IMPORTANT POINT
Execution of decree – Execution can proceed even if formal decree is not drawn – Quoting a wrong statutory provisions does not create a bar and stand in way of considering application.

JUDGMENT (CAV)

The instant petition has been filed by the petitioner under Articles 226 and 227 of the Constitution of India for quashing the order dated 05.07.2018 passed by the learned Munsif, Saharsa in Execution Case No. 2 of 2003 whereby and whereunder objection petition filed by the petitioner has been rejected by the learned executing court.

2. Briefly stated, the facts of the case are that one Ramkrishan Swarnkar, father of respondent nos. 1 and 2, executed a registered mortgage deed of conditional sale in favour of one Upendra Prasad Ambashth, husband of the petitioner on 11.08.1983. On 07.08.1986, the mortgagor Ramkrishan Swarnkar filed a petition under Section 83 of the Transfer of Property Act (hereinafter referred to as ‘the TP Act’) before the learned Munsif which was numbered as Misc. Case No. 08 of 1986. On 30.09.1986, the learned Munsif passed an order in Misc. Case No. 08/1986 that it was not possible to conduct hearing for eviction of mortgagee Upendra Prasad Ambashth. Thereafter, again on 01.10.1986, the mortgagor Ramkrishna Swarnkar filed a fresh petition under Section 83 of the TP Act against the mortgagee which was numbered as Misc. Case No.10/1986. In the said Misc. Case No.10/1986, vide order dated 30.06.1987, the learned Munsif passed an order directing the mortgagee to vacate and give possession of the disputed property to the mortgagor within one month from the date of order, failing which the mortgagor could obtain the possession of the property through the process of the court. Being aggrieved by the order dated 30.06.1987 passed in Misc. Case No. 10/1986, the mortgagee, the husband of the petitioner filed Civil Revision No. 956 of 1987 before this Court. Though in the said civil revision, no stay order was passed, but due to admission of the said civil revision, further proceeding of Misc. Case No. 10 of 1986 was stayed by the learned trial court. On 10.07.1991, the mortgagee withdrew the aforesaid Civil Revision No. 956/1987. Thereafter, on 08.01.1996, the learned Munsif dismissed Misc. Case No. 10 of 1986 in default. After dismissal of aforesaid Misc. Case No.10/1986, the mortgagor filed Misc. Case No.05 of 2002 for setting aside the order of dismissal for default dated 08.01.1996 and for restoration of Misc. Case No. 10/1986 along with the petition under Section 5 of the Limitation Act for condonation of delay. However, Misc. Case No. 05 of 2002 was rejected vide order dated 29.11.2002 by the learned Munsif. Thereafter, on 09.07.2003, the Execution Case No. 02 of 2003 was filed by the respondent nos. 1 and 2 for execution of order dated 30.06.1987 passed in Misc. Case No. 10 of 1986. But the learned Munsif, Saharsa dismissed the said execution case filed by the decree-holders vide order dated 12.11.2003 on the ground that earlier application for execution filed by the decree-holders has been dismissed and this fact was suppressed by the decree-holders. Being aggrieved and dissatisfied with the order dated 12.11.2003 passed in Execution Case No. 02 of 2003, the respondent no. 1 approached this Court by filing Civil Revision No. 206 of 2004 which was finally heard and disposed of by this Court vide order dated 13.12.2004 allowing the aforesaid civil revision petition. Thereafter, on 07.01.2005, the husband of the petitioner/judgment-debtor filed Civil Review No.04 of 2005 for review of order dated 13.12.2004 passed in Civil Revision No. 206 of 2004 which was finally heard and dismissed by this Court vide order dated 13.09.2005. Against the dismissal order dated 13.09.2005, the petitioner approached the Hon’ble Supreme Court by filing SLP (C) No. 20854 of 2006. Thereafter, on 30.09.2013, the aforesaid SLP (C) No.20854 of 2006 was dismissed as withdrawn with liberty to the petitioner to raise the question of maintainability of execution petition before the learned executing court. Pursuant thereto, the petitioner filed an objection petition regarding maintainability of execution case before the le