Point of Law: Rule 35 of Order 21 deals with modes of executing a decree for possession of immovable properties.

JUDGMENT :

1. Heard Shri A. Sattar, learned counsel for the petitioner whereas the respondent is represented by Shri S. Ali, the learned counsel.

2. Considering the subject matter and as agreed to by the learned counsel for the parties, this writ petition is taken up for disposal at the motion stage itself.

3. The petition has been filed under Article 227 of the Constitution of India in respect of an order dated 07.07.2023 passed by the learned Civil Judge, Darrang in Title Execution Case No. 05/2018 whereby the petition no. 1591 dated 22.06.2023 filed by the Decree Holder under Order XXI Rule 35 (3) read with Section 151 of the CPC has been allowed.

4. The fact projected in the petition is that Title Suit No. 15/1996 was filed by the elder brother of the present petitioner in which the petitioner was the defendant. The said Suit was for declaration of right, title, interest, recovery and injunction. The said suit was decreed in favour of the plaintiff and the said decree was upheld in appeal. The issue which has been sought to be raised by the present petitioner is with regard to identification of a particular part of the suit land. Attention of this Court has been drawn to a Report of the Circle Officer dated 17.03.2023 and another report of the Lat Mandal dated 05.03.2023 with regard to a structure measuring 16’ X 10’ with Tin roof having wooden posts and pucca floor and as per the aforesaid two Reports, such structure was not found to be existing. It is submitted that on 13.02.2023, the writ was issued.

5. Shri Sattar, the learned counsel for the petitioner has referred to the petition of the Decree Holder and has specifically drawn the attention of this Court to the prayer made in the said petition. The learned counsel submits that he is not opposed to the execution of the decree but he submits that such execution has to be done after proper identification of the land and property in question. He submits that the impugned order dated 07.07.2023 has been passed without granting proper opportunity and without taking into consideration the relevant materials. It is accordingly prayed that necessary interference be made with the said order dated 07.07.2023.

6. Per contra, Shri S. Ali, the learned counsel for the respondent has submitted at the outset that the present attempt of filing this petition lacks bonafideas the plaintiff who had successfully instituted the suit in the year 1996 is yet to get the fruits of the decree passed in the suit. He submits that the present petitioner was unsuccessful in the Trial Court, First Appellate Court, Second Appellate Court and even in the Hon’ble Supreme Court and thereafter, the present attempt has been made only to cause further delay and thereby frustrate the decree. He has also informed that on an earlier occasion a revision petition was filed in this Court which was also dismissed.

7. Replying on the merits of the case, Shri Ali, the learned counsel has submitted that there is no confusion at all with regard to the land in question as the same is covered by boundary walls. By drawing the attention of this Court to Schedule V which also contains a sketch map of the land in question, it is submitted that the total area of the land is 1 bigha, 2 katha, 10 lessas and as per a family arrangement, 2 katha 10 lessas was given to the defendant. He has submitted that the entire plot is covered by the points ABCD out of which the portion of 2 K 10 L given to the defendant is covered by points EBCF. He submits that since the defendant did not have a dwelling house, in the portion of the land belonging to the plaintiff, a temporary structure of 16’X10’ was allowed to be constructed wherein the defendant was allowed to reside. The learned counsel clarifies that in course of his profession, the petitioner used to reside at Guwahati most of the times. He submits that the suit which was instituted in the year 1996 had culminated in the decree which was also affirmed by the highest Court as observed abov