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2011 DIGILAW 368 (CAL)

Anima Dhar v. Banshi Dar Ghosh

2011-03-15

PRASENJIT MANDAL

body2011
JUDGMENT :- Prasenjit Mandal, J. This application is at the instance of the defendants / judgment debtors and is directed against the order no.15 dated July 27, 2010 passed by the learned Civil Judge (Junior Division), First Court, Bolpur in Misc. Case No.22 of 2009 arising out of Title Execution Case No.2 of 2007 arising out of Title Suit No.75 of 2000. The short fact necessary for the purpose of disposal of the application is that the plaintiff/opposite party herein instituted a title suit being Title Suit No.75 of 2000 against the petitioners for declaration of right, title and interest in the “Kha” schedule property and also for recovery of khas possession of the “Kha” schedule property and for other reliefs. While the opposite party put the decree obtained in the said suit for execution, the petitioners filed an application under Section 47 of the Code of Civil Procedure contending, inter alia, that the report submitted by the learned commissioner appointed in the suit does not tally with the suit property and as such, the same is erroneous and for that reason the suit property could not be identified. As such, the decree passed by the learned Trial Judge is un-executable. The petitioners adduced evidence. Thereafter, the learned executing Court rejected the application under Section 47 of the Code of Civil Procedure. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained. Upon hearing the submission of the learned Advocate of both the sides and on perusal of the materials on record, I find that the said suit was decreed on contest. A commissioner was appointed and the learned commissioner submitted his report. That report has been made part of the decree. The commissioner, namely, Sri Partha Sarathi Roy, was examined as P.W.2 in the suit. Another witness was examined as P.W.1. The report submitted by the commissioner was marked as exhibit 1. On the analysis of the evidence adduced by the petitioners, the decree was passed. The learned commissioner has specifically described the portion of the property over which the plaintiff got the decree for recovery of possession. It may be pointed out herein that after passing of the decree on the basis of the report of the learned commissioner, the judgment debtor did not prefer any appeal against the said decree of the Title Suit No.75 of 2000. It may be pointed out herein that after passing of the decree on the basis of the report of the learned commissioner, the judgment debtor did not prefer any appeal against the said decree of the Title Suit No.75 of 2000. So, the decree has come to a finality. Therefore, after submission of the report submitted by the commissioner, there is no ambiguity as to the particular of the suit property over which recovery of possession has been sought for by the plaintiff. Thus, I find that the findings of the learned executing Court are clearly based on evidence adduced by the parties and such findings are not perverse at all. So, there is no scope of interference at all. Accordingly, I am of the view that this revisional application is meritless. The application is, therefore, dismissed. Considering the circumstances, there will be no order as to costs.