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2017 Supreme(Pat) 619
IN THE HIGH COURT OF PATNA
MUNGESHWAR SAHOO, J.
Arun Kumar – Appellant
Versus
Shyampati Kuer and Ors. – Respondent
Civil Revision No. 2010 of 2006
Decided On : 28-03-2017
For the Appellant : Shaishav Kumar and Anil Kr. Singh
For the Respondents: Rakesh Kumar Srivastava, Jaswir Singh Arora, Ajay Kumar and Ravi Bhatia
The main legal point established in the judgment is that objections raised in an execution case must be within the purview of Section 47 of the CPC and should not lead to a de novo trial. The correctness of the judgment and decree can be tested before the appellate court.
Headnote:
CPC - Maintainability of Civil Revision - Section 47 - Article 227 - 115 - Summary of Acts and Sections: Section 47 CPC, Article 227 of the Constitution of India, Section 115 CPC - The court discussed the maintainability of the Civil Revision under Section 115 CPC and the option to convert it to an application under Article 227 of the Constitution of India. The court also considered the jurisdiction of the High Court to hear the matter under Article 227 and the impact of the Division Bench decision in the case of Durga Devi, 2010(2) PLJR 954.
Fact of the Case:
The decree holder respondents filed a suit for declaration of title to certain land. The suit was decreed in favor of the plaintiffs, and an execution case was filed for recovery of possession. The petitioner filed an objection petition in the execution case, alleging violation of natural justice and incorrect delivery of possession. The petitioner also raised a new question regarding the existence of a house on the land, which was not pleaded during the trial.
Finding of the Court:
The court found that the objection raised by the petitioner regarding the existence of a house on the land was a new question and dependent on facts, which should have been raised during the trial. The court held that allowing the objection would amount to a de novo trial, which is not permissible in an execution case. The court also emphasized that the correctness of the judgment and decree can be tested before the appellate court, and the objection raised by the petitioner was not within the purview of Section 47 of the CPC.
Issues: The issues included the maintainability of the Civil Revision under Section 115 CPC, the objection raised by the petitioner in the execution case, and the jurisdiction of the High Court to hear the matter under Article 227 of the Constitution of India.
Ratio Decidendi: The court held that the objection raised by the petitioner regarding the existence of a house on the land was a new question and dependent on facts, which should have been raised during the trial. The court also emphasized that the correctness of the judgment and decree can be tested before the appellate court, and the objection raised by the petitioner was not within the purview of Section 47 of the CPC.
Final Decision: The court dismissed the Civil Misc. application (Civil revision treated as Civil Misc. application) as it found no merit in the petitioner's objection.
MUNGESHWAR SAHOO, J.
1. I have already heard the learned counsel Mr. Jitendra Kishore Verma, for the petitioner and the learned senior counsel, Mr. J.S. Arora, for the Opposite Party. This Civil Revision application was admitted for hearing on 1.9.2015. However, at the time of hearing of this Civil Revision application, the learned counsel, Mr. J.S. Arora, for the Opposite Party raised objection regarding maintainability of this Civil Revision. According to the learned senior counsel, since by the impugned order dated 16.9.2006 passed by Sub-Judge-VI, Patna in Execution Case No. 1 of 2005, the objection petition filed by the petitioner under Section 47 CPC has been disposed of revision under Section 115 CPC will not be maintainable. The petitioner may, therefore, be directed to convert this Civil Revision application to an application under Article 227 of the Constitution of India.
2. On the other hand, the learned counsel, Mr. Verma, for the petitioner submitted that prior to admission in the year 2015 this objection was not raised by the other side. This Civil Revision is of the year 2006. Therefore, at the stage of hearing if the petitioner will convert this Civil Revision to a Civil Misc. application then it will only delay the disposal of the matter. Moreover, this Court has the jurisdiction to hear this Civil Revision application treating the Civil Revision as an application under Article 227 of the Constitution of India. The learned counsel submitted that directing the petitioner to convert to Civil Misc. application and then hearing in admission matter are all technical matter. Even if it is converted then also the High Court will hear the matter. Mere leveling the application will not matter anything. However, the learned counsel submitted that against the impugned order revision will not be maintainable which has finally been held by Division Bench of this Court in the case of Durga Devi, 2010(2) PLJR 954.
3. Heard the parties on merit also.
4. It appears that the decree holder respondents and others filed Title Suit Mo. 260 of 1986 praying for declaration that the plaintiffs have got absolute and exclusive title to the land in suit described in Schedule-II of the plaint and defendant 2nd party have no title to any portion of the same. The plaintiffs also prayed for declaration that the possession of defendant 1st party over Schedule-IV land and the possession, if any, of defendant 2nd party over any portion of the land in the suit is that of trespassers and they are liable to be evicted from Schedule-IV of the plaint. The petitioner, Arun Kumar, was one of the defendant 2nd party along with his brother Arvind Sharma.
5. The suit was contested by brother of the petitioner who was defendant 2nd party No. 7 and defendant No. 1, i.e., defendant 1st set. Ultimately, the suit was decreed in toto on contest against defendant Nos. 1 and 7 and ex parte against others.
6. The decree-holder respondent then filed Execution Case No. 1 of 2005 for recovery of possession of Schedule-I property. After delivery of possession affected by Nazir, report was submitted. At this stage, the objection was filed by the present petitioner who was numbered as judgment debtor No. 2 in the execution application. By the impugned order, the learned executing Court has rejected the objection application.
7. The learned counsel, Mr. Verma, submitted that an intervention application was filed by Chandra Kumar Pandey in the execution case. The executing Court heard the parties and by terms of order dated 9.9.2006 (Annexure-12), the executing Court fixed the date for 16.9.2006 for order on the said application but on 16.9.2006, the executing Court disposed of the objection petition filed by the petitioner without hearing the petitioner. Therefore, the impugned order violates the principle of natural justice. No opportunity was granted by the Court to place his grievance/objection and the executing Court relying on the report of Nazir, accepted it as go
