Sunday, 1 September 2019

Whether it is necessary to pay ad valorem Court-fee on application for restitution?

In my considered view, law is quite clear that the application for restitution under Section 144, C.P.C. is an application for execution of decree within the purview of Section 2(2), C.P.C. read with Order 21 , C.P.C.

6. This Court also in a case between Sri Tapan Sarkar v. Smt. Sukhila Boro reported in 1990 (2) GLR 29 held that the application for restitution under Section 144, C.P.C. is an application for execution of the decree. In view of the above well principle of law, I am of the view that the First Appellate Court has jurisdiction to hear the appeal arising from the order passed under Section 144, C.P.C. I am also of the view that as the application for restitution under Section 144, C.P.C. is an application for execution of the decree, no ad valorem Court-fee is required on the value of the suit land or mesne profit except the required Court-fees for the purpose of execution of decree or order.

IN THE HIGH COURT OF GAUHATI (AGARTALA BENCH)

Second Appeal No. 30 of 1984

Decided On: 13.06.1996

Ramesh Ch. Deb Vs.  Barindra Kr. Chakraborty

Hon'ble Judges/Coram:
N. Surjamani Singh, J.

Citation : AIR 1997 Gau 24




1. This second appeal arises from the judgment dated 9th May, 1984 and the order signed on 26th June, 1984 passed by the learned District Judge, North Tripura, Kailashahar in Title Appeal No. 1 of 1982, Miscellaneous Appeal No. 1 of 1982 partly affirming the judgment and order passed by the learned Subordinate Judge, North Tripura, Kailashahar in Civil Misc. Case No. 23 of 1979 allowing the application for restitution of possession under S. 144, C.P.C. in respect of the suit land in Title Suit No. 1 of 1966 in favour of the defendant-respondent; and, remanding the case to the learned Trial Court with regard to the determination of the amount of mesne profit.

2. The facts of the case in a short compass are as follows:

The present appellant as a plaintiff instituted a case being Title Suit No. 1 of 1966 in the Court of the Additional Subordinate Judge, West Tripura, Agartala for a declaration of his right, title and interest over the suit land measuring 11 Kanis 5 Gandas 3 Karas 1 Kranta and 5 Dhurs land and for Khas possession as well as mesne profit as against 3 main defendants including Sri Barindra Chakraborty, the present respondent in this appeal. The present respondent as defendant No. 1 contended the suit by filing written statement. In the meantime, the respondent Barindra Kr. Chakraboriy also filed a case being 9 T.S./1967 in the Court of Munsiff, Dharmanagar for declaration of the title deed of plaintiff-appellant as forged one. By a common judgment dated 30-7-1970 the learned Additional Sub-Judge, decreed the suit in favour of the plaintiff-appellant and ordered for delivery of possession in favour of the appellant. However, the prayer for mense-profit was rejected and T.S. 9 of 1967 filed by the respondent herein was dismissed.
3. The respondent as defendant No. 1 preferred an appeal being Appeal No. 26 of 1970 and 7 of 1971 in the Court of the learned District Judge, Tripura and the said appeal was allowed by judgment and order dated 24-6-1972 and as a result of which the case being T.S. 9 of 1967 filed by the respondent-defendant was decreed. Being dissatisfied with the judgment and decree dated 24-6-1972 the present appellant filed second appeal being Second Appeal Nos. 22 and 23 of 1972 before the Gauhati High Court, but the said two (2) appeals were dismissed on 22-8-1979 on contest. In the mean time, the present appellant as plaintiff-decree-holder started execution proceeding under 7 (T) Ex/70 in the Court of the learned Additional Sub-Judge. In execution of the decree passed in 1 T.S./1966, mentioned above, the possession of the said land measuring 11 Kanis 5 Gandas 3 Karas 1 Kranta and 5 Dhurs was given to the appellant-plaintiff on 17-11-1970. On appeal, the Appellate Court dismissed the suit 1/T.S./66 filed by the present appellant-plaintiff. Moreover, the Second Appeals Nos. 22 and 23 of 1972 filed by the appellant-plaintiffs were also dismissed. In view of the above position, the respondent-defendant filed an application under Section 144, C.P.C. for restitution of the suit land the possession of which was delivered to the present appellant-plaintiff in Execution No. 7(T) Ex/70 as per decree in T.S. No. I of 1966 passed by the Additional Sub-Judge, Agartala. The said application was contended by the present appellant-plaintiff by filing a written objection. After hearing the parties, the learned Subordinate Judge, North Tripura, Kailashahar by his judgment dated 30th November, 1981 passed in Civil Misc. Case No. 23 of 1979 allowed the said application under Section 144, C.P.C. on contest with costs. In the said case the learned Subordinate Judge, North Tripura, Kailashahar directed the appellant-plaintiff to hand over the possession of the suit land to the present respondent-defendant Shri Barindra Kr. Chakraborty with effect from the date of order of judgment and further directed the appellant-plaintiff to pay the compensation to be calculated @Rs. 2,000/- per year from 17-10-1970 till the date of restitution or otherwise delivery of possession of the suit land and the payment of compensation would be given effect to through the Court. Being aggrieved by the judgment and order passed by the Subordinate Judge, North, Tripura, Kailashahar, the present appellant-plaintiff preferred an appeal being Title Appeal No. 1 of 1982 and Misc. Appeal No. 1 of 1982 in the Court of the learned District Judge, North Tripura, Kailashahar. The learned District Judge, North Tripura, Kailashahar after hearing the parties dismissed the appeal so far the judgment and order of the learned Subordinate Judge, relating to the restitution of the land but allowed the appeal so far the order relating to mesne profit. The First Appellate Court remanded the matter relating to the mesne-profit to the Court of the learned Subordinate Judge, North Tripura Kailashahar, with a direction that the learned Subordinate Judge should record the evidence of both the parties on mesne-profit. As the present appellant-plaintiff dissatisfied with the impugned judgment and order dated 9th May 1984, passed by the District Judge, North Tripura, Kailashahar in Title Appeal No. 1 of 1982 and Misc. Appeal No. I of 1982 preferred this second appeal.

4. The main thrust of the argument of Mr. S. Deb, learned senior counsel for the appellant-plaintiff (appellant herein on whose death his legal representatives have been substituted) is that the First Appellate Court has no jurisdiction to hear the appeal in as much as the value of the suit land is Rs. 22,000/- and mesne-profit granted is Rs. 18,000/-. Therefore, the impugned judgment and order passed by the First Appellate Court is a judgment and order passed without jurisdiction and the same is null and void, Mr. S. Deb submits. Learned counsel for the appellant further contended that the proceeding under Section 144, C.P.C. is an execution of decree or order within the purview of Section 2(2), C.P.C. read with provisions of Order 21, Rule 11, C.P.C., the present respondent-defendant requires a formal application for execution of the decree and the respondent-appellant must comply with the provisions of law contemplated under Order 21, Rule 11 and also the relevant Schedule in Appendix-E; the execution Form No. 6. The said provisions of law contemplates about the formal application for execution of decree. These provisions were not followed by the respondent-defendant at the time of filing of his application under Section 144, C.P.C. It is also contended by Mr. S. Deb, that no identity or specific schedule of the land sought to be restored to the respondent-defendant is even reflected in the said application. Mr. Deb, further submits that both the learned Courts below committed serious error and illegality while passing the judgments and orders to the prejudice of the appellant-plaintiff. It is also another submission of Mr. S. Deb, learned counsel for the appellant, that the learned District Judge, North Tripura, Kailashahar in his order dated 20-3-1982 passed -in Title Appeal No. 1 of 1982 make a specific observation that the application under Section 144, C.P.C. is not an order under Section 47, C.P.C. and at the same time the learned District Judge, in the impugned judgment and order held that the case under Section 144, C.P.C. is an application for execution of the decree. Shri Deb also submits that the First Appellate Court has no jurisdiction to give two different-double standard findings, one for restitution of possession affirming the judgment and order of the learned Subordinate Judge, and another observation reversing the finding of the learned Subordinate Judge of mesne-profit and remanding the case back to the Court of Subordinate Judge, with a direction for recording the evidence of both the parties. This is not permissible and not tenable in the eye of law, Mr. S. Deb submits. In support of his contention Mr. Deb, relied upon a case between Mahijibhai Manmohanbhai Barot v. Fatal Manibhai Gokalbhai reported in MANU/SC/0219/1964in which the Apex Court held that the application for restitution under Section 144, C.P.C. is an application for execution of decree. On the other hand, Mr. B. B. Deb, learned senior counsel for the respondent contended that the First Appellate Court has ample jurisdiction to hear the appeal arising out of the order passed under Section 144, C.P.C. He further submits that the application under Section 144, C.P.C. is not a suit but an application for execution of decree within the meaning of Section 2(1) of C.P.C. Shri B. B. Deb, learned counsel for the respondent further submits that the order dated 20-3-1982 passed by the learned District Judge, North Tripura, Kailashahar had been marked with the impugned judgment and order, therefore, the finding of the First Appellate Court that the case under Section 144, C.P.C. is an application for execution of decree shall be taken as a final decision of the First Appellate Court. In support of his contention Mr. B. B. Deb, also relied upon a decision of the Apex Court rendered in Moqbull Alam Khan v. Mst. Khodaija reported in AIR T966 SC 1194, in which the Apex Court held that the application for restitution under Section 144, C.P.C. is an application for execution of decree.

5. In my considered view, law is quite clear that the application for restitution under Section 144, C.P.C. is an application for execution of decree within the purview of Section 2(2), C.P.C. read with Order 21 , C.P.C.

6. This Court also in a case between Sri Tapan Sarkar v. Smt. Sukhila Boro reported in 1990 (2) GLR 29 held that the application for restitution under Section 144, C.P.C. is an application for execution of the decree. In view of the above well principle of law, I am of the view that the First Appellate Court has jurisdiction to hear the appeal arising from the order passed under Section 144, C.P.C. I am also of the view that as the application for restitution under Section 144, C.P.C. is an application for execution of the decree, no ad valorem Court-fee is required on the value of the suit land or mesne profit except the required Court-fees for the purpose of execution of decree or order.

7. Now, 1 may dispose of one of the arguments of Mr. S. Deb learned senior counsel for the appellant, that the respondent-defendant did not comply with the provisions of law contemplated under Order XXI, Rule 11, C.P.C. as well as no formal application was filed as required under Schedule, Appendix-'E' No. 6 at the time of presentation of the application under Section 144, C.P.C. It is that for the execution of decree, the provisions of Order XXI, Rule 11 of the Code required formal application for execution of the decree or order. In my considered view, it is not necessary in the case of enforcement of an order passed under Section 144 of the Code. This Court had the occasion to give an exhaustive finding on this point that will be seen in a case between Ranjit Singh v. Narayan Mandal reported in (1991) 1 G LR 92. In the said case this Court observed thus:

In my opinion compliance with the provision of Order XXI, Rule 11 of the Code which require an application for execution of a decree should not be necessary, in the case of enforcement of Order under Section 144 of the Code. An execution application is necessary for the obvious reasons, that the execution of a decree may be commenced against all or some of the judgment-debtors, the mode of execution has to be indicated or the decree may be executed even in parts for example in a decree for recovery of money and possession the decree-holder may in the first instance execute the decree for possession only or in a decree for recovery of money and decree- holder may wish to proceed against only one judgment-debtor or which to recover money by attachment and sale of property or by arrest and detention of a judgment-debtor. It is for such and a variety of other reasons that a proper execution application with requisite information is required to be done. In a matter like the present where an order of restitution under Section 144 of the Code to be executed or enforced there being only the relief of restoration of the property which had been taken away in execution of the decree which has been set aside, there is, in my opinion no justifiable reason to insist on an execution application before the order can be given effect. I, therefore, hold that no format application for execution as stipulated in Order XXI, Rule II of the Code is necessary to execute the order of restitution and consequently the writ for delivery of possession could be issued."
8. I have same view of this legal aspect as held by this Court in Ranjit Singh v. Narayan Mandal 1991 (1) GLR 92 (supra), therefore, the contention of Mr. S. Deb, learned counsel for the appellants had no force.

9. From the above discussion, as well as on perusal of the available materials on record I find no illegality or infirmity or incorrectness in the impugned judgment and order.

10. For the foregoing reasons, this appeal has no merit and the same stands dismissed. Interim order, if any, stands vacated. No costs.

Ramesh Ch. Deb vs. Barindra Kr. Chakraborty (13.06.1996 - GUHC) : MANU/GH/0006/1997
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