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2007 DIGILAW 69 (ORI)

Bansidhar Mohanty v. Madhusudan Mohanty

2007-01-29

A.S.NAIDU

body2007
JUDGMENT A. S. NAIDU, J. : The order passed in Execution Case No.10 of 2000 arising out of Title Suit No.324 of 1989 of the Court of the Civil Judge (JD), Jajpur are challenged in these Writ Peti¬tions. For the sake of convenience and also with consent of the learned counsel for the parties all the three Writ Petitions were heard together. 2. To appreciate the controversy among the parties inter se, shorn of unnecessary details, the relevant facts involved in these Writ Petitions are as stated below : Madhusudan Mohanty, opposite party No.1 in all the three Writ Petitions, had filed Title Suit No.329 of 1989 in the Court of the learned Civil Judge (JD), Jajpur praying for partition of the joint family properties. On 7th February, 1995 the Court below passed a preliminary decree in the said suit declaring fifty per cent share of plaintiff-Madhusudan in the suit proper¬ty. The said preliminary decree having not been challenged by any party in appeal, plaintiff-Madhusudan filed an application before the Court below in the year 1997 for making the decree final. In the final decree proceeding, on 23rd April, 1997, an application was filed by defendant No.1-Bansidhar Mohanty, the present Writ petitioner, to carve out his 1/4th share in the suit property. In consonance with the Code of Civil Procedure, a Civil Court Com¬missioner was deputed to the suit land who measured the same and made separate allotments in favour of the respective parties as per their shares and submitted his report to the Court along with a sketch map. It is pertinent to mention here that no objection was filed by any party to the suit and the Court below accepted the report of the Civil Court Commissioner and on that basis made the preliminary decree final on 26th March, 1999. Thereafter in the year 2000, present petitioner-defendant No.1 initiated the aforesaid Execution Case No.10 of 2000 with a prayer to deliver possession of his 1/4th share in the suit property as per the allotment as indicated in the report and sketch map submitted by the Civil Court Commissioner, accepted in the final decree proceeding. After hearing the parties, the Court below issued writ of delivery of possession as prayed for. The writ was executed and possession of 1/4th share of the peti¬tioner-defendant No.1 was delivered to him. After hearing the parties, the Court below issued writ of delivery of possession as prayed for. The writ was executed and possession of 1/4th share of the peti¬tioner-defendant No.1 was delivered to him. Accepting the said allotments, on 6th December, 2004, defendant Nos.1 and defendant Nos.2 to 6 alienated parts of the respective properties allotted to them in the final decree proceeding in favour of each other. On 16th March, 2005 defendant No.4, after taking delivery of possession of his share, created disturbance in respect of the remaining properties which were allotted in favour of the plain¬tiff-opposite party No.1. Thereafter plaintiff-opposite party No.1 filed an application in the aforesaid Execution Case for delivery of possession of the suit property allotted in his favour in the final decree proceeding. Notice of the said peti¬tion filed by the plaintiff-opposite party No.1 was issued by the Court below to all parties. After receiving the aforesaid notice, defendant No.1- peti¬tioner filed W.P.(C) No.10438 of 2006 challenging the order of the said Court directing issue of notice. He also filed an appli¬cation under Section 47 of the Code of Civil Procedure before the Court below challenging executability of the decree. The said petition was registered as Misc.Case No.215 of 2006. While matter stood thus, defendant No.1-petitioner also filed another petitioner in the Execution Case with a prayer to permit him to withdraw the said Execution Case. The Court below by order dated 19th September, 2006 rejected the petition filed by the petitioner seeking permission to withdraw the Execution Case. Challenging that order dated 19th September, 2006, defen¬dant No.1-petitioner filed aforesaid W.P.(C) No.13862 of 2006. During pendency of W.P.(C) Nos.10438 of 2006 and 13862 of 2006, defendant No.1-petitioner having tried to forcibly raise certain construction on the land allotted in favour of the plain¬tiff-opposite party No.1 in the final decree proceeding, a peti¬tion was filed by the plaintiff-opposite party No.1 before the Court below for granting him protection. The said petition was registered as I.A. No.201 of 2006. The Court below directed maintenance of status quo with regard to the suit property by order dated 19th October, 2006. After hearing the learned counsel for the respective parties by order dated 7th November, 2006 the said Court rejected the application filed by defendant No.1-petitioner under Section 47 CPC which was registered as Misc. Case No.215 of 2006,. The Court below directed maintenance of status quo with regard to the suit property by order dated 19th October, 2006. After hearing the learned counsel for the respective parties by order dated 7th November, 2006 the said Court rejected the application filed by defendant No.1-petitioner under Section 47 CPC which was registered as Misc. Case No.215 of 2006,. Assailing the said order., the third Writ Petition, i.e., W.P.(C) No.15308 of 2006 has been filed by defendant No.1-petitioner. 3. In course of hearing, learned counsel for defendant No.1-petitioner fairly conceded that in view of subsequent events, W.P.(C) No.10438 of 2006 which was filed challenging the order of the Court below issuing notice to the said petitioner in the Execution Case has become infructuous, inasmuch as the peti¬tioner has since appeared in that case and has taken steps. In view of such submission, this Court dismisses W.P.(C) No.10438 of 2006 as infructous. 4. Mr. S. P. Das, learned counsel for the petitioner, assails the orders passed by the Court below rejecting the peti¬tion filed under Section 47 CPC and the petition filed for with¬drawal of the Execution Case, mainly on the ground that while making allotment of shares among the parties as per the prelimin¬ary decree and preparing the sketch map, weightage ought to have been given to possession of each party. According to Mr. Das, the said cardinal principle of law having not been kept in mind the final decree passed by the Court below cannot be sustained and has become unexecutable. He further submitted that the respective shares of the parties were not properly demarcated by the Civil Court Commissioner as a portion of the residential house of defendant No.1-petitioner and some other constructions raised by him were allotted in favour of plaintiff-opposite party No.1. He also submitted that in view of the aforesaid infirmity the sketch map forming a part of the final decree cannot be accepted and it is a fit case where the entire allotments made by the Civil Court Commissioner should be annulled and fresh allotment should be made after excluding the land, on which his dwelling house, bathroom, latrine etc. are existing and are in possession of defendant No.1-petitioner, from the share of plaintiff-opposite party No.1. Mr. are existing and are in possession of defendant No.1-petitioner, from the share of plaintiff-opposite party No.1. Mr. Das also submitted that on the land allotted in favour of plaintiff-opposite party No.1, three living rooms constructed by defendant-petitioner up to lintel are there and if the land on which the said constructions raised by defendant No.1-petitioner is allotted to plaintiff-opposite party No.1 get prejudice and irreparable loss will be caused to defendant No.1-petitioner. 5. Mr. Das further submitted that disputes relating to execution, discharge and satisfaction of a decree can be raised under Section 47 CPC, and the Court below acted illegally in rejecting the petition filed under Section 47 CPC. Therefore it is fit case where the order of the Court below may be varied. Advancing his argument further, he submitted that a party who has intimated an execution proceeding has a right to withdraw the same at any stage. In the instant case it was the defendant No.1-petitioner on whose application Execution Case No.10 of 2000 has been initiated. Defendant No.1-petitioner having himself filed a petition to permit him to withdraw the Execution Case, in all fitness of things, the Court below ought to have granted the permission sought. He thus submitted that the order of the Court below rejecting the said petition cannot be sustained and is liable to be quashed. 6. The submissions of Mr. Das are strongly repudiated by Mr. B.H. Mohanty, learned senior counsel appearing for the oppo¬site parties. The first ground of attack of Mr. Mohanty is that the order passed on a petition filed under Section 47 CPC being a final order, is revisable in consonance with Section 115 CPC and, as such, W.P.(C) No.15308 of 2006 is not maintainable. He further submitted that after enjoying the fruits of the decree, defendant No.1-petitioner is now trying to withdraw the Execution Case which is unjust, illegal, contrary to law, and an attempt which amounts to fraud on Court, and the Court below has rightly reject¬ed the said petition. 7. Emphasising his argument, Mr. Mohanty submitted that the petitioner never challenged the preliminary decree in appeal. After the decree was made final, he also never challenged that in appeal. No objection was also filed by him with regard to the allotments made by the Civil Court Commissioner in the final decree proceeding. 7. Emphasising his argument, Mr. Mohanty submitted that the petitioner never challenged the preliminary decree in appeal. After the decree was made final, he also never challenged that in appeal. No objection was also filed by him with regard to the allotments made by the Civil Court Commissioner in the final decree proceeding. The petitioner and some other defendants have also in the meantime alienated portions of their respective shares allotted as per the final decree in favour of each other. After all these, the petitioner is now estopped from taking the plea that the preliminary decree and also the final decree are not correct. That apart, accepting the final decree, the peti¬tioner himself initiated the Execution Case and took delivery of possession of the share allotted in his favour. Thus it is no more open to him to approach this Court taking a stand that the executing Court traversed beyond the decree. In substance, ac¬cording to Mr. Mohanty, the entire attempt of defendant No.1-petitioner is nothing but a ruse to ventilate his ill-motive to cause prejudice and harassment to the plaintiff-opposite party No.1, and it is a fit case where the Writ Petitions may be dis¬missed and the orders of the Court below may be confirmed. 8. I have heard learned counsel for the parties at length and perused the materials available on record. The power to issue a Writ of Certiorari by a High Court under supervisory jurisdic¬tion, as has been held by the Supreme Court in a catena of deci¬sions, has to be exercised sparingly and only in most appropriate cases where judicial conscience dictates to act to avoid gross failure of justice or gross in injustice to the parties. Law is well settled that exercise of certiorari jurisdiction should be with care, caution and circumspection. While exercising such jurisdiction a High Court is not to convert itself into a trial/appellate Court and indulge in re-appreciation or re-evaluation of evidence or correct errors in drawing inferences or correct any error of mere formal or technical character. 9. Let me now consider the submissions raised in the instant case in the light of the aforesaid cardinal principles of law. Admittedly the preliminary decree has attained finality. Allotment of shares was made in consonance with the report sub¬mitted by the Civil Court Commissioner. At the instance of the defendant No.1-petitioner the decree was executed. 9. Let me now consider the submissions raised in the instant case in the light of the aforesaid cardinal principles of law. Admittedly the preliminary decree has attained finality. Allotment of shares was made in consonance with the report sub¬mitted by the Civil Court Commissioner. At the instance of the defendant No.1-petitioner the decree was executed. He has taken possession of the lands allotted in his favour, thereby accepting the shares carved out by the Civil Court Commissioner. Thereafter alienations of shares have been made among the defendants inter se. Thus, so far as defendant No.1-petitioner is concerned, the decree has been satisfied. After taking possession of the share of his land as per the allotment, the prayer of the petitioner to withdraw the Execution Case is an attempt to frustrate the decree so far as allotment of share in favour of plaintiff-opposite party No.1 is concerned. According to defendant No.1-petitioner, a portion of the suit land on which some constructions raised by him exist has been allotted in favour of plaintiff-opposite party No.1. But then if the said fact was true, he could have very well raised that when the Civil Court Commissioner made the allotments and prepared the sketch map. Admittedly no objection to the report of the Civil Court Commissioner was raised in the final decree proceeding. Rather, defendant No.1-petitioner alien¬ated a portion of the land allotted in his favour in the final decree proceeding in favour of some other defendants who in turn alienated a portion of land allotted in their share in favour of defendant No.1-petitioner. 10. It is alleged that the constructions claimed by defen¬dant No.1-petitioner were in fact raised by him forcibly on the land allotted in favour of the plaintiff after taking possession of the land allotted in his favour in the Execution Case. The said fact was brought to the notice of the Court below as long back as on 19th October, 2006 by way of filing I.A. No.201 of 2006 and the said Court after hearing the parties directed maintenance of status quo of the disputed property. That apart, it is admit¬ted by the learned counsel for both sides that the aforesaid con¬structions are recent ones, inasmuch as the same have been raised only up to lintel level. That apart, it is admit¬ted by the learned counsel for both sides that the aforesaid con¬structions are recent ones, inasmuch as the same have been raised only up to lintel level. It has to be kept in mind that the preliminary decree was passed in the year 1995 and the final decree proceeding was initiated in the year 1997. Thus any con¬structions made lis pendens cannot create any right on the party making the same and he also cannot claim any preferential allot¬ment, specially in view of the fact that the same would amount to overt-acts committed by him with an aim to frustrate the decree. 11. So far as withdrawal of an Execution Case is concerned, law is well settled that once a decree has been passed by trial Court, certain rights are vested on the parties in whose favour the suit has been decided. That apart, in a partition suit every party has a right to claim partition. It is immaterial how the parties are arrayed. Therefore a party has no absolute right to seek withdrawal of a proceeding or Execution Case after gaining certain advantage. 12. In view of the discussions made above, this Court finds that the Court below has not committed any error apparent on the face of the record, and the orders impugned before this Court were just, proper and in consonance with law. It is a fit case where interference of this Court by issuing Writ of Certiorari is not warranted. This Court, therefore, dismisses the Writ Peti¬tions. Petition dismissed.