I.A. No. 2207 of 2018 and I.A. No. 2208 of 2018

1. Mr. Pratyush Kumar, the learned counsel for the petitioners submits that respondent nos. 17, 18 and 19 are performa respondents and therefore service of notice upon them may be dispensed with. The learned counsel submits that by way of abundant precaution the petitioners have, however, filed I.A. No. 2207 of 2008 for bringing on record the legal heirs and successors of respondent nos. 17 and 18. In so far as, respondent no. 19 is concerned, the learned counsel for the petitioners submits that he died issueless for which I.A. No. 2208 of 2018 has been filed.

2. For the reasons stated in these interlocutory applications, I.A. No. 2207 of 2018 and I.A. No. 2208 of 2018 are allowed.

W.P. (C) No. 4609 of 2013

3. Office-note indicates that except respondent nos. 17, 18 and 19 all other respondents have been validly served and respondent nos. 2, 5 and 13 have appeared through Mr. Jyoti Prasad Sinha, the learned counsel. On the previous date of hearing i.e. on 07.02.2018, the learned counsel for respondent nos. 2, 5 and 13 was not present. Today also, the learned counsel for these respondents is not present.

4. The petitioners are aggrieved of order dated 12.07.2013 passed in Execution Case No. 127 of 1993 by which an application under Section 47 CPC has been dismissed.

5. The petitioners were defendant nos. 4 and 5 in Title Suit No. 39 of 1988.

6. Title Suit No. 39 of 1988 was instituted for a decree for declaration of the plaintiffs' right, title and interest over Schedule-A property and for a decree for the plaintiffs' khas possession over the suit property and a direction to the defendants to remove illegal constructions thereon. The plaintiffs have pleaded that their ancestors were settled raiyats of village-Marar and in the cadestral survey they have been recorded as raiyats over 40.5 acres land comprised under several plots including plot nos. 93 and 94. The defendants took a stand in their written statement that besides the suit lands they are in possession over the lands comprised in plot nos. 89 and 95 under khata no. 11 within village-Marar. The suit was decreed vide judgment dated 29.05.1993 and decree was prepared and signed on 11.06.1993. Thereafter, the plaintiffs levied Execution Case No. 127 of 1993. The trial judge, observing that about 20 years after the execution case was filed for executing the decree in Title Suit No. 39 of 1988 application under Section 47 CPC was filed and that there is no provision for appointment of the Pleader Commissioner in the execution case for identification of the decreetal property, has dismissed the said application.

7. Section 47 CPC provides that all questions relating to execution, discharge and satisfaction of the decree arising between the parties shall be determined by the court executing the decree and not by a separate suit. Evidently, the executing court has powers under Section 47 CPC to take all steps for execution of the decree. No doubt, the executing court cannot go behind the decree but it is duty of the executing court to execute the decree in its true letter and spirit. Identification of the decreetal property can be established from a reading of the pleadings of the parties, the judgment and the decree. In the plaint and the decree prepared pursuant to judgment in Title Suit No. 39 of 1988 complete description of Schedule-A properties has been given. The suit property is identified through its boundaries which are disclosed under the schedule appended to the plaint of Title Suit No. 39 of 1988.

8. Admittedly, at the time when the application under Section 47 CPC was filed possession of the decreetal property was not delivered to the decree holders. The judgment-debtors have pleaded that in the garb of the decree, the decree-holders are trying to dispossess them from plot nos. 89 and 95. In view of the law laid down in Bibi Wakilan vs. Bibi Kasiman, AIR 1930 Patna 536 and Matiur Rahman Khan vs. Sonu Lal and Others,