JUDGMENT :

Heard Mr. S. Banik, learned counsel for the petitioner. Also heard Mr. S. Islam, learned counsel for the respondent.

2. The petitioner/judgment debtor has filed an application under Article 227 of the Constitution of India against the order dated 21.12.2022 passed by the learned Civil Judge, Hailakandi rejecting the petition No. 365/01 arising out of Title Execution Case No. 06/2017 in connection with Title Suit No. 27/2010 wherein the decree holder was directed to file the draft sale deed by fixing the date 04.01.2023.

3. Today the revision is fixed for admission. However, after hearing both sides, the matter is taken up for final disposal.

4. The brief facts of the case is that the opposite party as plaintiff had instituted the Title Suit being No.27/2010 in the Court of Civil Judge, Hailakandi against the present petitioner for a decree of specific performance of contract with a direction to the defendant i.e. the present petitioner to execute and register a formal deed of sale in respect of the suit property by receiving balance consideration amounting to Rs.5,00,000/-from the opposite party/plaintiff and put the plaintiff in possession of the suit property.

5. The petitioner as defendant had contested the suit with a plea that as there had been no amicable partition of the suit land between the vendor of the petitioner and other co-sharers, the petitioner had been in ejmali possession with others and as such, cannot legally transfer any specific plot of land until specific partition of the suit property.

6. The learned trial court vide judgment and decree dated 10.01.2017 had decreed the Title Suit No. 27/2010 for specific performance of the contract in favour of the plaintiff/opposite party. The learned trial court has observed that the plaintiff was entitled to get a register sale deed in respect of the suit property from the defendant/petitioner followed by delivery of possession after receiving the balance amount from the plaintiff and in default the plaintiff was entitled to get a register sale deed through the process of the court and possession of the property thereof.

7. Against the said judgment and decree, the petitioner as appellant has preferred an appeal before this Court vide RFA No.53/2017 which was also dismissed by this Court. Subsequently, the petitioner also preferred an appeal before the Hon’ble Apex Court and the same was also dismissed vide order dated 09.02.2021 by the Hon’ble Apex Court. Thereafter, the petitioner had filed an application under Order 47 CPC praying for review of the judgment and order dated 01.11.2019 vide review petition No.96/2022 but the said review petition was also dismissed dated 02.09.2022 and subsequent application filed by the petitioner under Article 227 of the Constitution of India which was registered as CRP(IO)/151/2022 and the same was also dismissed on withdrawal. Thereafter, the petitioner as judgment-debtor had filed a petition before the learned Executing Court taking a plea of refunding the money so received from the plaintiff with an interest along with adequate and sufficient amount of compensation. The decree holder/opposite party filed a written objection to the said petition taking a stand that since the judgment-debtor had lost the proceedings in the Apex Court, the judgment debtor had no right to pray for alternative remedy in the execution proceeding.

8. The learned Executing Court after hearing both sides passed the order on 21.12.2022 on the premise that this is not the stage to agitate against the decree and the learned Executing Court does not have the power to modify the decree and accordingly, rejected the petition vide petition No. 365/01. Hence, this petition filed under Article 227 of the Constitution of India.

9. It has been submitted by the learned counsel for the petitioner that the learned Civil Judge has rightly passed the order that in execution stage of a proceeding, the Executing Court does not have the power to modify the decree. It is