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2008 DIGILAW 54 (PAT)

Madhurani Singh v. Tara Bala Ghosh

2008-01-10

NAVANITI PRASAD SINGH

body2008
Judgment Navaniti Prasad Singh, J. 1. Petitioner is the assignee of the decree holder and had sought the execution of the decree as granted by the appellate court in respect of 15 decimals of land. It appears, originally the Suit was dismissed but the appellate Court substantially reversed the judgment and decree and granted decree in favour of the plaintiff- appellant in respect of 10 decimals of land while rejecting the claim in respect of 3 decimals of the suit property. This appellate decree is dated 3rd May, 1975. This was then appealed by the defendant unsuccessfully before this Court in Second Appeal. The appellate decree thus became final was put in execution. In between, it appears that some of the original defendants died and they were substituted by Sri Subhash Chandra Ghosh and Sri Tara Bala Ghosh. Later Subhash Chandra Ghosh also expired and was substituted by others. The substituted persons are the opposite parties in this civil revision application. They first filed an application in terms of Section 47 of C.P.C. challenging the executability of the decree in Title Execution Case No. 1/1985 but the same was rejected by order dated 29.9.2001. They then preferred two civil revision applications before this Court (C.R. No. 2116 of 2001 and C.R. No. 14 of 2002) which met with the same fate by judgment and order dated 27.8.2002 being judgment of Nagendra Rai, J, as he then was, who clearly held that the heirs as substituted are to represent the case of the deceased and they are bound by the orders passed earlier. They cannot be allowed to raise new plea or new claim or even reagitate the same plea. That ordinarily should have ended all controversies as between the parties and made way for execution of the decree which had attained finality but it was not to be so and the trouble started thereafter. 2. Pursuant to warrant of delivery of possession, various steps were taken, which have been noted in the order dated 3.7.2006 in the present proceedings. The executing court was reported that delivery of possession had been affected. 3. The decree holder objected. 2. Pursuant to warrant of delivery of possession, various steps were taken, which have been noted in the order dated 3.7.2006 in the present proceedings. The executing court was reported that delivery of possession had been affected. 3. The decree holder objected. He submitted that merely seeking the right of possession of a wall outside the premises wherein the land was situated was not sufficient as it did not amount to physical delivery of possession because the land in respect of which the decree had to be executed was somewhere within the boundary of the walled premises. The Executing Court by its impugned order dated 5.9.2005 rejected the contention of the decree Page 1527 holder and as the decree holder was left with no possession of any property whatsoever and the decree was said to have been executed in the said Execution Case No. 1/1985. He filed the present revision application before this Court. 4. It may be mentioned here that the judgment debtor did not then challenge the execution or executability of the decree. This Court finding by order dated 3.7.2006 in the present civil revision application that the dispute essentially was with regard to the execution of the decree as interpreted by the trial court and the decree holder, no other party, had any grievance or was required to be heard. This Court accordingly by a detailed order dated 3.7.2006 allowed the revision application directing the executing court to ensure peaceful vacant physical delivery of possession in accordance with the decree and not completion of paper formality without actual delivery of possession. It appears that the opposite party, whose challenge as to the executability of the decree had been earlier rejected in C.R. No. 2116/2001 and C.R. No. 14/2002 by this Court by order dated 27.8.2002 and thus the decree became binding on them. They being aggrieved by this ex parte decision of this Court moved the Hon ble Apex Court by filing S.L.P.(Civil) No. 12380/2006. In the said S.L.P. their Lordships in their order dated 7.8.2006 noted that the petitioner before the Supreme Court had raised the grievance that they have not been heard in the matter before this Court while disposing of the civil revision application and as such notices were issued on this limited issue by the Apex Court. In the said S.L.P. their Lordships in their order dated 7.8.2006 noted that the petitioner before the Supreme Court had raised the grievance that they have not been heard in the matter before this Court while disposing of the civil revision application and as such notices were issued on this limited issue by the Apex Court. This order of the Apex Court was brought to the notice of this Court by the opposite party to the present civil revision application, who were the petitioners before the Apex Court by filing M.J.C. No. 1864/2006 wherein they sought extension of time as fixed in this Courts order dated 3.7.2006. It appears that this Court now having been informed of the grievance of the opposite party to this civil revision application that the order was passed without hearing them. This Court requested by order dated 23.8.2006 passed in M.J.C. No. 1864/2006, learned Counsel appearing for the petitioner of M.J.C. application, opposite parties in the civil revision application, being the petitioners before the Apex Court that whether his clinet would consider appearing in the civil revision application, so that this Court may recall its order passed ex parte and to re-hear in their presence. Regrettably, as noted in order dated 29.8.2006 in M.J.C. No. 1864/2006 the parties declained to inter appearance in the civil revision application, so that their grievnace before the Apex Court could be redressed even before the matter was taken up by the Apex Court again. This strange behavior was not understood by this Court, as this Court had offered that on their appearance they would be heard and the order recalled. 5. Be that as it may, once they refused to appear in the civil revision application nothing more was required to be done by this Court. Ultimately, it appears that the Apex Court by order dated 19.11.2007 disposed of S.L.P. directing the parties to appear before this Court without further notice on 10.12.2007 and directed this Court to hear the civil revision application on merit and dispose of the same expeditiously not later than 15.1.2008. 6. On 10th December, 2007 the case was then mentioned before the civil application motion bench, and the petitioners of the civil revision application have filed copy of the order of the Apex Court and accordingly this Court has taken up the hearing of this matter out of turn. Page 1528 7. 6. On 10th December, 2007 the case was then mentioned before the civil application motion bench, and the petitioners of the civil revision application have filed copy of the order of the Apex Court and accordingly this Court has taken up the hearing of this matter out of turn. Page 1528 7. This Court enquired from the lower court as to what was his objection to the delivery of possession. He surely ought to have been some objection which persuaded him to move the Apex Court earlier passed in the civil revision. His only grievance was that in garb of physical delivery of possession pursuant to the decree, in question, some of his land may wrongly be delivered. Beyond this he has no grievance. On the base of it the grievance is not only regulated but remain unsubstantiated on record. It is mere an apprehension some may go wrong at some time in future. What is the basis of this apprehension is also not disclosed. What was wrong with the order of this Court earlier passed and challenged before the Apex Court is also not pointed out. To this Court, it appears that all this is merely a delayed tactics to delay the execution of the decree as long as possible. This would be apparent that when this Court offered to withdraw its earlier order on the condition that they appear and participate in the proceedings, which was their grievances before the Apex Court, they refused to do so. In this way they successfully managed to delay the execution of the decree with no apparent real grievance. 8. In my view, the legal position does not change nor learned Counsel for the opposite party submits that this Court had earlier wrongly decided the issue. Their challenge to the said decision is based only on unsubstantiated apprehension that if execution is carried out the property not covered by the decree may be delivered. That, in my view, is not a relevant consideration while deciding the issue of how the decree had to be executed. That question, if at all, would arise when the decree is actually put into physical execution. Therefore, there is no substance in the objection as raised by the opposite party. 9. That, in my view, is not a relevant consideration while deciding the issue of how the decree had to be executed. That question, if at all, would arise when the decree is actually put into physical execution. Therefore, there is no substance in the objection as raised by the opposite party. 9. So far as the execution of the impugned order is concerned, the opposite party not having been able to point out any mistake in the order of this Court passed earlier nor being able to pursue this Court to reconsider the matter. For the sake of brevity I do not repeat the entire reasonings once again but merely holding that the order passed earlier by this Court on 3.7.2006 stands after hearing the parties. This is so, for the reasons as noted above and more so because it is now over 22 years since the Title Execution case was filed in respect of a Suit of the year 1967 and the plaintiff assignee decree holder is still to see the fruits of the litigation, which has ended in his favour. 10. The Civil revision application, thus, stands allowed and the impugned order dated 5.9.2005 passed by Munsif, Banka, in Title Execution Case No. 1 of 1985 is set aside and he is directed to ensure peaceful vacant actual physical delivery of possession of the suit property decreed in favour of the plaintiff to the assignee decree holder within a period of four weeks from today. The district authority would be obliged to extend all necessary help that the court may feel in this regard. 11. On the prayer of the petitioner this Court direct that the order of this Court passed today be communicated to the learned Executing Munsif, Banka, learned Collector and the Superintendent of Police, Banka by FAX at the cost of the petitioner.