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2011 DIGILAW 819 (GAU)

Bhasker Saikia v. Tatari Devi

2011-09-29

I.A.ANSARI

body2011
JUDGMENT I.A. Ansari, J. 1. This revision has put to challenge the order, dated 01.02.2007, passed by the learned Civil Judge, Lakhimpur, in Misc. Case No. 19/2006 (arisen out of Title Execution Case No. 9/2004), whereby the objection, raised by the judgment-debtors, alleging that the delivery of possession of land has been given, in excess of the decretal land, to the decree-holders, has been dismissed. Before coming to the merit of this revision, I set out hereinbelow, in brief, the material facts, which have led to this revision. (i) The decree holders-opposite party instituted Title Suit No. 12/2001 seeking, inter alia, declaration of their rights, title and interest over the suit land, as described in Schedule' A' to the plaint, as well as recovery of khas possession of land in Schedule 'B', the land, described in Schedule 'B', being a part of the land of Schedule 'A', by evicting the defendants therefrom. (ii) By judgment and order, dated 16.02.2004, the learned Civil Judge (Sr. Division), Lakhimpur, decreed the suit by describing the decree as a preliminary decree, whereby plaintiffs' rights, title and interest over the land in Schedule' A', inter alia, was declared and the khas possession of the land, in Schedule 'B', was directed to be delivered to the plaintiffs by ascertaining, with the help of the Circle Officer, Bihpuria, the land in Schedule 'B' and appointed, in this regard, the Circle Officer, Bihpuria, as the Survey Commissioner, with direction to him to personally supervise the demarcation of the land in Schedule 'A' and 'B' so that recovery of khas possession of the land in Schedule 'B' takes place. (iii) No appeal was preferred by the judgment-debtors against the decree so granted. Thereafter, the decree-holders instituted Title Execution Case No. 9/2004. This execution proceeding passed through various kinds of resistance in the sense that the Circle Officer, Bihpuria, reported to the learned Executing Court, on 22.04.2006, that he had visited the decretal land and found that the decree-holders were already in possession of the decretal land. Interestingly, however, the Circle Officer's report also suggested that appropriate demarcation can be done only by the Director of Survey, Government of Assam, and the Circle Officer : thereafter, requested that the Director of Survey, Government of Assam, be directed to demarcate the land, in question. Interestingly, however, the Circle Officer's report also suggested that appropriate demarcation can be done only by the Director of Survey, Government of Assam, and the Circle Officer : thereafter, requested that the Director of Survey, Government of Assam, be directed to demarcate the land, in question. An objection was raised in the execution proceeding, by the decree-holders, as regards the truthfulness of the Circle Officer's report by contending that the. Circle Officer's report was not true and sought for re-issue of the writ of delivery of possession of the land, in Schedule 'B', to the decree-holders. By filing a petition, the judgment-debtors raised an objection to the effect that the preliminary decree had not been made final and, hence, without passing a final decree, the question of delivery of possession did not arise. This apart, according to the judgment-debtors, the Circle Officer's report clearly revealed that the decree-holders were already in possession of the decretal land and, hence, there was no question of dispossession of the decree-holders as contended by them. However, on the basis of the application, made by the decree holders, seeking issuance of a fresh writ of delivery of possession of the land in Schedule 'B', an order was passed, in the execution proceeding, directing that the writ of delivery be re-issued. (iv) Yet another application was made by the decree-holders, in the execution proceeding, seeking that notice be issued to the Mandal to be present along with the Nazir at the time of execution of the decree. The learned executing Court, then, passed an order directing the decree-holders to take necessary steps for issuance of writ of attachment of immovable property and, on the strength of the writ, so issued, the Nazir was, eventually, directed to attach the decretal land. In course of time, the Nazir reported that the writ had been executed by delivering the khas possession of the land, in Schedule 'B', to the decree holders. In course of time, the Nazir reported that the writ had been executed by delivering the khas possession of the land, in Schedule 'B', to the decree holders. (v) Thereafter, a petition was filed by the judgment-debtors alleging to the effect, inter alia, that they had gone to the location of the land and found that the Nazir had delivered possession of land, measuring 2 bigha and 19 lechas, to the decree-holders; but, on making further enquiry by the judgment-debtors, it was revealed that though the decree was in respect of delivery of possession of the land covered by dag No. 226, the Nazir had delivered to the decree-holders the land covered by not only dag No. 226, but also dag Nos. 225 and 227, although the land, covered by dag Nos. 225 and 227, were not the subject-matter of the decree. The judgment-debtors alleged, in their said petition, that the Nazir had delivered to the decree-holders the possession of the decretal land with the help of the local gaonbura, one police officer and some other persons instead of taking help of the Circle Officer, Bihpuria, or the Mandal or any of the staff of the Bihpuria Revenue Circle. The judgment-debtors therefore, prayed that the learned executing Court invoke its jurisdiction under Section 47 CPC and pass appropriate order (s) for re-delivery of the land, which had been given to the decree-holders, in excess of the land in respect whereof, the decree had been granted. This application gave rise to Misc. Case No. 19/2006. (vi) In Misc. Case No. 19/2006, which, thus, arose out of the Title Execution case, the decree-holders raised their objection by stating to the effect, inter alia, that as the decree-holders had already obtained delivery of possession of the decretal land and the decretal land had been fully demarcated by the law, the execution proceeding was complete and, therefore, the question of invoking of the executing Court's power, under Section 47 CPC, did not legally arise, particularly, when the learned executing Court had recorded, in its order passed on 08.06.2006, that the decree stood fully satisfied. (vii) In short thus, what was contended by the decree-holders was that the decree having been satisfied, as indicated above, by the order, dated 08.06.2006, passed in the execution proceeding, by the learned Court below, nothing further remained to be done and Section 47 CPC was not attracted to a completed execution proceeding. (viii) By its order, dated 01.02.2007, the learned executing Court agreed with the above contention of the decree-holders and took the view that the execution proceeding having been completed and the executing Court having already recorded its satisfaction as regards the execution of the decree, the execution proceeding cannot be reopened by taking recourse to Section 47 CPC on the allegation made by the judgment-debtors that the delivery of the land, in excess of the decretal land, had taken place. (ix) Aggrieved by the order, dated 01.02.2007, aforementioned, the judgment-debtors, as indicated above, are, now, before this Court with this revision petition. 2. I have heard Mr. P. K. Kalita, learned counsel for the judgment debtors-petitioner, and Mr. P.S. Deka, learned counsel, for the decree-holder. 3. Appearing on behalf of the judgment-debtors-petitioners, the first challenge, put to the impugned order, dated 1.2.2007, by Mr. Kalita, learned counsel, is that since the decree granted was a preliminary decree and not a final decree, there could not have been a valid execution of a decree, which was not a final one. 4. While considering the above submission of. Mr. Kalita, what needs to be noted is that a decree will not become a preliminary-decree merely because a Court describes it as a preliminary decree, though it is true that a decree, which is a preliminary decree cannot be executed until a final decree is drawn. 5. The question, therefore, which arises for determination is as to whether, in the case in hand, the decree, which had been granted, was a preliminary decree? The question brings us to the very definition of 'decree'. Section 2(2), CPC defines a 'decree' to mean the formal expression of an adjudication, which so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matter in controversy in the suit and either preliminary or final. The question brings us to the very definition of 'decree'. Section 2(2), CPC defines a 'decree' to mean the formal expression of an adjudication, which so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matter in controversy in the suit and either preliminary or final. According to the explanation to Section2(2), a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of and decree is final, when the adjudication completely disposes of the suit and that a decree may be partly, preliminary and partly final. 6. From a bare reading of the definition of 'decree', it becomes clear that when there is formal expression of an adjudication by a Civil Court conclusively determining the right or rights of the parties with regard to all matters in controversy in the suit and nothing remains for adjudication, becomes a final decree inasmuch as a preliminary decree, as the Explanation to Section 2(2) shows, is a decree, when further proceeding have to be taken before suit can be completely disposed of; whereas, a final decree is one, where adjudication has been made and the suit has been completely disposed of. In a given case, however, a decree may be partly preliminary and partly final. 7. In the present case, the suit, as already indicated above, was, inter alia, a suit for declaration of rights, title and interest of the plaintiffs over the suit land, described in Schedule 'A', which measures 2 bighas 19 lechas covered by dag No. 226, patta No. 40 of Laluk Mouza and also for recovery of khas possession of the land in Schedule which forms a part of the land in Schedule 'A', both the schedules having been completely described, in the plaint, by giving boundaries thereof. The suit was decreed, as indicated above and, thus, the decree having been granted, there remained really nothing for adjudication in the suit except execution of the decree by identifying purpose of identification of the land of Schedule 'B'. 8. What, therefore, remained in the execution proceeding was the identification of the decretal land and delivery of khas possession of the land, covered by Schedule 'B', the decree-holders. For the purpose of identification of the land of Schedule 'B', identification of the land of Schedule 'A' was also imperative. 8. What, therefore, remained in the execution proceeding was the identification of the decretal land and delivery of khas possession of the land, covered by Schedule 'B', the decree-holders. For the purpose of identification of the land of Schedule 'B', identification of the land of Schedule 'A' was also imperative. It was in such circumstances that the learned trial Court had directed the Circle Officer, Bihpuria, to personally supervise the demarcation of the suit land and help the Nazir in causing delivery of khas possession of the land, in question (i.e., the land in Schedule 'B') to the decree holders. 9. It is common knowledge that in every suit, which calls for declaration of rights, title and interest of a plaintiff and also for recovery of has possession of a portion of the land from the possession of the defendant(s) by evicting the defendant(s) therefrom, the decretal land, in the execution proceeding, needs to be identified first. This identification is, thus, a step in the execution proceeding not a subject for adjudication in the suit. Even when the suit, property is correctly and fully described in the plaint and also in the decree, identification of the suit property at the time of the execution of the decree is imperative, for, it is upon identification of the suit property that the delivery of khas possession of the suit land, to the decree holders1 can take place. 10. It is, therefore, transparent that the steps for identification of a suit property, which is required to be done in an execution proceeding, would not make a decree, which is, otherwise, final, a preliminary. Thus, a preliminary decree is a decree, which does not completely adjudicate the suit itself and requires further adjudication by the Court, which grants the decree. To put it a little differently, a preliminary decree is one, which requires finalization by making a final decree. The present decree, though has been described by the learned final Court as a preliminary decree, was not, and could not have been, in the eyes of law, a preliminary decree inasmuch as nothing really remained for adjudication by the learned trial Court in the said suit, for, identification of the decretal land and delivery of khas possession are but in the execution proceeding. What in fact, remained, in the execution proceeding, was the identification of the land, which is common in nature in all the suits, where recovery of decretal land or part thereof is granted. 11. The contention, therefore, of Mr. Kalita that the decree, in the present case, was a preliminary decree, has no legal force and cannot be sustained. It may be noted, in this regard, that preliminary decree has been dealt with by Order 20 by laying down as to what kinds of suits would have preliminary decree inasmuch a suit, where preliminary decree is passed, would require final decree to be drawn by taking appropriate steps, such as, a suit for dissolution of partnership and rendition of accounts, a suit for partition, etc. 12. What is, however, important to recall is that the learned trial Court, while granting the decree, specifically directed that the Circle Officer, Bihpuria, demarcate the land, in question, and help thereby in correctly delivering khas possession of the land of Schedule 'B' to the decree-holders. The step, which had been directed to be taken, actually deleted to the identification of the land in the execution proceeding of the decree so granted. The Circle Officer could not therefore, come into picture until the time the decree was put into execution. It may also be recalled that the Circle Officer reported, on 22.04.2006, he had visited the spot and found decree-holders in possession of the decretal property. Nonetheless, the fact remains that the Circle Officer had stated, in his report, that the Director of Survey, Government of Assam, be directed demarcate the land, in question. This report speaks loud and clear that the Circle Officer had not really identified the decretal land. 13. In the circumstances, mentioned above, the contention of the judgment-debtors, that the decree-holders had already been found in possession of the decretal land, could have no force at all. It was in these circumstances that the learned executing Court did not lace any reliance on the report of the Circle Officer and re-issued the writ for delivery of possession and directed the Nazir to take help of the Revenue officials and deliver the khas possession of the land, in question. It was in these circumstances that the learned executing Court did not lace any reliance on the report of the Circle Officer and re-issued the writ for delivery of possession and directed the Nazir to take help of the Revenue officials and deliver the khas possession of the land, in question. There was no infirmity, legal or factual, in the direction so issued inasmuch as what was required to be done, in order to effectively satisfy the decree, was to identify the land and deliver the khas possession of the land to the decree holders. 14. What the judgment-debtors have, however, later on, alleged is that the Nazir had delivered the land to the decree-holders according to what the decree-holders had shown to the Nazir. If this is true, then, the Nazir's action was not in accordance with the direction of the learned executing Court and if the Nazir is found to have really delivered the possession of the land to the decree-holders on the basis of the decree-holders identification of land, then, such execution of the decree could not have been, and would not be, upheld by the learned executing Court unless the possession of the land, delivered to the decree-holders, is found to be decretal land. Therefore, if the judgment-debtors' claim, that the Nazir's report, that he had delivered the decretal property to the decree holders, is true, then, the learned executing Court has the obligation, in law, to examine the issue, While dealing with the claim of the judgment-debtors with regard to their claim aforementioned, the learned executing Court has taken the view that once satisfaction of the decree is recorded and the execution proceeding is closed, no application, objecting to the execution of the decree, can be sustained under Section 47 CPC and/or the matter be reopened by invoking Section 47 CPC. 15. Is the view, so taken by the learned executing Court, with regard to non-sustainability of the objection and/or reopening of the matter by invoking Section 47 CPC, is correct in law? It may be reiterated, in this regard, that the case of the judgment-debtors, in substance, is that though the decree was granted in respect of the suit land covered by dag No. 226, under patta No. 40, the Nazir had, eventually, delivered possession of the land covered by not only dag No. 226, but also dag Nos. It may be reiterated, in this regard, that the case of the judgment-debtors, in substance, is that though the decree was granted in respect of the suit land covered by dag No. 226, under patta No. 40, the Nazir had, eventually, delivered possession of the land covered by not only dag No. 226, but also dag Nos. 225 and 227 of the said patta too. Thus, the case of the judgment-debtors becomes a plain case of alleged excess delivery of land pursuant to the decree. While the decree, in the present case, cannot be held to be without jurisdiction and, undoubtedly, needs execution inasmuch as the decree granted is not a preliminary decree, but a final one, the fact remains that if excess land has been delivered, as alleged by the judgment-debtors, then, corrective steps have to be taken by the executing Court itself by taking resort to Section 47, CPC. A reference, in this regard, may be made to the case of Merta Ramanna v. Nallaparaju, AIR 1956 SC 87 , wherein the Supreme Court has observed as under: It is well settled that when a sale in execution of a decree is impugned on the ground that it is not warranted by the terms thereof, that question could be agitated, when it arises between the parties to the decree, only by an application under Section 47 CPC and not in a separate suit. See also Ramabhadra v. Kadiriyasami, AIR 1922 PC 252. Here it has been stated as follows:- A mortgagor is at liberty by appropriate proceedings under Section 47CPC to liberate, from the effects of sale, land which is by mistake included in a mortgage decree and sold at a Court sale and is then included in sale certificate. 16. Even when an execution proceeding has been disposed of as complete and the delivery of possession of the decretal property is also over, the judgment-debtor, if aggrieved by the execution of the decree, on the ground that property, not covered by the decree, has been delivered to the decree-holder, an application, under Section 47, is maintainable. A reference, in this regard, may be made to M.P. Shreevastava v. Ms. Veena, AIR 1967 SC 1193 , wherein it has been laid down as under : ... A reference, in this regard, may be made to M.P. Shreevastava v. Ms. Veena, AIR 1967 SC 1193 , wherein it has been laid down as under : ... The principle of Section 47 CPC is that all questions relating to execution, discharge or satisfaction of a decree and arising between the parties to the suit in which the decree is passed, shall be determined in the execution proceeding, and not by a separate suit; it follows as a corollary that a question relating to execution, discharge or satisfaction of a decree may be raised by the decree holder by the judgment-debtors in the execution department and that pendency of an application for execution by the decree-holder is not a condition of its exercise. 17. In the present case, the application, which the judgment-debtors have filed under Section 47 CPC, is, therefore, maintainable in law inasmuch as the case at hand is one, where land, not included in, or covered by, a decree has allegedly been delivered to the decree-holders in the execution of the decree, because such a delivery of land, if true, would be without jurisdiction inasmuch as the land is not covered by the decree and no delivery of possession could have been legally possible. Such a question of delivery of khas possession can be raised and decided on an application made under Section 47 by the judgment-debtors and no separate suit is required to be instituted for obtaining restitution of the possession of the land, which has been delivered in excess of the decretal land. 18. In the backdrop of the facts and position of law, as indicated above, there can be no doubt that the order, dated 1.2.2007, cannot be allowed to survive inasmuch as the learned executing Court has rejected the application, made by, the judgment-debtors under Section 47, CPC on the ground that the execution proceeding is over and cannot be reopened, because the Court, has recorded its satisfaction of the decree. This view of the learned executing Court is, if I may reiterate, erroneous and cannot be sustained inasmuch as when the judgment-debtors have alleged delivery of possession to the decree-holders of land, in excess of the decree granted, by contending that the decree-holders have been given possession of, in addition to the land covered by the decree, land covered by dag Nos. 225 and 227, which were not covered by the subject-matter of the suit, the learned executing Court is, in law, obliged to hear the parties on the judgment-debtors' said application and, then, pass appropriate order(s) on the basis of the conclusion(s), which it may reach after hearing the parties. 19. In the result and for the reasons discussed above, this revision partly succeeds. The impugned order, dated 01.02.2007, is hereby set aside and the learned executing Court is hereby directed to hear the parties afresh, make enquiry as may be deemed necessary and, then, reach a final decision on the question as to whether the delivery of land to the decree-holders was in accordance with law or not, or was there any error, mistake or mischief and, on the basis of the conclusion(s), which the learned executing Court may reach, appropriate-consequential order(s) may be passed. It is, however, made clear that since the decree has been granted in respect of the land covered by dag No. 226, under patta No. 40, any land, other than, or in excess of, the decretal land, if already delivered to the decree holders, then, such delivery of possession of the land other than, or in excess of, the decretal land, has to be held as illegal and the khas possession of the excess land, not covered by dag No. 226, shall be delivered back to the judgment-debtors. The learned executing Court must ensure that the decree, which has been granted, is executed at the earliest and delivery of possession is given to the decree-holders, but without any excess delivery of land. 20. With the above observations and directions, this revision stands disposed of. No order as to costs.