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2017 Supreme(Gau) 126
IN THE HIGH COURT OF GAUHATI ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH
KALYAN RAI SURANA, J.
Dipen Mitra & 7 Ors. - Petitioners
Vs.
On the death of Arbinda Kar, his legal heirs - Smt. Dulu Kar & 5 Ors.- Respondents
CRP No. 111 of 2014
Decided On : 10-02-2017
For the Petitioners:Mr. B. Chakraborty, Mr. U. Das, Ms. R. Devi, Ms. S. Sarma, Advocates
For the Respondents: Mr. U.K. Das, Ms. M. Sharma
Headnote:
Constitution of India , 1950 - Article 227 - Code of Civil Procedure - Section 47 - Order IX and XX - Rule 9 and 13 - Suit premises - Eviction - Decreed - Application has been filed is judgment debtor in which was filed by to execute an ex-parte decree dated passed by learned civil Judge - Order impugned herein is order dated passed in said execution case, on an application filed under section 47 of Code of Civil Procedure - It would be sufficient to mention herein that predecessor-in- interest of substituted respondents had obtained an ex-parte decree as stated herein before - After predecessor-in- interest of petitioners came to know about passing of said ex-parte decree for his eviction from suit premises he by unsuccessfully filed an application - Present respondents herein had filed an objection against execution under section 47 CPC, claiming that decree was in-executable as land covered by decree was not identifiable - Said application was registered - Learned Civil Judge by an order dated inter-alia, held that suit land is identifiabl no ambiguity was seen in decree and decree is to be executed if it is executable – Held, Learned counsel for both sides and upon perusal of materials available on record, this court is of view that as learned Civil Judge, Nagaon has already taken note of order dated passed by this Court in and learned court has also recorded in impugned order dated that decree shall be executed as per decree - Therefore, this court is of considered view that there are no grounds for petitioners to object to execution at this stage because in so far as decree is concerned same has attained finality - This court is of opinion that when the decree is for recovery of immovable property decree is liable to be drawn as per provisions of Order XX Rule 9 CPC - If on basis of the decree so drawn up, learned executing court is satisfied that decree can be executed, it would not be open for this court exercising superintending jurisdiction - Court does not find any material to show that learned executing court would execute decree beyond scope of decree - Similarly, it is premature to arrive at a conclusion that learned executing court would execute decree on land not covered by decree or if decree is found to be in-executable - It is needless to mention that as per impugned order, it appears that learned court below is mindful of order - Revision is found devoid of any merit and same is dismissed.
1. Heard Mr. B. Chakraborty, learned counsel for the petitioner as well as Mr. U.K. Das, learned counsel for the respondents No. 1 & 2. None appears for the other respondents although service on them is complete.
2. The petitioner in this application has been filed under Article 227 of the Constitution of India is the judgment debtor in T. Ex. Case No. 15/2002, which was filed by Arabinda Kar (since deceased) to execute an ex-parte decree dated 26.03.2002, passed by the learned civil Judge, Nagaon in T.S. No. 51/2000. The order impugned herein is the order dated 01.03.2014, passed in the said execution case, on an application filed under section 47 of the Code of Civil Procedure. The present respondents herein are the legal representatives of the original sole respondent i.e. Arabinda Kar.
3. Without referring to the case of the respondents herein in the suit, it would be sufficient to mention herein that the predecessor-in- interest of the substituted respondents had obtained an ex-parte decree as stated herein before. After the predecessor-in- interest of the petitioners came to know about the passing of the said ex-parte decree for his eviction from the suit premises, he by unsuccessfully filed an application under Order IX Rule 13 CPC, which was dismissed. No appeal was preferred and hence, the ex-parte decree dated 26.03.2002 passed in T.S. No. 51/2000 has attained finality.
4. At the execution stage, the predecessor-in- interest of the present respondents herein had filed an objection against execution under section 47 CPC, claiming that the decree was in-executable as the land covered by the decree was not identifiable. The said application was registered as Misc. (J) Case No. 26/2012. The learned Civil Judge, Nagaon, by an order dated 26.11.2012, inter-alia, held that (i) the suit land is identifiable, (ii) no ambiguity was seen in the decree, and (iii) the decree is to be executed if it is executable.
5. The said order was challenged before this Court by filing CRP No. 566/12, wherein this court by an order dated 19.03.2013 passed the following direction (operative part) – “Considering the matter in its entirety, I dispose of this application with a direction to the learned trial court to examine as to whether the decree passed in T.S. No. 51/2000 is executable or not and thereafter proceed with the matter in accordance with the law. Accordingly, in terms of the above, the matter is remitted to the trial court for doing the needful as directed. With the above observation and direction, this revision petition is disposed of.”
6. The learned executing court, by its order dated 28.06.2013 once again held that the decree was executable. However, when the Civil Nazir visited the suit land with Lat Mandal and Police, he could not identify the suit land and the Warrant of Execution was returned. The said report, as annexed to the revision application is extracted herein below:-
“Freehand English Translation from Assamese”
“May it please you Honor:
With due respect, it is hereby stated that in order to perform the work of T.Ex. No. 15/02 on 20.07.13 along with lat mandal and police the undersigned were present in the suit land and asked the lat-mandal to identify the suit land. But the lat-mandal, after verifying the records, informed me that the land mentioned in the schedule of the suit the land covered by patta No. 169 (old) of Sonai Bali Kisamat of Rangagara Kisamat as previously A.P. Patta No. 15, Dag No. 860 (New) and there is nothing in his record about the land covered by A.P. Patta No. 15. As the patta no. is not correct as per record and there is no resemblance therewith so the suit land could not be identified and hence this report has been submitted. Since the suit land could not be identified, so the task of the warrant of execution could not be done. For necessary action this report has been submitted. Along with this report, report of Lat-Mandal is also enclosed herewith. The warrant of execution is
