JUDGMENT

B.N. Mahapatra, J.

This writ appeal has been filed with a prayer to set aside the judgment dated 07.07.2011 passed by the learned Single Judge in dismissing W.P.(C) No. 17538 of 2011 in which the legality and validity of order dated 28.03.2011 passed by the learned Civil Judge (Sr. Division), Jaleswar in Execution Case No.3 of 2010 was challenged.

2. Before the learned Single Judge challenge was made to the order dated 28.03.2011 passed by the learned Civil Judge (Sr. Division), Jaleswar passed in Execution Case No.3 of 2010/Execution Case No.1 of 1988. In the said case, from order sheet dated 14.02.2011 it transpires that the Decree Holder (Dhr.) had filed an application under Order 21, Rule 22 of C.P.C. It further transpires that in the aforesaid execution application, it is averred that since the Judgment Debtor (Jdr.) did not execute the Registered Sale Deed in favour of the Dhr., prayer was made to the Court for a direction to execute the Registered Sale Deed in favour of Dhr. and to deliver possession of the suit land to the Dhr. through Court at the cost of the Dhr. It further reveals that the learned Civil Judge (Sr. Division) has directed execution of the Registered Sale Deed No.4021 dated 20.09.2007 in favour of the Dhr. as per the decree passed in the suit. The Dhr. has deposited the Commissioner’s fees, process fees as well as drumer’s fees on 05.01.2002, 15.01.2002 and 04.02.2002 respectively vide P.C.R. No.546 and 630. On the basis of these materials, learned Civil Judge allowed the petition of the Dhr. for execution of the decree as well as delivery of possession of the suit land to Dhr. A writ was issued for appointment and deputation of a Civil Court Amin Commissioner for delivery of possession of the suit land to the Dhr. The Dhr. was directed to supply necessary documents in respect of the suit land to the Civil Court Amin Commissioner for this purpose. Order dated 28.03.2011 passed by the Civil Judge (Sr. Division), Jaleswar reveals that the DHR has filed PCR of Rs.150/-vide PCR No.138/10-11 dated 28.03.2011 showing deposit of cost towards special peon cost. The learned Civil Judge directed to issue writ to appoint Amin Commissioner Sri Srustidhar Sahu and the matter was adjourned to 25.04.2011 awaiting Commissioner’s report.

3. Mr. R.C. Sarangi, learned counsel appearing for the appellant-defendant submitted that the learned Single Judge has failed to appreciate that the decision making process by the Court of learned Civil Judge (Sr. Division), Jaleswar in Execution Case No.3 of 2010/Execution Case No.1 of 1988 is not just and correct as the learned Civil Judge has passed various orders behind back of the Judgment-Debtor (JDR) without any notice to him. Petition filed under Section 47 of C.P.C. by the appellant was also disposed of behind his back. The writ was issued for delivery of possession behind the back of the appellant. It was further argued that though the record was transferred from the Court of the learned Civil Judge (Sr. Division), Balasore to the Court of learned Civil Judge (Senior Division), Jaleswar, no fresh notice has been issued and served on the appellant. Mr. Sarangi, submitted that the action of the learned Civil Judge is violative of the principles of natural justice.

4. It was further argued that the decree has been satisfied long since 1996 when the sale deed was executed by the Executing Court to satisfy the decree. There was no prayer for delivery of possession by the plaintiff-respondent in the original suit. So the Executing Court could not go beyond the decree to issue the writ of delivery of possession. In fact, possession has not yet been delivered and the present appellant is still in cultivating possession. The plaintiff-respondent filed a suit claiming to be in possession much earlier and as such he was not entitled to prosecute the execution case claiming possession over the self same land and to get possession in execution of decree. Execution Case No.1 of 201