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1983 DIGILAW 44 (CAL)

Simea Chandra Mondal v. Ghisu Lal Mondal

1983-03-01

A.K.SEN, S.N.SANYAL

body1983
JUDGMENT 1. THIS is a revisional application at the instance of the heirs and legal representatives of one of the defendants judgment debtors in 0. C. Execution case No. 15/78 of the court of the Ld. Subordinate Judge, Malda. The order impugned is one dated March 19, 1982 passed by the Id. Subordinate Judge dismissing a petition filed on behalf of the petitioners under sections 151 and 152 of the code of Civil Procedure. 2. IN the aforesaid execution case the plaintiffs put a final decree for partition into execution for delivery of possession with the help of a Pleader-Commissioner. Such delivery having been effected by the Pleader-Commissioner, he submitted report and the executing court by its order dated September, 16, 1981 disposed of the execution case, obviously, on full satisfaction. Shortly thereafter, the present petitioners filed an application on September 24, 1981, praying for an opportunity to be given to them to file an objection against the Commissioner's report. But the said application was dismissed by the Id. Judge in the executing court by an order bearing no. 64 dated September 24, 1981, on the ground that, since the execution case itself as already been disposed of, such a prayer could not be granted. Immediately thereafter, the present petitioners, filed an application under sections 151 and 152 of the code out of which the present revisional application arises. In this application an objection was raised on their behalf to the effect that although the allotment was made in the final decree drawn up on compromise between the parties with reference to the c. S. records, the Ld. Commissioner in delivering possession proceeded to so on the basis of revisional record of rights without relying the R. S. maps with the C. S. maps. As a result it was claimed that the commissioner arbitrarily delivered possession of more lands to the plaintiffs than it was due to them in terms of the final decree. 3. FOR all intents and purposes, this is an objection coming squarely within the purview of section 47 of the Code. There is no prescribed mode of raising such an objection so that merely because this objection has been so raised in an application under section 151 read with section 152 of the Code could be no ground for rejecting the application without proper adjudication. 4. BUT very unfortunately, the Id. There is no prescribed mode of raising such an objection so that merely because this objection has been so raised in an application under section 151 read with section 152 of the Code could be no ground for rejecting the application without proper adjudication. 4. BUT very unfortunately, the Id. Subordinate Judge in disposing of this application observed as follows:- "from the subsequent order no. 64 dt. 24.9.81 it would appear that the petitioner made similar petition before this court which was rejected by this court. The petitioner did not prefer any objection petition as provided in section 47 C. P. C. against the report of the Pleader Commissioner. Thus considered, I do not see why the report of the Id. Commissioner should be set aside in the circumstances and at this stage. In view of the position of the decree, the plaintiff has been rightly allotted 1.16 decs, of land. It might be that some other lands were recorded in the name of the plaintiff. The relief of the petitioner lies elsewhere and not in the present case under the present circumstances. Moreover, the provision of sections 151 and 152 of the code is not applicable at this stage. Whatever the executing court required to do in a execution proceeding, has been done already and completely and thus the court has become functus officio. There is nothing to review the order of this court and also there is no cogent materials in support of it. Thus considered the petition under sections 151 and 152 of the Code of Civil Procedure dated 3.12.81. In the circumstances the petition stands rejected." Having heard the Id. Advocates, we are clearly of the opinion that the Id. Subordinate Judge failed to appreciate the true nature of the claim put forward in this application and he dismissed the application upon a clear misconception of the legal position. In substance, the Id. Subordinate Judge has refused to exercise his jurisdiction vested in him when he threw out an objection under section 47 of the Code on grounds clearly unsustainable. In the first place, it should be pointed out that by the earlier order dated September 24,1981, no objection of the kind sought to be raised in the application under section 151 read with section 152 of the Code was heard or over-ruled. In the first place, it should be pointed out that by the earlier order dated September 24,1981, no objection of the kind sought to be raised in the application under section 151 read with section 152 of the Code was heard or over-ruled. By that order a prayer for some time to raise such an objection was rejected in view of the fact that the execution case had been disposed of. Next, the id. Subordinate Judge appears to have laid much stress on the point why application was not made under section 47 of the code. But we have indicated hereinbefore that there is no prescribed manner of raising such an objection. Moreover, it is our considered view that the applications must be dealt with having regard to their substance and not merely to their forms. So considered, there can be no doubt of the fact that the application under consideration by the Ld. Subordinate Judge was nothing but an objection to the effect that in execution more land has been delivered to the plaintiffs than what is due under the decree. Therefore, it was an error on the part of the ld. Subordinate Judge to throw away the application only because the sections recited at the cause title were sections 151 and 152 of the Code. Next reason given by the ld. Subordinate Judge is that the petitioners remedy lies elsewhere. Here again he was making a mistake in over-looking the provision of section 47 of the code because that provision bars any other remedy. An observation by the Id. Judge that the plaintiff had been rightly allotted 1.16 decs, of land is uncalled for because he had not gone into the objection on its merits and has not decided whether land that has been delivered to the plaintiff is more than that is due to him under the decree. It was equally an error on the part of the Id. Subordinate Judge to think that the court had become functus officiant because objection of the present kind can only come after the deliver/of possession had been made. 5. FOR all this reasons, we cannot but hold that the Id. Subordinate Judge acted irregularly in the exercise of his jurisdiction in rejecting the objection which really amounts to an objection, under section 47 of the code without deciding the same on its merits by the order impugned. 6. 5. FOR all this reasons, we cannot but hold that the Id. Subordinate Judge acted irregularly in the exercise of his jurisdiction in rejecting the objection which really amounts to an objection, under section 47 of the code without deciding the same on its merits by the order impugned. 6. IN that view, the revisional application succeeds on contest and the impugned order being set aside, we direct the Id subordinate Judge to re-hear the petition as one under section 47 of the code by allowing the parties to adduce evidence in support of their respective cases. No order made as to costs in this revisional application. Let the order be communicated to the court below and the records be sent down' forthwith. Application allowed.