Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Smt. Manju Rani Ghosh And Anr. vs Smt. Santi Rani Hazra And Ors. on 5 February, 1996
Equivalent citations: (1996) 1 CALLT 330 HC, 100 CWN 333
Bench: N K Bhattacharyya


Nripendra Kumar Bhattacharyya, J.

1. Heard the submission of the learned Senior Advocate for the petitioners, Mr. Asoke Kumar Sengupta appearing with learned Advocate Mr. Sunirmal Datta. Considered the materials on record.

2. By this revisional application under Section 115 of the Code of Civil Procedure, the judgment-debtors petitioners have challenged the order No. 9 dated 22nd December, 1995, passed by the learned District Judge, Barasat, North 24-Parganas. The learned Munsif, 4th Court, Sealdah passed a decree in Title Suit No. 568 of 1975 against the judgment-debtor petitioners. The decree was levied to execution by the decree holder, and the same was registered as Title Execution Case No, 87 of 1986 by the learned Munsif, 4th Court, Sealdah. The execution of the decree was resisted by some of the judgment-debtors and the decree-holder field a petition under Order 21, Rule 97 of the Code of Civil Procedure, seeking police help and the same was registered as Misc. Case No. 117 of 1994. In that Misc. Case some of the judgment-debtors opposed the prayer for police help and the objection was overruled by the Executing Court. Some of the judgment-debtors, petitioners herein, preferred a Misc. Appeal against the said order, being Misc. Appeal No. 200 of 1994, before the court of the learned District Judge, Barasat, and the learned District Judge transferred the said misc. appeal after admission to the court of the learned Assistant District Judge, 1st Court, Barasat, for disposal.

3. The short background of the case is that the decree-holder, opposite party No. 1 herein, field a suit for declaration of title, eviction of the defendants, injunction etc. The suit was decreed, the execution of which was resisted by some of the judgment-debtors who ultimately made an appeal against the order of the learned Munsif before the court of the learned District Judge, Barasat. The appeal was admitted by the initial order with a direction of the service of summons upon the respondents therein. The summons were served upon the respondents Nos. 1 to 6, but as no summons were served upon the respondent No. 7 the learned District Judge by his order No.7 dated 31.8.95 recorded the same and fixed 23.11.95 for service return, acknowledgement due card and order. He recorded that the lower court records have already been received by that Court. Thereafter, the respondent No. 1, meaning the decree-holder, made an application in that misc. appeal for expunging the name of the respondent No.7 from the memorandum of appeal and the prayer was allowed. In that order, that is, order No.8 dated 23.11.95, the learned district Judge also fixed for hearing the petition for order on 22nd December, 1995. It appears from Order No.9 dated 22.12.95 that the appellants filed written objection against the petition field by the decree-holder on 22nd November, 1995. The appellate Court after recording that the lower court records have been received transferred the Misc. Appeal to the court of the learned Assistant District Judge, 1st Court, Barasat, for disposal, as stated hereinbefore.

4. Mr. Sengupta contends that actually the petition for expunging the name of the respondent No.7 has not been disposed of and by mistake the learned District Judge recorded that the application for expunging the name of the respondent No.7 has been allowed. In such submission he further contends that as that petition has not yet been disposed of the appeal is not ready for hearing and as such Rule 258 of the Civil Rules and Orders shall come into play and till it is ready for hearing the appeal cannot be transferred. In order to dilate his submission further, he referred to Rule 101 of Order 21 to submit that a Second suit is not contemplated of in a proceeding under Rule 97 or Rule 99 of Order 21 CPC where a question arose relating, to right, title and interest of the property. By referring to a Bombay High Court’s decision of a Single Bench in the case of Nusserwanji E. Poonegar and Ors. v. Mrs. Shirinbai F. Bhesanis and Ors., , Mr. Sengupta contends that a similar question arose in that case and the Bombay High Court has held that the proceedings under Rule 101 and Rule 105 of Order 21, C.P. C. are in the nature of a suit and it would be appropriate for the executing court to frame issues and allow the parties to lead all evidence that they may desire to do.

5. Mr. Sengupta further referred to Order 5, Rule 11 C.P.C. to point out that where there are more defendants than one, service of the summons shall be made on each of the defendants. Mr. Sengupta contends that in the instant case as the service has not yet been effected upon the respondent No. 7 and the application for expunging the name of the respondent No. 7 is awaiting disposal the appeal is not ready and as such it cannot be transferred.

6. Having heard Mr. Sengupta and considering the materials on record, I am of the view that this contention of Mr. Sengupta is a fallacious one and has no merit.

7. It appears from the decision in the case of Nusserwanji E. Poonegar (supra) that under the Bombay Rent Act, Special Court was constituted and the Executing Court in that Act was competent to go into all the questions regarding the right, title and interest between the landlord and the tenant. What happened in that case is that there the parties laid evidence in extenso and that was considered by the Executing Court and the Executing Court decided that matter in a summary way. The High Court disagreed with that and the Court summarised the position of the law in paragraph 19 of that decision at page 361. This is not a case like that and that decision, in my view, has no manner of application in the instant case. So far as Rule 258 is concerned, the language in which the rule is couched is “Appeals should not be transferred to the Court of an additional District Judge or a Subordinate Judge until they are ready for hearing. Notices should be issued and all other preliminary work done by the office of the District Judge”. One cannot fall to observe that the language employed in that rule is ‘should’ and not ‘shall’, whereas in some other rules in Chapter 14 of the Civil Rules and Orders the language employed is ‘shall’. That will be apparent from the Rules 204, 254, 255 and 256. It is the fundamental principle of law that the Legislature shall not employ a word which is unnecessary and which does not carry any meaning. So it is quite clear from the rules 254 to 256 that those provisions have been made mandatory but in rule 258 the rule has been made directory and not mandatory. If a rule is directory and is not observed in its true letter and spirit, that will not render the order invalid. In such view of the matter, I do not find any merit in this revisional application.

In view of what has been stated above, the revisional application is dismissed.

There will be no order as to costs.

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