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2017 Supreme(Gau) 312
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, ARUNACHAL PRADESH AND MIZORAM
KALYAN RAI SURANA, J.
Smt. Kunti Choudhury and Ors. – Petitioners
Versus
Sri. Nitai Patra and Ors. – Respondents
CRP 184 of 2010
Decided On : 20-04-2017
For the Petitioner:Mr. D P Chaliha, Ms. S M Choudhury, Mr. B Banerjee, Ms. C Mazumdar Advocates
For the Respondent:Mr. D Saikia, Mrs. A Verma, Mr. R Bora, Mr. B Gogoi Advocates
Headnote:
Constitution of India, 1950 - Article 227 – Civil Procedure Code, 1908 - Section 47 – Land dispute - Decreed - Filed for recovery of possession - Petitioners are the plaintiffs in Title Suit No and said suit was filed for recovery of possession of suit land described in Schedule-‘Kha’ of plaint and for declaration of their right - Suit was allowed by judgment and decree dated by declaring plaintiffs’ right over suit land and for recovery of possession of Schedule-‘Kha’ suit land in favour of plaintiffs - Respondents herein did not file any appeal judgment and decree as aforesaid had attained finality - However, when decree was put into execution by filing Title Execution Case - Petitioners submits that pursuant to orders passed by learned trial court, a local inspection was made to identify the suit land and pursuant to that, a memorandum was prepared on and only thereafter suit was decreed as aforesaid - It is submitted that thereafter the petitioner herein again filed a petition No. 253 dated under Order XXVI Rule 9 of CPC in the execution case for appointment of a Survey Commission for purposes of identification of decreetal property as the Bailiff of the Court had submitted a report that suit land is unidentifiable due to non mentioning of Dag No. in decree – Held, Court does not find any infirmity in the impugned order dated because in the decree there was absence of the Dag No. and Patta No. and the learned Executing Court was correct in not signing the writ to Bailiff for possession containing the Dag No. and Patta No. as same was not available in decree - This is so because learned Executing Court cannot go behind the decree - deficiencies in decree of not mentioning the Dag No. and Patta No. could have been permitted to be corrected in exercise of powers vested in the court under Section 152 of CPC for incorporating the Dag No. and Patta No. in decree - Mistake of not mentioning Dag No and Patta no. in decree is not in consonance with the provisions of Order XX Rule 9 of Civil Procedure Code, which ought not to be allowed to frustrate lawfully passed decree - Court is of the view that it would be appropriate for the petitioner to approach the learned Executing Court and to file an appropriate application under appropriate provisions of law for correcting the decree by incorporating the Dag No. and Patta No. therein - On such application being made, it would be appropriate for learned court below to exercise jurisdiction under Section 152 of the Civil Procedure Code in accordance with law - Revision is therefore dismissed
Heard Ms. C Mazumdar, learned counsel for the petitioners. None appear on call for the respondents.
1. As per order dated 30.5.2016, the notices have been duly served. By filing this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 23.4.2010 passed by the learned Munsiff, Kaliabor in Title Execution Case No. 5(K)/2008.
2. It is submitted that the petitioners are the plaintiffs in Title Suit No. 2(K)/2005 and the said suit was filed for recovery of possession of the suit land described in Schedule-‘Kha’ of the plaint and for declaration of their right. The said suit was allowed by judgment and decree dated 21.12.2008 by declaring the plaintiffs’ right over the suit land and for recovery of possession of the Schedule-‘Kha’ suit land in favour of the plaintiffs. The respondents herein did not file any appeal and the judgment and decree as aforesaid had attained finality. However, when the decree was put into execution by filing Title Execution Case No. 5(K)/2008, the respondents filed an objection under Section 47 of the CPC. However, the said objection was dismissed by the learned Munsiff, Kaliabor by an order dated 21.12.2008 passed in Title Execution Case No. 5(K)/2008. It is projected that in the proceeding of the suit, and an application was filed by the petitioner under Order XXVI Rule 9 read with Section 151 of the CPC for appointment of a Survey Commission for the purposes of identification of the suit property.
3. The learned counsel for the petitioners submits that pursuant to the orders passed by the learned trial court, a local inspection was made to identify the suit land and pursuant to that, a memorandum was prepared on 19.8.2006, and only thereafter the suit was decreed as aforesaid on 21.12.2006. It is submitted that thereafter the petitioner herein again filed a petition No. 253 dated 18.7.2009 under Order XXVI Rule 9 of the CPC in the execution case for appointment of a Survey Commission for the purposes of identification of the decreetal property as the Bailiff of the Court had submitted a report that the suit land is unidentifiable due to non mentioning of the Dag No. in the decree. However, the learned Executing Court by order dated 4.9.2009 dismissed the said application. The said order dated 4.9.2009 was challenged before this Court by the petitioner by filing CRP 357/2009. This court by order dated 23.11.2009 was pleased to set aside and quash the said order dated 4.9.2009 passed by the learned Executing Court with a direction to the said learned court to re-consider the petition filed by the petitioner under Order XXVI Rule 9, praying for appointment for a Survey Commission, further directing the said learned court to hear the matter afresh and pass appropriate order within a period of 3 (three) weeks from the date receipt of the order. Thereafter, the learned Executing Court issued a warrant for Survey Commission. Thereafter, the learned Circle Officer, Kaliabor Revenue Circle by letter under Memo No. Ka.Cha 14/2008/1489 dated 10.2.2010 submitted the report of the Commission by mentioning that the house was situated on 4 katha 18 lechas of land under Dag No. 41 of Patta No. Kismat/1874/F.S. of Salna Tea Company and that the houses were half built with brick without roof and there were two frames of window facing towards the west and doors were facing towards the south, and a cut pipe on the floor of the house is also there, and that towards the north of the house another G-I sheeted house is situated where the decree holder, her husband and three others are residing. Thereafter, the learned executing court by an order dated 23.4.2010 rejected the prayer of the petitioner herein on the ground that on perusal of the report of the Survey Commission, Kaliabor Revenue Circle, though indicated the Dag No. as being Dag No. 41, but the court found it difficult to put signature on the writ as Dag No. has not been mentioned in the plaint. T
