TaxTMI 
TaxTMI 
2025 (1) TMI 1582
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.... 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 remarks that there is no need for consideration of alternative pr....
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....i 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 must be stopped from creating obstacles to the peaceful possession of the property by the heirs of the decree holders and the order/direction may also kindly be issued for sending the Defendants/Debtors to....
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....m 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 since purchase and later on since 10.06.1980 i.e. from the date of disposal of the appeal case. The decree holders are thus stopped from putting forth illegal claim over the suit properties. Without taking due process of law the Ld. Court and in absence of due proceedi....
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....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 the application that the Jdrs. are willfully, in violation of the decree, disturbing the peaceful possession of the Dhrs upon decretal property and thus it is necessary to execute the same by relief of Civil Jail as well as attachment and sale of the properties of Jdrs. In argument Ld. Counsel for the Dhr Submits that they were granted a conte....
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....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 application for extension of stay granted in the previous revisional application, the executing court acted in hot haste in passing the impugned order, which was thus vitiated on such ground as well. Learned counsel appearing for the decree-Holders, on the other hand, points out that the previous revisional application challenging the non-acceptance of written objection by the present petitioners was dismissed by....
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....ttach 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 appeal the same may be allowed and the impugned order passed by the High Court and also the one passed by the civil court in execution case be set aside. SUBMISSIONS ON BEHALF OF THE RESPONDENTS (DECREE HOLDERS) 14. On the other hand, Mrs. Lalita Kaushik, the learned counsel appearing for the respondents vehemently submitted that no error not to speak of any error of law could be said to have been committed by the High Court in passing the impugned order. 15. The learned ....
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...., 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 under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree." 20. There is no substantial change in the above quoted Section by the Amendment Act of 1976 except addition of words "for such period not exceeding the period specified in Section 58 where arrest and detention is permissible under that section" in Clause (c). In the unamended Section, there was no provision as to the period for which a debtor may be detained in a civil prison. That lacuna is now removed by the addition of this clause. The ....
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....een 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 compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application. (4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of 2 [six months] from the date of the attachment no application to have the property sold has been made, or if made has been refused, the attachment shall cease. (5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, dire....
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....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 where an application is made for the arrest and detention of the judgment-debtor, it must state or accompanied by an affidavit - specifying the grounds on which arrest is sought. Rule 11-A of Order 21 is in conformity with the substantive provisions of proviso to Section 51 of the Code. Stating of grounds or filing of affidavit is essential. The provision is thus mandatory and unless it is complied with, no arrest or detention of the judgment-debtor can be ordered. But if the requisite affidavit is not filed by the decree-holder, the court should afford an opportunity to him to file such affidavit. 36. It is well settled that a decree of permanent....
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....ood 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 substance in the second objection relating to limitation. Art. 136, Limitation Act, deals with the limitation for execution of decrees other than a decree granting mandatory injunction. The limitation is 12 years from the date the decree becomes enforceable. The decree for prohibitory injunction become enforceable when the judgement- debtors made fresh encroachment on the disputed land. The decree under execution itself was passed on September 20, 1983. As such the third execution application was well within limitation." (Emphasis supplied) 39. The High Court of Bombay in the case of Shri Benedito (Betty) Dias v. Armando Benedita Fernandes reported in 2017(4) AIR Bom. R 381, held as un....
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....een 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 possession in the execution proceedings." (Emphasis supplied) 41. Having regard to the dictum of law as laid in the aforesaid decisions, there is no force in the argument of the learned counsel appearing for the appellants that the execution case could not have been instituted by the respondents herein after a period of 40 years from the date of passing of the decree in the original Title Suit. The decree for permanent injunction can be enforced or becomes enforceable when the judgment debtor tries to disturb the peaceful possession of the decree holder or tries to dispossess the decree holder in some manner or the other or creates obstruction in the peaceful enjoyment of the property over which he has a declaration of....
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....ur 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 ................ 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 .. in the case of a decree .. for an injunction by his detention in the civil prison .................." 49. The sub-rule, as seen from its clear and explicit language, provides that a decree for injunction passed against a party could be enforced by his detention in a civil prison, if he has wilfully failed to obey such decree despite having had an opportunity of obeying it. In other words, the sub-rule, no doubt, enables a holder of a decree for injunction to seek its execution from the executing Court by requiring it to order the detention of the person bound by the decree, in a civil prison. But, the ....
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....roperty 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 separate affidavit should have been filed by the respondents herein along with the application preferred before the executing court levelling allegations of breach of the permanent injunction. JURISDICTIONAL ERROR 53. We are a bit disappointed with the manner in which the High Court dealt with the present litigation, more particularly while deciding the revision application filed by the appellants herein against the order passed by the executing court. All that the High Court has said in one line is that it did not find any jurisdictional error in the order passed by the executing court ordering arrest, detention in a civil prison and attachment of the property of the appellants. We fail to understand, why the High Court was not able to see the gross error in the ....
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....udicial 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: ● identified a wrong issue; ● asked a wrong question; ● ignored relevant material; ● relied on irrelevant material; ● failed to observe a requirement of procedural fairness; ● made a decision involving fraud; ● made a decision in bad faith; ● made a decision without evidence; ● applied a policy inflexibly. 57. The concept of jurisdiction has been drastically expanded after the decision of the House of Lords in Anisminic v. The Foreign Compensation Commission, 1967(2) AER 986. Now, every error of law is a jurisdictional error. If a decisive fact is wrongly understood, even then, the decision will be outside jurisdiction. This concept is best explained by K.S. Paripoornan, J., in His Lordship's separ....
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....e 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 unimpaired until it has discharged its task." The decision in Anisminic case [(1949) 76 IA 244 : AIR 1949 PC 297] [(1949) 76 IA 244 : AIR 1949 PC 297] has been cited with approval in a number of cases by this Court: citation of a few such cases - Union of India v. Tarachand Gupta & Bros. [(1971) 1 SCC 486 : AIR 1971 SC 1558] (AIR at p. 1565), A.R. Antulay v. R.S. Nayak [(1988) 2 SCC 602 : 1988 SCC (Cri) 372] (SCC at p. 650), R.B. Shreeram Durga Prasad and Fatehchand Nursing Das v. Settlement Commission (IT & WT) [(1989) 1 SCC 628 : 1989 SCC (Tax) 124] (SCC at p. 634), N. Parthasarathy v. Controller of Capital Issues [(1991) 3 SCC 153] (SCC at p. 195), Associated Engineering Co. v. Govt. of A.P. [(1991) 4 SCC 93 : AIR 1992 SC 232], Shiv Kumar Chadha v. Municipal Corpn. of Delhi [(1993) 3 SCC 161] (SCC at p. 173). Delivering the judgment of a two-Me....
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....y, 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 and fail to make the enquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity.' 11. The dicta of the majority of the House of Lords, in the above case would show the extent to which 'lack' and 'excess' of jurisdiction have been assimilated or, in other words, the extent to which we have moved away from the traditional concept of 'jurisdiction'. The effect of the dicta in that case is to reduce the difference between jurisdictional error and error of law within jurisdiction almost to vanishing point. The practical effect of the decision is that any error of law can be reckoned as jurisdictional. This comes perilously close to saying that there is jurisdiction if the decision is right in law but none if it is wrong. Almost any misconstruction of a statute can be represented as 'basing their decision on a matter with which they have ....
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....ell - 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) 2 AC 147 : (1969) 1 All ER 208 : (1969) 2 WLR 163, HL] came up for further consideration before the House of Lords, Privy Council and other courts. The three leading decisions of the House of Lords wherein Anisminic principle was followed and explained, are the following: Racal Communications Ltd., In re [1981 AC 374 : (1980) 2 All ER 634 : (1980) 3 WLR 181, HL], O'Reilly v. Mackman [(1983) 2 AC 237 : (1982) 3 All ER 1124 : (1982) 3 WLR 1096, HL], Re. v. Hull University Visitor [1993 AC 682 : (1993) 1 All ER 97 : (1992) 3 WLR 1112, HL] . It should be noted that Racal, In re case [(1968) 3 SCR 662 : AIR 1969 SC 78 : (1968) 22 STC 416] [(1964) 6 SCR 261 : AIR 1964 SC 1006 : (1964) 15 STC 450] the Anisminic principle was held to be inapplicable in the case of (superior) court where the decision of the court is made final and conclusive by the statute. (The superior court referred to in this decision is the Hi....
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.... 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 degree, and the other for decision by a county court, viz., the application of words to the particular installation, a question which also entails considerations of degree. It is, however, doubtful whether any test of jurisdictional error will prove satisfactory. The distinction between jurisdictional and non-jurisdictional error is ultimately based upon foundations of sand. Much of the superstructure has already crumbled. What re- mains is likely quickly to fall away as the courts rightly insist that all administrative action should be, simply, lawful, whether or not jurisdictionally lawful." 336. The jurisdictional control exercised by superior courts over subordinate courts, tribunals or other statutory bodies and the scope and content of such power has been pithily stated in Halsbury's Laws of England - 4th Edn. (Reissue), 1989 Vol. 1(1), p. 113 to the following effect: "The inferior court or tribun....
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....ith 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 case has not been excluded by Parliament.(p. 120) Errors of law include misinterpretation of a statute or any other legal document or a rule of common law; asking oneself and answering the wrong question, taking irrelevant considerations into account or failing to take relevant considerations into account when purporting to apply the law to the facts; admitting inadmissible evidence or rejecting admissible and relevant evidence; exercising a discretion on the basis of incorrect legal principles; giving reasons which disclose faulty legal reasoning or which are inadequate to fulfil an express duty to give reasons, and misdirecting oneself as to the burden of proof." (pp. 121-122) 337. H.W.R. Wade and C.F. Forsyth in their book -Ad- ministrative Law, 7th Edn., (1994) - discuss the subject regarding the jurisdiction of superior courts over subordinate courts and tribunals under the head "Jurisdiction over Fact and Law" in Chapter 9, pp. 284 to 320. The de....
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....al error is two-fold. Firstly, it must be established that an error occurred and secondly, the error must be material such that the decision affected by error could realistically have been different if there was no error. The practical guidance provided by the High Court in respect of this test is set out in this article. The judicial review proceedings relevantly concerned an allegation that the decision of the Administrative Appeals Tribunal (Tribunal) in respect of a decision made under section 501CA(4) of the Migration Act 1958 (Cth) (Migration Act) about the revocation of a decision to cancel the Appellant's visa (Cancellation Decision) was affected by jurisdictional error. There was no dispute that the Tribunal's decision involved an error because the Tribunal did not comply with a direction of the Minister in relation to the revocation of a mandatory cancellation of a visa under section 501CA (Direction) in breach of section 499(2A) of the Migration Act. In respect of the materiality of the error, the High Court held that the decision reached by the Tribunal could have been different if there was no error and thus the threshold of materiality was met. The....
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....y, how that decision was made. ● Whilst the applicant has the onus of proof on the balance of probabilities, proving the facts ought not be difficult or contentious. In some cases the tendering of the decision-maker's reasons is sufficient, whereas in others, for example those involving an allegation of a denial of procedural fairness, may require evidence of the content or information re- quired to be provided to the decision-maker. ● To establish materiality, it is not necessary that absent the error a different decision "would" have been made, rather it is whether a different decision "could realistically" have been made. The High Court observed that "realistic" is used to distinguish a possible different outcome from an outcome that is fanciful or improbable. ● The threshold of materiality is not onerous or demanding. What must be demonstrated to meet the threshold depends upon the error. A Court in deter- mining whether the threshold is met must not assume the function of the decision-maker and fall into a merits review of the decision made. ● Once the applicant establishes an error and that there is a realistic possibility of a different....