Judgment:
Jyotirmay Bhattacharya, J.
1. This application under Article 227 of the Constitution of India is directed against an order dated 18th May, 2009 passed by the learned Civil Judge, Junior Division, 4th Court at Sealdah in Misc. Case No. 41 of 2003 whereby the judgment debtors' application under Section 47 of the Civil Procedure Code was rejected by the learned Executing Court on contest.
2. Hence, the instant revisional application has been filed by the defendants/judgment debtors/petitioners herein.
3. Heard Mr. Roy Chowdhury, learned Senior Counsel appearing for the petitioners and Mr. Banerjee, learned Advocate appearing for the opposite parties/decree holders.
4. Let me now consider the merit of this revisional application in the facts of the instant case.
5. The short background of this litigation leading to filing of this revisional application is recorded hereunder:
(a) Originally the suit property was held by M/s. Ishpahani & Co. Ltd. as owner thereof. An eviction proceeding was filed by the said company against the judgment debtors/petitioners herein for recovery of possession from the defendants/petitioners herein who were in unauthorized occupation of the suit land. Such proceeding which was filed under the provision of Rehabilitation of Displaced Persons and Eviction of Persons in Unauthorized Occupation of Land Act, 1951 before the Tribunal in the year 1951 was registered as Case No. 3512 of 1951. An order for recovery of possession was passed in the said proceeding in favour of the said company and ultimately in execution of the said order in Title Execution Case No. 125 of 1964, possession was recovered by the said company from the judgment debtors/petitioners herein on 1st February, 1966.
(b) Thereafter in August, 1966 the said land was transferred by the said company in favour of the plaintiffs/decree holders/opposite parties herein. Since the defendants/petitioners were trying to dispossess the plaintiffs/opposite parties herein from the suit property, the present suit was filed by the plaintiffs/opposite parties herein seeking injunction with an alternative prayer for recovery of possession, in case it is found that the plaintiffs had been dispossessed from the suit property in the meantime.
(c) The judgment debtors/petitioners contested the said suit by filing written statement therein. Though the plaintiffs' title in the suit property was not disputed therein but various objections regarding maintainability of the said suit, were raised in the written statement. It was contended therein that the judgment debtors acquired valid title in the suit property by adverse possession since 1950.
(d) The said suit was dismissed on contest. The learned Trial Judge held that the plaintiffs' title in the suit property had been affected by the judgment debtors/petitioners herein by adverse possession and as such, the suit is not maintainable. (e) Being aggrieved by the said judgment and decree of the learned Trial Judge, an appeal was preferred by the plaintiff/opposite party herein before the learned First Appellate Court. The said appeal was allowed on contest. The judgment and decree of the learned Trial Judge was set aside. Though the learned Appeal Court found that the plaintiff being the owner of the suit property had been dispossessed from the suit property but, still then, it was held by the learned Appeal Court that he cannot get any relief for recovery of possession unless he gives ad valorem Court fees on the relief claimed by him for recovery of possession of the suit property. Accordingly, the suit was remanded back to the learned Trial Judge by giving an opportunity to the plaintiffs to furnish ad valorem Court fees according to the valuation of the suit land.
(f) The said order of remand was challenged by the judgment debtors/petitioners herein in Second Appeal before this Hon'ble Court. The said appeal was registered as S.A. No. 1 of 1974. A cross-objection was filed by the plaintiff/opposite party herein in the said appeal as the learned First Appellate Court refused to pass a decree for eviction in favour of the plaintiff/opposite party in the said appeal. The said appeal as well as the cross-objection was ultimately disposed of by a learned Single Judge of this Court on 25th July, 1978 whereby the said appeal was dismissed and the cross-objection was allowed. The judgment and decree of the Lower Appellate Court to the extent of the order of remand was set aside and a decree for recovery of possession against the defendants was passed in the said appeal.
(g) The said judgment and decree of this Hon'ble Court in the said Second Appeal was not challenged by any of the parties to the said appeal and as a result, the judgment and decree passed in the said appeal is binding upon the parties to the said appeal.
(h) Since the defendants/judgment debtors did not vacate the suit property in terms of the said judgment and decree of this Hon'ble Court as aforesaid, the plaintiff/opposite party being the decree holder filed the present execution case before the learned Executing Court inter alia for recovery of possession of the suit property from the judgment debtors in execution of the said decree.
(i) The judgment debtors/petitioners herein filed the present application under Section 47 of the Civil Procedure Code challenging the executability of the said decree by alleging that since the said decree was obtained by suppression of material facts relating to the plaintiffs' title in the suit, the decree passed in the said appeal by recognizing the plaintiffs' title in the suit property is a nullity and therefore, such decree is not executable. It was contended by the judgment debtors/petitioners herein that various plots of land including the suit property were acquired by the Government under the West Bengal Development and Planning Act, 1984 sometime in 1964 and subsequently a portion of such acquired property under various plots of land were released by the Government in 1968.
Thus, the petitioners claimed that the plaintiff/opposite party did not acquire any title in the suit property on the strength of his purchase from the erstwhile owner thereof. The judgment debtors, thus, claimed that the decree for eviction which was obtained by the plaintiff by suppressing the aforesaid facts, cannot be executed as the said decree as a nullity. The judgment debtors/petitioners further contended that since they did not know about this acquisition proceeding during the trial of the suit before the learned Trial Court and/or during the pendency of the appeal either before the learned First Appellate Court or before the Hon'ble Court, the judgment debtors/ petitioners could not bring those facts either to the notice of the learned Trial Judge or to the notice of the learned First Appellate Court or to the notice of this Hon'ble Court while disposing of the aforesaid suit and/or appeals as mentioned above. It was further contended therein that immediately after coming to know about the said acquisition proceeding after the disposal of the aforesaid Second Appeal by this Hon'ble Court, the petitioners have filed the instant application under Section 47 of the Civil procedure Code for challenging the executability of the said decree.
(j) The decree holder/opposite party contested the petitioners' said application under Section 47 of the Civil procedure Code by filing objection denying the allegations made out by judgment debtors therein.
(k) Parties have also led their respective evidence in connection with the said proceeding. The learned Executing Court, after considering the materials on record held that the decree is not a nullity as the said decree was not obtained by the plaintiff/decree holder by suppression of any material fact and/or by practicing fraud upon the Court as alleged by the judgment debtors. The learned Executing Court, thus, held that the said decree is binding upon the judgment debtors. Thus, the learned Executing Court directed that the execution case will proceed as per law. The instant Revisional Application is directed against the said order of the learned Executing Court.
6. Mr. Roy Chowdhury, the learned Senior Counsel appearing for the petitioner submitted that the order impugned cannot be sustained in law as the said order was passed by the learned Executing Court without considering the specific objection which was raised by the petitioners in their objection under Section 47 of the Civil Procedure Code regarding executability of the said decree. Mr. Roy Chowdhury contended that though a specific objection was taken by the judgment debtors that the said decree is a nullity as the plaintiff obtained the said decree by suppressing material facts regarding acquisition of the suit property by the State Government and as a result of such acquisition, the plaintiffs did not acquire any title in the suit property, but the said objection was not considered and/or decided by the learned Executing Court, while disposing of their application under Section 47 of the Civil Procedure Code.
7. Mr. Roy Chowdhury contended that since the decree for eviction was passed in favour of the opposite party in recognition of his title in the suit property, such decree cannot be held to be executable if it is found that the plaintiffs have not acquired any title in the suit property particularly when the facts which were relevant for determination of his title in the suit property were suppressed by the plaintiff in the suit and/or in the appeals arising therefrom.
8. Mr. Roy Chowdhury, thus, submitted that this is a fit case where the impugned order should be set aside and the learned Executing Court should be directed to decide the objection raised by the petitioners in his application under Section 47 of the Civil Procedure Code regarding executability of the said decree on its own merits.
9. Mr. Banerjee, learned Advocate appearing for the opposite parties refuted such submission of Mr. Roy Chowdhury by contending inter alia that the objection raised by the petitioners regarding executability of the said decree are absolutely frivolous and without any substance. Mr. Banejee contended that the Executing Court cannot go behind the decree and as such, while executing the said decree, the Executing Court cannot consider the legality of such decree; of course with an exception that where decree is challenged on the ground of nullity, the Executing Court can certainly consider the legality of such decree.
10. Mr. Banerjee further contended that various plots of land including the suit property was acquired by the Government on 27th June, 1964 but a part of such acquired property including the suit property was ultimately released by the Government by issuing a notification on 26th February, 1968. Mr. Banerjee further pointed out that the instant suit for eviction was filed by the plaintiff against the defendants on 29th July, 1968. In the said suit the plaintiff prayed for recovery of possession from the defendants therein by asserting his title in respect of the suit property by virtue of his purchase thereof from the erstwhile owner. Mr. Banerjee further pointed out that the defendants contested the said suit by asserting their title by way of adverse possession in the suit property. The said dispute was ultimately resolved by this Hon'ble Court in Second Appeal as aforesaid wherein not only the plaintiffs' title in the suit property was recognized but also the defendants' plea for acquiring title for adverse possession was disbelieved. Since the said judgment/decree attained its finality, the legality of such decree cannot be challenged in the execution proceeding.
11. Mr. Banerjee contended that since the entire episode regarding acquisition of suit property by the Government and the release thereof took place before filing of the suit, such plea regarding the alleged defect in the plaintiffs' title due to such acquisition proceeding was available to the defendants in the suit but in spite thereof they did not choose to take the said plea in their defence and as such, it is no longer open to them to challenge the legality of the said decree in the execution proceeding as, such plea is barred on the ground of constructive res judicata which, according to Mr. Banerjee, is applicable even in the execution proceeding in view of the explanation (vii) added to Section 11 of the Civil Procedure Code.
12. Mr. Banerjee further pointed out from the evidence of the petitioner that though he stated that his father who was the appellant in the earlier Second Appeal did not file the said Government notification and other necessary documents in the said appeal, but he never claimed that his father did not know about the said acquisition proceeding in his evidence. As such, Mr. Banerjee contended that objection raised in the said application under Section 47 of the Code of Civil Procedure does not deserve any merit for consideration.
13. Mr. Banerjee, thus, supported the impugned order and prayed for rejection of this Revisional Application.
14. Having considered the submission of the learned Counsel of the parties, this Court has no hesitation to hold that in view of the explanation (VII) added to Section 11 of the Civil Procedure Code, the principle of res judicata is applicable in the execution proceeding. It is rightly pointed out by Mr. Banerjee that the entire episode relating to the acquisition proceeding took place even before the institution of the suit, as the notifications which were issued by the Government either for acquiring the suit property by the Government or for release of the suit property by the Government were all issued prior to the institution of the suit. Notifications are issued for public notice and as such, the petitioners being the member of the public cannot contend that they had no knowledge of the said notification. There was no direct evidence from the petitioners as to whether there was any defect and/or irregularity in the publication of such notification and as a result of such defect and/or irregularity therein, these notifications were escaped from their notice. No reasonable man of ordinary prudence can believe that a person who is in possession of the property and who is asserting his title in the suit property by adverse possession did not know about the said notifications which were issued by the Government for acquiring and/or for releasing those properties. As such, this Court holds that it is rightly pointed out by Mr. Banerjee that the objection which the petitioners is now trying to set up for challenging the legality of the said decree cannot be set up in the execution proceeding on the ground of the bar of constructive res judicata in view of the explanation (VII) added to Section 11 of the said Act as, in spite of availability of such defence in the suit, the defendants therein did not raise such dispute in the suit and/or in the appeals arising therefrom.
15. That apart, it is nobody's case that the Government took possession of the suit property from the judgment debtors in pursuance of the notification issued by the Government for acquiring the suit property. The subsequent notification which was issued on 26th February, 1968 shows that the said notification was issued for withdrawal from the acquisition of an area more or less 13.27 acres of land comprising of various plots of land including the suit property out of the total area of 23.44 acres of land included in the declaration dated 27th June, 1964. Thus, the subsequent notification makes it clear that the said notification was not published for release of a portion of the acquired land but the same was issued for withdrawal from acquisition of a portion of the land included in the earlier declaration dated 27th June, 1964. Thus, by considering the subsequent notification for withdrawal dated 26th February, 1968, this Court finds that the suit property was never acquired by the State Government as simply a declaration was issued which was subsequently withdrawn partially and as a result the suit property was neither acquired by the Government nor possession thereof was taken by the Government at any point of time. As such, the plaintiff's title in the suit property was never affected by the said acquisition proceeding.
16. This Court, thus, holds that there was no suppression of material fact in obtaining the decree for eviction by the plaintiff/opposite party and as such, the said decree cannot be held to be nullity.
17. Under such circumstances, this Court holds that the Revisional Application deserves no merit for consideration. The Revisional Application, thus, stands rejected.
18. The learned Executing Court is thus directed to expedite the said execution proceeding as far as possible
19. The Revisional Application, thus, disposed of.
20. Urgent xerox certified copy of this order, if applied for, be supplied expeditiously after complying with all formalities.