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2017 DIGILAW 1128 (GAU)

Soneswar Roy @ Sontosh Roy v. Tikendra Nath Das

2017-08-18

PRASANTA KUMAR DEKA

body2017
JUDGMENT & ORDER : 1. Heard Mr. AK Hussain, learned counsel, appearing for the petitioner/defendant and Mr. SS Sharma, learned senior counsel, assisted by Mr. BJ Mukherjee, learned counsel, appearing on behalf of the respondent/plaintiff. 2. In this application, the order dated 1.2.2013, passed in Title Execution Case No. 2/2012 pending in the court of the learned Munsiff at Bijni is challenged. It is submitted that the present petitioner is the judgment-debtor in the decree passed in favour of the respondent-decree-holder in Title Suit No. 15/2001 by the learned court of the Civil Judge (Senior Division), Bijni. The said suit was decreed for declaration of right, title, interest and eviction and khas possession over the suit land which is 1 (one) Khata 15 (fiteen) Lechas of land described more fully in the schedule “B” in the decree drawn on 4th January, 2003 by the said court of the learned Civil Judge, Bijni. 3. The execution proceeding was initiated by the respondent-decree-holder and on 17.5.2007, the said execution proceeding was dismissed for non-taking of steps by the decree-holder-respondent. An application thereafter was filed under Order 9 of the CPC to restore the said execution proceeding and the said petition was also dismissed vide order dated 24.7.2007, passed by the learned Executing Court. A fresh execution proceeding bearing T.S. No. 3/2007 was again initiated. In the said proceeding, the decree-holder refused to accept the decreetal land and as such the Nazir was orally examined by the Executing Court. 4. The Executing Court thereafter vide order dated 20.3.2009 was satisfied to accept the report of the Nazir wherein on oral examination of the Nazir, the court came to the satisfaction that Lat Mandal was present during the execution process and the decree-holder failed to comply in accepting the decreetal land when delivered by the Nazir and identified by the Lat Mandal, and as such the executing court coming to the conclusion that there are default on the part of the decree-holder to comply with the Nazir and the Lat Mandal and the executing proceeding as a whole was dismissed as per the report of the Nazir. Subsequent thereto, a review application was filed before the said executing court in T. Ex. Case No. 3/2007 by the decree-holder, which was dismissed on 7.1.2011. 5. The decree-holder-respondent again filed an application and T. Ex. Subsequent thereto, a review application was filed before the said executing court in T. Ex. Case No. 3/2007 by the decree-holder, which was dismissed on 7.1.2011. 5. The decree-holder-respondent again filed an application and T. Ex. Case No. 2/2012 for execution of the decree referred hereinabove was registered. The present petitioner-judgment-debtor objected with regard to the maintainability of the execution proceeding in T. Ex. Case No. 2/2012. The said question of maintainability was decided by the executing court vide order dated 1.2.2013, which is under challenge in this revision petition. 6. The executing court while disposing the said application, raising the question of maintainability went through the record of T. Ex. Case No. 3/07, which was dismissed on the basis of the report submitted by the Nazir. On scrutiny of the said report of the Nazir, the learned Executing Court came to the finding that the said report of the Nazir is not supported by any report of the Lat Mandal, signatures of any witness, Jarikarak (Process Server) and the court below came to the conclusion and dismissed the Title Execution Case No. 3/2007 without deciding the same on merit. The objection with regard to the maintainability raised by the petitioner-judgment-debtor was rejected and fresh warrant of execution was issued directing the decree- holder to take steps accordingly. 7. Mr. Hussain, learned counsel for the petitioner submits that there is gross-illegality in the order impugned in this petition. He submits that the executing court once accepting the report of the Nazir again cannot reject the report of the Nazir subsequently. This amounts to violation of the self discipline normally imposed by the court keeping in mind that a court cannot be a revisional court on its own findings. As such, Mr. Hussain submits that the impugned order is liable to be set aside and the maintainability of subsequent execution proceeding be directed to be heard afresh. 8. Mr. Sharma, learned senior counsel, appearing on behalf of the respondent objected to the submissions made by Mr. AK Hussain, the learned counsel appearing on behalf of the petitioner and submits that there is no bar in preferring a fresh execution application in the event of dismissal of the earlier execution proceeding, subject to period of limitation of 12 years counted from the date of decree. AK Hussain, the learned counsel appearing on behalf of the petitioner and submits that there is no bar in preferring a fresh execution application in the event of dismissal of the earlier execution proceeding, subject to period of limitation of 12 years counted from the date of decree. It is also submitted that there is no error apparent on the face of order so impugned in this revision petition. The executing court has jurisdiction to initiate a fresh execution proceeding. But as the judgment-debtor raised issue of the non-maintainability accordingly, the executing court had revisited the record of T. Ex. Case No. 3/2007. On scrutiny of the record, an error was detected with regard to the report of the Nazir and as such rejected the question of maintainability. There is no illegality in the order and as such Mr. Sharma submits that the petition is liable to be rejected. 9. Considered the submissions of both the learned counsels. The submission of Mr. Sharma has its force inasmuch as subject to the time prescribed by the statute of Limitation for execution of the decree, there is no bar for preferring a subsequent execution application owing to dismissal of the earlier execution proceeding. Considered the same, this revision petition has no merit and the same is dismissed. However, on the submissions of both the learned counsels, the execution proceeding be completed within a period of 3 (three) months from today following due procedure of law and confining the execution with respect to the decreetal property as described in the execution petition. In order to execute the same, requisite help from the officials of Land Revenue Authority be taken through bailiffs of the Court below. 10. Interim order passed earlier stands vacated. Send back the LCRs immediately. Let the parties to this petition appear before the Executing Court on 7.9.2017 and on receipt of the LCR, the executing proceeding will be initiated. 11. This petition is accordingly dismissed and disposed of.