of Calcutta in Suit No. 480 of 1971 and the father of the appellants coming to know of the same had filed an objection before the High Court which after considering the objection and taking note of the right, title and interest of the father of the appellants had released the said property from attachment but the 1st respondent by suppressing all the facts got the said schedule of property attached and put the same in auction and respondent No. 2 who was set up by the respondent No.1 became the purchaser of the property. In essence, it had been pleaded that respondent Nos. 1 and 2 had colluded to put the property to auction which did not belong to the respondent No. 4 and was not meant for attachment and sale, for it had been already released by the High Court of Calcutta and, in any case, the respondent No. 4 had no concern with the said property. In the application it was prayed that the appellants, the applicants in the court below, should be put in possession of the scheduled property and the respondents be restrained from changing the nature and character of the property till the adjudication of the application.5. The said application was resisted by respondent Nos. 1 and 2, the opposite parties No. 1 and 2 before the executing court, on many a ground and basically reasseverating the facts how the decree had been passed by the High Court of Calcutta and how there had been a deed of assignment and further the fairness of procedure adopted in putting the property to auction and the eventual sale.6. The executing court framed two issues which read asWhether the transferee executing court has jurisdiction to adjudicate the present petition filed by the applicants under order XXI rules 97, 99 and 101 C.P.C.?II. Whether the applicants are entitled to get as relief in claim in theirThe executing court noted the submissions of both the parties, referred to the order passed by the High Court of Calcutta transferring the decree for execution, adverted to the provisions under Sections 39 to 42 of C.P.C., placed reliance on certain authorities as regards the limitation on the powers of the transferee court under Section 42 of C.P.C., recorded the fact that it had already dismissed the execution case to the full satisfaction of the decree-holder on 19.12.2008 and informed the same to the Registrar of the High Court of Calcutta, and eventually came to hold that it had no jurisdiction to reopen and discuss the matter pertaining to the title of the parties in execution case at the instance of a third party. In that backdrop, it observed that the executing court had become functus officio and could not entertain the application. Adverting to the second issue, the executing court noted the contentions and referred to the authorities earlier cited but ultimately opined that as a finding had been recorded to the effect that the transferee-executing court had no jurisdiction to entertain the petition, regard being had to the fact that the decree had been executed to the full satisfaction and an intimation had been sent to the Registrar of the Calcutta High Court, the controversy raised could not be dealt with and no relief could be granted.8. The aforesaid order came to be assailed before the High Court in W.P.C. No. 348 of 2011 under Article 227 of the Constitution of India. A preliminary objection was raised on behalf of the 1st respondent that an order passed under Order XXI, Rule 98 to 100 of C.P.C. is a decree as per the provisions contained under Order XXI, Rule 103 of C.P.C. and, therefore, an appeal would lie and the writ petition was not maintainable. The preliminary objection was resisted by proponing a contention that only those orders which adjudicate the dispute between the parties would be treated as decree but as in the case at hand, the Court had not decided the lis in question as it had expressed an opinion that it had no jurisdiction after having become functus officio, an appeal would not lie.9. The learned Single Judge accepted the preliminary objection on the foundation that dispute between parties regarding jurisdiction of executing court could be determined under Order XXI, Rule 100 of C.P.C. and that when a decision had been rendered on that score it would be a deemed decree under Order XXI, Rule 103 of C.P.C. and hence, the writ petition was not maintainable. Expression of aforesaid view entailed dismissal of the writ petition. Hence, the present appeal by special leave.

Reasoning: The aforesaid authorities clearly spell out that the court has the authority to adjudicate all the questions pertaining to right, title or interest in the property arising between the parties. It also includes the claim of a stranger who apprehends dispossession or has already been dispossessed from the immovable property. The self-contained Code, as has been emphasised by this Court, enjoins the executing court to adjudicate the lis and the purpose is to avoid multiplicity of proceedings. It is also so because prior to 1976 amendment the grievance was required to be agitated by filing a suit but after the amendment the entire enquiry has to be conducted by the executing court. Order XXI, Rule 101 provides for the determination of necessary issues. Rule 103 clearly stipulates that when an application is adjudicated upon under Rule 98 or Rule 100 the said order shall have the same force as if it were a decree. Thus, it is a deemed decree. If a Court declines to adjudicate on the ground that it does not have jurisdiction, the said order cannot earn the status of a decree. If an executing court only expresses its inability to adjudicate by stating that it lacks jurisdiction, then the status of the order has to be different. In the instant case the executing court has expressed an opinion that it has become functus officio and hence, it cannot initiate or launch any enquiry. The appellants had invoked the jurisdiction of the High Court under Article 227 of the Constitution assailing the order passed by the executing court on the foundation that it had failed to exercise the jurisdiction vested in it. The appellants had approached the High Court as per the dictum laid down by this Court in Surya Dev Rai v. Ram Chander Rai and others ((2003) 6 SCCthe executing court, in the obtaining circumstances, has correctly expressed the view that it has become functus officio or not and thereby it has jurisdiction or not, fundamentally pertains to rectification of a jurisdictional error. It is so as there has been no adjudication. If a subordinate court exercises its jurisdiction not vested in it by law or fails to exercise the jurisdiction so vested, the said order under Section 115 of the Code is revisable as has been held in Joy Chand Lal Babu v. Kamalaksha Chaudhury and others (AIR 1949 PC 239 ). The same principle has been reiterated in Keshardeo Chamria v. Radha Kissan Chamria and others (AIR 1953 SC 23 )and Chaube Jagdish Prasad and another v. Ganga Prasad Chaturvedi (AIR 1959 SC 492 ). Needless to emphasise, the said principle is well-settled. After the amendment of Section 115, C.P.C. w.e.f. 1.7.2002, the said power is exercised under Article 227 of the Constitution as per the principle laid down in Surya Dev Rai (supra). Had the executing court apart from expressing the view that it had become functus officio had adjudicated the issues on merits, the question would have been different, for in that event there would have been an adjudication.