Sahidullah Munshi, J.@mdashThis revisional application is directed against order dated 4th December, 2013 passed by the learned Civil Judge (Junior Division), Additional Court at Sealdah in ejectment execution case No. 01 of 2009. The petitioner in this revisional application is a decree-holder in ejectment application No. 235 of 2004 which was filed in the Court of learned Additional Rent Controller at Sealdah under Section 6 of the West Bengal Premises Tenancy Act, 1997 for ejectment/eviction and for mesne profits. The opposite party/judgment-debtor filed an application in the execution case to the effect that the decree dated 19th May, 2005 passed by the Additional Controller, Sealdah on the petitioner''s application dated 2nd July, 2004 could not be executed because the said decree was passed without jurisdiction and consequently the same was a nullity and cannot be executed. In making such submission that the decree is a nullity and cannot be executed the judgment-debtor, relying upon a Letter of Intimation issued by the Kolkata Municipal Corporation, filed an application before the executing Court under Section 38 read with Section 151 of the Code of Civil Procedure and contended that the decree obtained by the decree-holder in respect of a premises where the judgment-debtor is a bharatia under the decree-holder/thika tenant, is a thika-tenanted property and, therefore, the decree passed in the aforesaid proceeding was a nullity because the same was to be decided by the Controller of thika tenancy. Prior to filing of the said application he filed an objection under Section 47 of the Code of Civil Procedure in the executing Court which was numbered as Misc. Case No. 36 of 2009 wherein he took several grounds including the ground of Section 8(3) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001. But the said application under Section 8(3) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 was rejected, holding, inter alia, that the question whether the decree is affected by the provisions of Thika Tenancy (Acquisition and Regulation) Act, 2001 or whether the same is saved under Section 27 of the West Bengal Thika Tenancy Act, 2001 is a mixed question of law and fact depending on the date of accrual of cause of action in the original ejectment case and such mixed question of law and fact can only be decided by the adjudication of the Misc. Case as a whole on the basis of evidence which may be produced. It was held that such mixed question cannot be decided on the basis of an application ancillary to the Misc. Case. Subsequently, however, by an order dated 5th April, 2010 the objection filed by the judgment-debtor under Section 47 of the Code of Civil Procedure challenging executability of the decree on the ground that the decree has already been satisfied on 19th August, 2008 or 20th August, 2008 and also on the ground that the property in question is a thika property, was rejected. On the basis of the aforesaid application under Section 38 read with Section 151 of the Code of Civil Procedure the learned Court below has passed the impugned order thereby holding that the decree is a nullity and unexecutable as it was passed by improper application of law and has, therefore, cancelled the said decree by invoking the inherent power under Section 151 of the Code of Civil Procedure read with Section 38 of the Civil Procedure Code. Section 38, however, does not expressly authorize a Court to cancel a decree on the question of nullity or any other ground. Section 38 reads as follows :-
"38. Court by which decree may be executed - A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution."
2. While passing the impugned order the learned Court has recorded that previously the judgment-debtor filed an application under Order 9 Rule 13 which was rejected. Writ of possession was issued but could not be executed because of active resistance as appeared from the bailiff report and, accordingly, petition was filed seeking police help under Order 21 Rule 97 by the decree-holder which is still pending. The Misc. Case arising from the objection under Section 47 of the Civil Procedure Code filed by the judgment-debtor has also been rejected. It has been pointed out that while deciding earlier the application filed by the judgment-debtor under Section 8(3) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 contending that the suit property was a thika-tenanted property, was decided by the predecessor of the present Judge who passed the impugned order and his predecessor decided on contest that the suit property is not a thika-tenanted property and held that the ex parte decree was alive. The impugned order has been passed holding that, although, the same issue was decided earlier between the selfsame parties, the same is not hit by the doctrine of res judicata because the Court is performing its duty as an executing Court. Before going into the merits of the case a short background is required to be given. The decree-holder filed an application under Section 6 of the West Bengal Premises Tenancy Act, 1997 for ejectment/eviction and for mesne profits against Sankar Prosad Jadav who is the judgment-debtor herein. In the said suit under Section 6 of the aforesaid Act a decree or order for recovery of possession of the disputed property after evicting the opposite party/tenant was sought for. Prior to institution of the said proceeding and under Section 6 of the aforesaid Act of 2001 a notice under Section 6(4) of the West Bengal Premises Tenancy Act, 1997 was also issued by the admitted landlord of the judgment-debtor/opposite party herein. In the said ejectment petition the decree-holder described the opposite party as a tenant for a rental of Rs. 50/- (Rupees Fifty) only payable to the decree-holder-landlord. Decree was passed ex parte on 19th May, 2005. From the said decree it appears that various documents were filed and marked exhibits including Kolkata Municipal Corporation tax bill (Ext. 2). After the decree was passed ex parte, the judgment-debtor/opposite party filed an application before the Additional Rent Controller at Sealdah under Section 39(1)(4) of the West Bengal Premises Tenancy Act, 1997 read with Order 9 Rule 13 of the Code of Civil Procedure. In the said application the opposite party made out a case that for the first time he ascertained on 20th July, 2005 that the ejectment petition dated 2nd July, 2004 was allowed ex parte on 19th May, 2005. He has further made out a case that he entered appearance in the suit by filing vakalatnama through a learned advocate and that learned advocate did not conduct the case properly rather he conducted the case much to the prejudice of the opposite party and as a result of which ex parte decree was passed. From a perusal of the written objection filed by the decree-holder to the opposite party''s application under Section 38 read with Section 151 of the Civil Procedure Code it appears that the judgment-debtor appeared and contested the suit by filing written statement and by filing objection under Section 7(2) of the West Bengal Premises Tenancy Act, 1997. It has been further stated that in the proceeding for disposal of the application under Section 7(2) of the West Bengal Premises Tenancy Act, both the parties adduced evidence and the judgment-debtor did not take any plea that he is a bharatia under the thika tenant in respect of the suit property. It appears that the said application filed by the judgment-debtor for setting aside ex parte decree was rejected. Subsequently, the judgment-debtor filed an objection under Section 47 of the Code of Civil Procedure challenging the executability of the decree on two grounds -
1) The decree was satisfied inasmuch as the decree-holder took possession of the decretal property.
2) The provision of Section 8(3) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, was attracted and, therefore, the decree, which was passed, was a nullity.
3. The said objection filed under Section 47 was also rejected. As a last resort the judgment-debtor has filed the application under Section 38 read with Section 151 of the Civil Procedure Code which has been allowed by the learned Court below by the order impugned.
4. Mr. Bhattacharyya, learned Counsel appearing for the decree-holder, submits that the order impugned is totally wrong and the learned Court below has exercised a jurisdiction not vested with him under the law and, therefore, the order impugned is liable to be set aside. He submits that the order is hit by the principles of constructive res judicata and, therefore, the Court ought not to have held that since the earlier order holding that the dispute was not related to thika tenancy, was decided by the predecessor, cannot bind him under the principles of res judicata.
5. Ms. Chatterjee, appearing for the opposite party, submits that the decree is a nullity inasmuch as her client filed Letter of Intimation issued by the Kolkata Municipal Corporation wherefrom it will appear that the property is a thika-tenanted property the Court which passed the decree had no jurisdiction in law and according to Section 8(3) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, the same was to be decided by the Controller of thika tenancy. In support of her said submission she submits a judgment of the Hon''ble Apex Court reported in
6. I have heard the submissions of the parties and perused the materials on record. It appears to me that it has to be first decided whether was there any material before the Court to come to a conclusion that the property was a thika-tenanted property. It is the admitted position that save and except the Letter of Intimation issued by the Kolkata Municipal Corporation no other evidence was produced before the Court to ascertain the nature of the property. The judgment-debtor has although, accepted him a tenant under the decree-holder and took all steps as per provisions of West Bengal Premises Tenancy Act. Specific question in relation to Section 8(3) of the said Act of 2001, was decided by Court and negatived his contention. The order of rejection passed under Section 39(1)(4) of the West Bengal Premises Tenancy Act read with order 9 Rule 13 of the Code of Civil Procedure, the order of rejection passed under Section 47 of the Code of Civil Procedure and even order passed under Section 8(3) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, rejecting the contention that the property in question is a thika-tenanted property has been allowed to go unchallenged. Therefore, in my view, at this stage the learned Court was wrong in holding that whatever order had been passed, had been passed by his predecessor and that the same does not bind him. The learned Court has acted illegally in allowing the judgment-debtor''s contention that the decree was not executable.
7. In this case it appears that the judgment-debtor himself accepted the application of West Bengal Premises Tenancy Act, entered appearance in the suit, filed written statement and also filed application under Section 7(2) of the West Bengal Premises Tenancy Act with regard to arrears of rent. This shows that the judgment-debtor/opposite party subjected himself to the jurisdiction of West Bengal Premises Tenancy Act, 1997. More so, he subsequently filed an application under Section 39 Sub-Section 14 of the West Bengal Premises Tenancy Act, 1997 read with Order 9 Rule 13 of the Code of Civil Procedure for recalling of the ex parte decree. Therefore, it makes amply clear that the judgment-debtor, knowing fully well that the property was a tenanted property filed the said application under the jurisdiction of Section 39 Sub-Section 14 of the West Bengal Premises Tenancy Act, 1997. If that be so, it is very difficult for the opposite party to contend that the Court passed the decree without jurisdiction and is a nullity. It further appears from the record that the opposite party/judgment-debtor filed application under Section 8(3) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 but the same was rejected. The same plea was taken in his objection under Section 47 which was also rejected and that being the position, the judgment-debtor cannot be permitted to file a fresh application under Section 38 read with Section 151 of the Code of Civil Procedure taking same plea of Thika Tenancy under Section 8(3) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, particularly when no tangible evidence has been produced to show that the property is a thika-tenanted property save and except the Letter of Intimation issued by the Kolkata Municipal Corporation that too has not been proved. Therefore, there was no sufficient evidence before the Court below to come to a definite finding that the property is a thika-tenanted property, particularly when on an earlier occasion there was a finding against the judgment-debtor that the property was not a thika-tenanted property. Simply on the basis of a Letter of Intimation issued by the Kolkata Municipal Corporation Court ought not to have taken it to be sacrosanct that the property is a thika-tenanted property. Thus, the Court has committed an illegality in holding that the property is a thika-tenanted property.
8. The decision relied upon by the learned advocate for the opposite party is of no help to her client because the given fact and situation in the said decision is different from the factual situation of the present case. In the case of the reported decision it was admitted that the defendant was a tenant and, therefore, according to the statutory provision, the suit was barred and the decree was passed without jurisdiction. In the present case, it is not the admitted position that the property is a thika-tenanted property. In my view, without cogent and reliable evidence the Court ought not to have proceeded to hold that the property is a thika-tenanted property and, therefore, has committed a gross illegality in cancelling the decree dated 19th May, 2005. The impugned order is not sustainable in law and is, therefore, liable to be set aside and I hereby set aside the order impugned.
9. The revisional application stands allowed.
10. There will be no order as to costs.
11. Urgent Photostat certified copy of this judgment, if applied for, be given to the learned advocates for the parties upon compliance of all requisite formalities.
