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2016 DIGILAW 1281 (ORI)

Pradeep Kumar Satapathy v. Abhimanyu Sahoo

2016-12-23

K.R.MOHAPATRA

body2016
JUDGMENT : K.R. Mohapatra, J. The petitioner in this petition seeks to assail the orders dated 17.11.2014 passed by the learned Civil Judge (Junior Division), Nayagarh in Execution Case No. 1 of 2013, wherein learned executing court issued direction to the local Revenue Inspector to assist the beliff to identify at the time of delivery of possession of the case land stated to have been encroached by the Judgment Debtors (J.Drs.) and also the order dated 18.05.2015 refusing the prayer of the J.Dr. to recall the order dated 17.11.2014. 2. Shorn of unnecessary details, the factual backdrop necessary for proper adjudication of this case are stated hereunder: 3. Opp. Party no.1, namely, Abhimanyu Sahoo, filed C.S. No.3 of 2009 before learned Civil Judge (Junior Division), Nayagarh with the following prayer: “13. That the plaintiff therefore prays:- (a) that the plaintiff’s right, title, interest and possession be declared over the suit land and his possession therein be confirmed; (b) the defendant Nos. 1 and 2 be permanently injuncted from encroaching any portion of the suit land; and from raising any permanent structure on the suit lands; (c) that in case the defendant Nos.1 and 2 encroach any portion of the suit land during the pendency of the suit then they be evicted through the process of the court; (d) that if it is found that the defendant Nos.1 and 2 encroached any portion of the suit land then they shall demolish the same at their cost and give vacant possession to the plaintiff; (e) that the plaintiff’s right of easement of passage be declared over the ‘B’ schedule land; (f) that the cost of the suit be decreed against the defendant Nos. 1 and 2; (g) that any other relief or reliefs which the Hon’ble court would deem proper and equitable be given to the plaintiff.” 4. Taking into consideration the rival contentions of the parties, learned Civil Judge framed the following issues: 1. Is the suit maintainable? 2. Is there any cause of action to file the suit? 3. Is the suit property properly valued? 4. Whether the plaintiff or D-1 acquired right, title, interest over the suit land? 5. Are the defendant nos. 1 and 2 have encroached the suit land? 6. Has the plaintiff right of easement of passage over ‘B’ schedule land? 7. Whether the disputed land is a public road or not? 8. 3. Is the suit property properly valued? 4. Whether the plaintiff or D-1 acquired right, title, interest over the suit land? 5. Are the defendant nos. 1 and 2 have encroached the suit land? 6. Has the plaintiff right of easement of passage over ‘B’ schedule land? 7. Whether the disputed land is a public road or not? 8. To what reliefs the plaintiff is entitled? 9. Is the sale deed no. 1916 dtd. 13.5.1996 is valid? 10. Is the description of the suit land vague and indefinite? 5. While answering Issue Nos. 2 and 5, learned Civil Judge held as follows: “……In absence of any reliable evidence, it will be highly improbable to believe that Deft. No.1 and 2 have encroached any area/portion of the land of the plaintiff, so also from the plot No. 675, which is a Government land. Thus, these issues are answered against the plaintiff……...” 6. The suit was decreed vide judgment dated 30.7.2012 with the following order: “This suit of the plaintiff is decreed in part against the defendant Nos.1, 2 and 3 on contest, but there is no order as to cost. The right, title, interest and possession of the plaintiff is hereby declared over the schedule ‘A’ of the suit land and the plaintiff has right of easement of passage over ‘B’ schedule land.” 7. The decree passed in C.S. No.3 of 2009 was put to execution in Execution Case No.1 of 2013 on the allegation that subsequent to the decree passed in C.S. No.3 of 2009, the J.Drs. no.1, (Defendant No.1), namely, Sri Bhimsen Sahoo, encroached some portion of the suit land measuring 0.120 Sq. links out of 0.0650 Sq. links and the J. Dr. no.2 (Defendant No.2), namely, Sri Pradeep Kumar Satpathy encroached 0.400 Sq. links out of 650 Sq. links from suit plot No.681/1227. They also hurriedly constructed a permanent structure over the encroached area, which constrained the Decree Holder (D.Hr.) (opposite party no.1 herein) to file the execution case. During pendency of the execution case, the D.Hr. filed a petition on 22.07.2014 under Order 26 Rule 9 C.P.C. praying, inter alia, to depute a Civil Court Commissioner to measure and demarcate the land encroached by the J.Drs. and for delivery of possession of the suit land to the D.Hr. The J.Dr. no. During pendency of the execution case, the D.Hr. filed a petition on 22.07.2014 under Order 26 Rule 9 C.P.C. praying, inter alia, to depute a Civil Court Commissioner to measure and demarcate the land encroached by the J.Drs. and for delivery of possession of the suit land to the D.Hr. The J.Dr. no. 2, namely, Sri Pradeep Kumar Satpathy (petitioner herein), filed written objection challenging the maintainability of such petition. It was specifically contended therein that no direction was issued in C.S. No.3 of 2009 to deliver vacant possession to the D.Hr. While answering Issue No.5 in C.S. No. 3 of 2009, learned Civil Judge has categorically held that defendants (J. Drs.) had not encroached any portion of the suit land. Hence, entertaining such a petition at the instance of the D.Hr. would amount to expand the scope of the decree, which is not permissible in the eyes of law. Hence, he prayed for dismissal of the petition. 8. Learned executing court considering the rival contentions of the parties passed the impugned orders, which are under challenge in this petition. 9. Mr. Dash, learned counsel for the petitioner contended that a petition under Order 26 Rule 9 C.P.C. is not maintainable in an execution proceeding. Allowing the prayer for deputation of Revenue Inspector would amount to allow the claim of the plaintiff-D.Hr., which was specifically refused, while answering Issue No.5 in the judgment passed in C.S.No.3 of 2009. The executing court allowed the prayer, by directing the local Revenue Inspector to demarcate the land, merely basing upon a bald allegation made by the D.Hr. without any material in support of the same. There was no direction in the judgment and decree passed in C.S. No.3 of 2009 to give delivery of possession by vacating the alleged encroachment made by the petitioner. Learned executing court cannot travel beyond the purview of the judgment and decree. He further submitted that the petitioner has never encroached any portion of the suit land, as alleged. He also placed reliance on the decision in the case of Bedik Girls’ Senior Secondary School -v- Rajuanti and others, reported in Vol.104 (2007) CLT 658 in support of his submission. He further submitted that the petitioner has never encroached any portion of the suit land, as alleged. He also placed reliance on the decision in the case of Bedik Girls’ Senior Secondary School -v- Rajuanti and others, reported in Vol.104 (2007) CLT 658 in support of his submission. Further relying upon the decision in Gopal Barik -v- Bhima Barik and another, reported in 1993 (1) OLR 139, he submitted that where the execution is in respect of some relief which was specifically refused or is inconsistent with the relief granted, the executing court cannot go behind the decree to grant a relief in the garb of executing the decree. Hence, he prayed for setting aside the impugned order. 10. Mr. Mishra, learned counsel for the opposite party no.1 (plaintiff-D.Hr.) refuted such submission and contended that provision of law reflected in the nomenclature of the petition cannot be a bottleneck to consider the relief sought for on merit. Learned executing court dealing with such objection of the petitioner elaborately, came to a conclusion that the petition was essentially for demarcation of the land by appointing a survey knowing person. No doubt, while answering Issue No.5, learned trial court came to a categorical conclusion that plaintiff could not prove that defendant nos. 1 and 2 had encroached any area/portion of the suit land, so also from Plot No.675, which is a Government land. However, after disposal of the suit, taking advantage of the helplessness of the plaintiff-D.Hr., the J.Drs. encroached upon a portion of the suit land and made permanent construction forcibly. He further contended that learned Civil Judge decreed the suit declaring right, title, interest and possession of the plaintiff in respect of the Schedule ‘A’ land and also declared the right of easement of passage of the plaintiff over Schedule ‘B’ land. Hence, learned executing court has committed no error in directing the local Revenue Inspector to demarcate the suit land, which is a measure to execute the decree effectively. It neither affects any right declared by learned trial court in the decree nor it enlarge the scope of the decree sought to be executed. Relying upon the decision in the case of Gopal Barik (supra), Mr. Mishra submitted that the Civil Procedure Code has been amended to avoid technical difficulties in executing the decree. It neither affects any right declared by learned trial court in the decree nor it enlarge the scope of the decree sought to be executed. Relying upon the decision in the case of Gopal Barik (supra), Mr. Mishra submitted that the Civil Procedure Code has been amended to avoid technical difficulties in executing the decree. It is duty of the executing Court to see that the decree passed is respected by the parties to the suit and the D. Hr. enjoys the fruit of the decree. When the decree is not inconsistent with the relief sought to be executed and it is in furtherance of the same, it would come within the domain of interpretation of the decree. Further, the J.Dr., who is vanquished in the legal battle cannot be allowed to enjoy the property, which the Court on trial held that he is not entitled to. The D.Hr. had filed a petition for demarcation of the land encroached by the J.Drs. after the decree was passed. When the J.Drs. categorically averred in the objection that they had not encroached any portion of the suit land, they would not be prejudiced, if a Commissioner is deputed for demarcation of the suit land as well as encroachment, if any. It is only an aid to execute the decree effectively. Hence, he prayed for dismissal of the writ petition. 11. In order to consider the controversy, I went through rival pleadings of the parties in the plaint and written statements annexed to the present petition as Annexures-1 and 2 respectively. I also perused the findings on Issue Nos. 2 and 5 of the judgment passed in C.S. No. 3 of 2009 (Annexure-3) out of which the instant execution proceeding arises. From the findings on Issue No.5 quoted above, it is apparent that learned Civil Judge did not believe the allegation of encroachment, as the materials available on record was not sufficient to hold that there was any encroachment of the suit land by the defendant nos.1 and 2 (J. Drs.). However, answering Issue Nos. 4 and 8, learned Civil Judge declared the right, title and possession of the plaintiff over the suit land. Further, easementary right of the plaintiff over the passage more-fully described ‘B’ Schedule has been declared. However, answering Issue Nos. 4 and 8, learned Civil Judge declared the right, title and possession of the plaintiff over the suit land. Further, easementary right of the plaintiff over the passage more-fully described ‘B’ Schedule has been declared. Law is no more res integra that a declaratory decree cannot be put to execution (see AIR 1983 ORI 146 and AIR 1998 SC 743 ). But, the D.Hr. is certainly entitled to the benefits flowing from the decree. In the case of Biswanath -Vrs.- Smt. Uttara Bewa and others reported in AIR 1988 Orissa 9, the plaintiff-D.Hr. prayed for a decree of right, title, interest and for confirmation of possession. The plaintiff therein, in the alternative, also prayed for decree of recovery of possession, if he is found dispossessed by the defendants. Learned Court granted the relief of confirmation of possession. Hence, relief of recovery of possession was not required to be granted. After the decree was passed, the defendants-J.Drs. therein created disturbance in the possession of the plaintiff-D.Hr. An execution proceeding was levied by the D.Hr. for recovery of possession. A question arose as to whether an execution proceeding for recovery of possession would be maintainable, when decree of confirmation of possession was granted. This Court on analysis of law held that if the executing Court finds that the plaintiff has been dispossessed in the decree of confirmation of possession, it, by interpreting the decree, can grant the relief of recovery of possession. Thus, the ratio decided in this case clearly envisages that in such an exigency, an execution proceeding would be maintainable, even if the decree was declaratory in nature. It is the duty of the executing court to see that the decree holder enjoys the benefits flowing from the decree. In the case at hand, the plaintiff (D.Hr.) sought for a decree of possession and in the alternative for delivery of possession. The Court, on assessment of pleadings as well as materials on record confirmed the possession of the plaintiff over the suit. Thus, there was no occasion for the Court to direct for delivery of possession. If the executing Court finds that the D. Hr. is dispossessed after the decree is passed, then it can put the D. Hr. in possession of the suit land. The D.Hr. Thus, there was no occasion for the Court to direct for delivery of possession. If the executing Court finds that the D. Hr. is dispossessed after the decree is passed, then it can put the D. Hr. in possession of the suit land. The D.Hr. need not face another round of legal battle to get back the possession by filing a suit for appropriate relief. In the instant case, the plaintiff-D.Hr. at paragraph-17 of the execution petition categorically pleaded that defendant nos. 1 and 2 encroached some portion of the suit land soon after the judgment was passed and hurriedly constructed permanent structure over the portion of the suit land they have encroached. True it is that, the D. Hr. is not specific in his averments as to when the J. Drs. started construction and when it was completed, but the same cannot prevent the D.Hr. from enjoying the fruit of the decree. Further, perusal of the written statement filed by the defendant nos. 1 and 2 in C.S. No. 3 of 2009 as well as the objection filed by them in the execution case, clearly give a picture that they have not encroached any portion of the suit land. Be that as it may, when an allegation is made that the J.Drs. have encroached upon certain portions of the suit land after the decree of declaration of right, title and possession is passed in favour of the D.Hr., it is bounden duty of the executing court to look into such allegation. In order to test the veracity of such allegation, the executing Court has to demarcate the suit land. Further, the defendants would not be prejudiced in any manner, if the suit land is demarcated by the local Revenue Inspector. Law is no more res-integra on this issue. In the case of Gopal Barik (supra), it is held as follows: “4. To avoid the technical difficulties and to protect a decree-holder after obtaining the decree, from enjoying the fruits of the decree, Code of Civil Procedure has been amended. Where the execution would be in respect of some relief which was specifically refused or is inconsistent with the relief granted, executing Court cannot go behind the decree to execute the same. To avoid the technical difficulties and to protect a decree-holder after obtaining the decree, from enjoying the fruits of the decree, Code of Civil Procedure has been amended. Where the execution would be in respect of some relief which was specifically refused or is inconsistent with the relief granted, executing Court cannot go behind the decree to execute the same. Where, however, the decree is not inconsistent with the relief sought to be executed and is in furtherance of the same, it would come within the domain of interpretation of the decree. Hence, I am not inclined to accept submission of Mr. Misra. To accept submission of Mr. Misra would be to defeat the object of the Parliament to protect decree-holder. A judgment-debtor who is vanquished in the legal battle cannot be allowed to enjoy the property which Court on trial held that he is not entitled to.” 13. Thus, from the ratio decided as above, it can be safely said that the executing court by interpreting the decree can grant such relief, which was not specifically refused or is inconsistent with the decree passed. In the case at hand, while answering Issue No. 5, learned Civil Judge disbelieved the plea of encroachment of the suit land by defendant nos. 1 and 2. That by itself neither amount to refusal of the relief sought for in executing the proceeding nor the same is inconsistent with the decree passed, particularly when learned Civil Judge confirmed the possession. On the other hand, it is essential, in furtherance of the decree passed, to demarcate the land for protecting the decree from being disobeyed or dishonored by the J. Drs., who are vanquished in the legal battle. The purpose of deputation of a local Revenue Inspector is to identify the suit land only, which is essential for execution of the decree, irrespective of the fact that it is encroached or not. Further, the executing court has the duty to see that the decree is protected and the D.Hr. enjoys the fruit of the decree. Mere technicalities should not be bottleneck in executing the decree. In that view of the matter, I do not find any force in the submission of Mr. Dash, learned counsel for the petitioner. 14. In view of the forging discussions, this Court holds that there is no infirmity in the impugned order and the same needs no interference. Mere technicalities should not be bottleneck in executing the decree. In that view of the matter, I do not find any force in the submission of Mr. Dash, learned counsel for the petitioner. 14. In view of the forging discussions, this Court holds that there is no infirmity in the impugned order and the same needs no interference. Accordingly, the Civil Miscellaneous Petition is dismissed, but in the circumstances, there shall be no order as to costs.