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2007 DIGILAW 496 (ORI)

Pragyan Rout v. Hema Prava Ray

2007-06-29

A.K.PARICHHA

body2007
JUDGMENT A.K. PARICHHA, J. : The petitioner is the judgment-debtor in Execution Case No.9 of 2005 in the Court of learned Civil Judge (Sr. Division) Second Additional Court, Cuttack wherein the decree passed in T.S. No.280 of 2000 of the said Court is sought to be executed. The disputed land measuring Ac. 0.190 decimals situates on Hal Plot No.1411 in Hal Khata No.273 of Unit-22 Minkamal Patna in Cuttack town. Respondent No.1 filed the suit for declaration of title and recovery of possession of the shop rooms, standing trees on the aforesaid land. The petitioner was defendant No.5 and her husband was defendant No.4 in that suit. They contested the suit, but the suit was decreed against them. The petitioner filed appeal before this Court challenging the decree vide RFA No.80 of 2003, but the said appeal was dismissed on contest. The petitioner preferred LPA No.88 of 2005, but the said LPA was found to be without any merit and was dismissed at the stage of admission. The petitioner then filed SLP (Civil) No. 10675 of 2005 before the apex Court, but that was also dismissed by the apex Court. The opp.party No.1 then filed Execution Case No.9 of 2005 seeking execution of the decree. The petitioner filed objection under Section 47 of the C.P.C. stating therein that the decree is not executable for vagueness in the descrip¬tion of the properties sought to be executed, that the decree passed by the Civil Court was without jurisdiction and that recovery of possession is not permissible in an injunction de¬cree. Learned executing Court after hearing the parties rejected the objection by order dated 26.8.2006. The legality of the said order is under challenge in this revision. Mr. S.P. Mishra,learned counsel for the petitioner submits that delivery of possession of the entire suit land, as sought for by the decree-holder, is contrary to the decree and there¬fore, cannot be executed. He states that the decree relates to recovery of six shop rooms only, but the property sought to be executed is entire suit land and shops thereon and the descrip¬tion also suffers from vagueness. He also argues that although a decree for permanent injunction is executable under Order 21 Rule 32 of the CPC, yet the execution would not be maintainable where dispossession after the decree is not shown and in the present case no dispossession is shown. He also argues that although a decree for permanent injunction is executable under Order 21 Rule 32 of the CPC, yet the execution would not be maintainable where dispossession after the decree is not shown and in the present case no dispossession is shown. According to him, the decree is a nullity as the same was passed by the Civil Court, although jurisdiction of the Civil Court was barred under Section 39 of the O.E.A. Act. He alleges that learned Executing Court without appreciating these aspects mechanically rejected the objections raised by the petitioner-Judgment debtor. In support of such contention Mr. Mishra, relied on the judgment of this Court in Second Appeal No.35 of 1976 (Gangadhar Choudhury v. Syod Sazil Ali & others.) in which this Court observed that- “vague descrip¬tion of the suit property in the decree makes the decree unexe¬cutable.” Mr. B.H. Mohanty, learned counsel for opp.party No.1 submits that the properties described in the execution petition is nei¬ther vague nor discrepant with the decree and therefore, the same is executable. He states that the objection regarding lack of jurisdiction of the Court in passing the decree and the main¬tainability of relief of delivery of possession were all raised in the suit, appeal and L.P.A. and those aspects have already been decided and for that reason those were not liable to be reopened in the execution proceeding. Mr. Mohanty further con¬tends that since more shop rooms were forcibly constructed by the petitioner and her husband during the pendency of the appeal, recovery of possession of all the shop rooms through the execu¬tion proceeding is permissible. In essence Mr. Mohanty supports the impugned order of the executing Court. It is not disputed that opp.party No. 1 sought for declara¬tion of title, recovery of possession over the suit schedule properties and learned Trial Court passed the following decree : “The suit is decreed on contest against defendant No.5 and ex parte against defendant Nos. 1, 2, 3 and 4 without cost. The right, title, interest of the plaintiff and proforma-defendant Nos. 6 to 11 be declared over the shop rooms standing over the suit land and possession so acquired by the defendants in the suit shop rooms be delivered to the plaintiff and proforma-defendants within 6 (six) months otherwise the plaintiff would be at liberty to take recourse of law for taking delivery posses¬sion. 6 to 11 be declared over the shop rooms standing over the suit land and possession so acquired by the defendants in the suit shop rooms be delivered to the plaintiff and proforma-defendants within 6 (six) months otherwise the plaintiff would be at liberty to take recourse of law for taking delivery posses¬sion. The record of right prepared on 8.1.1999 in favour of defendants 1, 2, 3 & 5 is declared to be invalid and inoperative in law and defendant Nos. 1 to 5 are permanently restrained from interfering with the peaceful possession of the plaintiff and proforma-defendants Nos.6 to 11 over the suit land ....” This decree was confirmed throughout in the higher forums. It further appears from the judgments of the Trial Court as well as appellate Courts that the issue regarding jurisdiction of the Civil Court to pass the decree was raised and answered. So learned Executing Court had no jurisdiction to reopen that mat¬ter. In the execution opp.party No.1 wanted delivery of posses¬sion of the shop rooms standing on the suit land. The decree was clearly to the effect that if the petitioner, her husband would not deliver the possession of the shop rooms to opp.party No.1 within six months, then the possession of those rooms can be taken through the Court by filing execution proceeding. In that situation opp.party No.1 was legally entitled to knock the door of the Executing Court for taking the delivery of possession of the shop room standing on the suit land. Since the suit land has been described clearly and there is no dispute that the shop rooms stand on that land, the prayer made in the execution pro¬ceeding cannot be said to be vague or without definite descrip¬tion. About the inter mediary interest and vesting under the O.E.A. Act etc. the issue had already been decided in the suit and appeal and there was hardly any scope for the executing Court to accept the objection about the executability of the decree on that score. About the maintainability of the execution proceeding it is worthwhile to indicate that the decree is not a simple decree of injunction but the decree declares right and title of opp.party No.1, allows recovery of possession of shop rooms and also injuncts defendant Nos. 1 to 5 from interfering with the possession of the opp.party No.1-plaintiff. About the maintainability of the execution proceeding it is worthwhile to indicate that the decree is not a simple decree of injunction but the decree declares right and title of opp.party No.1, allows recovery of possession of shop rooms and also injuncts defendant Nos. 1 to 5 from interfering with the possession of the opp.party No.1-plaintiff. When the decree clearly contemplates recovery of possession of the shop rooms, the prayer for recovery of possession of the shop rooms made by opp.party No.1 was maintainable. The impugned order passed by learned Executing Court is thus found to be legally tenable. Since the order does not suffer from any illegality or perversity in approach, no interference is necessary. The revision is accordingly found to be without any merit and is dismissed. Revision dismissed.