A proforma defendant without a decree cannot object to execution proceedings, affirming the requirement that issues must be raised during trial, not execution.

JUDGMENT & ORDER (ORAL)

Mr. Aparesh Kumar Singh, CJ. - Heard Mr. Samarjit Bhattacharjee, learned counsel for the petitioner and Mr. S.M. Chakraborty, learned senior counsel assisted by Mrs. P. Chakraborty, learned counsel for the respondents.

2. Petitioner is the Proforma Defendant No.4 in Title Suit Partition No.29 of 2017 who contested the suit by filing written statement apart from the Defendant No.1, but no decree was passed against the present petitioner by the learned Trial Court vide judgment dated 25.10.2017 and decree dated 19th September, 2018. The operative part of the judgment and decree reads as under :

'In the result, the suit of the plaintiff is decreed without cost as this is a partition suit and it is hereby declared that the plaintiff and defendant No.2 are owner of 0.22 acre each and defendant No.1 is the owner of 0.19 acre of the suit land as described in the schedule 'B' of the plaint.

Accordingly, the plaintiff and defendant No.1 & 2 are directed to amicably partition the suit land described in schedule 'B' of the plaint by metes and bounds within 30 days from today and failure to which any of them may move this court on the next date fixed for final partition of the suit land by metes and bounds by appointment of a survey commissioner.

Make necessary entry in the relevant Trial Register.

Prepare decree accordingly and put up before me for signature within 15 (fifteen) days from today latest on 04.09.2018.'

3. A final decree was prepared pursuant to the judgment which is at Page 26 of the memo of the instant petition. The present petitioner filed an application under Section 47 of the Code of Civil Procedure (CPC, for short) raising a plea that Case No. Execution 09(T)/2019 is not maintainable on the strength of power of attorney of the plaintiff decree holder and needs to be verified regarding its genuineness. It also took a plea that some land has been transferred by way of sale to the petitioner and thus the present execution petition is not maintainable. Petitioner also pleaded that OP is not in possession of the suit land. The learned Executing Court dealt with this case in the following manner.

'It is further submitted that earlier partition suit vide No.TS 21(P) of 2016 was dismissed by the Civil Court and therefore the present execution case filed on the basis of the decree passed in subsequent partition suit vide No.TS 29(P) of 2017 is not maintainable.

In this context, I find, this Court passed final decree in TS 29(P) of 2017 following preliminary decree.

The objection about the dismissal of earlier partition suit vide TS 21(P) of 2016 as raised today in the execution petition cannot be entertained. Thus, I find, the matter of dismissal of earlier partition suit should have been raised during the trial of partition suit TS 29(P) of 2017. I am also of the view that the power of attorney cannot be challenged at this stage which was required to be challenged during the trial of TS 29(P) of 2017 about the sale of some land to petitioner and another I am also of the view that the same is a matter of trial and cannot be raised in the execution proceeding. Moreover, no document of sale is produced to substantiate the same. I am of the view that their share has already been determined in partition suit TS 29(P) of 2017 and this Court cannot go behind the decree unless cogent reason is shown.

Thus, considering all these aspects, I find, the objection petition filed by the petitioner/JD is liable to be rejected and stands rejected.

The case is disposed on contest.'

4. Mr. Samarjit Bhattacharjee, learned counsel for the petitioner, submits that the approach of the learned Executing Court in refusing to decide the issue under Sec