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2013 DIGILAW 431 (ORI)

Sunakar Baliarsingh v. Guru Charan Jena

2013-10-01

S.K.MISHRA

body2013
JUDGMENT S.K. MISHRA, J. : Whether an execution proceeding seeking possession of the land decreed in a suit is maintainable in terms of the description of the suit land in the sabik form after finalization of Record of Rights in the current settlement of operation, is the question to be determined in this writ petition. 2.The petitioners in this writ petition have challenged the judgment dated 01.10.2012 passed by the learned District Judge, Khurda at Bhubaneswar in C.R.P. No.3 of 2012 dismissing the Civil Revision filed by the petitioner (Judgment Debtor) and confirming the order dated 12.12.2011 passed by the learned Civil Judge (Senior Division), Bhubaneswar in Execution Case No.58 of 1994, thereby rejecting the application of the petitioners under Section 47 of the Code of Civil Procedure, 1908, hereinafter referred as the “Code” for brevity, and directing the Civil Court Commissioner to demarcate the land covered under the decree. 3.The facts are not dispute. That may be stated briefly as follows : The present opposite parties 1 and 2 along with deceased Purna Chandra Jena filed O.S. No.132 of 1979 in the Court of the Civil Judge (Senior Division), Bhubaneswar for declaration of their right, title, interest, for recovery of possession and perpetual injunction in respect of schedule of land. After trial, the suit was decreed and accordingly the right, title and interest was declared in favour of the contesting opposite parties and it was directed that the vacant possession of the suit land be given to the plaintiff. 4.The unsuccessful defendants challenged the judgment and decree passed by the trial Court by preferring Title Appeal 17/28 of 1997/93, which was also dismissed. Thereafter, the defendants preferred Second Appeal before this Court vide S.A. No.309 of 1998 and the same was also dismissed. Thereafter, the plaintiffs/decree-holders levied Execution Case No.58 of 1994 for executing the decree and for getting delivery of possession of the suit schedule land. In the Execution Case, the present petitioners, who are the sons of the original judgment debtor and main contestant of the suit, filed a petition under Section 47 of the Code of challenging the executability of the decree. In the Execution Case, the present petitioners, who are the sons of the original judgment debtor and main contestant of the suit, filed a petition under Section 47 of the Code of challenging the executability of the decree. The executing Court, after hearing the parties, by order dated 22.12.2011 disposed of the application of the present petitioners under Section 47 of the Code, but did not pass any order either rejecting or allowing the petition under Section 47 of the Code, but directed that execution petition is allowed and also directed for deputing a Civil Court Commissioner to demarcate the suit schedule property at the time of execution of the decree and delivery of possession. The present petitioners being aggrieved by the order dated 22.12.2011 preferred a Civil Revision, which is registered as C.R.P. No.3 of 2012 under Section 115 of the Code in the Court of the District Judge, Khurda at Bhubaneswar. Learned District Judge, after hearing the parties, by judgment dated 01.10.2012 has dismissed the Civil Revision and confirmed the order passed by the executing Court. Such judgment in confirming the order passed by the Executing Court is in question in this writ petition. 5.The petitioners i.e. the judgment Debtors submit that as per the procedure laid down in the G.R.C.O. and practice adopted by the executing Court below, an application under Section 47 of the Code is always registered as a Misc.Case but the learned Court below did not register the objection/application filed by the petitioners as an independent Misc. Case but heard the same as a petition in the execution case. Thus, there is error apparent on record. The second contention of the petitioner is that the schedule of property mentioned in the execution petition is not in conformity to or tally with the schedule of property of the decree passed. After publication of the hal settlement R.O.R., the schedule of property with the sabik reference is not executable and as such the proceeding is liable to be dropped. After publication of the hal settlement R.O.R., the schedule of property with the sabik reference is not executable and as such the proceeding is liable to be dropped. 6.As far as the first contention is concerned, it is the settled principle of law that the procedure provided in the G.R.C.O. is directory in nature and is not mandatory and if substantial justice has been rendered in this case, the same cannot be disturbed, because it is violative of the provisions of the G.R.C.O., wherein it has been provided that an application under Section 47 of the Code should be registered as Misc. Case. The defect pointed out by the learned counsel for the petitioners is only a defect of form and not in substance. In that view of the matter, this Court comes to the conclusion that the first objection raised by the learned counsel for the petitioners is not maintainable. 7.As far as the second contention is concerned, the learned counsel for the petitioners relied upon the reported case of Rama Subudhi (The name deleted from record and after him) Rama Chandra Sahu and others v. Bhagirathi alias Udayanaty Baitharu and others, 53 (1982) CLT 78; wherein the Division Bench of this Court has examined the executability of a decree where the description of the suit property in the schedule to the petition and consequently reflected in the decree is vague. It is appropriate to take note of paragraph 9 of the said decision, which reads as follows : “The difficulty of the decree-holder, however, is on the second point. The description of the land as given in the plaint, the decree and the execution petition is quite vague and uncertain. The land is described as “Plot No.1108 A. O.523”. Admittedly, Plot No.1108 comprises an area of 0.535 acre. The decree directs delivery of possession a portion of the land, that is, 0.523 acre. The remaining portion of 0.012 acre was not the subject-matter of the suit. The portion measuring 0.523 acres has not been specified by boundaries or a sketch map. In the absence of sufficient particulars, it is difficult to fix up its identity. The decree directs delivery of possession a portion of the land, that is, 0.523 acre. The remaining portion of 0.012 acre was not the subject-matter of the suit. The portion measuring 0.523 acres has not been specified by boundaries or a sketch map. In the absence of sufficient particulars, it is difficult to fix up its identity. Order 7, Rule 3, Civil Procedure Code provides that where the subject-matter of the suit is immovable property the plaint; shall contain a description of the property sufficient to identify it and in case such property can be identified by the boundaries or number in a record of settlement or survey, the plan shall specify such boundaries or particulars. Order 20, Rule 9, Civil Procedure Code also provides that where the subject matter of the suit is immovable property, the decree shall contain a description of such property sufficient to identify the same. In the present case, the decree holder claims delivery of possession in respect of a portion of the plot. There is, however, nothing to show from which side of the plot he is entitled to take possession. It is difficult to understand why the executing Court appointed a commissioner for demarcation of the land when it has not been specified in the decree. It is not open to the executing Court to divide the plot and deliver possession of any specific portion. It would be impossible to demarcate and deliver possession of any specific portion unless its identity is known. Mr. P.C. Mishra who appeared for the respondent-decree-holder in this Court when confronted with the situation could not satisfactorily meet the point.” The observation made in the afore-stated reported case is clearly distinguishable in this case. It is not disputed that the suit property has been clearly described in the schedule appended to the plaint and consequently, the same has been reflected in the decree. The only contention raised by the petitioners is that after publication of the final R.O.R. in the current settlement, execution case in terms of the sabik records is not executable. It is not disputed that the suit property has been clearly described in the schedule appended to the plaint and consequently, the same has been reflected in the decree. The only contention raised by the petitioners is that after publication of the final R.O.R. in the current settlement, execution case in terms of the sabik records is not executable. Such a submission is fallacious as it will mean that every decree passed by the Court with respect to certain property will be set at naught by the fact that the current settlement R.O.R. has been published and the suit schedule contains description of the suit land as per the Sabik records will nullify the effect of a decree passed by the Civil Courts. The settlement authorities are empowered to measure the land and prepare R.O.Rs. as per the rights of the parties and such authorities do not have any jurisdiction to overrule or nullify the effect of a decree passed by the competent Civil Court. 8.Learned counsel for the petitioner also submits that the description of the suit land shows that there is no such land in existence. For that reason and to rely the plots in the sabik records to the current settlement, the learned Civil Judge (Junior Division) has rightly ordered for deputation of a survey knowing Commissioner for effecting delivery of possession along with bailliff. The learned District Judge has taken into consideration that it is settled principle of law that the executing Court cannot go beyond the decree. When the schedule given in the decree specifically indicates Khata No. Plot No. and the area of the land in question and when the petitioner raised objection with regard to the identity of the same, the learned District Judge held that the approach adopted by the executing Court in directing deputation of a survey knowing Commissioner to identify the land in question is in furtherance of the substantive justice. This Court comes to the conclusion that neither the executing Court nor the revisional Court has exercised its jurisdiction illegally or with material irregularity, for which there is no necessity of interfering with the same. With such observation, the writ petition is dismissed. Pending Misc. Cases are also dismissed as infrucutuous. Petition dismissed.