Shew Bux Mohata And Others vs Bengal Breweries Ltd. And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 58 of 1958

Decision Date: 15 September 1960

Coram: A.K. Sarkar, Syed Jaffer Imam, Raghubar Dayal

In this matter the Supreme Court of India, sitting on 15 September 1960, heard an appeal titled Shew Bux Mohata and Others versus Bengal Breweries Limited and Others. The bench comprised Justice A.K. Sarkar, Justice Syed Jaffer Imam and Justice Raghubar Dayal. The petitioners were the decree‑holders identified as Shew Bux Mohata and others, while the respondents were Bengal Breweries Limited together with additional parties. The appeal, recorded as Civil Appeal No. 58 of 1958, arose from a judgment and decree dated 5 April 1955 rendered by the Calcutta High Court in an appeal from Original Order No. 206 of 1953. That order itself stemmed from a judgment and order dated 20 May 1953 of the Fourth Additional Sub‑Judge at Alipore in Miscellaneous Case No. 15 of 1951. The case was cited as 1961 AIR 137, 1961 SCR (1) 680 and further referenced in subsequent reports. The principal issue involved execution proceedings concerning delivery of possession. The decree‑holders had earlier accepted delivery of possession under Order 21, Rule 35 of the Code of Civil Procedure and had issued a receipt to the Nazir of the Court confirming full possession. Nevertheless, they permitted the respondents, Bengal Breweries, to remain in possession with the respondents’ consent and consequently sought dismissal of the execution case on the ground that the decree had been fully executed. Subsequently the decree‑holders filed a fresh application for execution seeking eviction of the respondents, which the respondents contested under Section 47 of the Code of Civil Procedure, arguing that the decree had already been fully executed and that further execution was legally impermissible. The Court held that a decree‑holder may accept delivery of possession under the Code without the actual removal of the person in possession, and that such acceptance binds the decree‑holder to the position that the decree is fully executed, precluding any further execution. The Court further applied the principle from Saila Bala Dassi v. Nirmala Sundari Dassi, holding that a purchaser from the respondent, whose conveyance was made before the appeal, could be joined as a party to the appeal. The Court also approved the earlier decision in Maharaja Jagadish Nath Roy v. Nafay Chandra Paramanik. The judgment was delivered by Justice A.K. Sarkar on behalf of the bench.

In this case the appeal arose out of an execution proceeding that had been instituted by the decree‑holders. The appeal challenged a judgment of the Calcutta High Court which had set aside an order of a learned Subordinate Judge at Alipore. The Subordinate Judge had dismissed the objection raised by a judgment‑debtor to the execution of a decree. The High Court held that the decree in question had already been executed in full; consequently it considered the present execution proceedings to be incompetent and dismissed the decree‑holders’ petition for execution. The central issue that the appellate Court had to decide was whether the decree had, in fact, been executed completely.

The factual background was as follows. At some time prior to 1944 a woman identified as Sukeshwari Alied owned three parcels of land situated on the outskirts of Calcutta, which were designated as premises numbers 26, 27 and 28 on Dum Dum Cossipore Road. Upon her death she left a will appointing defendants numbered 1, 2 and 6 as executors of her estate. Those executors subsequently granted leases of the three parcels to defendants numbered 3, 4 and 5 respectively and placed the lessees in possession of the lands. A group of persons known as the Mohatas, whose interests were represented in the present appeal, claimed that Sukeshwari possessed only a life interest in the lands and that, upon her death, the ownership of the lands vested in them. Accordingly, the Mohatas alleged that the executors lacked any authority to grant the leases. On 15 September 1954 the Mohatas instituted a suit before the Subordinate Judge at Alipore seeking a decree that would declare the defendants to have no right to occupy the lands and that would grant them “khas” possession, which would entail evicting the defendants and removing any structures they had erected. On 30 March 1948 the Subordinate Judge delivered a decree granting “khas” possession to the Mohatas and directed the defendants to remove any structures they had placed on the lands within six months. The present appeal concerned the execution of that decree.

The decree was appealed against by defendant 3, whose appeal succeeded for reasons that were not recorded; the Court noted that further discussion of that appellant was unnecessary because no execution application had been filed against him and he remained in possession of premise 26. The executors, identified as defendants 1, 2 and 6, also appealed the decree, while the other two tenants, defendants 4 and 5, did not lodge any appeal. Of the two tenants, the Court focused only on defendant 4, Bengal Breweries Ltd., a company engaged in the distilling of liquor and yeast, which occupied premise 27 and had constructed a distillery factory there. Defendant 5 occupied premise 28, on which some temples stood. On 22 September 1948 the Mohatas, as decree‑holders, filed an application in the Subordinate Judge’s Court seeking execution of the decree against defendants 1, 2, 4, 5 and 6.

On 25 September, the learned Subordinate Judge issued an order in execution that directed the delivery of possession of premises numbers 27 and 28 to the decree‑holders. The order required that any person bound by the decree who refused to vacate the premises be removed, and it fixed 22 November as the date by which a return to the writ had to be made. On 28 September, the decree‑holders applied to the same judge for assistance from the police in carrying out the execution of the decree. The following day, 29 September, the defendants who were executors of the decree filed an application for a brief stay of execution so that they could obtain a stay order from the High Court. In addition, defendant number 4, the Bengal Breweries Ltd., submitted its own application seeking a stay of execution for two months in order to negotiate an arrangement with the decree‑holders during that period.

The decree‑holders assured the court that they would not proceed with execution until 2 p.m. on the following day, and consequently both petitions presented by the judgment‑debtors were adjourned to 30 September. On 30 September 1948, the learned Subordinate Judge heard the two petitions for stay. Regarding the petition filed by the executor defendants, the judge observed that under Order 41, Rule 5 of the Code of Civil Procedure he possessed no authority to stay execution, and therefore he dismissed that petition. The petition for time filed by defendant number 4 was also dismissed; however, the judge recorded an additional observation in his order, stating: “The decree‑holders undertake that they will allow the company to carry on normal business for six weeks from now by which time the company will settle the matter with the decree‑holders.” Later on the same day, the decree‑holders deposited with the court the costs necessary for police assistance in executing the decree, and the learned Subordinate Judge directed that the police be called upon to render such assistance on 1 October 1948.

Subsequently, on the same day, defendant number 4 filed another petition seeking a further stay of execution and also lodged a petition under Section 47 of the Code of Civil Procedure objecting to the execution. In that petition the company asserted that a tentative arrangement existed with the decree‑holders whereby it would pay a monthly rent of Rs. 150 and that it need not file any appeal to challenge the validity of the decree. The decree‑holders opposed these petitions. The learned Subordinate Judge did not pass any order on the new petitions at that time but adjourned them to 11 November 1948, indicating that the matters required further investigation.

On 1 October 1948, the Nazir of the Court, accompanied by several police officers, proceeded to premises numbers 27 and 28 to execute the decree in accordance with the writ. He found that the gate of premises number 27 was closed, but after requesting it, the manager of defendant number 4 opened the gate. The Nazir’s return recorded that the officers entered the factory house and delivered possession of each building at about 10:30 a.m. The return continued, noting that before the removal of furniture and other movable items, an amicable settlement was reached between the decree‑holders and the factory manager, whereby the factory would continue its normal business for six weeks while the executive body of the factory would negotiate a settlement with the decree‑holders, and some of the decree‑holders’ men would remain on the premises as guards.

The Nazir reported that, before any furniture or other movable items were removed from the factory buildings, the decree‑holders and the factory manager reached an amicable settlement. Under that settlement the factory was to continue its ordinary business for a period of six weeks, during which time the factory’s executive body would negotiate a final settlement with the decree‑holders. The agreement also provided that some men employed by the decree‑holders would remain on the premises as guards. The court record confirms that the decree‑holders’ guards were indeed posted on the premises following this arrangement. After completing the work at premises No. 27, the Nazir proceeded to premises No. 28. The return of the Nazir states that possession of premises No. 28, identified as the former No. 8 and consisting of two temples, was delivered to the decree‑holders. The return records the following wording: “Then we proceeded towards premises No. 28 (Old No. 8) consisting of two temples and found that the priest of the temple was present. He amicably came out of the compound and possession was delivered of the temples, lands, tanks and other plots mentioned in the writ.” On the same day, after possession had been handed over, the decree‑holders executed a receipt acknowledging that they had received possession. The receipt reads: “Received from Sri Bhabataran Banerjee, Naib Nazir, District Judge’s Court, Alipore, 24‑Parganas, delivery of possession of premises Nos. 7 and 8 (formerly Nos. 27 and 28) Dum Dum Cossipore Road in the above execution case, this day at 10‑30 a.m., including all buildings, tanks, gardens and temples, etc., all these mentioned in the writ in its schedule.” The receipt mistakenly refers to the premises as “formerly” Nos. 27 and 28, reflecting the numbering that was in use at the time of delivery.

At approximately 11:15 a.m. on 1 October 1948, the executor defendants applied to the High Court for a stay of execution in the appeal they had filed against the decree. The High Court granted an ad interim stay of execution. Relying on that stay, the executor defendants approached the learned Subordinate Judge later the same day seeking consequential orders. Acting on the verbal representation of counsel for the executor defendants, who explained that the High Court’s order had not yet been formally drafted and produced, the Subordinate Judge ordered a provisional recall of the writ, directing that it be reinstated on 5 November 1948 for fresh consideration unless a formal stay order was received in the interim. Subsequently, on 22 November 1948—the date fixed for filing the return of execution—the Subordinate Judge issued another order in the execution case. That order recorded that possession had been delivered and noted that a third party had filed an application under Order 21, Rule 100 of the Code of Civil Procedure. The judge directed that the execution proceedings be postponed until after the disposal of Miscellaneous Case No. 13 of 1948, which pertained to the third‑party application.

The miscellaneous case numbered 13 of 1948 arose from a petition presented by a third party under Order 21 Rule 100 of the Code of Civil Procedure, in which the third party contested his removal by the execution. That third party was identified as Bhairab Tewari, who appears to have claimed some right in premises No. 28. He made no claim to premises No. 27, which were held exclusively by defendant No. 4. An ad interim stay had been issued by the High Court on 1 October 1948 in the appeal filed by the executor‑defendants. That interim stay proceeded to a final hearing, resulting in an order dated 21 January 1949. The order provided that if any costs remained unpaid, defendant No. 4 (the client of Mr Sen) was required to deposit the amount in the lower court within one month from the date of the order. Thereafter, defendant No. 4 was given three months from that date to remove the machinery and to vacate the portion of the land in suit that he was occupying as a lessee and was presently using as a brewery. The order further stated that, in the event of failure to make the deposit or to vacate the premises as directed, the rule would stand discharged. The order clarified that delivery of possession would not be stayed with respect to any other item in which defendant No. 4, defendant No. 1, or any other defendant, except defendant No. 3, had an interest. The record of appearances for that order did not show any appearance made by defendant No. 4 in connection with it. The court records do not reveal what further proceedings, if any, were taken in the appeal by the executor‑defendants, but it is agreed that the appeal was dismissed on 8 September 1954. Defendant No. 4 did not vacate the premises at the end of the three‑month period specified in the 21 January 1949 order. Subsequently, the parties instituted proceedings in criminal courts under section 144 of the Code of Criminal Procedure and other related provisions. Those criminal proceedings are not detailed, and it suffices to note that they did not affect the possession of premises No. 27 by defendant No. 4, who continued to occupy it until United Bank of India Ltd. later took over possession, as will be described later. On 8 September 1949, the learned Subordinate Judge rendered an order in the execution case stating, “Decree‑holder takes no other steps. Possession so far as regards the Bengal Breweries are concerned, delivered. Ordered that the execution case be dismissed on part satisfaction.” On 27 September 1951, the decree‑holders filed a fresh application for execution against defendant No. 4 alone, seeking to evict him from premises No. 27. Defendant No. 4 raised an objection to that execution under section 47 of the Code, contending that, with respect to him, the decree had already been fully executed as a result of the earlier execution proceedings that had terminated by the September 1949 order, and that further execution was therefore impermissible.

In this matter the objection raised by defendant No 4 on September 8 1949 claimed that the decree had already been fully executed as a result of the earlier execution proceedings and that any further execution would be legally impermissible; that objection gave rise to the present appeal and the core question for determination was whether the objection to execution was valid. The learned Subordinate Judge had rejected the objection, but on appeal the High Court set aside the Subordinate Judge’s order and dismissed the petition for execution. The High Court subsequently granted a certificate for appeal to this Court on June 15 1956 and, on August 3 1956, issued an order directing that the appeal be admitted. Later, on August 11 1960, this Court issued an order adding three persons—Mool Chand Sethia, Tola Ram Sethia and Hulas Chand Bothra—as respondents to the appeal, while expressly reserving to the decree‑holders the right to challenge the locus standi of those added parties. At the hearing only those newly added parties appeared to contest the appeal, and the appellants raised a preliminary objection contending that the added parties lacked locus standi and therefore could not be heard. It further emerged that defendant No 4 had executed three successive mortgages over premises No 27, including all structures and appurtenances, in favour of a bank named the Coming Banking Corporation Ltd.; the first mortgage was executed on May 25 1944 and the subsequent two were executed after the ejectment suit had been filed but before that suit was decreed. The assets of the Coming Banking Corporation Ltd. later vested in United Bank Limited. In 1953 United Bank instituted a suit for enforcement of those mortgages, and on May 30 1955 a final mortgage decree was rendered in its favour. The mortgaged properties were auctioned on July 20 1956, purchased by United Bank, and the mortgage sale was confirmed on March 1 1958, after which United Bank took possession of premises No 27. On July 13 1960 United Bank conveyed premises No 27 together with all structures, appurtenances and its entire right, title and interest therein to the three added respondents, and by virtue of that conveyance the added respondents obtained the order of this Court dated August 11 1960 making them parties to the appeal. Defendant No 4, identified as Bengal Breweries Ltd., is now in liquidation, has not entered an appearance in this appeal, and has taken no steps to defend it. The Court is of the view that the addition of the respondents to the record was proper, a position supported by the decision in Saila Bala Dassi v. Nirmala Sundari Dassi, where it was held that an appeal is a proceeding within the meaning of section 146 of the Code of Civil Procedure and that the right to continue an appeal extends to a purchaser who acquires the appellant’s interest before the appeal is decided. Applying the same principle, the Court concludes that the added respondents were rightly brought onto the appeal record. It is not disputed that once a decree has been fully executed against defendant No 4, it cannot be executed again with respect to premises No 27; consequently, if possession of the premises was duly delivered to the decree‑holders in execution of the decree on October 1 1948, the decree was wholly satisfied and no further enforcement is possible. The decree, being for specific possession, required delivery of that possession to the decree‑holders under Order 21, rule 35 of the Code, which could involve removal of any person bound by the decree who refused to vacate, and the records of the proceedings demonstrate that such possession was indeed delivered.

In the earlier appeal the appellant asserted a claim, and on that basis a purchaser who had bought the property from the appellant before the appeal was entered into the record of the appeal. Applying the same reasoning, the Court considered that the additional respondents in the present case were likewise properly joined to the proceedings. It was not contested that once the decree had been fully executed against Defendant No. 4, it could not be executed again in respect of premises No. 27. Put differently, because possession of the premises had been completely handed over to the decree‑holders on 1 October 1948, the decree was deemed wholly satisfied and there was nothing left to enforce through a further execution. The decree provided for khas possession, and under Order 21, Rule 35 of the Code, execution required that possession of the specified property be delivered to the decree‑holders, removing any person bound by the decree who refused to vacate, if such removal was necessary. The case records, as reported in the 1958 Supreme Court Reporter, demonstrate that this possession was indeed delivered. Defendant No. 4 was the occupier of the property and was subject to the decree. An order dated 8 September 1949 expressly stated, “Possession so far as regards the Bengal Breweries are concerned, delivered,” thereby binding the decree‑holders. No party alleged that this order was erroneous, nor was any effort made to set it aside or challenge its correctness. A similar situation existed with the order of 22 November 1948, which recorded in the Nazir’s return that possession had been delivered pursuant to the writ. Furthermore, the order of 9 September 1949 included the direction, “Ordered that the execution case be dismissed on part satisfaction.” The phrase “part satisfaction” in that order did not signify a partial fulfillment against Defendant No. 4, because the order expressly confirmed that possession concerning the Bengal Breweries had been delivered. Consequently, the decree was fully satisfied with respect to Bengal Breweries Ltd., and therefore also with respect to premises No. 27 that it occupied. Even the learned Subordinate Judge, who held that the execution was maintainable, acknowledged that the decree‑holders had unquestionably obtained possession earlier. Nevertheless, that judge concluded that the decree could still be executed, reasoning that at the High Court hearing on 21 January 1949, Defendant No. 4 “must have ignored the delivery of possession by the Naib Nazir and cannot now be heard to say that the delivery of possession by the Naib Nazir was legal and valid.” The Court, however, could not agree with that view. It was true that the Nazir’s return indicated that Defendant No. 4 had not been physically removed from the premises, but the same return also revealed the circumstances surrounding that fact.

It also indicated that defendant No. 4 had not been removed because an arrangement had been reached between that defendant and the decree‑holders, and because the decree‑holders had not demanded that defendant No. 4 be taken away from the premises. Under Order 21, Rule 35, a person who is in possession and bound by the decree may be removed only when such removal is necessary, that is, only when it is required to give the decree‑holder the possession to which he is entitled and which he requests. If the decree‑holder does not wish the person to be removed, the removal is not necessary. The decree‑holder is therefore entitled to accept delivery of possession pursuant to that rule even though the person in possession is not physically removed. If the decree‑holder does so, he cannot later claim that he has not been given the possession to which he was legally entitled. This exact situation occurred in the present matter. The decree‑holders themselves accepted delivery of possession while allowing defendant No. 4 to remain on the premises with their permission. They executed a receipt that acknowledged full delivery of possession. On the basis of that receipt, they allowed the execution proceedings to be dismissed on 8 September 1949, holding that full possession had been delivered to them by defendant No. 4. The fact that they stationed their own guards on the premises, as recorded in the Nazir’s return, further demonstrates that they had obtained full possession. The decree‑holders were therefore free to accept such possession. Having done so, they became bound by the conclusion that the decree had been fully executed, and consequently the decree could not be executed again. A similar circumstance was considered in Maharaja Jagadish Nath Roy v. Nafar Chandra Parmanik, where the court held that the decree was not capable of further execution. At page 15 of that judgment the court observed: “The case, therefore, seems to me to be one of those cases in which a decree‑holder having armed himself with a decree for khas possession executes that decree in the first instance by obtaining symbolical possession only with some ulterior object of his own, and thereafter subsequently and as a second instalment asks for khas possession. The question is whether such a course is permissible under the law. I am of opinion that it is not.” The present Court fully agrees with that view. Counsel for the appellants argued that the order dated 30 September 1948, reported in (1) (1930) 35 C.W.N. 12, showed that the decree‑holders had undertaken to allow defendant No. 4 to continue normal business for six weeks. Accordingly, when they proceeded to execute the decree on 1 October 1948, they were not seeking to execute it in full by removing defendant No. 4 from possession. Counsel further asserted that the execution on 1 October 1948 was therefore incomplete because defendant No. 4 had not been removed as required by the undertaking given on 29 September 1948.

The Court observed that it could not interpret the order dated September 8 1949, nor the Nazir’s return and the receipt issued by the decree‑holders, in a manner that contradicted the plain meaning of their language because of the alleged undertaking. It further noted that the decree‑holders never claimed that the order, the Nazir’s return or the receipt were erroneous or based on any misunderstanding, and that the legality or correctness of any of those documents had never been, and was not now, contested. Consequently, the Court held that the September 8 1949 order bound the decree‑holders and that they could not now disregard its terms. For the same reason, the decree‑holders were equally bound by the order of November 22 1948, which, in accordance with the Nazir’s return, recorded that possession had been delivered. The Court further reasoned that, had the undertaking intended that Defendant No 4 was not to be removed from possession, the execution of the decree would necessarily have been stayed, but no stay was entered because the only viable method of executing the decree required removal of Defendant No 4, who alone remained in actual possession while the executor defendants claimed merely rent as landlord. Moreover, the order containing the undertaking expressly stated that the request by Defendant No 4 for a stay of execution was refused. In addition, the order sheet showed that immediately after the undertaking was recorded, another order on the same day acknowledged receipt of police costs incurred in assisting the execution and directed that the police could be approached for any necessary help on October 1 1948, the date of the decree’s execution. The only way to reconcile all the orders, the return and the receipt, was to conclude that the undertaking signified that, after taking possession, the decree‑holders would permit Defendant No 4 to continue its business on the premises for six weeks with their permission, a stipulation that did not imply an intention to refrain from removing Defendant No 4 from possession.

The Court rejected the Solicitor‑General’s contention that the six‑week limitation in the undertaking demonstrated that the decree‑holders were not allowing Defendant No 4 to remain in possession after having obtained possession, because no period would have been mentioned otherwise. The Court stated that there was nothing to prevent the decree‑holders, once they had lawfully obtained possession under the decree, from granting Defendant No 4 permission to remain in possession for any duration they deemed appropriate, whether six weeks, a longer period, or a shorter one. Accordingly, the Court found the argument untenable. The Solicitor‑General further alleged that the case involved a partial execution of the decree on one day, followed by a cessation of execution on that same day for lack of time or other reason, with the intention of resuming execution later. The Court, however, was not persuaded by this submission, as the subsequent orders and documents on record did not support the notion of a temporary interruption followed by a later continuation of the same execution.

In this case, the Court examined whether the decree could be resumed after an interruption caused by a lapse of time or another reason, with the intention of continuing execution on a later day. The Court noted that, if such a situation existed, nothing would prevent the decree from being executed subsequently. However, the Court found that the present matter did not fall within that category, because the orders and documents placed on record contradicted that view. The Court observed that the later execution was not a continuation of the earlier execution but constituted a fresh execution, since the interruption had lasted for more than two years. The Court further reasoned that the decree‑holders could have placed their own guards on the premises only on the basis that they had already taken possession. Although the learned Solicitor‑General claimed that the guards had been positioned with the permission of defendant No. 4, the return of the Nazir entirely refuted that allegation. The Court found it difficult to understand why defendant No. 4 would allow the decree‑holders’ guards on the premises unless the permission was based on the fact that possession had already passed to the decree‑holders and the guards were meant to protect that possession. The guards were later removed, but the records did not disclose the circumstances of their removal.

The Court then considered whether the order dated 1 October 1948 aided the decree‑holders. That order directed a provisional recall of the writ, but the Court held the order to be wholly ineffective because the writ had already been duly executed before the order was issued. The learned Subordinate Judge had reached the same conclusion, and the execution records confirmed that a writ could not be recalled after it had been fully executed. Consequently, the order did not demonstrate that the decree had been executed only in part; the writ had not been recalled prior to full execution. Similarly, the order of 8 September 1949 made it impossible to argue that the writ was recalled after a partial execution.

Finally, the Court addressed the argument based on the High Court order of 21 January 1949. The learned Solicitor‑General asserted that this order indicated that the decree had not been executed by removing defendant No. 4 from possession, characterising the order as effectively a stay of execution. It was further alleged that the order rested on a representation by defendant No. 4 and a finding that the decree had not been carried out by ousting defendant No. 4. The contention was that such a finding and representation bound defendant No. 4 and the additional respondents, preventing them from later asserting that the decree had been fully executed. The Court found both contentions to be unfounded and concluded that the order did not support the Solicitor‑General’s position.

In this case the order dated 21 January 1949 was described as far from clear. The Court had previously noted that the order contained no indication that defendant No 4 had requested any stay of execution. Defendant No 4 had not filed an appeal against the decree and therefore was not entitled to a stay of its execution. Nevertheless, defendant No 4 remained in possession of the premises by virtue of permission granted by the decree‑holders. That permission was originally limited to six weeks, a period that had expired when the executor‑defendants obtained an ad interim stay from the High Court on 1 October 1948. That interim order proved ineffective because, forty‑five minutes before it was issued, the decree had already been executed in full. Consequently, on 21 January 1949 the Court, perhaps at the request of defendant No 4, allowed three months for the defendant to vacate the premises. Such a request, if it existed, did not assert that the decree had not been fully executed; at most it suggested that the original six‑week permission might be extended. Regarding the alternative argument that the 21 January 1949 order amounted to a finding that the decree had not been fully executed, the Court observed that no such finding appeared on its face. The order was issued in an interlocutory proceeding and served only to aid the final decision in the appeal. That proceeding did not decide the question of whether the decree had already been executed in full, and therefore no finding on that issue could be inferred from the order. Accordingly, the order did not, in the Court’s view, prevent the added respondents from maintaining that the decree had been fully executed. As a result the appeal was dismissed, and the Court declined to make any order as to costs.