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2015 DIGILAW 40 (GAU)

Illiasuddin Ahmed v. Md. Hachnian Ahmed

2015-01-20

HRISHIKESH ROY

body2015
JUDGMENT AND ORDER (ORAL) Heard Mr. R. Sarma, the learned counsel for the petitioner (plaintiff No.1). Also heard Mr. F.U. Borbhuiya, the learned counsel for the respondent No.1 (defendant). The respondent Nos.2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13 and 14 (proforma defendants) are represented by the learned counsel Mr. J. Islam. The respondent No.6 has died and accordingly her name was struck off on 20.04.2011. 2. The petitioner was the plaintiff No.1 in the Title Suit No.66/1992 and the case was filed for right, title and khas possession of the plaintiff’s share in the ancestral property. The 3(three) co-plaintiffs of the petitioner were his sisters. The principal defendants in the suit was Md. Hachnain Ahmed and Mustt. Amina Khatoon, who are the brother and mother respectively of the plaintiffs. The proforma defendants are the legal heirs of the other siblings of the plaintiffs. 3. The Title Suit was disposed of on the basis of joint compromise application dated 01.12.1996 filed by the first plaintiff and the first defendant during the Lok Adalat and the learned District Judge, Morigaon, closed the case on 01.12.1996 with the following order: “Both the parties are present. Learned counsel for the plaintiff is also present. Two conciliators are also present. Dispute is settled on compromise in the following terms and conditions:- Total suit land – 25 bighas 1. Mustt. Aimoina Khatoon, wife of Mobinuddin Ali will get 1/8th share i.e. total 3 bighas. 2. Each girl heir will get 1/12th share each out of 22 bighas i.e. 1B-4K number of heirs being six. 3. Each son heir will get 1/6th share of the total land measuring 22 bighas i.e. each male share will be 3B-3K. 4. Plaintiff including three sisters will get 9 bighas in total out of the land in dispute. 5. After adjustment of the land measuring 5B-1K-1L standing in the name of plaintiff No.1 (not included in the suit land), the plaintiff will get 5 bighas only from the total suit land measuring 25 bighas. 6. The remaining land including the share of the mother and three sisters and two brothers (including main defendant) measuring 20 bighas will remain in the share of Hachnain Ahmed, the main defendant. 6. The remaining land including the share of the mother and three sisters and two brothers (including main defendant) measuring 20 bighas will remain in the share of Hachnain Ahmed, the main defendant. In this connection, it is to be noted that while settling the dispute, the land measuring 5B-1K-1L standing in the name of the plaintiff which is not the subject-matter of the suit land is also considered. Now, after calculation, the plaintiff No.1 will get 5 bighas of land out of total 25 bighas of the suit land. The land measuring 5B-1K-1L standing in the name of plaintiff No.1 independently shall remain as his share in addition to decreed suit land measuring 5 bighas.” 4. Since the plaintiff No.1 was held entitled to 5 bighas from the total suit land measuring 25 bighas, he filed an application on 08.03.2004 (Annexure-C) under Order XX Rule 6A, 9 and 12 of the Code of Civil Procedure for drawing up a formal decree in pursuant to the District Judge’s order dated 01.12.1996 in the Title Suit No.66(M)/1992. It may be noted that a separate plot measuring 5 bighas 1 katha 1 lecha, which was already in the plaintiff’s name, was not part of the suit land measuring 25 bighas and thus the decretal land measuring 5 bighas is to be curved out from the 25 bighas of the suit land. 5. As the decree holder’s application was kept pending without consideration, the aggrieved party filed the WP(C) No.2760/2005, which was disposed of on 08.04.2005 (Annexure-D) with the direction that the learned District Judge, Morigaon, will consider the petitioner’s application within 3 days of receipt of the High Court order. 6. Earlier an application under Section 47 of the CPC was filed by the decree holder describing the cultivable land, homestead land and the town land (Total 5 bighas) claimed by the plaintiff as his share of the family property, in terms of the compromise order passed by the District Judge on 01.12.1996. But the Title Execution Case No.1/2005 was dismissed by the learned District Judge on 08.12.2005 on the ground that no executable decree is furnished and the Court cannot execute the Section 47 CPC application. This judgment of the learned District Judge is assailed in the Revision proceeding. 7. But the Title Execution Case No.1/2005 was dismissed by the learned District Judge on 08.12.2005 on the ground that no executable decree is furnished and the Court cannot execute the Section 47 CPC application. This judgment of the learned District Judge is assailed in the Revision proceeding. 7. The petitioner contends that he is entitled to the fruits of the judgment passed on 01.12.1996 during the Lok Adalat proceeding and since the plaintiff is found entitled to 5 bighas out of the total 25 bighas of the suit land, the concerned land must be identified for drawing up the decree, by examining to the pleadings of the parties. 8. The defendant No.1 as the judgment debtor admits that the decree was passed for 5 bighas land, but Mr. Borbhuiya points out that the precise land area was not specified by the District Judge, Morigaon, in the order passed by him on 01.12.1996 while disposing of the Title Suit No.66/1992. The counsel further submits that the joint petition was filed only by the first plaintiff and the defendant No.1 and the other parties in the suit were not signatories to the compromise petition. 9. The proforma defendants are represented by the learned counsel Mr. J. Islam and he submits that unless the precise land area falling in the share of the plaintiff No.1 (decree holder) is identified, it might create confusion amongst the legal heirs of the predecessor Momin Uddin. 10. In Topanmal Chhotamal Vs. M/s. Kundomal Gangaram reported in AIR 1960 SC 388 , the Supreme Court held that when an ambiguous decree is passed, it is the duty of the executing court to interpret the decree and for this purpose, the court is entitled to look into the pleadings and the judgment. Similar observation was made in Bhavan Vaja Vs. Solanki Hanuji Khodaji Mansang reported in AIR 1972 SC 1371 , where the Apex Court made the following observation. “19. It is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading upto the decree. It is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading upto the decree. In order to find out the meaning of the words employed in a decree the Court, often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the executing Court and if that Court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it. Evidently the execution court in this case thought that its jurisdiction began and ended with merely looking at the decree as it was finally drafted. Despite the fact that the pleadings as well as the earlier judgments rendered by the Board as well as by the appellate Court had been placed before it, the execution Court does not appear to have considered those documents. If one reads the order of that Court, it is clear that it failed to construe the decree though it purported to have construed the decree. In its order there is no reference to the documents to which we have made reference earlier. It appears to have been unduly influenced by the words of the decree under execution. The appellate Court fell into the same error. When the matter was taken up in revision to the High Court, the High Court declined to go into the question of the construction of the decree on the ground that a wrong construction of a decree merely raises a question of law and it involves no question of jurisdiction to bring the case within Section 115, Civil Procedure Code. As seen earlier in this case the executing Court and the appellate Court had not construed the decree at all. They had not even referred to the relevant documents. They had merely gone by the words used in the decree under execution. It is clear that they had failed to construe the decree. Their omission to construe the decree is really an omission to exercise the jurisdiction vested in them.” 11. They had not even referred to the relevant documents. They had merely gone by the words used in the decree under execution. It is clear that they had failed to construe the decree. Their omission to construe the decree is really an omission to exercise the jurisdiction vested in them.” 11. In this case, there is no dispute amongst the parties that a compromise decree was passed by the District Judge by declaring that the plaintiff No.1 is entitled to 5 bighas from the suit land totaling 25 bighas. But of course, the precise land description was not reflected in the Court’s order. Under Order XX Rule 6A, the decree must be drawn up expeditiously within 15 days from the date of the judgment and Rule 9 specifies that the decree should contain the description of the immovable property to be recovered. In this case, the petitioner’s application for drawing up the decree is kept pending without disposal since 08.03.2004 and despite the Court’s direction given in the WP(C) No.2760/2005, order is not yet passed on the said application. 12. Under Section 47 of the CPC, all questions arising between the parties in the suit in which the decree was passed are to be determined by the executing Court. Therefore, the formal decree should have been drawn up by passing necessary order on the decree holder’s application filed under Order XX Rule 6A, 9 and 12 of the CPC. Only thereafter steps should have been taken for execution. It is apparent that without identifying the precise boundary of the 5 bighas land to devolve on the first plaintiff, it would be difficult to execute the decree. 13. But in the Court’s compromise order the land boundary was not specified in the Title Suit No.66/1992. Therefore under the ratio of Topanmal Chhotamal (supra) and Bhavan Vaja (supra), the learned Court should have taken steps to effectively construe the ambiguous decree by examining the pleadings in the suit. However no such exercise was undertaken and therefore the Court below failed to exercise due jurisdiction in the instant case. 14. In the above circumstances, the impugned judgment dated 08.12.2005 in the Title Execution Case No.1/2005 rendered by the learned District Judge, Morigaon, is set aside and quashed. However no such exercise was undertaken and therefore the Court below failed to exercise due jurisdiction in the instant case. 14. In the above circumstances, the impugned judgment dated 08.12.2005 in the Title Execution Case No.1/2005 rendered by the learned District Judge, Morigaon, is set aside and quashed. The matter is remanded back to the learned Court for drawing up a formal decree by considering the decree holder’s application filed under Order XX Rule 6A, 9 and 12 of the CPC. While construing the decree, the Court should bear in mind the ratio of the decisions in Topanmal Chhotamal (supra) and Bhavan Vaja (supra). Hearing should be given to all the parties as some of them were not signatories to the joint compromise petition. Only after formal decree is drawn up, steps for execution should be taken in accordance with law. It is ordered accordingly. To avoid unnecessary delay, the learned counsel for the parties have assured that their respective clients will appear before the District Court, Morigaon, on 23.02.2015. Therefore, fresh summons need not be issued to the parties. With this order, the case is disposed of without any cost. 15. The Registry will urgently communicate this order to the learned District Judge, Morigaon for further action.