Sameer Singh & Anr vs Abdul Rab & Ors

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.

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 daily ‘Uditwani’ dated 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.

In view of the forgoing analysis, we conclude and hold that the High Court has fallen into error by opining that the decision rendered by the executing court is a decree and, therefore, an appeal should have been filed, and resultantly allow the appeal and set aside the impugned order. The High Court shall decide the matter as necessary under Article 227 of the Constitution of India. As a long span of time has expired we would request the High Court to dispose of the matter within a period of three months. There shall be no order as to costs.

October 14, 2014