IMPORTANT POINT
Execution of decree – Confirmation of Possession will include delivery/recovery of possession.

JUDGMENT

Sujit Narayan Prasad, J.—This writ petition is under Article 227 of the Constitution of India, whereby and whereunder, the order dated 03.05.2019, passed in Execution Case No. 5/13 by the Munsif, Koderma is under challenge by which the objection filed by the petitioners vide petition dated 05.02.2018 raising the maintainability of the Execution proceeding on the ground that no degree has been passed by the trial court for delivering the possession of the property in question.

2. The brief facts of the case of the petitioners, as per the pleadings made in the writ petition, is that a Title Suit being Title Suit No. 21 of 2007 has been filed by the respondents for the following reliefs:-

“A) That it be declared that plaintiffs Natho Sonar hold all right, title interest and possession on 04 decimals land mentioned in Schedule ‘I’ of the plaint and plaintiff kabita Devi holds right, title, interst and possession on 10 decimals land in suit mentioned in Schedule ‘II’ of the plaint and their title thereon be declared and their possession thereon be confirmed.

B) That the sale deed No. 4642, dated 6.9.2000 by defendant no. 1 Gangadhar Sonar in respect of suit land in favour of defendants no. 2 to 4 Sahdeo Sonar, Arjun Sonar and Sanjay Sonar, fully described in Schedule ‘III’ of the plaint, be declared illegal, inoperative, ipso factor void and of no legal consequence so far plaintiffs are concerned and the same is also not binding on the plaintiffs.

C) That the defendants, their men and agents and anybody claiming through them may be permanently injuncted from interfering with plaintiffs’ possession on suit land in any manner.

D) That the cost of the suit may be awarded to the plaintiffs.

E) That any other relief or reliefs to which plaintiffs are found entitled may be awarded to them.”

3. In the said suit, the ex parte decree was passed on 03.03.2009. In consequence upon the same, the decree was signed on 20th March, 2009, whereby and whereunder the decree has been passed, which reads hereunder as:-

“(A) That it be declared that plaintiffs Natho Sonar holds all right, title, interest and possession on 04 decimals land mentioned in Schedule I of the plaint and plaintiff Kabita Devi holds right title, interest and possession on 10 decimals land in suit mentioned in Schedule II of the plaint and their title thereon be declared and their possession thereon be confirmed.

Schedule XLII-Form No. (J) 17 (Old C.P. 20)

This suit coming on this for final disposal before Smt. Radha Bhaovanjan Munsif Koderma 3.3.09 day in the Presence of Sri Sheo Shankar Prasad Advocate for the plaintiff and of Sri Sudhir Kumar Sinha Advocate for the defendant it is order and decreed that

That the plaintiffs suit be and the same is decreed on contest with cost U/O VIII Rule 10 C.P.C. against the Dft. The right, title, interest at Pf. No. 1 Natho Sonar is declared over the land of Sch-1 of the plaint and his possession over the same is also confirmed.

And that the sum of Rs.4204/- xxx as paid by the defendant to the plaintiff on account of the costs of this suit, with interest thereon at the rate of per annum from this date to date of realization”

4. Thereafter, the decree holder has instituted an Execution case being Execution Case No. 01 of 2010 in which the notices have been issued to the petitioners/judgment debtors upon which the petitioners’ wife has filed a petition for restoration of the suit in exercise of the power under Order IX Rule 13 of the Code of Civil Procedure, which was registered as Miscellaneous Case No. 5/2010, but subsequently, the same has been withdrawn and thereafter an appeal has been filed being Title Appeal No. 19 of 2010 before the District Judge, Koderma, which was dismissed on the ground of limitation against which second appeal has been filed being Second Appeal No. 136 of 2017, which was disposed of vide order dated 03.12.2018 with a direction to file an appropriate application with an appropriate order. Th