JUDGMENT

S.K. MISHRA, J. : Whether an execution proceeding seeking possession of the land decreed in a suit is maintainable in terms of the description of the suit land in the sabik form after finalization of Record of Rights in the current settlement of operation, is the question to be determined in this writ petition.

2.The petitioners in this writ petition have challenged the judgment dated 01.10.2012 passed by the learned District Judge, Khurda at Bhubaneswar in C.R.P. No.3 of 2012 dismissing the Civil Revision filed by the petitioner (Judgment Debtor) and confirming the order dated 12.12.2011 passed by the learned Civil Judge (Senior Division), Bhubaneswar in Execution Case No.58 of 1994, thereby rejecting the application of the petitioners under Section 47 of the Code of Civil Procedure, 1908, hereinafter referred as the “Code” for brevity, and directing the Civil Court Commissioner to demarcate the land covered under the decree.

3.The facts are not dispute. That may be stated briefly as follows :

The present opposite parties 1 and 2 along with deceased Purna Chandra Jena filed O.S. No.132 of 1979 in the Court of the Civil Judge (Senior Division), Bhubaneswar for declaration of their right, title, interest, for recovery of possession and perpetual injunction in respect of schedule of land. After trial, the suit was decreed and accordingly the right, title and interest was declared in favour of the contesting opposite parties and it was directed that the vacant possession of the suit land be given to the plaintiff.

4.The unsuccessful defendants challenged the judgment and decree passed by the trial Court by preferring Title Appeal 17/28 of 1997/93, which was also dismissed. Thereafter, the defendants preferred Second Appeal before this Court vide S.A. No.309 of 1998 and the same was also dismissed. Thereafter, the plaintiffs/decree-holders levied Execution Case No.58 of 1994 for executing the decree and for getting delivery of possession of the suit schedule land. In the Execution Case, the present petitioners, who are the sons of the original judgment debtor and main contestant of the suit, filed a petition under Section 47 of the Code of challenging the executability of the decree. The executing Court, after hearing the parties, by order dated 22.12.2011 disposed of the application of the present petitioners under Section 47 of the Code, but did not pass any order either rejecting or allowing the petition under Section 47 of the Code, but directed that execution petition is allowed and also directed for deputing a Civil Court Commissioner to demarcate the suit schedule property at the time of execution of the decree and delivery of possession. The present petitioners being aggrieved by the order dated 22.12.2011 preferred a Civil Revision, which is registered as C.R.P. No.3 of 2012 under Section 115 of the Code in the Court of the District Judge, Khurda at Bhubaneswar. Learned District Judge, after hearing the parties, by judgment dated 01.10.2012 has dismissed the Civil Revision and confirmed the order passed by the executing Court. Such judgment in confirming the order passed by the Executing Court is in question in this writ petition.

5.The petitioners i.e. the judgment Debtors submit that as per the procedure laid down in the G.R.C.O. and practice adopted by the executing Court below, an application under Section 47 of the Code is always registered as a Misc.Case but the learned Court below did not register the objection/application filed by the petitioners as an independent Misc. Case but heard the same as a petition in the execution case. Thus, there is error apparent on record. The second contention of the petitioner is that the schedule of property mentioned in the execution petition is not in conformity to or tally with the schedule of property of the decree passed. After publication of the hal settlement R.O.R., the schedule of property with the sabik reference is not executable and as such the proceeding is liable