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2002 DIGILAW 35 (GAU)

Rajwnat Singh Gulati and Ors. v. Haradhan Dutta

2002-01-11

RANJAN GOGOI

body2002
R. GOGOI,J- The instant writ petition seeks to challenge an order dated 24.7.96 passed by the learned Munsiff, Bongaigaon (now Civil Judge (Jr Divn) in Tittle Execution Case No. 7/95. By the aforementiond order, the learned Court below has allowed the petition under Section 47 of the Code of Civil Procedure filed by the judgment-debtor holding that the decree passed in Title Suit No. 34/88 to be not executable. 2. The present petitioners who are the decree-holders in title Suit No. 34/88 had instituted the aforementioned title suit seeking eviction of Dilip Kumar Dutta and Harendra Kumar Dutta, the defendants in the suit. The suit was decreed by the learned Court below by judgment and decree dated 24.3.92 and the appeal namely, Title Appeal No. 20/93 filed by one Haradhan Dutta against the aforementioned judgment and decree, was dismissed on 23.2.94. The revision proceeding instituted before this Court and registered as Civil Revision No. 266 of 1994 by the aforesaid Haradhan Dutta was also dismissed by this Court by judgment and order dated 2.8.95. Thereafter, the decree holder/plaintiff instituted Title Execution Case No. 7/95 for execution of the decree dated 24.3.92 passed in Title Suit No. 34/88. An application under Section 47 of the Code of Civil Procedure having been filed by the judgment-debtor and the learned Court below by the order impugned in the present proceeding having come to the finding that the decree is in executable, the instant proceeding has once again been brought before this Court by the decree holder/plaintiff. 3. A perusal of the order dated 24.7.96 under challenge in the present revision proceeding would go to show that two grounds primarily were taken into consideration by the learned Court below in coming to the findings impugned. The vagueness in the description of the suit property has been recorded as the first ground on which the decree has been held to be in executable. The learned Court below having found certain discrepancies in the description of the suit property as mentioned in the plaint and the decree on the one hand and in the execution petition and the subsequent petition dated 4.2.96 on the other has held that the suit property is not capable of exact identification. To elaborate a little further, in the decree the suit property has been marked as 'X' which is described in Schedule-'B' which is a part of Schedule-4A' property. To elaborate a little further, in the decree the suit property has been marked as 'X' which is described in Schedule-'B' which is a part of Schedule-4A' property. Schedule-'A' has been described in the plaint and the decree drawn in terms thereof with certain specified boundaries. The boundaries of Schedule-'A' property as mentioned in the execution application as also in the Petition No. 424/96 filed in the course of the execution proceeding indicates some variations with the boundaries as mentioned in the decree. Furthermore, Schedule-'B' property having been referred to by means of a box stated to be located in north-eastern corner of Schedule-'A' property and identified by the letter 'X' was also found to be vague and not disclosing exact identity of the suit property from which the eviction of the judgment-debtor was required to be made. 4. The second ground on which the decree has been held to be in executable, is that in the decree, the names of the judgment-debtors are recorded as Dilip Kumar Dutta and Harendra Kumar Dutta whereas in the execution petition, the name of the judgment-debtor is mentioned as Haradhan Dutta. The learned Court below on the basis of the aforesaid discrepancies in the name of the judgment-debtor has also held the decree to be inexecutable. 5. Mr B.K. Gswami, learned senior counsel for the revision petitioner/decree holder contended that while the description of the suit property from which the eviction was ordered could have been mpjre accurately made, nevertheless the materials on record are sufficient Jo properly identify the suit property. Learned counsel submits that the pleadings before the Courts below and judgments on the basis of which the decree has been drawn up, would clearly go to indicate that the judgment-debtor was a tenant in the premises located in the north-eastern corner of the Schedule-'A' property and it is not the case that the judgment-debtor in the course of the proceedings in the Courts below that there is any other tenant on other persons in occupation of any other premises in the north-eastern part of the Schedule-'A' property. Learned counsel has also submitted that no objection regarding the vagueness of the suit property was taken at any stage of the proceedings before the Courts below. Learned counsel has also submitted that no objection regarding the vagueness of the suit property was taken at any stage of the proceedings before the Courts below. Mr Goswami by referring to a judgment in the case of Chandan Mall Bapna-Vs-Abdul GaniMeah, reported in AIR 1976 Gauhati 54 as also the judgment of the Apex Court in the case of Bhavan Vaja and Others-Vs-Solanki Henuji Khodaji Mansang and' another, reported in AIR 1972 SC1371 has argued that on a correct appreciation of the law, the executing Court was duty bound to make every endeavour to identify the suit property on the basis of the pleadings and the judgments of the Courts below in order to execute the decree. Learned counsel submits that the execution of the decree by making all attempts to ascertain the identity of the suit property is the normal rule and the exceptions thereto recognised by\a long line of judicial pronouncement kre not attracted to the present case. On the said basis, learned counsel for the petitioner prays for interference of this Court with the order impugned in the present proceeding. 6. Adverting to the second ground on which the decree has been found to be inexecutable, Mr Goswami has urged that the appeal instituted against the decree in question and the subsequent revisional proceeding before this Court were at the instance of Haradhan Dutta and that though there is some misdescription in the name of the judgment-debtor in the decree, the same stands appropriately clarified by the initiation of the proceedings in appeal and revision by Haradhan Dutta having no doubt or ambiguity of the identity of the judgment-debtor. 7. Mr S.S. Sharma, learned counsel appearing for the opposite party has refuted the arguments advanced by Mr Goswami by contending that the suit property from which the eviction is to be carried out is entirely vague and indefinite and the decree is incapable of execution. Mr Sharma by referring to the Schedule-'A' property as mentioned in the decree and the execution application as also in the subsequent petition dated 4.2.96 has sought to place before the Court the exact variation in the description of the said Schedule-'A' property. Mr Sharma by referring to the Schedule-'A' property as mentioned in the decree and the execution application as also in the subsequent petition dated 4.2.96 has sought to place before the Court the exact variation in the description of the said Schedule-'A' property. Mr Sharma further contends that not only there is ambiguity in the description in Schedule-'A' property but also the Schedule-'B' property from which the eviction is to be carried out has been identified only by means of a box in the north-eastern corner of the Schedule-' A' property and maked with the letter 'X'. This, according to Mr Sharma, makes the suit property from which the eviction is to be carried out absolutely vague and unidentifiable. It is also submitted by Mr Sharma that no effective objection as to the identity of the suit property was taken in the suit by the defendants inasmuch as the defendants-had challenged the title of the plaintiff in the suit. Mr Sharma, learned counsel appearing for the opposite party has also raised a dispute at the Bar that Hardhan Dutta and Harendra Kumar Dutta are not the one and the same person and, therefore, the decree is not executable. 8. I Have considered the rival submissions advanced by the parties. When a decree has been passed by the competent Court and the same has attained finality in law, the endeavour of the executing Court must be to execute the decree and to resolve all conflicts regarding the identity of the decretal property by resorting to all such available aids that judgment pronouncements have recognised in this regard. In this regard, the following passage in the case of Bhavan Vaja (supra) may be usefully extracted:- "But that does not mean that it (executing Court) has no duty to find out the true effect of that decree. For construing a decree, it can and in appropriate cases, it ought to, take into consideration the pleadings as well as the proceedings leading upto the decree. In order to find out the meaning of the words employed in a decree the Court often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution Court and if that Court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it. In order to find out the meaning of the words employed in a decree the Court often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution Court and if that Court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it. The jurisdiction of execution Court does not begin and end with merely looking at the decree as it is finally drafted." The executing Court under Section 42 of the Code of Civil Procedure has been empowered while executing a decree to take, the decree as it has been passed by itself. The law laid down by the Apex Court would go to indicate that to properly construe the terms of the decree, the executing Court may have regard to the pleadings of the parties and may also refer to the judgments of the Courts on which the decree was founded. Judicial opinion has also recognised a power in the executing Court to appoint a Commissioner, if required, for the purpose of identification of the decretal property. The list of aids which the executing Court may resort to, in understanding the true purport and effect of the decree, by no means is exhaustive. It is essentially a question of judicial discretion to be exercised by the executing Court keeping in mind the cardinal principle that in understanding the true effect of the decree, the executing Court would not be empowered to go behind the decree or to reopen the same. In the instant case, the Court below has come to the conclusion that the decree in question was not executable inasmuch as the description of the decretal property in the decree and the execution application were somewhat inconsistent and that reference to the Schedule-'B' property from which the eviction was to be carried out was without any description either of the area of the property or the boundaries thereof. The fact that there was discrepancy in the name of the judgment-debtor in the decree and in the execution application also prevailed upon the executing Court in coming to the impugned finding. Absence of boundaries and exact measurement of the decretal property or certain inconsistencies in the name of the judgment-debtor would not render a decree in executable in all situations. There is no rule of universal application to the above effect. Absence of boundaries and exact measurement of the decretal property or certain inconsistencies in the name of the judgment-debtor would not render a decree in executable in all situations. There is no rule of universal application to the above effect. Much would depend on the facts and circumstances of the given case. In the instant matter, the learned Court below does not appear to have embarked upon any consideration of the pleadings and the judgments and such other materials which could have been taken into consideration to identify the suit property. The entire of the findings of the Court below seems to have been based on the solitary fact that there were some inaccuracies in the description of the suit property and the name of the judgment-debtor. As already held in the earlier part of the judgment, it 'is the duty and obligation of the executing Court to make all possible endeavors to construe the true effect of the decree and to execute the same on consideration of all legally permissible materials. As the same has not been done in the present case, this Court is of the considered view that the impugned order dated 24.7.96 is not legally tenable and is liable to be set aside. Accordingly, the aforesaid order dated 24.7.96 is hereby set aside. Having regard to the totality of the facts of the case, the instant matter shall however, stand remitted to the Court of Munsiff (now Civil Judge (Jr. Divn) Bongaigaon for a de novo consideration on the basis of such materials which the parties to the proceeding may place before the Court for identification of the decretal property. As the decree in question has been begging execution, if legally warranted, for almost a decade now, the Court below shall pass appropriate orders in the matter as expeditiously as possible and in any case, within a period of 4 (four) months from the date of appearance of the parties which is fixed on 28.1.2002. 9. Registry to transmit the records forthwith. 10. With the above directions, the revision petition shall stand allowed to the extent indicated.