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2003 DIGILAW 636 (JHR)

Pabitra Das v. Lachmi Narayan Gupta

2003-06-03

M.Y.EQBAL

body2003
JUDGMENT M.Y. Eqbal, J. 1. This revision application at the instance of the petitioner, decree holder is directed against the order dated 29.11.2002 passed by Munsif, Chaibasa in execution case No. 6(s)/1992 whereby he has dismissed the application filed by the petitioner for restoration of execution case No. 6 of 1992 and for giving delivery of possession of the portion of the suit property. 2. The facts of the case lies in a narrow compass. 3. The petitioner filed Title suit No. 9/91 and obtained a decree for recovery of possession of the land comprised within Khata No. 1172, Plot No. 21/5043 measuring an area of 0.21 acres. The petitioner then levied Execution case No. 6/92 for delivery of possession of the said land. On 7.7.1998 delivery of possession of the land was effected and a report to that effect was submitted by the Nazir of the Court. On submission of the report since no objection was raised by the petitioner-decree holder the execution case was dismissed on 21.7.1998 on full satisfaction. 4. On 18.12.2002 the petitioner filed an application purported to be under Section 151, CPC for restoration of execution case No. 6/92 and for effecting delivery of possession of the remaining portion of the suit land. The said application was registered as Execution case No. 6(S) of 1992. The ground taken by the petitioner in the said application is that when the Nazir Civil Court went to the spot for effecting delivery of possession he found two houses on the said plot locked and, therefore, he could not effect delivery of possession of those houses. 5. Opposite party, on being noticed, filed their show cause denying and disputing the allegations made by the petitioner in the said application. It was contended that the execution case was dismissed after full satisfaction and the same cannot be revived. The learned Court below rejected the said application filed by the petitioner holding that the decree was executed in full satisfaction of the decree holder petitioner who also gave receipt accepting the satisfaction of the decree. 6. I have learned Mr. M.K. Dey, learned counsel appearing for the petitioner and Mr. Nawal Kishore Prasad, learned counsel appearing for the opposite parties. 7. Mr. 6. I have learned Mr. M.K. Dey, learned counsel appearing for the petitioner and Mr. Nawal Kishore Prasad, learned counsel appearing for the opposite parties. 7. Mr. M.K. Dey drawn my attention to the Nazirs report and submitted that in the report itself it was mentioned that delivery of possession could not be effected in respect of the entire decretal property but delivery of possession was effected only in respect of the land. 8. For better appreciation of the case of the petitioner I called for the record of the execution proceedings. From perusal of the order sheet it appears that delivery of possession was effected on 7.7.1998 and a report to that effect was submitted by the Nazir Civil Court. On the date fixed i.e. 20.7.1998 the decree holder appeared and filed hozri and the Court adjourned the case on 29.7.1998 for further order and for awaiting any objection from the side of the decree holder. On 29.7.1998 no step was taken by the decree holder nor any objection was raised on the Nazirs report affecting delivery of possession. The executing Court therefore, dismissed the execution case on full satisfaction. The petitioner about two and half years i.e. on 18.12.2000 filed the Instant application under Section 151. CPC for restoration of the execution case. No explanation whatsoever, even in single word, has been given in the said application explaining the reason for not filing the said application for about two and half years. The executing Court therefore, rightly dismissed the said application on the ground of delay. In my opinion such an application for restoration of execution case under Section 151, CPC after two and half years from the date of dismissal is not entertainable. 9. Besides the above the said application under Section 151 was filed without any affidavit. From perusal of the Nazirs report it appears that he has mentioned two houses in occupation of the opposite parties but the decree holder gave a receipt acknowledging peaceful delivery of possession of the land which was the subject matter of the decree. In the receipt granted by the petitioner decree holder it was mentioned that he received delivery of possession of the land excepting the two houses. In the receipt granted by the petitioner decree holder it was mentioned that he received delivery of possession of the land excepting the two houses. Curiously enough the petitioner did not file any application by way of objection in the execution case for effecting further delivery of possession in respect of the houses nor any objection was filed to the Nazirs report. The executing Court therefore, dismissed the execution case on full satisfaction. In the light of the admitted facts, the Court below rightly held that the execution case cannot be restored and delivery of possession cannot be effected in respect of the houses. 10. Taking into consideration the entire facts and circumstances of the case, I do not find any illegality or infirmity in the impugned order passed by the executing Court which needs any interference. This revision application has therefore, no merit and the same is dismissed.