Judgment sc-s-2005-3-489-494

The Judgment of the Court was delivered by E ARIJIT PASAYA T, J. Leave granted.

Challenge in these appeals is to the judgment rendered by a Division Bench of the Calcutta High Court setting aside the order passed by a learned Single Judge and directing the parties to place their respective stands before F the Execution court as regards the claim made by respondent No. 1 in respect of the properties where it claimed to be the tenant.

Background facts in a nutshell are as follows:

Appellant filed a suit in the court of IV Additional Chief Judge, City G Civil Court, Hyderabad for recovery of Rs. 20,91,319 from respondent No. 2 a proprietary concern represented by its proprietor Dr. Ashok Kumar Gupta under Order 37 Rules 1 and 2 of the Code of Civil Procedure, 1908 (in short the 'CPC') inter alia with the following prayers:

(a) a decree for Rs. 20,91,319; H (b) and future interest at the agreed rate of 36% p.a. on the said

- 29.9.2000. Dr. Gupta was directed to deposit half of the decretal amount and costs within 8 weeks. Application was filed for extension of time to deposit the amount. However, no deposit was made. On 4.3.2003, fresh tabular statement along with supporting affidavits was filed by thP. appellant with the leave of G

the Court and copies were served on respondent No. 2-Dr. Gupta. In the tabular statement certain flats were shown as immovable properties to be brought to sale for satisfaction of the decree. By order dated 5.3.2003, a learned Single Judge directed attachment of the properties mentioned in H

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Against the said order, two appeals were filed before the Calcutta High F Court and as noted above, the High Court set aside the order of learned Single Judge. It was of the view that on the basis of affidavits it was not possible to say that transfer if any made by Dr. Gupta to the company is a fraudulent transfer and the matter has assumed the proportion of a full blown suit. Accordingly, it inter alia gave the following directions:

G "In these circumstances, it is not possible only on affidavits to say that the transfer, if any, made by Ashok to the company is of a fraudulent transfer which is voidable under Section 53 of the Transfer of Property Act and thereafter, the flats can be sold here and now even if these seem to be in the ostensible occupation, possession or tenancy of the incorporated company.

TC! FINANCE LTD. 1•. CALCUTIA MEDICAL CENTRE LTD. [PASAYAT, J.] 493

Our order and observations are made without prejudice. The matter has assumed the proportions of a full blown suit although a suit there shall not be put a trial on evidence in the execution Court itself on the basis of the 1976 amendments of the Code."

In response, learned counsel for respondent No. I submitted that what they were interested is not determination of any ownership rights. The company only claimed to be a tenant. Even if it is held that they were trespassers, they cannot be evicted except with due process of law.

The High Court's order is clearly unsustainable on more grounds that one. Respondent No. I claimed its tenancy from Mrs. Prema Gupta. Her application to be impleaded as a party in the present proceedings was rejected. At no point of time she had pressed a claim of being the owner of the property. It is to be noted that the appellant has not accepted that the respondent No. I was a tenant in respect of the attached properties. In any event, the question of tenancy cannot be decided by the Execution Court.

The Executing Court cannot go beyond the decree. It is the settled position in law which flows form Section 38 of CPC; except when the decree is a nullity or is without jurisdiction. The crucial expression in Section 47 is "All questions arising between the parties to the suit" "or their representatives". Order 21 Rule 54 deals with attachment of immovable property, while Rule 58 deals with adjudication of claims to, or objections to attachment of property. Case of respondent No. I is not covered by Section 47 or Order G 21 Rule 54 or Rule 58. The High Court misconceived the nature of claim set up by respondent No. I. Learned Single Judge rightly noted that respondent No. was not having independent right to the properties. It found that the right claimed was as assignee under the judgment debtor. The agreement, if any, in that regard was not produced before the Court and, therefore, learned Single Judge drew adverse inference. Before the Division Bench, the stand H

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A of respondent No. I 'Was that it was a tenant. Without indicating any reason as to how reasoning of learned Single Judge was wrong the Division Bench enlarged the scope of the controversy and directed the Execution Court to decide question of tenancy which is legally impermissible.

The Division Bench unnecessarily enlarged the scope of the controversy I B observing that the matter has assumed the proportion of a full blown suit. It permitted the Execution Court to deal with the matters which are clearly beyond the scope of its adjudication. We, therefore, set aside the impugned order of the Division Bench and affirm that of the learned Single Judge of the High Court. However, it is made clear that if the question of dis-possession C of respondent N-0. I arises, even if it is treated to be a trespasser the same can only be decided in accordance with law. With the aforesaid observations, the appeals are allowed but without any order as to costs.

K.K.T. Appeals allowed.