Research › Search › Judgment

Calcutta High Court · body

2008 DIGILAW 609 (CAL)

Sk. Mansur Ali v. Md. Ejahar Hussain

2008-06-23

PARTHA SAKHA DATTA

body2008
JUDGMENT PARTHA SAKHA DATTA, J. 1. The order dated 1.10.2007 passed by learned Civil Judge, Islampur in the district of Uttar Dinajpur in Title Execution Case No. 11 of 1995 allowing the petition of the opposite party decree holder praying for police help for execution of the decree is under challenge. 2. On 2.1.2007 the decree holder filed a petition before the learned Executing Court complaining that the decree could not be executed in spite of issuance of writ of delivery of possession on account of obstruction having been put by the judgment debtor for execution of the writ. As such police assistance was proved for execution of the writ. In the petition it was inter alia stated that the obstruction to the execution of the decree was being made on the basis of the wrong LR plot number in the decree. It has been averred further that the point of objection of the judgment-debtor as to mention of the wrong LR plot number was resolved by the learned Court under Order No. 76 dated 22.1.2003 wherein the Court held that mention of the wrong LR plot number was of no consequence since the decree mentioned the correct RS plot number 729 with the boundary of the land. 3. The judgment-debtor had put in a written objection against the petition of the decree holder for order of police help alleging non-maintainability of the petition which shall be adverted to in the order. The learned Executing Court in the impugned order referred to his earlier Order No. 76 dated 22.1.03 and some other previous order being No. 44 dated 15.4.2000, Order No. 78 dated 28.3.03, and the Order No. 81 dated 29.5.03 and held that whatever the disputes that were raised by the judgment-debtor against the petition of the decree holder praying for police help the same have been resolved and disposed of by the Order No. 76 dated 22.8.03 and that the said order was a binding and subsisting one. Learned Executing Court further held that the first appeal preferred by the judgment-debtor being TA No. 43 of 1994 had stood dismissed and no second appeal was pending. Learned Executing Court further held that the first appeal preferred by the judgment-debtor being TA No. 43 of 1994 had stood dismissed and no second appeal was pending. Holding that written objection against the decree holder's petition for police help filed by the judgment-debtor on 11.1.07 was misconceived and since it appeared from the petition of the decree holder supported by affidavit that the judgment-debtor was creating obstruction to execute the decree holder's prayer for police help was allowed. 4. Mr. Jiban Ratan Chatterjee, learned Advocate appearing for the judgment-debtor/ petitioner raised primarily a point that the decree was in executable because in the printed application for the execution of the decree the schedule of the property to be executed was referred to as RS Khatian No. 177, LR Khatian No. 359, RS plot No. 729, LR plot No. 759 having an area or 0.03 out of 0.08 decimals of land. The LR plot No. 759 was typed after the typed digits 757 was struck off and unless the identity of the suit property with reference to the LR plot number could be resolved the decree cannot be allowed to be executed. Secondly, it has been submitted that the boundary of the decretal land as has been given in the application for execution is vague and by such boundary the decretal property cannot be identified. Thirdly, it has been submitted that the judgment-debtor has got no structure over the lands in LR plot No. 759 and the decree holder is at liberty to go to that plot 759 instead of LR plot No. 757 and the decree cannot be amended by incorporation of the corrected plot number in the application for execution of the decree. It has been submitted next that in the application for police help there is no averment as to when the bailiff had gone to the decretal land for execution of the decree and unless report of the bailiff to the effect that obstruction was raised by the judgment-debtor it was incompetent for the decree holder to seek police help. Unless the bailiff was examined in Court to ascertain the real position in the light of the dispute relating to the LR plot number the grant of police help would be to the detriment of the interest of the judgment-debtor. 5. Mr. Unless the bailiff was examined in Court to ascertain the real position in the light of the dispute relating to the LR plot number the grant of police help would be to the detriment of the interest of the judgment-debtor. 5. Mr. Bidyut Banerjee learned Senior Counsel appearing for the decree holder submitted that the only ground taken in the application was that without examining the bailiff or allowing the judgment-debtor to cross-examine the decree holder the order granting police help for execution of the decree was wrong and no other point was raised in the application of the judgment-debtor before this Court and all other points as have been raised by Mr. Chatterjee were not agitated in the application and in fact all such points including insertion of wrong LR plot number in the execution application were long ago resolved and adjudicated upon but the Executing Court by Order No. 76 dated 22.1.03 which has not been challenged before any superior Court. According to Mr. Banerjee decree can be corrected under section 151 as well as section 152 of the CPC and correction of the schedule of property in the decree by the Executing Court cannot be said to be unlawful; and reference in this connection has been made to the decision of the Supreme Court in Niyamat Ali Molla vs. Sonargon Housing Co-operative Society Ltd., AIR 2008 SC 225 . Mr. Banerjee submitted that the boundary of the decretal property as has been mentioned in the application for execution of the decree could not be challenged to be untrue or wrong and it cannot be said that such boundary which is sufficient to indicate the property in dispute or the decretal property is vague or insufficient. Mr. Banerjee submitted that the boundary of the decretal property as has been mentioned in the application for execution of the decree could not be challenged to be untrue or wrong and it cannot be said that such boundary which is sufficient to indicate the property in dispute or the decretal property is vague or insufficient. Thirdly, it is argued that actual LR plot number would be 757 which was indeed typed first in the application for execution but then under wrong impression it was struck off to type as LR plot No. 759 but in fact the LR plot number would be 757 which corresponds to RS plot No. 729 and the said RS plot No. 729 coupled with the boundary of the decretal property which have been correctly mentioned in the application for execution leave no manner of doubt as to the identity of the decretal property and in fact this point was raised before the learned Executing Court which resolved the same by its order dated 22.1.03 and also 29.5.03. It is further argued that the decree holder filed the petition for police help supported by an affidavit and the Court having convinced of the obstruction raised by the judgment-debtor allowed the prayer for police help and it is not the fact, nor could it be so that without the bailiff having gone to the decretal property to execute the decree and without the bailiff having faced obstruction from the judgment-debtor the decree holder filed the petition straightway for police help with the fictitious plea of alleged obstruction by the judgment-debtor. 6. Upon hearing the learned Counsels for the parties this is to mention at the outset that it is not that in the application for execution of the decree the identifying mark of the decretal property is LR plot alone. The corresponding RS plot No. 729 was mentioned in the application for execution and Mr. Chatterjee appearing for the judgment-debtor has not disputed the correctness of the RS plot number which is the decretal property. Secondly, though Mr. Chatterjee has challenged the boundary given in the schedule to the execution application it could not be shown or established at all that such boundary was wrong in any material particular whatsover. It has not been suggested what the real boundary would be if the boundary given in the schedule to the execution application was really wrong. 7. Chatterjee has challenged the boundary given in the schedule to the execution application it could not be shown or established at all that such boundary was wrong in any material particular whatsover. It has not been suggested what the real boundary would be if the boundary given in the schedule to the execution application was really wrong. 7. Thirdly it appears form the Order No. 76 dated 22.1.03 that by that order the decree holder's petition dated 13.9.02 for an appropriate order in the matter of correction of the decree in the execution application in the context of the judgment-debtor resisting obstruction to the execution of the decree was disposed of. The JDR pointed out that the decree was passed in respect of LR plot No. 759, not 757 and in view thereof there cannot be execution of the decree in respect of the LR plot No. 757. The learned Court found that LR plot number of the suit land was 757 and it was wrongly written as 759. Learned Trial Court recorded that the learned Advocates for both the parties did not raise any objection regarding are and other particulars of the schedule property. It was the submission of the learned Advocate for the JDR before the learned Trial Court in his usual fairness that decree might but put in execution keeping in view the RS map and the LR map and the boundary of the suit land. Learned Court observed that in fact the LR plot No. 757 was wrongly written as LR plot No. 759 and accordingly the decree holder was directed to make necessary amendment in the tabular statement in the schedule of the immovable property mentioning the correct LR plot number in the decree. This order dated 22.1.03 was not challenged anywhere and there was nothing wrong in the order as cited by Mr. Banerjee. The decision in Niyamat Ali Molla (supra) held that the decree may be corrected by the Court both in exercise of the power under section 151 as well as 152 of the CPC. Therefore, it cannot be held that any dispute is really there with respect to the identity of the decretal property. As to non-examination of the bailiff, it was really not necessary it could not be argued that the bailiff did not go to the suit property for execution and that he was not resisted by the judgment-debtor. Therefore, it cannot be held that any dispute is really there with respect to the identity of the decretal property. As to non-examination of the bailiff, it was really not necessary it could not be argued that the bailiff did not go to the suit property for execution and that he was not resisted by the judgment-debtor. That the Judgment debtor resisted the execution is apparent from his conduct and the conduct is last reflected when he filed objection against the execution of the decree through police help taking the plea that LR plot number was not correctly mentioned which was, however, corrected subsequently. The decree holder made the application supported by an affidavit and the learned Court accepted the petition. It was not agitated before the learned Executing Court that the decree holder at all did not go to the decretal property to execute the decree or that there was no issuance of writ at all. If that had been the plea, then the same would have been reflected in the order impugned. The last argument of the judgment-debtor was that the application for execution was time barred on the ground that earlier execution application stood withdrawn and the second application for execution was filed. I find no merit in the submission. 8. In the circumstances, the revisional application is dismissed. The order dated 1.10.07 passed by the learned Civil Judge, Junior Division, Islampur, Uttar Dinajpur is confirmed. 9. Urgent xerox certified copy, if applied for, be given to the parties as expeditiously as possible.