IMPORTANT POINT
Objection to execution of decree – Running a separate miscellaneous proceeding under Section 47 of CPC is a misuse of process of court.

JUDGMENT (CAV)

The instant petition has been filed by the petitioner under Article 227 of the Constitution of India seeking following reliefs:—

“(I) Issuance of a Direction/Order/Writ including writ in the nature of a writ of Mandamus/certiorari to quash the order dt. 30.11.2019 passed by Sub Judge-I, Lakhisarai by which and whereunder he has rejected the application filed under Order XXIII, Rule- 9 on dates mentioned in impugned order itself commission for local investigation for the reason that there are in erred in Decree regarding area of land as stated 2438 Sq. feet where as possession over the land under the Judgement debtor is 2696 Sq. feet in Khesra No.- 782 which does not tally & real suit land is of Khesra No.- 982, that has never modified according to law therefore to meet the principal of natural justice a verification is required to be done by the survey knowing pleader Commissioner and Petitioner- Judgement debtor is ready to bear the expenditure. Therefore a survey knowing pleader commissioner be appointed.

(II) Issuance of writ/order in the nature of mandamus commanding that petitioner prays that a petition dt. 27.09.2019 was filed on his behalf under order 21 Rule 29 C.P.C. for staying the execution proceeding in Execution Case No.-2/2010 for the reason that a T. S. No.- 06/2016 was filed and copy was also served upon the concerning parties and matter was directed to be listed alongwith Execution Case No.- 2/2010 on 28.09.2019 but on the matter was directed to hear on 26.10.2019 said date the court was closed and in the mean time Nazir Shiv Shakti Singh reached at the place of disputed land to execute the order passed in T. Eviction No.- 02/2004 alongwith C.O. Lakhisarai with police administration and they forcefully removed to load his domestic article on road which was protested by the Judgement debtor. The concerned authority granted one week time to vacate the premises. In mean while Judgement debtor got his land measured by the Survey knowing Amin and find that in Khata No.- 564 Khesra No.- 782 total area as per map is 19.75 decimal and total area is 8601 Sq. feet and in Khesra No.- 782 from the main road to middle side there is 31 feet where as by the appellate Court under Khata No.- 564, Khesra No.- 782 has passed order showing two storied house alongwith 106 feet length and 23 feet width land whose total area shown to home 2438. Sq. feet where as the Judgement debtor has got possession over 2696 Sq. feet land which does not tally with the delivery of possession land as in decree their is order to vacate two storied house along with rice meal where fact is that there is one storied building in land in question & no rice meal stablished on the Suit land. It is further to state here that the original Suit has been filed related to Khesra No.- 982 & entire evidences as well as many of the petitions, that was filed before the learned court below during the Trial as stated Khesra No.- 982 & even the Judgment & decree has been passed against Khesra No.- 982 but at the time of decision of First Appeal said Khesra has been modified by the Court even there was neither any modification petition filed by any party related to the suit land of Khesra No.- 782 (Correct Khesra) nor any specific decision has been passed by the learned Court on appeal but learned Court has modified Khesra No.- 782 in the place of 982 whimsically that is against admitted principal & law of C.P.C.

(III) Issuance of a direction/ writ/ order to which the petitioner may be found entitled to in the facts and circumstances of the case.”

2. Briefly stated, the facts of the case are that the petitioner and the respondents were members of joint Hindu family who owned and possessed the suit land appertaining to Khata No.782, area 9 ¼ decimals. After family partition, the petitioner got his share in the joint family property. The respondents filed Title Suit No.19/1996 before the court of learned Sub Judge, Lakhisarai for declaration of title w