1. These two civil revisions are directed against a common judgment and order dated 27.3.95 of the learned Munsiff, Kailasahar, North Tripura, passed in Civil Misc. Case No. 26/89 and Civil Misc. Case No. 11/90 extending the period of execution of the decree dated 12.2.63 in Title Suit No. 47/62 and decree dated 28.10.65 in Title Suit No. 48/62 upto 8.7.89 and 12.9.90 respectively.
2. The facts, as recorded in the impugned judgment of the learned Munsiff, are that Suit No. 47/62 was instituted by one Akhil Chandra Ghosh against the-petitioner in Civil Revision No. 25/95, Sri Rajkishore Saha, for declaration of title, recovery of possession and for mesne profit and was decreed ex-parte on 12.2.63 Title Suit No. 48/62 was instituted by the said Akhil Chandra Ghosh against Smti Promodini Deb, the petitioner in Civil Revision No. 26/95, for declaration of title, recovery of possession and for mesne profit and was decreed exparte on 28.10.65 No execution proceedings were initiated for execution of the said two decrees within the respective periods of limitation. After expiry of the period of limitation, however, Execution (T) No. 9/89 was filed by the legal heirs of late Akhil Chandra Ghosh for execution of the ex parte decree in Title Suit No. 47/62 along with Civil Misc. No. 26/89 for extending the period of limitation upto the filing of the execution case on 8.7.89 under section 17(2) of the Limitation Act, 1963. Similarly, after the expiry of the period of limitation, Execution (T) No. 2/90 was filed for execution of the ex parte decree in Title Suit No. 48/62 along with Civil Misc. No. 11/90 for extending the period of limitation upto the filing of the said execution case on 12.9.90 under section 17(2) of the Limitation Act, 1962. By the common judgment dated 27.3.95, the learned Munsiff, Kailasahar, North Tripura, allowed the said Civil Misc. No. 26/89 and Misc. No. 11/90 and extended the period for execution of the two decrees upto 8.7.89 and 12.9.90 respectively. Aggrieved by the said judgment and order, Sri Raj Kishore Saha and Smti Promodini Deb have filed the present two civil revision petitions under section 115 of the Code of Civil Procedure. At the hearing of the civil revisions, Mr S. Deb, learned counsel appearing for the petitioners, contended that under section 17(2) of the Limitation Act, 1963, the Court has the jurisdiction to extend the period for execution of a decree only if the execution of the decree within the period of limitation is prevented by fraud by the judgment-debtor. In the petitions that were filed by the legal heirs of late Akhil Chandra Ghosh for extension of the period for execution of the decrees, particulars of fraud against the judgment-debtors, namely, Raj Kishore Saha and Smti Promodini Deb, were not stated contrary to the provisions of Order VI, Rule 4, C.P.C What has been pleaded in the said petitions in details is breach of trust committed by Sri Nani Gopal Ghosh, the eldest son of late Akhil Chandra Ghosh and the erstwhile Power of Attorney. The evidence that was led in support of the petitions also did not make out any case of fraud on the part of the judgment-debtors Sri Raj Kishore Saha and Smt. Promodini Deb. Similarly, the impugned judgment of the learned Munsiff would show that breach of trust had been committed by Nani Gopal Ghosh against his co-legal heirs, and no finding as such was recorded that any fraud was committed by the judgment-debtors, Sri Raj Kishore Saha and Smti. Promodini Deb, as a result of which the legal heirs of late Akhil Chandra Ghosh were prevented from executing the decrees within the period of limitation. Mr Deb vehemently argued that the only finding that was recorded against the judgment-debtors by the learned Munsiff in the impugned judgment is that there was collusion of Nani Gopal Ghosh with the judgment debtors and this finding was based on some rent receipts granted by Nani Gopal Ghosh in favour of the two judgment debtors in respect of the suit property. According to Mr Deb, from the issue of the said rent receipts by Nani Gopal Ghosh in favour of the judgment-debtors, no inference can be drawn that the judgment-debtors committed fraud as a result of which the legal heirs of late Akhil Chandra Ghosh were prevented from executing the decrees. It was next submitted by Mr Deb that Exhibit-1 would show that the heirs of late Akhil Chandra Ghosh executed a joint Power of Attorney on 9.2.65 appointing Shri Nani Gopal Ghosh and Sri Pannalal Ghosh, two sons of late Akhil Chandra Ghosh, as their constituted attorney empowering them to do all acts necessary in respect of the property of late Akhil Chandra Ghosh and the terms of the said Power of Attorney indicated that both the Attorneys or any one of them was/were empowered to carry out the activities indicated in the said Power of Attorney. This being the evidence on record, the court could not possibly come to a finding that the legal heirs of late Akhil Chandra Ghosh were prevented by fraud from executing the decrees within the period of limitation inasmuch as Pannalal Ghosh was equally empowered by the aforesaid Power of Attorney to execute the decrees independent of Nani Gopal Ghosh, the other Power of Attorney Holder. He further contended that in any case the evidence on record indicated that in 1973 the aforesaid Power of Attorney executed on 9.2.65 in favour of both Nani Gopal Ghosh and Pannalal Ghosh was revoked and a fresh Power of Attorney, was executed authorising only Panna Lai Ghosh to take various steps with regard to the property of late Akhil Chandra Ghosh. On such evidence on record, therefore, there coiild be no finding that the legal heirs of late Akhil Chandra Ghosh were prevented even after 1973 from executing the decrees against the judgments-debtors. Mr Deb, learned counsel appearing for the petitioners, relied on the judgments of the Supreme Court in the cases of Syed Shah Gulam Ghouse Mohiuddin v. Syed Shah Ahmad Mohiuddin Kamisul Qadri (dead) by his Legal Representatives, AIR 1951 SC 16, and Yeshwant Deorao v. Walchand Ramchand, (1971) 1 SCC 597 : AIR 1971 SC 2184, and, the judgment in the case of Giribala Choudhury v. Ushangiri Debi, reported in AIR 1955 Assam 177, for his submission that heavy onus was on the party alleging fraud to establish such fraud with all its particulars. Mr Deb contended that the rights of late Akhil Chandra Ghosh in respect of the properties in possession of the judgment-debtors are intermediary rights. But the intermediary rights in respect of Taluks have, however, been vested in the State Government with effect from 15.4.63 under section 135 of the Tripura Land Revenue and Land Reforms Act, 1960, and the decrees against the judgment-debtors are inexecutable. In support of this submission, Mr Deb relied on a judgment of the Supreme Court in the case of Sabitri Debi v. Sarat Chandra Rout, (1996) 3 SCC 301. Mr Deb further argued that the case of legal heirs of late Akhil Chandra Ghosh in the petitions for extension of the period of limitation under section 17(2) of the Limitation Act, 1963 was that they came to learn from the additional written statement filed by one Guru Charan Das filed on 10.8.87 about the decrees in the two suits and this being their admitted case, the period of limitation under section 17(2) of the Limitation Act, 1963 could not be extended upto 8.7.89 and 12.9.90 respectively. He contended that all these contentions were raised before the learned Munsiff, but no finding has been recorded on the same.
3. Mr. D Chakraborty, learned counsel appearing for the respondents, in reply contended that there was a clear finding recorded by the learned Munsiff in the impugned judgment that there was fraud committed by Nani Gopal Ghosh in collusion with the judgment-debtors, and this finding was borne out from the record, namely, rent receipts which were issued by Nani Gopal Ghosh in favour of the judgment-debtors and which were produced before the learned Munsiff and marked as Exhibits. He further argued that the said rent receipts were ante-dated though subsequently issued. According to law, fraud was not only perpetrated by Nani Gopal Ghosh but also by the judgment-debtors, Sri Raj Kishore Saha and Smti Promodini Deb, and as a result of such fraud the legal heirs of late Akhil Chandra Ghosh could not execute the decrees within the period of limitation, and the finding of the learned Munsiff in the impugned judgment was correct both in law and on facts. Regarding the contention of Mr Deb that the two decrees were not executable by virtue of section 135 of the Tripura Land Revenue and Land Reforms Act, 1960, Mr Chakraborty, learned counsel for the respondents, urged that under section 136 of the said Act, 1960, an intermediary is entitled to retain possession of some land, and the legal heirs of late Akhil Chandra Ghosh were entitled to the benefits under the said Act 136 of the Act, 1960. He sought to distinguish the facts of the present case from those in the case of Sabitri Devi v. Sarat Ch. Rout (supra) on which reliance was placed by Mr S. Deb, learned counsel appearing for the petitioners, and submitted that in that case before the Supreme Court decree was passed after vesting of the rights of intermediary in the State Government while in the present case decrees have been passed on 12.2.63 in Title Suit No. 47/62 while the rights of intermediary were vested in the Government on 15.4.63 In Title Suit No. 48/62, however, decree was passed on 28.10.65 after vesting of the rights of the intermediary in the State Government on 15.4.63 Mr Chakraborty contended that the question regarding executability of the decrees can still be raised by the judgment-debtors before the Executing Court and the Executing Court can decide the same under section. 47. of the Code of Civil Procedure. Mr Chakraborty vehemently argued relying on a decision of the Calcutta High Court in the case of R. Cambray & Co. v. Bishnu Banerjee, 1988 (1) CLJ 160, that the High Court will intervene in a revision only when there is jurisdictional error, and not otherwise. In the present case, according to Mr. Chakraborty, the learned counsel for the respondents, the learned Munsiff had the jurisdiction to extend the period of limitation under section 17(2) of the Limitation Act, 1963 and errors, if any, in law or fact committed by the learned Munsiff cannot be corrected in a revision under section 115 of the Code of Civil Procedure by the High Court. Finally, Mr Chakraborty placed reliance on an unreported judgment of the learned single Judge of this Court in the case of Jyoti Prakash Nag v. Panna Lal Ghosh (Civil Revision No. 54 of 1993) wherein the learned single Judge has declined to interfere with an order passed by the Assistant District Judge, Kailashahar, North Tripura, extending the period of limitation under section 17(2) of the Limitation Act, 1963, on the ground that there was no error of jurisdiction committed by the learned Assistant District Judge.
4. Mr Chakraborty, learned counsel appearing for the respondents, is right in his submission that in a revision under section 115 of the Code of Civil Procedure, the High Court can interfere with an order of subordinate court, if it suffers from jurisdictional error and not when error of law or fact however grave is committed by the subordinate court. But in the case of Pandurang Dhondi v. Maruli Hari Jadhav, AIR 1966 SC 153, the Supreme Court held:
“…It is conceivable that points of law may arise in proceedings instituted before subordinate courts which are related to questions of jurisdiction. It is well settled that a plea of limitation or a plea of resjudicata is a plea of law which concerns the jurisdiction of the court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the court and so an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of S. 115 of the Code.”
5. In the present case, I am concerned with the plea of limitation. A finding on the plea of limitation in favour of the judgment-debtors will oust the jurisdiction of the court to execute the decree. On the other hand, a finding in favour of the legal heirs of late Akhil Chandra Ghosh will confer jurisdiction on the court to execute the degrees against the judgment-debtors. In the present revisions under section 115 of the Code of Civil Procedure therefore the High Court can examine as to whether the learned Munsiff rightly assumed the jurisdiction to execute the decrees against the judgment-debtors under section 17(2) of the Limitation Act, 1963.
6. section 17(2) of the Limitation Act, 1963, is quoted hereinbelow:
“17(2) where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the court may, on the application of the judgment-creditor made after the expiry of the said period extend the period for execution of the decree or order:
Provided that such application is made within one year from the date of the discovery of the fraud or the cessation offeree, as the case may be”
7. A plain reading of the aforesaid sub-section (2) of section 17 makes it clear that the Court can extend the period for execution of a decree only where a judgment debtor has, by fraud or force, prevented the execution of a decree within the period of limitation. Thus before passing any order extending the period for execution of a decree the court has to be satisfied on the materials before it, and has to record a finding that the judgment-debtor has, by fraud or force, prevented the execution of the decree within the period of limitation. On a reading of the impugned common judgment, I find that the learned Munsiff has held that Nani Gopal Ghosh has committed breach of trust and misappropriated the property of the legal heirs of late Akhil Chandra Ghosh and concealed the two decrees as well as all the documents, and that it appeared from the recital of Exhibits-8 series, 9 series, 10 series and 11 series that there was collusion of Nani Gopal Ghosh with the judgment-debtors. From the perusal of the evidence of P.W Minati Bhattacharjee, Head Clerk of Kailashahar Sub-Registry Office, I find that the aforesaid Exhibits 8 series to 11 series are all certified copies of ‘Chuktipatra’ dated 7.10.66 executed by Nani Gopal Ghosh in favour of Raj Kishore Saha, Sale Deed dated 7.10.66 executed by Nani Gopal Ghosh in favour of Smti Promodini Deb, and ‘Ekramama’ dated 7.10.66 executed by Nani Gopal Ghosh in favour of Smti Promodini Deb. From the aforesaid documents (Exhibits 8 series to 11 series dated 7.10.66), an inference can be drawn by the Court that there was some collusion between Nani Gopal Ghosh and the two judgment debtors as a result of which the legal heirs of late Akhil Chandra Ghosh suffered loss and prejudice. But no inference can be drawn from the said documents dated 7.10.66 that throughout 12 years period of limitation from 12.2.63 to 12.2.75 in the case of decree dated 12.2.63 passed in Title Suit No. 47/62 and from 28.10.65 to 20.10.77 in the case of decree dated 28.10.66 passed in Title Suit No. 48/62, the execution of two decrees were prevented by fraud committed by the two judgment debtors. On the other hand, Pannalal Ghosh who was examined as P.W.1 on behalf of the legal heirs of late Akhil Chandra Ghosh has admitted in his evidence that the Power of Attorney in favour of Nani Gopal Ghosh was cancelled in the year 1973 and since then he has been looking after the property. If this be the admitted evidence, one fails to appreciate as to how the legal heirs of late Akhil Chandra Ghosh were prevented from executing the decrees during the periods 1973 to 1975 and 1975 to 1977 respectively on account of fraud perpetrated by Nani Gopal Ghosh in collusion with the two judgment-debtors on 7.10.66 There is, in fact, no finding in the impugned common judgment of the leanled Munsiff anywhere that the two judgment-debtors had, by fraud, prevented the execution of the two decrees within the period of limitation and in absence of any such finding, the learned Munsiff had no jurisdiction under sub-section (2) of section 17 of the Limitation Act, 1963, to extend the period for execution of the decrees upto 8.7.89 and 12.9.90 respectively
8. In view of my aforesaid finding, it is not necessary to go into other questions raised by the learned counsel appearing for the parties, and I set aside the impugned common judgment dated 27.3.95 of the learned Munsiff, Kailashahar, North Tripura, in Civil Misc. No. 26/89 arising out of Execution (T) No. 9/89 and Civil Misc No. 11/90 arising out of Exaction (T) No. 2/90, and allow the two revision petitions.
9. However, considering the entire facts and circumstances of the case, I leave the parties to bear their own costs.