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2008 DIGILAW 525 (ORI)

BIJAYA KUMAR SWAIN v. HAREKRUSHNA NAYAK

2008-07-11

SANJU PANDA

body2008
JUDGMENT : Sanju Panda, J. - Challenge has been made in this civil revision to the Order Dated 23rd April, 2007 passed by the Learned Civil Judge (Senior Division), Bhadrak in IA. No. 206 of 2007 rejecting the application filed by the Petitioner u/s 47 of the Civil Procedure Code. 2. The brief facts of the case are as follows: The Judgment debtor filed an application u/s 47 of the Civil Procedure specifically raising the objections that the suit land Ac.0.31 % decs, is admittedly a portion of Ac. 1.13 decs. Though boundary has been mentioned in the suit schedule land, there is possibility of delivery of possession of wrong property as the dimension of the property has not been specified and there is no such measure settlement plot as has been described in the execution petition in the major settlement map. Therefore, he prayed to drop the execution proceeding as the description of the property has not been mentioned. Admittedly, Opposite Party filed a suit for a decree of declaration of right, title, interest and possession and permanent injunction. It is his case that he was doing business at Calcutta. He had purchased the suit land by registered sale deed dated 16.8.1966 and constructed a house over the same. The Defendant is his brother-in-law and he was handed over the sale deed to mutate his name and he was allowed to occupy the house but did not vacate the same. Therefore, the suit was filed with the above prayer. 3. After receiving notice, Defendant appeared and filed his written statement traversing the Plaintiffs allegation. His specific case was that he had paid the entire consideration amount and constructed the house over the suit land. He also pleaded that fraud has been practised in execution of the deed. The suit was decreed by the Trial Court. Being aggrieved by the order of the Trial Court, he preferred title appeal. Thereafter, he has filed a second appeal which has been registered as RSA No. 326 of 2006 and the same is pending before this Court. In the meantime, the Plaintiff has filed the execution case to execute the decree. 4. The Learned Civil Judge (Senior Division), Bhadrak who is the executing Court rejected the application of the Defendant filed, u/s 47 of the CPC on the ground that the description given was sufficient to identify the suit property. 5. In the meantime, the Plaintiff has filed the execution case to execute the decree. 4. The Learned Civil Judge (Senior Division), Bhadrak who is the executing Court rejected the application of the Defendant filed, u/s 47 of the CPC on the ground that the description given was sufficient to identify the suit property. 5. The Learned Counsel appearing for the Petitioner submitted that the question of identification and execution of the decree in respect of a wrong plot number are two different and distinct aspects. The Trial Court, without considering the said facts and without assigning any reason in respect of the objection raised by the Petitioner, rejected his application u/s 47 CPC. Therefore, the order is liable to be set aside in exercise of the jurisdiction u/s 115 of the CPC by this Court. He further submitted that had his application u/s 47 CPC been allowed, it would have amounted to final disposal of the proceeding. Therefore, the revision is maintainable. 6. The Learned Counsel for the Opposite Party, on the other hand, submitted that the revision is not maintainable. Had the application filed before the executing Court u/s 47 CPC been allowed, the revision could be maintainable on behalf of the party against whom the order has been passed. But the said contention is not acceptable as Section 115 CPC is very clear. Proviso to Section 115 of the CPC it has specifically been mentioned that the High Court or the District Court shall not, under this Section, vary or reverse any order, including an order deciding an issue, made in the course of a suit or other proceedings, except where (i) the order, if so varied or reversed, would finally dispose of the suit or other proceedings; or (ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. Here, the application filed u/s 47 CPC is coming under "other proceedings". Had the said application been allowed, it would not have amounted to final disposal of the other proceedings. Therefore, the revision cannot be maintainable on behalf of the Opposite Party. Hence, the said contention of the Opposite Party is not acceptable. 7. Here, the application filed u/s 47 CPC is coming under "other proceedings". Had the said application been allowed, it would not have amounted to final disposal of the other proceedings. Therefore, the revision cannot be maintainable on behalf of the Opposite Party. Hence, the said contention of the Opposite Party is not acceptable. 7. The second point raised by the Opposite Party is that as the suit property has been well described by identification, the Court below while rejecting the petition u/s 47 CPC has given reason and the said order should not be interfered with specially when the matter is subjudice before this Court in a second appeal. 8. From the aforesaid rival submissions of the parties, it appears that the executing Court has not assigned any reason for rejection of the objection filed by the Petitioner u/s 47 CPC and the said illegality goes to the root of the matter. The Court below should have assigned reason while rejecting the objection filed u/s 47 CPC. Reference in this regard may be made to the decision of the Apex Court in the case of Union of India (UOI) and Others Vs. Jai Prakash Singh and Another. The law is well settled that where the subject-matter of the suit is immovable property, the Plaintiff shall contain a description of the property sufficient to identify it, and in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. If the suit property is the whole of the plot in the settlement map, mere mention of the survey number and khata and mouza to which it appertains would be sufficient for its identification. But where the suit is in respect of a portion of a plot, further particulars are necessary for its proper identification. It is not correct to say that a portion of a plot can always be identified by giving boundaries thereof. From a given boundary lines making different angles can be drawn in which event the situation of the plot may still remain uncertain. The allegation of the Petitioner in the application u/s 47 CPC is that no such settlement plot is available as described in the execution petition. From a given boundary lines making different angles can be drawn in which event the situation of the plot may still remain uncertain. The allegation of the Petitioner in the application u/s 47 CPC is that no such settlement plot is available as described in the execution petition. Therefore, it is necessary that the portion of the plot which the Plaintiffs claim should be described with certainty so that the decree can be enforced against the Judgment debtor. Therefore, this Court, for the interest of justice and fair-play, remands the matter to the executing Court with a direction to reconsider the objection filed by the Petitioner u/s 47 CPC and dispose of the matter by a speaking order.