KESHAB CHANDRA DUTTA Vs. BALLYGUNGE ESTATES PRIVATE LTD

JUDGEMENT

(1.) THIS appeal is directed against an order allowing the defendant respondent's prayer for restitution consequent on the setting aside of an exparte decree passed in the suit. Plaintiff appellant instituted a suit for specific performance of contract in the second Court of the Subordinate Judge at Alipore, being Title suit No. 58 of 1970, inter alia, praying for specific performance of contract for sale of the properties described in schedule 'a' to the plaint, and for possession of the same after execution of the proper deed of transfer; alternatively, the plaintiff prayed for recovery of a sum of Rs. 1,12,314. 83 paise and for declaration of a charge upon the property described in schedule 'a' which is a cinema House, known as aleya Cinema, and for other reliefs. The suit was decreed exparte on 24th november, 1970, and the defendant was directed by the decree to execute and register a deed of conveyance in respect of the property described in the schedule 'a' to the plaint in favour of the plaintiff within a certain period. The document not having been executed by the defendant within the aforesaid period, plaintiff applied for execution of the decree on Jan. 20, 1971. This was registered as Title Execution case no. 3 of 1971. The deed of conveyance was thereafter prepared, sealed and executed on 27. 2. 1971 and was then presented to the District Registrar, Alipore for registration. The document was duly registered and on 30. 3. 71 plaintiff applied for delivery of possession of the property and a writ for delivery of possession was issued under order 21, rule 35 of the Code of Civil Procedure on the same day. Possession appears to have been delivered on April 12, 1971, and on the following day, respondent filed an application under order 9 rule 13 of the Code for setting aside the decree. This was registered as Misc. Case No. 28 of 1971 and the learned Sub Judge by his order dated 23. 10. 71 allowed the application on contest and the exparte decree was set aside. Against that order, the appellant moved this court and obtained a rule, being Civil Revision Case No. 3080 of 1971. The rule was discharged on 6th January, 1972, and on the same date respondent applied under section 144 read with section 151 of the Code for restitution of the property transferred, which was registered as Misc. Case No. 1 of 1972. The appellant thereafter made an unsuccessful attempt to obtain leave to appeal to the Supreme court and an application for special leave was also refused on 6th May, 1972. The application for restitution was heard by the learned Sub-Judge 7th Court, Alipore, who by his order dated May 6, 1972. Allowed the application and directed that the respondent be put into ownership and possession of the disputed property that was delivered to the appellant on the basis of the exparte decree. The present appeal is directed against this order of restitution.

(2.) THE learned Sub Judge, did not record any evidence in this case and it appears from the order under challenge, that the restitution as such was not opposed by the present appellant. The application appears to have been contested only on one point viz. , the plaintiff appellant was in possession of the Cinema House as its Manager under the respondent from before the decree and he now apprehends that he may be thrown out and be divested of his managerial responsibility, if the prayer for restitution is allowed. Learned Sub judge refused to accept this contention on the ground that this was an independent relationship outside the scope of enquiry in an application under section 144 of the Code of Civil Procedure, even though such relationship concerned the property in dispute. Learned subordinate Judge accordingly directed that the property be restored to the possession of the respondent.

(3.) MR. Bankim Chandra Dutta, learned Advocate appearing for the appellant challenged the statement in the Trial Courts judgment that the restitution as such was not opposed by the opposite party. In an affidavit affirmed by the appellant in the connected Rule before this court on May 22, 1972, it was asserted that neither the petitioner nor his advocate ever conceded this point in the court below and the learned subordinate Judge was wrong in assuming that the appellant did not oppose the order for restitution (vide para. 5 of the affidavit ). The respondent in an affidavit in opposition affirmed on 14th June 1972 denied these allegations and asserted that it was incorrect to say that the learned Subordinate Judge was wrong in recording such a concession. This point was reiterated by the appellant's son in another affidavit affirmed on July 26, 1972 (vide para. 6)wherein he prayed for calling certain documents which were filed in the Trial court on 29. 4. 1972. The objection was however, taken in a half-hearted manner in the memorandum of appeal (vide ground No. 12) and the affidavits came to be affirmed at a later stage. A concession recorded in a judgment cannot ordinarily be permitted to be challenged by a party in an appeal. The supreme Court in the case of (1) Bank of Bihar v. Mahanilal reported in A. I. R. 1964 S. C. 377 at page 380 held that a statement appearing in a judgment could not be challenged by a party in an appeal except with the consent of the other party that it was erroneous or the court recording it admits it to be wrong. The proper remedy it was pointed out, was by way of review. In the case reported in (2) Madhu Sudan chowdhri v. Musammat Chandrabati chowdhrian 21 C. W. N. 899 their Lordships of the Judicial Committee held that a statement in a judgment as to the conduct of a pleader, could not ordinarily be entertained in appeal in the absence of anything showing that the pleader called the attention of the court that the statement in the judgment regarding his conduct was wrong. In another case reported in (3) Mahadeo v. Hanumanmal A. I. R. 1969 Rajasthan 304, rajasthan High Court held that a statement in a judgment that no other point except that of jurisdiction was urged before the court, must be taken to be true, in the absence of any affidavit affirmed either by the Counsel or the party in the trial court. In view of these authorities, we conclude that a statement in a judgment that a certain point had been conceded, cannot be challenged in appeal unless the aggrieved party drew the attention of the court delivering the judgment at about that time it was delivered. Mr. Dutta however, contends that even assuming that there was such an admission before the Trial Court, it at best amounted to the giving up of the case on a point of law and he was entitled to reagitate the same in this appeal. Proceeding on that footing Mr. Dutta attacked the order under appeal on four main grounds. It was contended in the first place that the exparte decree not having provided for possession, restoration of possession cannot be given; secondly, the deed of conveyance not having been set aside or cancelled, it stands as a bar to respondents asking for possession in this proceeding; thirdly, possession if restored, must be conditional on reimbursement of the payments incurred by the appellant in connection with the property or the running of the Cinema business and fourthly, the court should restore the parties to the position in which they were at the date of decree.