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GAUHATI HIGH COURT
J.Sangma, J.
Nurun Nahar Begum -Appellant
Versus
MD.Samsul Haque Barua @ Sarujan -Respondent
Civil Revision No. 120 of 1983
Decided On : 15-11-1988
Execution of Decree - Land Dispute - The execution court was justified in issuing a writ of possession on the basis of the plaint as the suit was decreed in full. No decree was prepared on the basis of the judgment of the appellate court, but the court held that a decree in terms of the plaint would be executed.
Fact of the Case:
The opposite party brought a suit for title and joint possession over 10 Lechas of land, which was decreed in full by the appellate court. The petitioners filed objections under section 47 C.P.C. and sought time to adduce evidence, but the execution court rejected the prayer and fixed a date for reporting the execution of the decree.
Finding of the Court:
The court found that the execution court was justified in issuing a writ of possession on the basis of the plaint as the suit was decreed in full. It held that there was no illegality or material irregularity in the exercise of jurisdiction in passing the impugned order, and dismissed the revision with costs.
Issues: The issues involved the execution of a decree in a land dispute, the preparation of a formal decree based on the appellate court's judgment, and the petitioner's objection under section 47 C.P.C.
Ratio Decidendi: The execution court was justified in issuing a writ of possession on the basis of the plaint as the suit was decreed in full, and the absence of a formal decree based on the appellate court's judgment did not prevent the execution of the decree.
Final Decision: The revision was dismissed with costs, and the execution court's order to issue a writ of possession on the basis of the plaint was upheld.
2. The opposite party (decree-holder) brought a suit in the Court of Sadar Munsiff, Gauhati for title and joint possession over 10 Lechas of land out of 2 K 10 L covered by Dag No. 212 of village Sarania Mouza, Ulubari, Gauhati. That Court decreed the suit only in respect to 3½ Lechas. On appeal by the opposite party the appellate Court decreed the suit in full, i.e. for 10 Lechas but no formal decree was prepared on the basis of the appellate Court's judgment.
3. The opposite parties filed execution case in 1979. In the meantime the petitioners preferred a revision against the appellate Court's judgment. That was in Civil Revision No. 208 of 1980. In that revision the execution of decree was stayed. Ultimately the revision was dismissed on 20.3.83. Thereafter the opposite parties again filed execution case. Before the execution Court the petitioners filed objection under section 47 C.P.C. Thereafter he delayed the hearing of his objection by taking adjournment from time to time. On 7.5.83 the Execution Court directed delivery of possession on the basis of the plaint. On 15.6.83 the case was heard and the Court rejected the petitioner's prayer to allow him time to adduce evidence and fixed 8.7.83 for reporting the execution of the decree. However, on 18.6.83 the execution Court allowed the petitioners prayer to stay execution to enable him to file a revision under section 115 C.P.C.
4. Accordingly the petitioner filed the present revision and obtained stay in a Misc. Case. I have perused the revision petition. The point raised by the petitioners is that no decree was prepared on the basis of the judgment of appellate Court and that the opposite parties cannot take possession by demolishing structure. The Court passed order that a decree in terms of the plaint would be executed.
5. I find that the execution Court was justified in issuing writ of possession on the basis of the plaint as the suit was decreed in full. Hence, I see no illegality or material irregularity in the exercise of jurisdiction in passing the impugned order. The revision has no merit and it is dismissed with costs.
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