Point of Law : Decree for eviction - when the suit in relation to an immovable property is decreed and the property is not definitely identified, the defect in the court record caused by overlooking of provisions contained in Order VII Rule 3 and Order XX Rule 3 CPC is capable of being cured.

JUDGMENT :

DEVASHIS BARUAH, J.

1. Heard Mr. N.C. Das, learned Senior counsel assisted by Ms. M. Borah, learned counsel for the petitioner and Mr. R.S. Mishra, learned counsel appearing on behalf of the respondent.

2. This application had been filed under Section 115 of the Code of Civil Procedure (for short ‘the Code’) challenging the orders dated 30.07.2016 passed in Misc. (J) Case No. 63/2012 and 11.01.2018 passed in Misc. (J) Case No. 135/2016, both arising out of Title Execution Case No. 21/2009 by the Court of Munsiff No. 1, Dibrugarh, which is the Executing Court.

3. The brief facts of the instant case are that the decree holder i.e. the Respondent herein, as plaintiff had instituted a suit which was registered and numbered as Title Suit No. 104/1999. In the said suit, the plaintiff sought for a decree for eviction of the defendant; for delivery of khas possession by removing the defendant and his family members with all their belongings in respect to the suit land as described in Schedule A and B of the plaint. The defendant had filed his written statement. Pursuant thereto, by a judgment and decree dated 30.08.2005, the suit was decreed in favour of the Plaintiff granting the reliefs as sought for.

4. Being highly aggrieved and dissatisfied, the Petitioner herein preferred an appeal before the Court of Civil Judge, Dibrugarh which was registered and numbered as Title Appeal No. 43/2005. The said Appeal was dismissed by a Judgment and decree dated 16.09.2009. No appeal therefrom was filed and as such the Judgment and Decree dated 16.09.2009 by which the Judgment and Decree dated 30.08.2005 passed by the Trial Court was affirmed.

5. Thereupon, the Decree holder/Respondent herein filed an execution case which was registered and numbered as Title Execution Case No. 21/2009 before the Executing Court i.e. the Court of the Munsiff No. 1 at Dibrugarh. In the said proceedings, the Petitioner herein filed an application under Section 47 of the Code challenging the executability of the decree dated 30.08.2005 passed in Title Suit No. 104/1999 and subsequently confirmed by the judgment and decree dated 16.09.2009 passed by the Appellate Court in Title Appeal No. 43/2005.

6. A perusal of the said Application would show that in paragraphs 6 and 7, the petitioner herein had stated that the petitioner was in fact the tenant of Chabua Tea Company and obtained the tenancy khatian therein which was filed in the suit being part of Dag No. 339 of Periodic Patta No. 44 of Chabua Town with land revenue paying receipts. It was also stated that there is no such dag as Dag No. 339 in Periodic Patta No. 3. On the basis of that, the petitioner/judgment debtor alleged that the decree which was obtained by the decree holder/the plaintiff was on the basis of filing false documents while the Periodic Patta No. 44 which included the Dag No. 339 is owned by Chabua Tea Estate and not by the decree holder. It was further mentioned there is no Dag No. 334 in Periodic Patta No. 3 as falsely claimed in the suit and it belonged to “Mahatos” far away from the suit land. On the basis of that, the petitioner submitted that the said decree was not executable.

7. It further appears from the records that the petitioner herein had also adduced evidence of 2(two) witnesses and marked various documents as exhibits. The decree holder had also adduced evidence of 2(two) witnesses. The Executing Court vide an order dated 30.07.2016 after hearing both the sides came to a finding that a new dag number and patta number was allotted to the said plot of land and the said documents were not challenged. It was further observed that Ext. B (Possession Certificate) further confirmed that Periodic Patta No. 44 is the new Periodic Patta in respect to the Periodic Patta No. 3. The Executing Court further observed that the plea taken by the judgment debtor vide the petition was never raised before the Trial Court or before the Appellate Court and thus cannot be entertained before the Execu