NIRMAL KUMAR CHAKRABORTY Vs. DULAL CHANDRA BHATTACHARJEE
HIGH COURT OF CALCUTTA
NIRMAL KUMAR CHAKRABORTY
DULAL CHANDRA BHATTACHARJEE
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T.Chatterjee, J. -
(1.)- In this revisional application, the judgment debtor/ petitioner question the validity of the orders being order Nos. 32 and 33 dated 10th February, 1995 passed by the learned Munsif Second Court at Baruipur, in miscellaneous. Case No. 92 of 1993, which arose out of title execution case No. 22 of 1993. By order No. 32 dated 10th February, 1995 the Executing Court rejected the objection filed by the judgment debtor/petitioner under section 47 of the Code of Civil Procedure. Order No. 33 is an order consequential to order No. 32 dated 10th February, 1995. Both these two orders, therefore, are under challenge in this revisional application.
(2.)The decree holder/opposite party No. I along with others instituted a suit for injunction restraining the judgment debtor/petitioner from drawing overhead electric line over the private pathway of the decree holders in the second court of the Munsif at Baruipur in the year 1993, upon the allegations that the still land being the private pathway for ingress or egress to the house and tank of the decree holders and that suit land was never used as public pathway and as the judgment debtor/ petitioner tried to draw his overhead electric line over the suit land illegally a decree for permanent injunction should be granted. This suit was contested by judgment debtor/petitioner by filing a written statement in which it was alleged that the said pathway was not a private pathway of the plaintiffs but the said pathway was the only pathway for the use of the judgment debtor and their predecessors. In the written statement it was further pleaded that this pathway had been continued to be used for the last 100 years by the judgment debtor/ petitioner and his predecessor in interest by exercising their right of easement openly and peacefully for a period of more than 20 years and therefore, the judgment debtor/ petitioners had acquired a right of easement over the suit property far ingress and egress for his use and therefore, the judgment debtor petitioners entitled to draw electric line over the suit property. The suit was decreed by the Trial Court and the judgment debtors was permanently restrained from drawing electric line over the suit land or from fixing polls on the same. After the decree was passed in the suit, according to the judgment debtor/petitioner, one of the plaintiffs/decree holders felt that considerable time had already elapsed but the judgment debtor had been deprived of vital benefit of electric connection in this modern age as such they desired that the electric connection should be given to the judgment debtor/petitioner. Accordingly, some of the plaintiffs withdrew their objection unconditionally in respect of electric connection. In the changed circumstances the petitioner made a prayer below the West Bengal State Electricity Board for having electric connection to his house over the said pathway. On such an application the West Bengal State Electricity Board fixed the electric polls and took steps to give electric connection in the house of the judgment debtor/petitioner. AS soon as it was found that electric connection was given to the judgment debotor/petitioner and electric polls were fixed in the same pathway the decree holder/opposite party made an application under order 21 rule 32 of the Code of Civil Procedure before the Munsif, second Court at Baruipur which came to be registered as title execution case No, 22 of 1993. In the said application the decree holder contended that the judgment debtor along with opposite party No. 2 and 3 willfully and deliberately flouted the decree of the suit as mentioned hereinabove by giving electric connection to the judgment debtor/petitioner and as such he prayed for attachment of the properties of the judgment debtor. It is an admitted position that such and application was filed only by the plaintiff No. 5 who is now the decree holder/ opposite party No. 1. It is also not in dispute that the other decree holders gave their consent to give electric connection to the judgment debtor. Against the said application under order 21 rule 32 of the Code of Civil Procedure an objection was filed by the judgment debtor stating inter alia that in view of the changed circumstances and after getting consent from the predecessor of the plaintiffs and also from the plaintiff No. 4 except the plaintiff No. 5/opposite party No. 1 he took electric connection for his use. The learned Munsif however, by an order dated 3rd June, 1994 allowed the application under order 21 rule 32 of the Code of Civil Procedure and directed removal of the electric polls and directed the decree holder/opposite party No. 1 to furnish details of the properties of the judgment debtor/petitioner. Against this order a revisional application was moved before a learned Judge of this Court. A learned Judge of this Court affirmed the order of the learned Munsif and dismissed the revisional application. After the rejection of the revisional application by this Court. Shri Ajit Kr. Bhattacharya, Shrimati Chabi Adhikari and Shrimati Reba Pradhan who are heirs and legal representatives of the late Tarini Bhushan Bhattacharyya gifted their undivided share of the disputed land by a registered deed of gift dated 14th of August, 1994 to the Judgment debtor. According to the petitioner, therefore he by such transfer, has became a co-sharer of the decretal property with decree holder/opposite party No. 1. As the petitioner has become to sharer of the decretal property he raised an objection under section 47 of the Code of Civil Procedure inter alia alleging that in view of the change of circumstances and in view of the admitted fact that he has become a co-sharer of the decretal property, the decree passed to permanent injunction was no longer executable against him. This objection was covered into a Miscellaneous Case being Miscellaneous Case No. 92 of 1994. In the said Miscellaneous case it was further alleged by the petitioner that since he had become a co-sharer of the decretal property as the heirs and legal representatives of one of the co-sharers of Sri Tarini Bhusan Bhattacharyya had gifted their undivided share of the decretal properly to him the decree for permanent injunction against the petitioner was no longer executable in view of the subsequent event that had occurred after the decree for permanent injunction was passed. Such an objection was however, rejected by the learned Munsif by the impugned order being Order No. 32 dated 10th February, 1995 on a finding that this objection cannot now be raised in view of the decision of this Court passed in the Civil revisional application by which the learned Judge of this Court held that subsequent event cannot be looked into by the executing Court unless they came within the parameter of order 21 rule 32 of the Code of Civil Procedure read with rule 13 thereof The Executing Court also held that decree for permanent injunction obtained by one of the co-sharers of the suit land without making the other co-sharers parties to the suit was very much valid and binding on the person against whom such decree was passed.
(3.)Mr. Roychoudhury appearing on behalf of the judgment debtor/ petitioner contended that in view of the changed circumstances which arose after the order under order 21 rule 32 of the Code of Civil Procedure was passed, the executing Court was entitled to take into consideration of such changed circumstances and after taking into consideration of such changed circumstances which had occurred subsequent to the passing of the order under order 21 rule 32 of the Code of Civil Procedure, the executing Court ought to have held that the decree for permanent injunction was no longer executable in law. In support of this contention Mr. Roychoudhury relied on the decisions in the case of Annamalai v. Srinivasaraghava, AIR 1948 Madras 293, in the case of Rambhadra v. Ramalna, AIR 1952 Madras 125 and also relied on a decision of this Court reported in 75 Calcutta Weekly Notes, 502 (Sm. Kalyani Sen v. Sk. Enayetullah).
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