The proper remedy for a judgment debtor when delivery of possession of certain lands in excess of the decree passed is handed over in the course of execution is to file a petition under Section 47 of the Civil Procedure Code.

A. S. NAIDU, J.

( 1 ) PETITIONERS as plaintiffs filed C. S. No. 52/2004 in the Court of Civil judge (Senior Division), Bhubaneswar, inter alia, praying as follows:-" (A) Let a decree for declaration be passed with respect to the suit land as described in Schedule-A of the plaint as shown in relay map attached to the plaint and identified in yellow colour showing an area of Ac. 0. 112 decimals of land, forms part of Plot No. 38 of 1962 settlement R. O. R. /1953-54 Revenue map and plaintiffs have absolute right, title, interest therein, with an alternative declaration that the suit land as indicated above does not form part of Plot No. 37 of 1962 settlement r. O. R. /1953-54 Revenue Map and the defendants have no manner of right, title and interest therein. (B) Let a decree for recovery of damage of Rs. 50,000/- (Rupees fifty thousand)only as sustained by the plaintiffs on account of illegal dispossession of the plaintiffs by the defendants from the suit land and towards demolition of the house standing on the suit land by the defendants. (C) For recovery of possession. (D) For permanent injunction restraining the defendants or anybody else, claiming through them from raising any construction over the suit land and form alienating or encumbering the suit land or any portion thereof. (E) For cost. (F) For any other relief/reliefs to which the plaintiffs are entitled under laws and equity".

( 2 ) THE opposite party-defendants before filing written statement before the Court below, filed a petition under Order 7, Rule 11 of the Civil Procedure Code with a prayer to reject the plaint on the ground that the predecessors in interest of the defendants had filed original Suit No. 161/83 for declaration of right, title and interest in respect of the suit property and for recovery of possession thereof and for permanent injunction against the plaintiffs and the said suit was decreed on contest. The appeal filed against the said judgment and decree, being T. A. No. 4/13 of 1989-90, was also dismissed. In Second Appeal, being No. 108/1995, the concurrent judgment and decree passed by both the Courts below were confirmed by this Court.

( 3 ) ACCORDING to the opposite party-defendants during pendency of the Title Appeal the decree passed by the trial Court was sought to be executed in Execution Case no. 131/1995 and the said Execution Case, though stayed initially, proceeded after dismissal of the second Appeal and the defendants took delivery of possession of the suit lands in presence of the judgment debtors, i. e. the present petitioners, and in presence of witnesses. As possession of the lands was taken over during execution of a decree, objection, if any, ought to have been raised in the said execution case itself under Section 47 of the Code of Civil procedure. Having not done so, the present petitioners are estopped from filing the present fresh suit for declaration of right, title and interest.

( 4 ) THE petitioner-plaintiffs filed an objection to the said petition under Order 7, Rule 11, Civil Procedure Code filed by the defendants-opposite party stating that the subject matter of the present suit is Ac. 0. 112 decimals of land appertaining to Hal Khata No. 938, Hal Plot No. 511/1623 out of total area of Ac. 0. 257 decimals situated in Hal Mouza bhubaneswar Town, Unit No. 32, Gobind prasad. It was emphatically submitted that the said plot was neither the subject matter of the earlier suit, i. e. O. S. No. 161/1983, nor possession of the said lands was taken in course of execution of the decree passed in the said suit, and as such, the petition filed under Order 7, Rule 11, civil Procedure Code was devoid of any merit and ought to be rejected.

( 5 ) THE Trial Court after hearing parties and after perusing the materials arrived at the conclusion that as possession of the lands in the present suit was taken over during execution of the decree passed in earlier suit in execution Case No. 131/1995, it would amount to delivery of poss