JUDGMENT :

Heard Mr. R. Goswami, learned counsel for the petitioner. Also heard Mr. K. Bhattacharjee, learned counsel for the respondents.

2. The present petitioner filed a suit being Title Suit No. 54 of 1980 against the present respondent Nos.1 to 9 for specific performance of contract for sale and for decree of execution of a sale deed in favour of the plaintiff. The said suit was contested by the present respondent nos. 1 to 9 and finally it was decreed vide judgment and decree dated 16.6.1981.The said decree was challenged by one Hemoram Das and Maleswar Das by way of another suit being Title Suit No. 76/1987 praying for a declaration that decree dated 16.6.1981 passed in Title Suit No. 54 of 1980 is void and inoperative in law on the ground that that the said decree was obtained by fraud and misrepresentation. Further, declaration was sought for right, title and interest and confirmation of possession of the suit land described in Title Suit No.76 of 1987. The said suit was contested by present petitioner and finally the learned Civil Judge, (Jr.Division) No.1 by its judgment and decree dated 15.12.2003 dismissed the said suit. The schedule-A land of Title Suit No. 54/2018 and Schedule-B land of Title Suit No. 76/1987 is same and one.

3. Being aggrieved, the plaintiff in Title Suit No. 76 of 1987 preferred an appeal which was registered as Title Appeal No. 3 of 2004 and the said appeal was also dismissed by the learned Appellate court by its judgment dated 30.6.2005.

4. The petitioner had filed an execution case for execution of judgment and decree dated 16.6.1981 passed in Title Suit No. 54 of 1980 and same was registered as Title Execution Case no. 18/2006.

5. The plaintiff in Title Suit No.76/1987 preferred a petition under Order 21 Rule 97 in Title Execution Case no. 18/2006, which was registered as Misc Case No.40/2007. The said petition was also dismissed by the learned Executing court below under its order dated 2.2.2009.

Thereafter, the decree in Title Suit no. 54/1980 was partly executed by execution of a sale deed in respect of a suit land bearing sale deed No. 256 of 2011 on 22.2.2011. However possession was not handed over.

6. It is the further case of the petitioner that the Executing court under its order dated 3.4.2013 directed the Nazir to execute the decree completely with the help of police and pursuant to such order on 19.4.2013 the Lat mandal of village Naobaishahanded over a plot of land measuring 1 bigha 2 katha 15 lessas out of the decreetal land and the petitioner had taken possession of the same. However, it is the further claim of the petitioner that the remaining decreetal land of 2 bigha 4 kathas of same patta has not been handed over to the petitioner by the Lat Mandal by making necessary measurement.

7. Thereafter the Nazir submitted report on 9.4.2013 intimating the Executing Court that decreetal land of 2 bighas 4 kathas under Dag Nos. 587, 589 and 592 of the same Patta No. 23 could not be handed over to the petitioner by the Lat Mandal by making necessary measurement as Patta Holder of Dag Nos. 587, 589 and 592 are found different , they were not parties to the said suit and also the boundaries are different and therefore the decreetal land could not be identified.

8. Being aggrieved by the above reports of Lat Mandal as well as Nazirand having no alternative way the petitioner filed an application being Misc (J) Case No. 80/13 before the Executing Court u/s 47 read with Section 151 of the Code of Civil Procedure with a prayer to call for the entire case records including T.S. No.76/87, T. A. No. 3/2004 and Misc (J) No.40/07 and prayed for reopen the execution proceeding and to execute the decree according to the law.

9. After hearing the aforesaid application and going through the materials on record, the Executing Court held that the identity of the decreetal land of T. S.No. 54/80 never come into question and the learned court further observed after going through the records that steps for posse