The executing court must effectively identify and deliver possession of decreed property according to the specifics of the execution decree.

JUDGMENT :

(DEVASHIS BARUAH, J.)

Heard Mr. G. N. Sahewalla, the learned senior counsel assisted by Ms. S. Todi, the learned counsel appearing on behalf of the petitioners and Mr. B. K. Sen, the learned counsel who appears on behalf of the respondent No.2.

2. The manner in which the learned Executing Court had exercised its jurisdiction in the Execution Case No.01/2016 shocks this Court, and as such, the instant proceedings is taken up for disposal at the stage of motion itself.

3. This Court also takes into account that the respondent Nos.1 & 2 herein have jointly filed an application under Section 47 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) and the said application was filed on the basis of an affidavit filed by the respondent No.2. This Court finds no necessity of issuance of notice upon the Respondent No.1 as the same would only delay the execution proceedings unnecessarily and the interest of the Respondent No.1 is duly protected by the Respondent No.2 who is on caveat.

4. It is seen from the materials on record that the learned Coordinate Bench of this Court in RSA No.07/2001 decreed the suit in favour of the plaintiffs in so far as Schedule 4 is concerned. Paragraph No.20 of the said judgment passed by this Court dated 15.05.2012 in RSA No.07/2001 is quoted herein under:-

“20. In view of the aforesaid discussions, I am of the view that while the plaintiff No. 1 is entitled to the declaration of his landholder right by right of purchase vide Ext. 8 sale deed dated 14.06.1978 in respect of the 50% of Schedule 4 land and also the plaintiff No. 3 to the decree declaring his status as tenant in respect of the remaining Schedule 4 land, the plaintiff Nos. 1 and 2 are not entitled to the declaration of their right in respect of the Schedule 3 land as prayed for. Hence while affirming the judgment and decree passed declaring the plaintiff No. 1's right in respect of 50% of the Schedule 4 land and of the plaintiff No. 3's status as tenant in respect of the remaining 50% of the Schedule 4 land as well as eviction of defendants from 50% of the land in Schedule 4, the decree passed declaring the right of plaintiff Nos.1 and 2 in respect of the Schedule 3 land is set aside.”

5. From a perusal of the above quoted portion of the judgment, it would be seen that the learned Coordinate Bench of this Court while affirming the judgment and decree passed by the learned First Appellate Court in Title Appeal No.37/1998 declared that the plaintiff No.1’s rights is in respect of 50% of the Schedule 4 land and the plaintiff No.3’s status as tenant is in respect of the remaining 50% of the Schedule 4 land as well as eviction of the defendants is from 50% of the land in Schedule 4. The learned Coordinate Bench of this Court further observed that the declaration so made in favour of the plaintiff Nos.1 & 2 in respect of the Schedule 3 land was set aside. It is seen that pursuant thereto, a Title Execution Case No.01/2016 was filed wherein the decree holders prayed for recovery of khas possession of the Schedule 4 land described therein by evicting the judgment debtors/defendants and also for demolishing the th structures, houses made in the 4 Schedule land and to deliver th possession of the 4 Schedule land to the decree holders/plaintiffs by the Court.

6. Subsequent to the filing of the said execution proceedings, an application was filed by the judgment debtors stating inter- alia that the decree is not executable. Vide an order dated 08.07.2019, the said application was rejected and a writ of possession was issued in favour of the Civil Nazir for execution of the decree.

7. Challenging the said order