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2017 DIGILAW 1097 (GAU)

Md. Ramiz Uddin Borbhuiya v. State of Assam

2017-08-10

PRASANTA KUMAR DEKA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. LR Mazumder, learned counsel for the petitioner. Also heard Mr. SP Choudhury, learned Government Advocate for the State of Assam, respondents. 2. In this revision petition, order dated 19.09.2012 is put under challenge which was passed in Review Application No. 31/2012 by the learned Civil Judge No. 1, Silchar. The present petitioner filed Title Suit No. 149/2003 in the court of learned Civil Judge (Sr. Divn.) No. 1, Cachar at Silchar for the following reliefs:- (a) Declaring that the requisition made on 08.08.2003 was neither legal nor proper rather malafide; (b) For declaring that the release of the vehicle by the MTO-II Garwal Rifles, C/o. 99 APO is not a letter or release of the vehicle from requisition as per provision of the law; (c) For declaring that the vehicle is still in requisition and lying under the custody of the Sub-Divisional Officer (Civil), Lakhipur, Cachar; (d) For declaring that the car No. AMC/2401 has been badly damaged and gone completely out of order because of lack of care, indifference and negligence of the defendants; (e) For directing the defendant to pay requisite money as the law prescribe to the plaintiff for the requisition period till the car is freed from the requisition legally and lawfully; (f) For paying compensation amounting to Rs. 2,00,000/- only for causing damage and bringing the said car to out of order and for consequential loss of earnings; (g) For paying expenses to the tune of Rs. 1,00,000/- for doing necessary repairing of the said car including the cost of new diesel engine, body repairing, seat repairing, purchasing of tyres and tubes, wheels, colouring of body etc.; (h) For costs of the suit; (i) For such other relief/reliefs to which the plaintiff will be found entitled to under the law and equity. The said suit was filed against the State of Assam represented by the Chief Secretary as the defendant No. 1 and the Sub-Divisional Officer, Lakhipur, district Cachar, Silchar as the defendant No. 2. The suit proceeded ex parte and the same was decided vide ex parte judgment and decree dated 03.09.2007. The operative portion of the said judgment and decree reads as follows:- “I have perused the plaint and the evidence of P.Ws. The suit proceeded ex parte and the same was decided vide ex parte judgment and decree dated 03.09.2007. The operative portion of the said judgment and decree reads as follows:- “I have perused the plaint and the evidence of P.Ws. Upon perusal as above and considering the submission advanced by the learned counsel for the plaintiff, I find that the plaintiff has been able to establish its case prima facie and therefore plaintiff is entitled to get a decree. Hence suit is decreed ex-parte against the defendants.” A decree was accordingly drawn up and the same is also reproduced here-in-below:- “This suit is coming on this the 3rd Day of September 2007 for final disposal before Sri. B.K. Sen, Civil Judge No. 1, Cachar, Silchar, in presence of Smti. Seema Chakraborty, Advocate for the plaintiffs and none for the defendants and it is ordered that the suit is decreed ex parte against the defendants. Plaintiff is entitled to realise compensation and expenses for necessary repairing of the vehicle amounting to Rs. 50,000/- in total and requisition money as per Government rate. Given under my hand and seal of this Court, the 3rd Day of September 2007. Sd/- B.K. Sen Civil Judge No. 1 Silchar, Cachar.” 3. The said decree was put into execution in Title Execution Case No. 1/2008 in the court of learned Civil Judge No. 1, Cachar at Silchar. The executing court issued notice to the judgment debtors (hereinafter referred to as ‘JDs’), the Deputy Commissioner, Cachar. On receipt of the said notice, an application under Section 47 of the CPC was filed by the judgment debtor, the Deputy Commissioner, Cachar thereby raising an objection that the said decree is inoperative and in-executable. The said application was registered as Misc. Case No. 35/2009 in the executing court of learned Civil Judge No. 1, Cachar at Silchar. In the said application, it was raised that the claim of Rs. 8,88,758.25 was not covered by the decree and the decree holder was not entitled to realise the said amount by executing the said decree by way of attachment or otherwise. It was also raised that the decree was a declaratory one and no specific term was decreed. The present petitioner/decree holder objected by filing their written objection. After hearing the parties, the executing court vide order dated 23.05.2012 rejected the prayer of the judgment debtors in the said Misc. It was also raised that the decree was a declaratory one and no specific term was decreed. The present petitioner/decree holder objected by filing their written objection. After hearing the parties, the executing court vide order dated 23.05.2012 rejected the prayer of the judgment debtors in the said Misc. Case No. 35/2009. 4. Being aggrieved, a review application was preferred by the judgment debtors/respondents in the said Misc. Case No. 35/2009 which was registered as Review Application No. 31/2012 in the said executing court of learned Civil Judge No. 1, Cachar at Silchar. The review application was also objected by the present petitioner/decree holder. 5. After hearing the parties vide the impugned order the review application was upheld thereby holding that the decree passed in title suit No. 149/2003 to be a in-executable one. While allowing the said review application, the learned Executing court held that while passing the ex parte decree in title suit No. 149/2003, the present decree holder prayed for decree declaring some reliefs and the trial court passed the decree ex parte declaring that the plaintiff is entitled to realise compensation for expenses of necessary repairing of vehicle amounting to Rs. 50,000/- in total and requisition money as per Government rate. The court below held the same to be a declaratory one and on earlier occasion the said application under Section 47 of the CPC was rejected only on the ground of failure on the part of the judgment debtor/respondent to substantiate the contents of the petition i.e. the application under Section 47 of the CPC. As no merit was discussed, as such, the executing court invoking its jurisdiction under Order XLVII Rule 1 of the CPC reviewed the earlier order dated 23.05.2012 and allowed the judgment debtors/respondents to cross examine the petitioner. 6. Mr. LR Mazumder, the learned counsel for the petitioner, submits that the executing court ought not to have allowed the same only on the ground that the decree was a declaratory one. A duty was cast upon the executing court at least to look into the plaint and ought to have considered its executability inasmuch as it has been pleaded in the plaint that a direction to the defendants/JDs to pay requisite money as the law prescribed for the requisition period. A duty was cast upon the executing court at least to look into the plaint and ought to have considered its executability inasmuch as it has been pleaded in the plaint that a direction to the defendants/JDs to pay requisite money as the law prescribed for the requisition period. It is further submitted that the defendants are the judgment debtors and the presumption ought to have been drawn by the executing court that the decreetal amount ought to be realised from the said defendants who are the judgment debtors. 7. Mr. SP Choudhury, learned counsel for the respondents, countered the submission of the Mr. Mazumder supporting the order passed by the executing court in the review application. 8. Considered the submissions of the learned counsels. Perused the execution petition under Order XXI Rule 11 of the CPC. On perusal of the petition, the claim amount of the decree holder is Rs. 8,88,758.20/-. The said amount includes the compensation of Rs. 50,000/- and the rest amount includes the hiring charges of the vehicle and the per day allowance of the driver for a period of 630 days. The ‘per day’ hiring charges has been shown to be Rs. 300/- and per day allowance of the driver is shown to be Rs. 60/-. On going through the pleadings in the plaint of title suit No. 149/2003, such figures with respect to per day hiring charges and per day allowance of the driver are not at all pleaded. Not only that, the period under which the vehicle was requisitioned is also missing in the plaint. In the relief portion of the said plaint it is pleaded for a direction to the defendant to pay requisite money as the law prescribes to the plaintiff for the requisition period till the car is freed from requisition legally and lawfully. The suit was filed in the year 2003 and the amount for hiring charges incorporated in the execution petition is for the period starting from 08.08.2003 to 20.01.2008. The decree was drawn on 03.09.2007. Behind such a backdrop, the executing court passed the impugned order holding that the decree to be an in-executable one. The executing court has the power to look into the pleadings to remove any ambiguity in a decree. But this is a case wherein there is no pleading in the plaint with regard to the hiring charges of the vehicle. Behind such a backdrop, the executing court passed the impugned order holding that the decree to be an in-executable one. The executing court has the power to look into the pleadings to remove any ambiguity in a decree. But this is a case wherein there is no pleading in the plaint with regard to the hiring charges of the vehicle. Moreover, there is no specific pleading as to when the requisition process started so far the vehicle in question is concerned. The judgment reflects that the requisition charges to be disbursed till the car was freed from the requisition legally and lawfully. The executing court, even if it goes through the pleadings in the plaint, would certainly be unable to assess and compare the amount shown in the execution petition. In such a situation, there is nothing, which this court can direct to the executing court to reconsider the decision passed in the review application. On a plain look at the judgment and decree, it is apparent that the same is a declaratory one without there being any specific direction to the judgment debtors to release any specific amount as reflected in the execution petition. Accordingly, this court finds no merit in this revision petition and the same stands dismissed. The executing court shall proceed as per the order dated 19.09.2012. Findings in this revision petition are not final. The executing court shall be at liberty to dispose of the petition under Section 47 of the CPC, filed by the JDs/respondents, after the cross examination independently as per the law. 9. This revision petition stands disposed of. 10. Stay order passed earlier shall stand vacated.