A decree cannot be contested in execution if the property description was not contested in the original suit, underscoring the imperative to prevent frivolous litigation.

JUDGMENT :

DEVASHIS BARUAH, J.

Heard Mr. P.K. Kalita, the learned Senior Counsel assisted by Mr. K. Talukdar, the learned counsel appearing on behalf of the petitioners. Mr. A.C. Sarma, the learned Senior Counsel assisted by Mr. A. Ali, the learned counsel appears on behalf of the respondents.

2. The petitioners have challenged the order dated 24.01.2024 passed by the learned Court of the Civil Judge (Junior Division) No. 1, Kamrup (M), Guwahati (hereinafter referred to as, “the learned Executing Court”) in Title Execution No. 53/2018 whereby Petition No. 247/2023 filed under Section 47 read with Section 151 of the Code of Civil Procedure, 1908 (for short, “the Code”) challenging the executability of the decree dated 30.06.2018 in Title Suit No. 136/2013 passed by the learned Court of the Munsiff No. 1, Kamrup (M), Guwahati (hereinafter referred to as, “the learned Trial Court”) was rejected.

3. It is seen from the materials on record that the learned Trial Court had decreed the suit being Title Suit No. 136/2013, thereby granting a decree in favour of the plaintiff for recovery of possession of the Schedule-A land by evicting the defendants and removing all structures constructed by the defendants or by their men, agents and employees over the said land. It is relevant to take note of that in the said suit being Title Suit No. 136/2013, the plaintiffs had sought for recovery of possession of the Schedule-A land. The Schedule-A land, so described in the plaint of the suit, is reproduced herein under:

“Schedule –A Land measuring 1 (one) Katha covered by K.P. Patta No. 14 (old)/32(new) Dag No. 77 (old)/ 270 (new) at Maz-Jalukbari under Jalukbari Mouza, Dist: Kamrup (M) bounded by-

North- Md. Saif Uddin Ahmed.

South- Sondarbory Path.

East- Sri Pradip Das.

West- Abjan Nessa”

4. This Court has duly taken note of that in the written statement filed by the defendants, the Schedule to the plaint was never contested. However, pursuant to the decree so passed, an application was filed by the petitioners herein who were the judgment debtors, contesting the executability of the decree on the ground that the land so described in Schedule-A which was decreed, was not identifiable.

5. The learned Executing Court after taking into account the materials on record and the submissions so made by the parties, observed that during the pendency of the suit on account of the resettlement proceedings, the Dag No. and the Patta No. have changed and as such directed the Nazir to execute the decree on the basis of the old map and submit a report.

6. This Court has duly heard the learned counsels appearing on behalf of the parties and has also perused the materials on record.

7. From the materials on record, it is seen that the petitioners herein who were the judgment debtors never contested the Schedule to the plaint in their written statement. Admittedly, during the pendency of the suit, on account of the resettlement proceedings, there has been a change in the respective Dag No’s. and Patta No’s. and it appears from the discussion so made by the learned Executing Court that this very aspect have been duly taken note of.

8. This Court further finds it relevant to observe that the learned Executing Court being conferred with the power to deal with the execution, discharge or satisfaction of the decree has to take appropriate steps so that the fruits of the decree are enjoyed by the decree holder.

9. This Court duly takes note of the judgment of the Supreme Court in the case of Ravinder Kaur Vs. Ashok Kumar & Another reported in (2003) 8 SCC