The judgment emphasized the limitations of an executing court, the scope of scrutiny under Section 47 of the Code, and the distinction between an erroneous decree and a nullity.

JUDGMENT :

The petitioner by filing this application under Article 227 of the Constitution of India seeks quashment of an order passed by the learned 1st Additional Civil Judge (Sr. Division), Cuttack in CMA No.67 of 2004 in the matter of a petition under section 47 of the Code of Civil Procedure filed by the petitioner being the judgment-debtor in Execution Case No.10 of 1989.

By the said order the learned Judge has rejected the petition under section 47 of the Code filed by this petitioner in refusing to hold the decree passed in Title Appeal No.20/84/53 of 1981/82/84 by the learned 2nd Additional District Judge, Cuttack as inexecutable.

The subject matter of impeachment is the above order dated 31.08.2005. The genesis of the present lis is traceable to Title Suit No. 48 of 1977 which has been decided by the learned Civil Judge (Senior Division), Ist Court, Cuttack.

2. Essential facts for the purpose may be stated as under:

(a) One Baikunthanath Panda had filed Title Suit No.48 of 1977 arraigning the petitioner as defendant no.1 besides, others as the defendants. The suit was for declaration that the gift deed dated 18.12.1973 said to have been executed by him and defendant no.2, namely, Agani Dibya W/o. Banchanidhi Panda who happens to be the brother of Baikunthanath Panda in favour of defendant no.1 (present petitioner as also the applicant of the petition under section 47 of the Code before the Executing Court and judgment-debtor in the Execution Proceeding) as void, illegal and inoperative. In the said suit a prayer for issuance of permanent injunction against the said defendant no.1 had also been advanced for restraining him from disturbing the possession of Baikunthanath, the original plaintiff.

(b) The suit having finally been dismissed, the First Appeal under section 96 of the Code had been filed. In view of death of original plaintiff-Baikunthanath Panda, the present opposite party no.1 pursued the first appeal. The learned 2nd Additional District Judge, Cuttack has finally allowed the same. The ordering portion of the judgment is as follows:

“It is hereby declared that the alleged deed of gift Ext-B dated 18.12.1973 is void, illegal and inoperative and defendant no.1-respondent no.1 had derived no title to the suit property and he is permanently restrained from interfering with the possession of the appellant (the present opposite party no.2 who was then represented by the opposite party no.1 as his father guardian) in respect of the same. The subsequent transfers made by the defendant no.1-respodntn no.1 in favour of defendant nos. 3 to 7-respodnent nos.3 to 7 are also invalid.

(c) The petitioner being aggrieved by the above judgment and decree in the First Appeal approached this Court by filing Second Appeal under section 100 of the Code which was numbered as S.A. No. 112 of 1985. The appeal stood finally dismissed. So, this petitioner had approached the Hon’ble Supreme Court by filing SLP (Civil) No. 21994 of 2004. The same also stood dismissed. Thus, the judgment and decree passed in the First Appeal continue to hold the field as wholly binding upon the parties.

(d) The present opposite party no.2 had instituted the Execution Case No. 10 of 1989 alleging dispossession, claiming recovery of possession by way of execution of that decree for permanent injunction. This was originally not alleged and prayed for in the execution proceeding. So when the petition filed in that behalf was allowed, the present petitioner prayed to drop the said execution case resisting the inclusion of prayer for delivery of possession of the suit property. Said petition of the petitioner (judgment-debtor) was, however, rejected.

The Second Appeal having been dismissed by this Court and so also the SLP before the Apex Court, this petitioner next filed a petition under section 47 of the Code praying before the Executing Court to pass an order determining his share and making him entitled to lawful possession over the suit land. It had been averred