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2014 DIGILAW 742 (GAU)

BIKASH CHANDRA BHUIYA v. TAPTI NANDI

2014-07-30

A.M.SAPRE

body2014
Judgment Heard Mr. D. Mazumdar, learned counsel for the petitioner and Mr. S. P. Choudhury, learned counsel for the respondents. This revision by the judgment debtor under Section 115 of the C P Code against the order dated 19.07.2013 passed by Munsiff No.1, Cachar, Silchar in Misc(J) Case No.171/2008 filed in Title Execution Case No.09/2008 (Annexure-5). The impugned order was passed by the learned executing Judge on an application made by the judgment debtor under section 47 read with section 151 of the C P Code contending, inter alia, therein that decree dated 07.05.86 passed in Title Suit No.139/1983 by Sadar Munsiff No.1 which is affirmed by the High Court on 07.09.1993 in Second Appeal 174/87 is unexecutable due to non-existence/non-availability of the suit property on the land in question. I have perused the order passed by the learned executing Judge dated 19.7.2013 and find that the issue involved in this case should have been decided keeping in view the law laid down by the Supreme Court in the case reported in (2001)1 SCC 564 [Vannattankandi Ibrayi vs. Kunhabdulla Hajee]. Since the learned Judge while dismissing the application did not advert to the law laid down by the Supreme Court on the issue in question and therefore the order in question cannot be said to be in conformity with the law laid down by the Apex Court. The least that I could have expected from the learned Judge was to first find out the relevant case law on the subject holding the field and then should have decided the matter keeping in view the law laid down on the issue. It is for the reason that the law laid down by the Supreme Court is binding on all the Courts in the country by virtue of Article 141 of the Constitution of India and therefore any decision rendered in deference to the law laid down by the Supreme Court cannot be said to be in conformity with the legal principle. I cannot therefore subscribe to the view taken by learned executing Court because as observed supra the same was taken in deference to the law laid down by the Supreme Court in the case cited above. The revision therefore succeeds and is hereby allowed. The impugned order is set aside. I cannot therefore subscribe to the view taken by learned executing Court because as observed supra the same was taken in deference to the law laid down by the Supreme Court in the case cited above. The revision therefore succeeds and is hereby allowed. The impugned order is set aside. The case is remanded to the executing Court for deciding the case under Section 47 of the CP Code afresh in the light of the law laid down by the Supreme Court in Vannattankandi Ibrayi (supra). Since I have not applied my mind to the factual aspect of the matter and therefore this decision does not give any indefeasible right in favour of either party. The trial court will be free to pass any order on merits of the case but only after relying upon and applying the principle laid down by the Supreme Court in Vannattankandi Ibrayi (supra) and then decide what order should be passed and in whose favour. The application shall be decided within one month from the date of appearance of the parties before the court below. The parties to appear before the learned executing Judge on 18th of August, 2014 to enable him to decide the application within the time fixed by this Court. No cost.