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2016 DIGILAW 39 (TRI)

Madan Mohan Debbarma v. Gita Debbarma

2016-02-16

DEEPAK GUPTA

body2016
JUDGMENT : This petition is directed against the order dated 16th September, 2014 passed by the Civil Judge Jr. Division, Court No.1, West Tripura, Agartala in Title Execution Case No.11 of 2014 whereby he held that the execution petition on behalf of the defendants in the suit was maintainable because according to him there was a decree in favour of the defendants. 2. Briefly stated the facts of the case are that the petitioners, hereinafter referred to as the plaintiffs filed a suit being Title Suit No.65 of 2010 in the Court of the Civil Judge, Jr. Division, Court No.1, Agartala. In this suit, the plaintiffs claim various reliefs which are as follows: “A. For declaration that the plaintiffs have right, title and interest over the suit path described in the plaint schedule: AND B. For confirmation of possession of the plaintiffs over the suit past: AND C. For declaration that that order dated 7.7.2004 passed by the Revenue Officer during Settlement operation in Dispute Case No. 32 of Mouja Agartala Sheet No.13 is illegal, without jurisdiction and void ab initio: AND D. For declaration that the order dated 22.5.2010 passed by the Collector, West Tripura in the Capacity of Settlement Officer in Case No.285 of 2005 under Section 95 of the TLR & LR Act 1960 is illegal, without jurisdiction and void ab initio: AND E. For perpetual injunction restraining the defendants and their agents, workmen, or any other person or persons acting on their behalf from entering into the suit path and from interfering with the peaceful use of the suit path by the plaintiffs: AND F. For any other relief/relief’s to which the plaintiffs are entitled according to law, justice equity and good conscience:” 3. That suit was contested by the defendants and in that suit the defence taken was that the suit path and the pucca drains on both sides were built by the Agartala Municipal Corporation in 1996-1997. It was stated that the electric pillars and lights had been fitted on the side of the path and this path is being used by the defendants. 4. The learned Court below accepted the plea of the defendants and dismissed the suit in toto. No relief was granted to the plaintiffs. Thereafter the appeal filed by the plaintiffs against the judgment and decree of the trial was also dismissed. 4. The learned Court below accepted the plea of the defendants and dismissed the suit in toto. No relief was granted to the plaintiffs. Thereafter the appeal filed by the plaintiffs against the judgment and decree of the trial was also dismissed. According to the defendants, respondents herein the plaintiffs interfered in the path and, therefore, they filed the execution petition in question. 5. The only issue in this petition is whether there is any executable decree or not? I have carefully gone through the decree. The suit of the plaintiffs (petitioners herein) has been dismissed in toto. No doubt, a finding was given in the suit that the path is a public path being used by the defendants, but that is only a finding given and there is no decree or order passed in favour of the defendants. It appears that at the time when the suit was being contested, the plaintiffs had not interfered in the path. The defendants did not file any counter claim or counter suit. Therefore, it is obvious that there is no executable decree in favour of the defendants. 6. In view of the above discussion, I am clearly of the view that the relief of execution sought by the defendants is totally misconceived. There is no decree in their favour. What is in their favour is a finding of a Court. A finding cannot be executed. What can be executed is only a decree or the final operative portion of a judgment which can also be treated as a decree. In the operative portion no relief has been granted to the defendants. The defendants may, if they are so advised file a suit for the relief which they want to be get but these reliefs cannot be granted to them in execution petition. In case there is any finding in a previous suit between the parties that finding may operate as res-judicata but a decree will have to be passed in favour of the defendants before it can be executed. 7. Therefore, the petition is allowed. The execution petition is directed to be dismissed as being not-maintainable since there is no executable decree. It is, however, made clear that the defendants shall be at liberty to file a separate civil suit claiming their right and in that civil suit they can also file an application for grant of interim relief. 7. Therefore, the petition is allowed. The execution petition is directed to be dismissed as being not-maintainable since there is no executable decree. It is, however, made clear that the defendants shall be at liberty to file a separate civil suit claiming their right and in that civil suit they can also file an application for grant of interim relief. Both the suit and the application for grant of interim relief shall be dealt with strictly in accordance with law. 8. Petition is disposed of in the aforesaid terms. No costs. Send down the lower Court records forthwith.