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2014 DIGILAW 307 (TRI)

Satya Nandi v. Swapan Nandi

2014-08-04

DEEPAK GUPTA

body2014
JUDGMENT Deepak Gupta, C.J.:-- 1. This revision petition is directed against the order dated 15-11-2007 passed by the Executing Court, i.e. the learned Civil Judge (Senior Division), West Tripura, Agartala in case No. Misc. 02 of 2007 arising out of Title (Execution) case No. 06 of 2006 whereby the Executing Court held that the decree passed in favour of the petitioner-decree holder is not executable in its present form and nature and dismissed the execution petition. 2. Briefly stated, the facts of the case are that the petitioners along with others filed a suit for partition of property described in the plaint schedule. On notice being issued, defendant Nos. 2 to 5 filed written statement supporting the case of the plaintiffs and defendant No. 1 did not file any written statement. Thereafter, preliminary decree was passed on 27-04-1998 and the shares of the parties were determined. The learned trial Judge held that the plaintiff No. 1 was entitled to get half share in the suit land and that the plaintiff Nos. 2, 3 and 5 jointly with defendant No. 1 were together entitled to 1/4th share in the suit land, i.e. defendant No. 1 was entitled to 1/16th share in the suit land. The remaining 1/4th share was to go to defendant Nos. 2, 3, 4 and 5 and plaintiff Nos. 4, 6, 7, 8 and 9 jointly. 3. Thereafter, an application was filed for preparation of final decree and in these proceedings, a Survey Commissioner was appointed and the Survey Commissioner gave directions as to how the suit property could be divided. In the final decree, the report of the Survey Commissioner was accepted by the learned trial Court. None of the parties had filed any objection to the report of the Survey Commissioner and, therefore, the final decree was passed in terms of the report of the Survey Commissioner. 4. After the final decree was passed, the decree holder-petitioners filed application for execution of the decree under Order XXI Rule 11 of the Code of Civil Procedure (CPC) and the said application was registered as Title (Execution) No. 06 of 2006. Notice was issued to the Judgment debtor-respondents but only the original defendant No. 1 who was arrayed as Judgment debtor No. 1 appeared in the Court and filed objections under section47 of the CPC. Notice was issued to the Judgment debtor-respondents but only the original defendant No. 1 who was arrayed as Judgment debtor No. 1 appeared in the Court and filed objections under section47 of the CPC. In these objections, the stand of the defendant No. 1 Judgment debtor No. 1 was that he was the real brother of the petitioners and in the year 1978 the petitioners informed him that a suit for partition of the property left behind by their father was filed and he was told that he would get an equal share in the property left by their father. The Judgment debtor was seriously ill at that time and, therefore, at the asking of the plaintiffs, he did not contest the suit and the decree had been obtained fraudulently. 5. According to the learned Executing Court, the decree has not been prepared properly and, therefore, he has held that it is not executable in its present form and nature. I am of the clear cut view that the Executing Court has travelled much beyond its jurisdiction. The Judgment debtor had notice of the suit but did not contest the suit before the trial Court and a decree was passed. Thereafter, an application for preparation of final decree was passed. Again notices were issued to him but he did not contest this application. A Survey Commissioner was appointed who went to the spot and according to the report of the Survey Commissioner, it had issued notices to the counsel of the parties but none had appeared for the defendant No. 1. 6. It was for the Judgment debtor to prove that the report of the Survey Commissioner was improper. The learned Executing Court has gone behind the Survey Commissioner’s report and without any evidence whatsoever has discarded the same. 7. It is well settled law that the Executing Court cannot go behind a decree. A decree can only be challenged on the ground that it had been obtained by fraud or misrepresentation of fact. That fraud has to be pleaded and proved by the person alleging that he has been duped. No such evidence was led. 8. Therefore, I am of the considered view that the order of the Executing Court is totally illegal and is, therefore, set aside. 9. The matter is remanded to the Executing Court which shall now execute the decree in accordance with law. 10. No such evidence was led. 8. Therefore, I am of the considered view that the order of the Executing Court is totally illegal and is, therefore, set aside. 9. The matter is remanded to the Executing Court which shall now execute the decree in accordance with law. 10. The revision petition is disposed of accordingly. 11. Send down the lower court records forthwith.