JUDGMENT :

Shampa Sarkar, J. - The revisional application has been filed against an order dated April 8, 2022 passed by learned Civil Judge (Junior Division), 5th Court, Alipore, South 24 Parganas in Misc. Case No.83 of 2017 arising out of Title Execution Case No.5 of 2004. The Misc. Case No.83 of 2017 is an application under section 47 of the Code of Civil Procedure.

2. The petitioner contended that the decree could not be executed and the Title Execution Case No.5 of 2004 should be dismissed on the ground that deed of gift dated September 5, 1986 executed by the father of the plaintiff and the defendant, had not been acted upon. The fact that the defendant was allowed to continue to reside in the premises as a licensee was also not correct. In the plaint, the date of grant of such leave and licence in favour of the defendant, by the plaintiff, had not been mentioned. The fact that other persons were also residing in such premises had not been disclosed. The evidence of PW1 was not enough for passing a decree in the suit for recovery of khas possession upon eviction of a licensee. As both the plaintiff and the defendant were heirs of Late Satish Chandra Paul, the relationship between the two should have been determined before the decree of eviction was passed.

3. The petitioner also wanted to incorporate certain facts by way of an amendment in the Misc. Case No.83 of 2017.

4. The learned court below rejected the Misc. Case No.83 of 2017 along with the application for amendment, inter alia, holding that the earlier application under section 47 of the Code of Civil Procedure being Misc. Case 33 of 2005 filed by the petitioner under Order 21, Rule 97, 99, 100 and 101 read with section 47 of the Code of Civil Procedure had been rejected. Upon evidence adduced by both the parties and upon consideration of the documents, the learned court below was pleased to dismiss the earlier misc case, negating the contentions of the judgment debtor with regard to the inexecutability of the decree.

5. The fact that the petitioner, as a plaintiff, also filed Title Suit No.178 of 2006 for declaration and injunction, and the suit, upon contested hearing, was dismissed with costs was also one of the grounds for rejection of Misc Case 83 of 2017.

6. The present misc. case had been instituted on the self-same grounds, which were already rejected by the executing court while disposing of the Misc. Case No.33 of 2005.

7. By an amendment, the petitioner wanted to introduce a new fact in the Misc Case 83 of 2017, with regard to execution of a Will. Such fact was not a part of the written statement filed in the Title Suit No.151 of 1992. No evidence was adduced on this point.

8. The learned court found that the decree had attained finality in 1993 and since then the decree holder has not been able to enjoy the fruits of the decree. The application under section 47 of the Code of Civil Procedure was a futile attempt by the judgment debtor to delay the execution proceeding. The court found that such frivolous application should not be allowed as it would encourage a recalcitrant litigant to perpetuate the litigation, endlessly. The application was dismissed as it was specifically found that the said application was a classic example of abuse of process of court.

9. Mr. Ray, learned advocate appearing for the petitioner submits that the decree was obtained by fraud as the petitioner had not mutated her name in the records of Kolkata Municipal Corporation, although she had claimed to have done so. On such ground alone, the decree being a nullity could not be executed.

10. Reliance has been placed on the property