TaxTMI 
TaxTMI 
2025 (1) TMI 1582
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....ing rise to this appeal may be summarised as under: i. In 1965, the predecessor-in-interest of the decree holders herein instituted a Title Suit No. 25 of 1965 for confirmation of possession and in the alternative for recovery of possession based on title to the suit land and for permanent injunction. The respondents herein are the legal heirs of the original plaintiffs of the Title Suit No. 25 of 1965 referred to above. The Subordinate Judge 2nd Court, Hooghly decreed the suit vide the judgment and decree dated 26.06.1976. The operative part of the decree reads thus: "Considering the facts, circumstances and evidence on record I, therefore, hold that the plaintiff has been able to establish his title to the suit properties and possession follows title and the defendant has failed to prove his alleged title. So he had no occasion to disturb plaintiffs possession of the suit properties. The plaintiff is therefore, entitled to have a declaration of title and confirmation of possession and injunction with respect to peaceful possession of the suit properties against the defendants. The suit is also maintainable, issue nos.2 to 5 are thus disposed of with a ....
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.... 3: Anup Kumar Ghoshal son of Shri Swapan Ghoshal 4: Sri Arup Kumar Ghoshal 5: Sri Guru Charan Ghoshal father of 4 & 5 Sri Dilip Kumar Ghoshal 6: Sri Rabindra Nath Ghoshal son of Shri Asit Kurriar Ghoshal all residents of Harihar Post Debkhand PS Goghat District Hooghly 1/ Jaidev Mallick 2/ Mahadev Mallick 3/ Bhoot Mallick aka Bhudev Mallick aka Sahadev Mallick 4/ Laxman Chandra Mallick all S/o Late Nagendranath Mallick all resident of Harlhar, Post Debkhand PS Goghat, District Hooghly. 26/06/1976 AD Civil Appeal No. 214/1976 Settlement 10/06/1980 -no- -no- -no- -no- 1/Shri Jaydev Mallick 2/ Mahadev Mallick 3(Bhoot Mallick aka Bhudev Mallick aka Sahadev Mallick 4/ Laxman Chandra Mallick all S/o Nagendranath Mallick all resident of Harihar, Post Debkhand PS Go ghat, District Hooghly. The defendants/debtors wilfully defying the Permanent Restraining order of the Court and creating obstacles to the peaceful possession of the plaintiff decree holder's property by the heirs of the plaintiff decree holder. Therefore, the instant petition is being field with the prayer that the Defendants/Debtors mus....
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....cree holders have filed several cases before the Ld. Executive Magistrate and In almost every case the possession of the Judgement debtors have been confirmed. 5. That the decree holders in order to snatch possession of the suit properties from the judgement debtors have filed the instant petition at this belated stage knowing very well that they never possessed the property. Moreover the decree holders in several applications have stated that they did not have possession over the suit properties. 6. That unless the truth regarding the possession comes before the Ld. Court the Instant execution Is not maintainable. 7. That the decree holders are putting forth claim on the basis of erroneous record of rights whereas the judgement debtors have come to own the suit properties by virtue of purchase. The judgement debtors have much better title than the decree holders which can be ascertained by seeking evidence. 8. That since the, decree holders did not clash possession over the suit properties the judgement debtors have been openly, as of their own right, uninterruptedly, without any protest from the decree holders have been possessing the suit tank....
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....llants herein (judgment debtors) shall be arrested and detained in civil prison for a period of 30 days and their property be attached in accordance with law. xi. The order passed by the Civil Judge referred to above reads thus: "Order No. 21 dated 04.09.2019 The plaintiffs file hazira. The fact of the case in short is that this is a case for execution of permanent injunction passed by the Ld. Second Court of the Subordinate Judge, Hooghly, in T.S. No. 25 of 1965. The plaintiffs of the original suit got the decree of permanent injunction in the form of permanent restrainment of the defendant/judgment debtors from disturbing possession of the plaintiffs in the suit property as well as the property over which the execution is prayed for. The present petitioners are the legal heirs of the deceased Chota Chandicharan Ghoshal i.e. the original plaintiff of the said T.S. 25 of 1965. The present execution case, prays in made by execution application dated 25.11.2017, praying for execution of contested judgment and decree in T.S. no.25/1965, dated 26.06.1976, of the Ld. Second Court of the. Subordinate Judge, Hoogly. It is averred in t....
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....gh Court vide its impugned order dated 23.09.2019 rejected the revision application and thereby affirmed the order passed by the Civil Judge referred to above. xiv. The High Court in its impugned order observed thus: "The present challenge is directed at the behest of the judgment-debtors of a decree for permanent injunction. Learned counsel appearing for the petitioners argues that in view of the application filed for arrest and detention in civil prison of the petitioners, the same ought to have been - governed under Order XXI Rule 11A of the Code of Civil Procedure, which, it is argued, contemplates an affidavit being filed, stating the ground on which arrest is applied for. In the absence of such an affidavit in the present case, the executing court acted without jurisdiction in allowing the execution case. The next contention of learned counsel for the petitioners is that the petitioners' written objection to the application for execution was not accepted due to delay, which was challenged in a civil revisional application before this Court. Although the petitioners prayed for stay of the execution case in view of pendency of an applicat....
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.... committed an egregious error in passing the impugned order. He submitted that the execution petition itself was not maintainable at the instance of the respondents after a lapse of almost 40 years from the date of passing of the decree of declaration and permanent injunction. 9. He submitted that the Civil Judge committed a serious error in directing arrest of the appellants herein and their detention in civil prison for a period of 30 days with further order to attach their property. 10. The main bone of contention canvassed on behalf of the appellants herein is that the respondents had not filed any petition along with an affidavit as the same is a mandatory requirement under Order XXI Rule 11-A of the Code of Civil Procedure, 1908 (for short, "the Code"). 11. He further submitted that the aforesaid aspect came to be overlooked even by the High Court while rejecting the revision application. 12. The learned counsel in the last submitted that the High Court should have at least permitted the appellants herein to file their written objections to the execution case. 13. In such circumstances referred to above, the learned counsel prayed that there being merit in his ....
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....execution by detention in prison shall not be ordered unless, after giving the judgment- debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied- (a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,- (i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or (ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or (b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or (c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account. Explanation.-In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account any property which, by or unde....
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....e specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced 1 [in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction] by his detention in the civil prison, or by the attachment of his property, or by both. (2) Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court, by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention. (3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for 2 [six months,] if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decree holder such ....
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....ment-debtor, it shall state, or be accompanied by an affidavit stating, the grounds on which arrest is applied for." 33. The proviso to Section 51, as inserted by the Code of Civil Procedure (Amendment) Act, 1936 (Act 21 of 1936) limited the grounds on which a judgment-debtor could be arrested or detained. 34. The Law Commission considered the amendment of 1936 and stated:- "This is new. Since Section 51, proviso, now limits the grounds on which a judgment-debtor can be arrested (after the 1936 amendment), it is desirable to provide that the application under Order XXI, Rule 11 should state the grounds on which arrest is sought for. This will assist the court in taking action under Order XXI, Rule 37 (notice to show cause), and also further proceedings under Order XXI, Rule 40. It has been held that the existence of the circumstances mentioned in Section 51, proviso (a) to (c) should be alleged either in the execution application or in an accompanying affidavit. Unless such a circumstance is alleged (it was pointed out), the court cannot think of the circumstances and, in its absence, the court cannot take action under XXI, Rule 37." 35. Rule 11-A states that wher....
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....been refused, the attachment shall cease." 7. In this case, since the attachment was made for enforcement of the perpetual injunction and mandatory injunction, the decree is required to be complied with. In case he did not obey the injunction under Clause (1) of Order 32, the judgment-debtor is liable to detention in the civil prison and also to proceed against the property under attachment." (Emphasis supplied) 38. The High Court of Rajasthan in Maga Ram And Another v. Kana Ram And Others reported in AIR 1993 Rajasthan 208, held as under : "3. A perusal of the decree under execution shows that it was for mandatory as well as for prohibitory injunction. It stood satisfied so far it concerned with mandatory part of the injunction by the removal of the encroachment existing on the disputed land on the date on which it was passed. The decree in respect of prohibitory injunction was subsisting even after the disposal of first and second execution applications. The third execution application has been moved for the execution of the decree in respect of the prohibitory injunction. It is perfectly executable under O. XXI, R. 32, C.P.C. 4. There is also no ....
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....o plead specifically as to when and in what manner he has been dispossessed. This Court finds this argument to be noted only to be rejected. The provisions of sub Rule (5) Rule 32 of Order 21 CPC do not prescribe any such condition. Rather, Order 21 Rule 32 CPC prescribes that for execution of a decree if any act is required to be done by the judgment debtor, the Executing Court can order that such an act be done by the judgment debtor; as claimed. Sub Rule (5) Rule 32 of Order 21 CPC has been interpreted by the Supreme Court in various judgments viz. "Samee Khan vs. Bindu Khan, 1998(4) RCR(Civil) 125 (SC)" to mean that in an execution proceedings of a decree for injunction, if it is found that the decree holder has been dispossessed after the date of decree, the restoration of possession can also be ordered by the Executing Court. Hence, it is no more res-integra that in execution of a decree for injunction, even restoration of possession can be ordered by the Executing Court. This view has also been taken by this court in 'Kapoor Singh vs. Om Parkash, 2009(4) PLR 178'. Hence, no fault can be found, per-se, with the action of the Executing Court in issuing warrants of poss....
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....be dealt with under this rule by his imprisonment or by attachment of his property or by both. But the court has to record a finding that the judgment-debtor wilfully disobeyed or failed to comply with the decree in spite of opportunity afforded to him. Absence of such finding is a serious infirmity vitiating the order. 46. Each breach of injunction is independent and actionable in law making the judgment-debtor answerable. Where there are successive breaches of decree, the judgment-debtor can be dealt with on every such breach and the doctrine of res judicata has no application. The court is expected to take strict view and stern action. (See : Code of Civil Procedure, 1908 by Justice C.K. Thakker, 2009 Edn.) 47. However, the point for our consideration in the present appeal is whether the executing court adopted the correct procedure before passing the order directing that the appellants herein be arrested and detained in civil prison for a period of 30 days and that their property be attached. 48. Sub-rule (1) of Rule 32 of Order XXI of the Code, in so far it is material for the present discussion, reads thus:- "Where the party against whom a decree ...............
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....the Court about its need. (See : Shivamurthy Mahalingappa Kuchanaur v. Dannammadevi Cycle Mart, Rabakavi, AIR 1987 Karnataka 26). 51. In the instant case, the executing court has proceeded to make the order of arrest, detention in a civil prison for a period of 30 days and attachment of property against the appellants herein when there was absolutely no material placed by the respondents herein to satisfy it that the appellants have had an opportunity of obeying the decree for injunction, but have wilfully disobeyed it. In fact, the order of arrest and detention made by the executing court is based on a surmise that the respondents (decree-holders) have levelled allegations that the appellants herein are interfering with their peaceful possession of the property in question and in this regard, few complaints of breaches made to the police were placed before the executing court. 52. The executing court proceeded merely on the basis of the assertions made by the respondents that the appellants herein are trying to interfere with their peaceful possession of the suit property without any further inquiry into the matter. We do not propose to go into the question whether a separat....
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....ing a jurisdiction, not vested in it by law or failing to exercise a jurisdiction so vested, a case for revision arises under Sub-section (a) or Sub-section (b) and Sub section (c) can be ignored." 55. If, therefore, an error, be it an error of fact or of law, is such that the erroneous decision has resulted in the subordinate Court or tribunal exercising jurisdiction, not vested in it by law, or in its having failed to exercise jurisdiction, vested in it by law, that will come within the scope of Section 115 of the Code or, for the matter of that, of Article 227 of the Constitution, as the case may be. This error may have resulted from a violation of rules of natural justice, by taking into consideration matters which are extraneous and irrelevant, or by substituting judicial consideration by bias, based on suspicion, arising from those extraneous matters or from any other cause whatsoever but if it has affected the assumption or exercise of jurisdiction, as envisaged above, it will be a jurisdictional error for purposes of the above Article. 56. There is no exhaustive list of jurisdictional errors, but case law has identified such an error exists when a decision- maker has:....
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....o have accepted that any "jurisdictional error" as understood in the liberal or modern approach, laid down therein, makes a decision ultra vires or a nullity or without jurisdiction and the "ouster clauses" are construed restrictively, and such provisions whatever their stringent language be, have been held, not to prevent challenge on the ground that the decision is ultra vires and being a complete nullity, it is not a decision within the meaning of the Act. The concept of jurisdiction has acquired "new dimensions". The original or pure theory of jurisdiction means "the authority to decide" and it is determinable at the commencement and not at the conclusion of the enquiry. The said approach has been given a go-by in Anisminic case [(1969) 2 AC 147 : (1969) 1 All ER 208 : (1969) 2 WLR 163, HL] as we shall see from the discussion hereinafter [see De Smith, Woolf and Jowell -Judicial Review of Administrative Action (1995 Edn.) p. 238; Halsbury's Laws of England (4th Edn.) p. 114, para 67, footnote (9)]. As Sir William Wade observes in his book, Administrative Law (7th Edn.), 1994, at p. 299: "The tribunal must not only have jurisdiction at the outset, but must retain it....
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....rements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive.' In the same case, Lord Pearce said: 'Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an enquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage while engaged on a proper enquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its enquiry into something not directed by Parliament an....
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....82 : (1967) 2 All ER 986] ). Whereas the 'pure' theory of jurisdiction would reduce jurisdictional control to a vanishing point, the adoption of a narrower meaning might result in a more useful legal concept even though the formal structure of law may lose something of its logical symmetry. 'At bottom the problem of defining the concept of jurisdiction for purpose of judicial review has been one of public policy rather than one of logic'. [S.A. Smith, 'Judicial Review of Administrative Action, 2nd Edn., p. 98. (1968 Edn.)]" The observation of the learned author, (S.A. De Smith) was continued in its 3rd Edn. (1973) at p. 98 and in its 4th Edn. (1980) at p. 112 of the book. The observation aforesaid was based on the then prevailing academic opinion only as is seen from the footnotes. It should be stated that the said observation is omitted from the latest edition of the book De Smith, Woolf and Jowell - Judicial Review of Administrative Action - 5th Edn. (1995) as is evident from p. 229; probably due to later developments in the law and the academic opinion that has emerged due to the change in the perspective. 335. After 1980, the decision in Anisminic case [(1969)....
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....rtually every error of law is a jurisdictional error, and the only place left for non-jurisdictional error is where the components of the decision made by the inferior body included matters of fact and policy as well as law, or where the error was evidential (concerning for example the burden of proof or admission of evidence). Perhaps the most precise indication of jurisdictional error is that advanced by Lord Diplock in Racal Communications [1981 AC 374 : (1980) 2 All ER 634 : (1980) 3 WLR 181, HL], when he suggested that a tribunal is entitled to make an error when the matter 'involves, as many do interrelated questions of law, fact and degree'. Thus it was for the county court judge in Pearlman [Pearlman v. Keepers and Governors of Harrow School, (1979) 1 All ER 365 : (1978) 3 WLR 736] to decide whether the installation of central heating in a dwelling amounted to a 'structural alteration, extension or addition'. This was a 'typical question of mixed law, fact and degree which only a scholiast would think it appropriate to dissect into two separate questions, one for decision by the superior court, viz., the meaning of these words, a question which must entail considerations of....
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....tion in construing statutes which confer jurisdiction or discretionary powers on a body, that if that body makes an error of law while purporting to act within that jurisdiction or in exercising those powers, its decision or action will exceed the jurisdiction conferred and will be quashed. The error must be one on which the decision or action depends. An error of law going to jurisdiction may be committed by a body which fails to follow the proper procedure required by law, which takes legally irrelevant considerations into account, or which fails to take relevant considerations into account, or which asks itself and answers the wrong question. (pp. 119-120) The presumption that error of law goes to jurisdiction may be rebutted on the construction of a particular statute, so that the relevant body will not exceed its jurisdiction by going wrong in law. Previously, the courts were more likely to find that errors of law were within jurisdiction; but with the modern approach errors of law will be held to fall within a body's jurisdiction only in exceptional cases. The courts will generally assume that their expertise in determining the principles of law applicable in any....
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....decisive error, because all errors of law are now jurisdictional." 58. For the benefit of the High Courts across the country, we may refer to a very erudite article authored by Krystal Cunning- ham-Foran, a legal expert working as a senior associate in Colin Biggers & Paisley's Planning Government Infrastructure & Environment group, on the topic "Jurisdictional Error". The learned author has discussed a judgment rendered by the High Court of Australia setting out practical guidance for establishing juris- dictional error in the context of judicial review proceedings in respect of a decision about the revocation of a decision to can- cel a visa. Article reads thus:- "The case of LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs reported in [2024] HCA 12 concerned judicial review proceedings in the High Court of Australia (High Court) in which the High Court provided practical guidance about the threshold of materiality in the context of jurisdictional error. The test for establishing jurisdictional error is two-fold. Firstly, it must be established that an error occurred and secondly, the error must be material such tha....
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....or makes an erroneous finding or reaches a mistaken conclusion. Two-part test for jurisdictional error Not every breach of an express or implied condition of making a decision will render the decision no decision at all. The limits imposed by the relevant statute on the making of a decision must be understood to determine the following: ● "...Whether an error has occurred (that is, whether there has been a breach of an express or im- plied condition of the statutory conferral of decision-making authority)..." ● "...Whether any such error is jurisdictional (that is, whether the error has resulted in the decision made lacking legal force)." Practical guidance for considering jurisdictional error The High Court stated the following practical guidance in respect of the test for jurisdictional error: ● Both parts of the test start with a consideration of the statute to understand the nature of the alleged error in its statutory context. ● Both parts of the test are backward-looking in that they are answered having regard to the decision that was made, and if necessary, how that decis....
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....Full Court of the Federal Court of Australia, and ordered the issue of a writ of certiorari quashing the Tribunal's decision and a writ of mandamus directing the Tribunal to determine the Appellant's request for revocation of the Cancellation Decision according to law." (Emphasis supplied) 59. Before we close this matter, we would like to put a question to the executing court as to why it did not deem fit to afford one opportunity of hearing to the appellants herein? What would have happened if the executing court would have permitted the appellants herein to place their written objections on record? It is true that there was some delay on the part of the appeal lants herein in responding to the summons issued by it, but at the same time, having regard to the severe consequences, the executing court should have been a little more considerate while declining even to take the objections on record and give one opportunity of hearing to the appellants before passing the order of arrest, detention in a civil prison and attachment of the property. This aspect unfortunately has been overlooked even by the High Court while affirming the order passed by the executing court. Th....