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Madhya Pradesh High Court · body

2013 DIGILAW 148 (MP)

Mohammad Khan v. Ramgopal

2013-02-04

K.K.TRIVEDI

body2013
ORDER 1. The grievance of the applicant in the present revision is against the order dated 29.2.2012 passed in Misc. Civil Case No. 79/2009, by the II Civil Judge, Class-I, Rewa, rejecting the application under section 47 of the Code of Civil Procedure filed by the applicant. 2. Undisputed facts are that a suit was filed by the original decree holder Ramgopal, son of Ramnath Soni (since deceased) against the applicant being Civil Suit No. 249/1989 for possession of immovable property. Specific claim for grant of decree was made by the original decree holder. The suit was decreed and an appeal filed against the said judgment and decree was dismissed by the first appellate Court. A second appeal was preferred before this Court by the applicant, which too was dismissed on 6.7.2011. The respondents filed the execution of the judgment and decree and in the execution proceedings, instead of giving possession of land measuring 1440 Sq. Ft., some more land was delivered to the respondents. The objecteion was filed by the applicant under section 47 of the Code of Civil Procedure and it was said that the excess land given in possession of the respondents in alleged execution of the judgment and decree aforesaid, be returned to the applicant and the possession of the applicant over the said land be restored. 3. This application filed by the applicant was opposed by the respondents stating that in fact the land bearing Revenue Survey No. 181, area 0.03 dismal was delivered to the respondents and because the land of Revenue Survey No. 180, area 0.05 acres, is not belonging to the applicant, no dispute in that respect could be raised by him. It was contended that the said land is owned by one Narendra Lal Khandelwal and the said person is in possession of the said land, therefore, the applicant cannot be granted any relief as claimed in the application. It was contended that the construction over the disputed land was not made by Narendra Lal Khandelwal. Unless the said person is impleaded as a party, the claim made by the applicant could not be looked into. It was contended that the construction over the disputed land was not made by Narendra Lal Khandelwal. Unless the said person is impleaded as a party, the claim made by the applicant could not be looked into. It was contended that since the dispute is in respect of the land, which is not belonging to the applicant but is belonging to someone else, who was no party to the civil suit in which the decree was granted, the provisions of section 47 of the Code of Civil Procedure would not be attracted at all. If the original owner of the land has any grievance, he is free to file a separate suit for the same. 4. Learned Executing Court considered the submissions made by the parties and reached to the conclusion that since the land in which the claim is being made was not part of the suit property, the provisions of section 47 of the Code of Civil Procedure would not be attracted and this being so, the claim of the applicant was rejected. 5. It is contended by learned Counsel appearing for the applicant that a plain and simple reading of section 47 of the Code of Civil Procedure will make it clear that if the satisfaction of the decree is required to be examined, it has to be seen whether the property in respect of which the decree is passed has actually been delivered to the decree holder or something more has been given to the decree holder. This being an inter se dispute between the decree holder and the judgment debtor, the provisions of section 47 of the Code of Civil Procedure would be attracted and the Executing Court was required to decide the application after recording the evidence of the parties. If something more is granted to the respondents in execution of a decree beyond the scope of decree, this despute has to be decided only under the provisions of section 47 of the Code of Civil Procedure and no separate suit is required to be filed either by the applicant or by the original owner of the land. 6. Per contra, it is contended by learned Counsel for the respondents that the Court was right in holding that provisions of section 47 of the Code of Civil Procedure would not be attracted and, therefore, rightly the application of the applicant has been rejected. 6. Per contra, it is contended by learned Counsel for the respondents that the Court was right in holding that provisions of section 47 of the Code of Civil Procedure would not be attracted and, therefore, rightly the application of the applicant has been rejected. This being so, it is contended that the order passed by the Executing Court is just and proper and need no interference in this revision. 7. Heard learned Counsel for the parties at length and perused the record. 8. It is not in dispute that the judgment and decree granted in favour of the respondents (original decree holder) was with respect to the land bearing Revenue Entry No. 181 and the description of the area of land was already given in the plaint, which was reguired to be the part of the decree. If even otherwise the judgment debtor was in possession of some more land in the very same vicinity, in a different revenue survey number, there was no decree granted by the Court in respect of grant of possession of the said land to the original decree holder. The allegation made by the applicant was that more land than the land decreed has been delivered to the respondents in execution of the decree. This being a question, which is to be decided for the purposes of full discharge or satisfaction of the decree, was to be examined by the Court below under the provisions of section 47 of the Code of Civil Procedure. The apex Court in this case of M.P. Shreevastava vs. Mrs. Veena, AIR 1967 SC 1193 , has categorically laid-down the principles of section 47 of the Code of Civil Procedure. The apex Court has held thus: “........The principle of the (S. 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 or by the judgment-debtor in the execution department and that pendency of a application for execution by the decree-holder is not a condition of its exercise.” 9. Making application of the law laid-down by the apex Court, the Kerala High Court in the case of Gopalkrishna Kammath vs. R. Bhaskar Rao, AIR 1989 Ker. 251 , has reached to the conclusion that when such a dispute is raised, it is to be decided on an application under section 47 of the Code of Civil Procedure. It has to be seen even if the property was not to be restored back to the applicant, at least this was to be decided whether the respondent/decree-holder has been delivered more land than the land decreed by the Court, in alleged execution of the decree or not. 10. This being so, the finding recorded by the Court below seems to be unjustified. In fact the Executing Court should have tried the application of the applicant under section 47 of the Code of Civil Procedure and should have recorded the finding with respect to the dispute raised by the applicant. Resultantly, this revision is allowed. The order passed by the Court below in Misc, Civil Case No. 79/2009 dated 29.2.2012 is hereby set aside. The Executing Court is directed to decide the dispute raised by the applicant in accordance to law, exercising the power under section 47 of the Code of Civil Procedure. 11. The revision is allowed to the extent indicated herein above. However, there shall be no order as to costs.