Dismissed

Sotam Kumar Ghosh v. Sapan Kumar Ghosh

Jharkhand HC12 Jan 2021WPC/6143/2018

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging an executing court's order allotting land shares to decree holders. The petitioners failed to challenge an ex-parte decree within the statutory period. The court held that an executing court cannot decide infirmities in a decree absent prior challenge.

What did the court decide?

Writ petition dismissed; impugned order under Section 47 CPC allowing allotment of share stands.

Sotam Kumar Ghosh Vs Sapan Kumar Ghosh — Execution and Attachment | Jharkhand HC (2021)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 6143 of 2018

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Sotam Kumar Ghosh

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Gotam Kumar Ghosh

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Tolu Ghosh … … Petitioners

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Versus

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Sapan Kumar Ghosh

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Tapan Kumar Ghosh

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Utam Kumar Ghosh … … Respondents

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CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR

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For the Petitioners : Mr. Ramchander Sahu, Advocate For the Respondents : -----

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Order No. 05 Dated: 12.01.2021

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The present writ petition is taken up today through Video conferencing.

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The present writ petition has been filed for quashing the order dated 18.09.2018 passed by the Civil Judge (Senior Division)-I, Dhanbad in F.D No. 5 of 2017 (Original Suit No. 450 of 2015), whereby the court has issued a writ for allotment of share and preparation of Takhta.

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2. The learned counsel for the petitioners submits that the respondents herein filed Original Suit No. 450 of 2015 claiming half share in the suit land. The claim of the plaintiffs/respondents was that they and the petitioners are the legal heirs and sons of late Kalipad Ghosh who had purchased a land situated at Village-Dhansar, P.S.-Manaitand, District-Dhanbad, Mouza-50 under Khata No. 19, Plot No. 1113, measuring an area of 4 Kattha along with a well in the name of their mother late Maya Rani Ghosh vide Sale deed no. 7170 dated 14.06.1989 from Sudama Kumharin and a pucca house was constructed comprising four rooms with kitchen as well as toilet and bathroom over the said land. It was further claimed by the respondents that their father also purchased the land in MouzaGodhar Gaunsadih, Mouza No. 57 under Khata No. 3, Plot No. 581, measuring an area of 2½ Kattha vide registered sale deed no. 8123 dated 20.12.1992 from Nakul Prasad Barhai.

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3. It is contended on behalf of the petitioners that the trial

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court finally decreed the suit ex-parte on 01.12.2016 by holding that the plaintiffs/respondents are entitled to get half share in the suit property. Thereafter, the decree holders/respondents made an application under Order 26 Rule 13 read with Section 151 CPC for allotment of share and preparation of Takhta. The judgment debtors/petitioners subsequently filed a petition under Section 47 CPC for dismissing the application of the decree holders, however, the same was rejected by the court below and vide impugned order dated 18.09.2018, a direction was issued for writ of allotment of share and preparation of Takhta.

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4. It is further contended that the decree passed in Original Suit No. 450 of 2015 is bad on non-joinder of necessary parties. It is submitted that Smt. Maya Rani Ghosh (mother of the defendants/ petitioners) had executed the gift deed in favour of Smt. Ruby Rani Ghosh, W/o Sri Soumik Ghosh of Manaitand, Dhanbad on 07.03.2010 and she is residing over the part of the suit property by constructing four rooms along with kitchen as well as toilet and bathroom etc. at her own cost. It is also submitted that the respondents have obtained the ex-parte decree by making wrong submission and by fraudulent method as in title partition suit, each co-sharer is a necessary party. In fact, the respondents have no share in the properties in question. It is also submitted that the petitioners had no knowledge about the pendency of the suit and they were never served any summons to appear.

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5. Heard the learned counsel for the parties and perused the materials available on record. The petitioners have challenged the impugned order dated 18.09.2018, whereby the application of the petitioners under Section 47 CPC was rejected and a writ was issued in favour of the plaintiffs/respondents for allotment of share and preparation of Takhta.

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6. In the ex-parte judgment passed by the court below, it has been recorded that in spite of issuance of summons through Nazarat, registered post and even after publication in the daily newspaper circulated in the locality of the defendants/petitioners,

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they did not appear in the suit and as such, the court proceeded ex-parte in the same.

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7. Even after more than four years of passing of the impugned judgment and decree, the petitioners have not taken recourse of challenging the judgment either under Order IX Rule 13 CPC for setting aside the judgment in the same court or by filing an appeal before the appellate court under Section 96(2) CPC. Thus, the attitude of the petitioners appear to be careless and lethargic in taking recourse of law by challenging the ex-parte judgment and decree.

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8. In the case of “Kanwar Singh Saini Vs. High Court of Delhi” reported in (2012) 4 SCC 307 , the Hon’ble Supreme Court

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has held as under:

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25. It is a settled legal proposition that the executing court does not have the power to go behind the decree. Thus, in absence of any challenge to the decree, no objection can be raised in execution. (Vide State of Punjab v. Mohinder Singh Randhawa [AIR 1992 SC 473]).

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9. Thus, it is not for the executing court to decide the legal infirmity in the decree, rather it has to execute the same as it stands. Since the decree passed by the court below is still enforceable, the application of the decree holders to issue writ for allotment of share was rightly allowed by the learned court below and as such the same needs no interference.

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10. The writ petition being devoid of merit is accordingly dismissed.

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(Rajesh Shankar, J.)

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Manish

Sotam Kumar Ghosh v. Sapan Kumar Ghosh

Case brief

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Sotam Kumar Ghosh v. Sapan Kumar Ghosh

Case brief

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